ORAL JUDGMENT: (Per Dabholkar, J.) 1. The writ petition was filed on 1.10.2007 by petitioner feeling aggrieved by actions of respondent nos.2 & 3. Election of village panchayat for village Khokarmoha Tq.Shirur (Kasar) Dist.Beed was scheduled to go for polls on 7.10.2007. The writ petitioner filed a nomination for contesting a seat from ward no.1 as a candidate from general category. It is said that although he desired to contest election as a candidate from OBC category and for a seat reserved for OBC category, he filed the nomination as a general category candidate, because he did not possess acknowledgement from caste scrutiny committee regarding petitioner having tendered his caste claim for verification. As the petitioner got the acknowledgement on 22.9.2007, he filed another nomination as a candidate belonging to OBC category for another seat from the same ward no.1 reserved for OBC. As per election programme, 24.9.2007 - 11.00 a.m. was the date and time fixed for commencement of scrutiny of nomination papers. Time for withdrawal was 11 a.m. to 3 p.m. on Wednesday 26.9.2007. It is the claim of the petitioner that on 24.9.2007, he submitted an application (Exh.C) (paper book page 22) to the Election Officer disclosing therein his intentions to withdraw his nomination as a candidate of general category from ward no.1 i.e. he prayed for cancellation of his nomination papers tendered by him to the Election Officer on 21.9.2007. In this application, he has disclosed that now he was armed with a receipt from caste scrutiny committee and, therefore, he would like to contest the election from ward no.1 for a seat reserved for OBC category. . There were 3 seats from ward no.1 - general, women and OBC. After the scrutiny of papers on 24.9.2007, the petitioner’s nomination from general category was shown to be valid nomination and his nomination from OBC category was held invalid. This was done on the basis of instructions issued by the State Election Commission by its circular / letter dated 7.5.2007. (To the purport of the said letter, we shall refer during the course of discussion of reasons). It appears that subsequently his nomination from general category was treated as withdrawn and consequently the petitioner was not in the fray as a candidate on the ballot paper either on a seat for general category or for the seat reserved for OBC. (To the purport of the said letter, we shall refer during the course of discussion of reasons). It appears that subsequently his nomination from general category was treated as withdrawn and consequently the petitioner was not in the fray as a candidate on the ballot paper either on a seat for general category or for the seat reserved for OBC. Feeling aggrieved by this action, which according to learned counsel of the petitioner, was learnt by his client on 26.9.2007, the petitioner approached this Court by writ petition filed on 1.10.2007, praying for directions to respondent nos.2 & 3 to accept the nomination form of the petitioner for the seat reserved for OBC category in ward no.1 and to include his name in the list of contesting candidates for that seat. 2. It appears that at the request of the petitioner on 1.10.2007, circulation was granted for the same day afternoon session. In the afternoon session, one of the Judges on the Bench earlier recorded "Not before me". Consequently, the matter was referred to the Hon’ble the Chief Justice of this High Court and order dated 4.10.2007 constituting this Bench as a Special Bench during the present sitting was received by this office on 5.10.2007. When mentioned before us for circulation by the learned counsel on 5.10.2007, we allowed circulation for 6.10.2007. On 6.10.2007, although AGP for respondent no.1 and Advocate Shri S.T. Shelke for respondent nos.2 & 3 could be available, respondent no.4 could not be available being a private individual. Although election was scheduled to be held on 7.10.2007, the factual details disclosed to us revealed that respondent no.4 alone was the candidate in fray for the seat reserved for OBC category from ward no.1 of village Khokarmoha, if the rejection of nomination of the petitioner was to be upheld. Naturally, respondent no.4 could be seen to be the person likely to be affected adversely in case of success of the petitioner or even if some interim relief was granted. We were not, therefore, inclined to issue directions to respondent nos.2 & 3 of not declaring the result of election so far as this particular seat is concerned, without affording an opportunity to respondent no.4. We were not, therefore, inclined to issue