The petitioner has taken out present petition seeking below mentioned relief: “7{A} Your Lordships may be pleased to issue a writ of Mandamus or writ in the nature of Mandamus or any other appropriate writ order of direction directing the respondent No.1 immediately decide the representation dated 08.02.2012;” 2. The facts relevant and involved in present petition are that, in the election of the Gram Panchayat, which was conducted on 29.12.2011, the petitioner as well as present respondent No.5 came to be elected. The first meeting of the Panchayat for electing Upsarpanch, as provided under Section 51 of the Act, was held on 28.1.2012. The respondent No.4 issued agenda for the said purpose. At that stage, the petitioner had preferred a writ petition being Special Civil Application No.1070 of 2012 seeking order of prohibition against the respondent No.4 from attending the meeting dated 28.1.2012 on the ground that the said respondent No.4 was convicted under the Prohibition Act and therefore, for period of 5 years, he would stand disqualified from contesting any election. The said petition was taken up for consideration and disposed of as withdrawn vide order dated 27.1.2012. The said order reads thus: “Heard learned advocate Mr. Vaghela for the petitioner and learned AGP Ms. Trush Mehta for respondent Nos.1 to 3 – State Authorities.
2. Learned advocate Mr. Vaghela seeks permission to withdraw this petition with a view to make a representation to respondent No.4 – Taluka Development Officer who would also be a Presiding Officer of the meeting to be convened on 28.01.2012 for the purpose of election of Upsarpanch for Deodar Gram Panchayat regarding the disqualification allegedly incurred by respondent No.5 – Ganpatji Sonaji Thakor. Permission, as prayed for, is granted. Petition is disposed of as withdrawn. Direct service is permitted today.”
3. Pursuant to the said order, the petitioner herein made a representation to the respondent No.3 to decide the question with reference to the disqualification allegedly incurred by the respondent No.4. The application/representation appears to have been submitted on or around 27.1.2012.
3.1 Now, the petitioner has approached this Court with a grievance that any decision has not been taken by the respondent No.2 in respect of his application/representation and the respondent No.4 is allowed to take part in election and the affairs of the Panchayat. The petitioner has made representation to disqualify the respondent No.4 under the provisions of Section 30 of the Act. The petitioner claims that the respondent No.2 is obliged to decide the said representation, however, any decision with reference to the said representation has not been taken. Therefore, the petitioner has prayed for above mentioned relief.
4. Mr. Vaghela, learned advocate for the petitioner, has relied on provisions contained under Sections 30(1), 31 and 32 of the Panchayat Act and submitted that the respondent No.4 has been convicted vide order dated 21.11.2009 in connection with the offence punishable under Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act. He has also referred to another order dated 4.12.2010, which came to be passed against the petitioner in criminal prosecution in respect of the offence punishable Sections 66(1)(b) and 85(1)(3) of the Bombay Prohibition Act. Mr. Vaghela, learned advocate for the petitioner, has submitted that in view of the provisions contained under Section 30(1) of the Act, the respondent No.4 stands disqualified for period of 5 years from contesting the election, however, the respondent No.4 was allowed to contest the election and he has been elected as a Member. However, in view of the said provision, the respondent No.4 was disqualified to contest the election when the election took place and the disqualification still continues when he is elected as Member and that therefore, the petitioner herein has represented against the respondents, however, any decision has not been taken by the Taluka Development Officer or the District Development Officer. Therefore, petitioner has preferred present petition.
5. It is noticed from the record that earlier the petitioner had preferred petition being Special Civil Application No.1070 of 2012. The petitioner had withdrawn the said petition with a view to making representation. It is true that after the said order dated 27.1.2012, passed in Special Civil Application No.1070 of 2012, the petitioner has filed representation.
5.1 However, relevant fact is that when the said respondent No.4 filled up nomination form and the objections were invited, any objection against the nomination by respondent No.4 was not raised by anyone, including present petitioner. The nomination by respondent No.4 was processed without any objection and it was accepted. When the list of candidates and list of voters was finalized and declared and when the election was held, at those stages also, any objection on the ground of disqualification was not raised against the respondent No.4. After the election was concluded and results were declared, it appears that the petitioner filed above mentioned petition being Special Civil Application No.1070 of 2012, which came to be disposed of as withdrawn under order dated 27.1.2012. The statute, by virtue of provision under Section 31 provides for remedy of election petition. Since the election is over and results are declared and since the petitioner claims that the election of the respondent No.4 is not sustainable and deserves to be set aside in view of the fact that the respondent No.4 was disqualified at the relevant time, the proper remedy would be to file the election petition.
6. It, however, appears that the petitioner or any other members of the Panchayat or any other voters either had no objection or were not vigilant individually to prefer proper election petition within the time specified under the law. Only because time to file proper election petition is expired, present petition appears to have been preferred. Reliance is placed on provisions under Section 30 to claim that the said remedy is simultaneously available to the petitioner and therefore, petitioner has preferred the said remedy and respondent authorities are obliged to take decision on the said application.
7. In view of the fact that the statute provides effective remedy of challenging election by way of election petition, the petition raising objections against the election of the respondent No.4 on the ground that he was disqualified at the relevant time, does not deserve to be entertained, particularly when at any stage prior to declaration of result any objection was not raised. If at all, any representation is made by the petitioner to the authority, then, it would be decided by the said authority in accordance with law. However, in view of the remedy of preferring election petition which is available to the petitioner, this Court is not inclined to entertain present petition, after the election is over. The petition is, therefore, not entertained and is disposed of.
(K.M.Thaker, J.) kdc