MANIK MALLAPPA KARALE Vs. KISAN NAGURAO PATIL

JUDGEMENT

(1.) The petitioner in this petition had filed an election petition under Section 27 of the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (hereinafter referred to as the "Zilla Parishads Act") challenging the election to the Panchayat Samiti of North Sholapur from three wards, namely, Mardi-Wadala, Kasbe Sholapur-Bale and Degaon Kumthe from which each of the respondents Nos. 1 to 3 respectively were candidates. The petitioner himself is a voter only from Degaon village and it is not now disputed before us that he would be entitled, if at all, to challenge the election only so far as respondent No. 3 is concerned. In other words, it is conceded that the challenge to the election of respondents Nos. 1 and 2 was not maintainable at the instance of the present petitioner.

(2.) The petitioner's case against lespondent No. 3 appeared to be that he was in arrears of the amount of hire in respect of engine of the North Sholapur Panchayat Samiti taken by him on hire from the said Panchayat Samiti and he had so remained in arrears for more than six months despite the service of a demand notice on him. The election petition came to be tried by the Extra Assistant Judge, Sholapur, who had framed several issues for determination on merits but did not think it necessary to give a finding on all the issues. Since the election of respondent No. 3 was challenged on the ground that he was initially disqualified to be elected, the learned Judge first took up for consideration the contention of the elected candidates that the petition challenging the election of the candidate wag not maintainable under Section 27 of the Zilla Parishads Act. The learned Judge relied upon the decision of this Court in Gopikisan Agarwal v. District Judge, Bhandara, 1966 Mah LJ 321 and came to the conclusion that an election petition on the basis of an allegation of a disqualification incurred before the date of the nomination could not be entertained. He, however, seems to have taken the view that the proper remedy of the petitioner was to approach the Commissioner under Section 40 of the Zilla Parishads Act. Since the election peti-tion filed by the petitioner came to be rejected, this petition has been filed by him challenging the decision of the learned Assistant Judge.

(3.) It was contended on behalf of the petitioner by Mr. Kankaria that the learned Judge was in error in applying the decision in Gopikisan Agarwal's case, because according to the learned Counsel, the election challenged in the instant proceedings was not an election as councillor of the Zilla Parishad, but the election was in respect of the Panchayat Sa-miti and the relevant rules regulating the scrutiny of the nomination papers did not contain a clause that the decision of the scrutinising authority would be final and conclusive and not open to challenge in an election petition.