directions to respondent nos.2 & 3 of not declaring the result of election so far as this particular seat is concerned, without affording an opportunity to respondent no.4. Notice was issued to respondent no.4 with specific directions to Tahsildar, Shirur (Kasar) to ensure the service on respondent no.4 latest by 7.10.2007 evening so as to enable respondent no.4 to remain present on 8.10.2007. The matter was placed first on Board on that day. On 8.10.2007, respondent no.4 appeared through Advocate Shri Sanjay Mundhe, although at that time Advocate did not have Vakalatnama signed by respondent no.4 with him, which he filed today in the Court. At the request of Advocate Mundhe, the matter was adjourned for 9.10.2007. Consequently, we directed ad-interim relief in terms of prayer clause (B-3) added to the petition by amendment on 6.10.2007 i.e. pending disposal of this writ petition, respondent nos.2 & 3 should not declare the election result of this particular seat of OBC category from ward no.1 of grampanchayat, Khokarmoha Tq.Shirur (Kasar) Dist.Beed. . By amendment to the petition on 6.10.2007, the petitioner has challenged the circular dated 7.5.2007 issued by the State Election Commission as arbitrary, illegal, unreasonable, not having any statutory force and violative of Article 14 of the Constitution. Consequently, declaration to that effect is sought by amended prayer clauses (B-1) and (B-2). As stated earlier, prayer clause (B-3) was for interim relief staying the declaration of election of respondent no.4 as unopposed elected from the said seat reserved for OBC category from ward no.1. 3. For the purpose of assailing the circular dated 7.5.2007 (paper book page 24) issued by State Election Commission, Advocate Shri Thombre for the petitioner has placed reliance upon Rule 8 of Bombay Village Panchayats Election Rules, 1959 (for the sake of brevity the Rules). We need not reproduce the entire rule, but we may reproduce only sub-rule (3), which was relied upon by Advocate Shri Thombre with emphasis. "8. Nomination of candidates : (1) ..... ..... ..... ..... (2) ..... ..... ..... ..... (3) When an election is held at or about the same time for two or more wards in a village, one and the same person may stand for election in all or any number of such wards." . "8. Nomination of candidates : (1) ..... ..... ..... ..... (2) ..... ..... ..... ..... (3) When an election is held at or about the same time for two or more wards in a village, one and the same person may stand for election in all or any number of such wards." . Although Advocate Shri Thombre argued that entire text of Rule 8 or to that extent any other rule in the BVP Election Rules, 1959, does not create any bar from an individual contesting election from more than one seats in the same ward, he also fairly conceded that under the rules, there is no provision, which specifically lays down liberty to contest from more seats than one from the same ward, as in the case of liberty to contest from more than one wards. According to Advocate Shri Thombre when the statute or the rules do not create a bar for a candidate to contest election from more than one seats in the same ward, according to learned counsel, such a bar could not have been created by the State Election Commission by a circular or letter. He also relied upon Section 176 of Bombay Village Panchayat Act, 1958 (for the sake of brevity the Act), for the purpose of demonstrating that the State is empowered with the powers of making rules for carrying into effect the purposes of this Act and circular dated 7.5.2007 is not issued by the Government nor in the name of the Governor or the Government. According to him, therefore, the circular has no statutory force. . So far as respondent nos.1 to 3 are concerned, main submissions were advanced by Advocate Shri S.T. Shelke for State Election Commission and which were fully subscribed by learned AGP by saying that State Election Commission has issued the circular by remaining well within its powers. Advocate Shri Shelke has taken us to Section 10-A of BVP Act and more particularly sub-sections (1) and (4) of the same, which read as follows: "10A. State Election Commission : (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Panchayats shall vest in the State Election Commissioner. (2) ..... ..... ..... ..... State Election Commission : (1) The superintendence, direction and control of the preparation of the electoral rolls for, and the conduct of, all elections to the Panchayats shall vest in the State Election Commissioner. (2) ..... ..... ..... ..... (3) (4) Notwithstanding