1 wp-6232-10 pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6232 OF 2010 Rajendra Lakhu Machhi .. Petitioner Vs. State of Maharashtra and ors. .. Respondents Mr. N. V. Gangal for petitioner. Mrs. M. P. Thakur, AGP for respondent nos.1 to 3. Mr. R.S. Datar for respondent no.4. Mr. Manoj Dalvi for respondent no.6. CORAM: B. H. MARLAPALLE & R. Y. GANOO, JJ. NOVEMBER 18, 2010. P.C. 1. Heard Mr. Gangal the learned counsel for the petitioner. 2. Elections for constituting the Municipal Council of Dahanu were held sometimes in 2007 and the petitioner was one of the councilors elected in the said elections. The President and Vice President of Municipal Council were also elected immediately thereafter. Under 2 wp-6232-10 Section 51A(6) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (the Act for short), the Vice President shall hold the office for a term of two and half years from the date of his election subject tot he provisions of Section 55A and, therefore, on the expiry of the Vice President’s tenure of two and half years, fresh elections were announced for the post of President and Vice President. The elections were scheduled to be held on 24/6/2010 and the nomination forms were required to be filed between 10 to 12 hours on the same day. There is no dispute that the petitioner submitted his nomination form after 12.30 hours on 24/6/2010 and by an order passed on the very same day, the Election Officer and Tahsildar of Dahanu rejected the nomination form of the petitioner for the post of Vice President and solely on the ground that it was not submitted within the time fixed. 3. Mr. Gangal the learned counsel for the petitioner does not dispute the fact that the nomination form was submitted belatedly, but he urged before us that there were compelling circumstances and the petitioner was manhandled, assaulted and prevented from approaching the Election Officer so as to submit the nomination form for the post of Vice President on 24/6/2010 within the fixed timings i.e. between 10 to 12 hours. He has 3 wp-6232-10 referred to the FIR filed by the petitioner on the very same day and the report submitted by the Police Inspector of Dahanu Police Station to the learned JMFC at Dahanu on 28/6/2010. The petitioner, therefore, prays in this petition filed under Article 226 of the Constitution to set aside the order passed on 24/6/2010 rejecting his nomination form and for a further declaration that the election held for the post of Vice President of Dahanu Municipal Council on 24/6/2010 as null and void and also for further direction to hold fresh election. 4. The record shows that there are complaints and counter complaints filed with the Dahanu Police Station on 24/6/2010 and in any case whether the petitioner was prevented from filing the nomination form in time is a disputed question of fact which cannot be gone into in a writ petition. At the same time, Article 243-ZG (b) of the Constitution states that notwithstanding anything in the Constitution no election to any Municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State. 5. Section 51A(5) of the Act states that any dispute regarding the 4 wp-6232-10 election of the Vice President shall be referred to the State Government whose decision thereon shall be final. The prayers made in this petition are nothing short of setting aside the election held for the post of Vice President on 24/6/2010 and to order a fresh election. A remedy provided for the same is under Section 51A(5) of the Act and not by filing a writ petition under Article 226 of the Constitution. Hence on both the counts the petition cannot be entertained. 6. Mr. Gangal the learned counsel for the petitioner has relied upon the judgment of this court in the case of Baburao Shankarrao Wadikar and ors. vs. State of Maharashtra and ors. [1985 (2) Bom. C.R. 655]. Undoubtedly, the said judgment was prior to the incorporation of Part IX-A in the Constitution and consequently insertion of Article 243- ZG in the said Part. Hence the judgment in Wadikar’s case cannot assist the petitioner’s cause. Mr.Gangal has also relied upon the judgment of the Supreme Court in the case of Election Commission of India through Secretary vs. Ashok Kumar and ors. [(2000) 8 SCC 216]. We have perused the same and it does not apply to the facts of this case. 7. Hence, the petition is rejected. 5 wp-6232-10 7. However, this order will not prevent the petitioner to challenge the said election under Section 51A(5) of the Act, if so permissible. (R. Y. GANOO, J.) (B. H. MARLAPALLE, J.)