anything contained in this Act and the rules, the Commission may issue such special or general orders or directions which may not be inconsistent with the provisions of the Act for fair and free elections." . To some extent, he has also drawn support to his arguments from Rule 3 and more particularly sub-rule (3) of Bombay Village Panchayat (Number of Members, Divisions into Wards and Reservation of Seats) Rules, 1966. On going through the said provision, it is evident that subject to the provisions of sub-section (1) of Section 10, a village can be divided into wards and number of members to be elected from each ward are required to be fixed in accordance with principles laid down in the said rule. By virtue of sub-rule (3), the number of members to be elected from each ward is to be not less than 2 and nor more than 3. In the matter at hands, from ward no.1, 3 members were to be elected to the grampanchayat, 1 from general category, 1 from OBC and 1 from women, as already stated earlier. Advocate Shri Shelke has submitted that Section 10A as at present on the statute book in BVP Act is pursuant to the powers conferred upon Election Commission by Articles 324 and 243-K of the Constitution of India. He has placed reliance upon observations of the Supreme Court in the matter of Union of India V/s Association for Democratic Reforms & another [ (2002) 5 SCC, 294 ] for the purpose of advancing a proposition that Election Commission has powers to issue directions, instructions, guidelines by exercising all powers necessary, for smooth conduct of elections and the word "elections’ must be used in a wide sense to include entire process so far as unoccupied field is concerned. According to him, if BVP Act and Election Rules thereunder are silent regarding the number of seats within a ward from which a single individual can contest, Election Commission, by issuing the circular, has taken necessary steps for having free and fair elections and for avoiding confusion amongst the voters that would cause if same individual contests the election for two different seats from the same ward. According to Advocate Shri Shelke, Election Commission has acted well within its limits and by exercising the powers available and the circular, therefore, can not be said to be arbitrary, illegal, unreasonable or un-Constitutional. Advocate Shri Shelke has also added that election petition u/s 15 of BVP Act is the remedy available and, therefore, this Court should not entertain a writ petition under Article 226 of the Constitution, since the effect of success of the writ petitioner would be setting aside election of respondent no.4. Learned Senior Counsel Shri P.M. Shah, although argued that the petitioner is guilty of laches since his nomination was rejected on 26.9.2007 and he also supported the proposition advanced by Advocate Shri Shelke that the rejection of his nomination can be a ground available for challenging election of respondent no.4 by election petition u/s 15, the main ground raised by Shri Shah was that under Article 226, validity of an order either rejecting or accepting a nomination paper can not be examined. He, therefore, urged that this Court may consider the matter in two parts. He submitted that even if this Court is inclined to strike down the circular dated 7.5.2007 either in its totality or partly, election of respondent no.4 may not be set aside as that is not permissible in a writ petition under Article 226, in view of interpretation of Article 329(b), which is pari materia with Article 243-O as applicable to the elections of Village Panchayats, as laid down by a Constitution Bench of the Supreme Court in the matter of N.P. Ponnuswami V/s The Returning Officer, Namakkal Constituency reported at AIR (39) 1952 SC, 64. 4. The arguments of the three counsel can be summed up in brief as follows: According to Advocate Shri Thombre, the circular dated 7.5.2007 is ultra vires the powers, if any, of Election Commission. 4. The arguments of the three counsel can be summed up in brief as follows: According to Advocate Shri Thombre, the circular dated 7.5.2007 is ultra vires the powers, if any, of Election Commission. It is ultra vires the provisions of Bombay Village Panchayat Act, because the Act does not impose any bar against filing more nominations than one for more than one seats in the same ward. He also believes that election petition is not the remedy available to his client in view of sub-section (7) of Section 15 and, therefore, the writ petition deserves to be entertained. According to Advocate Shri Shelke, the Election Commission has exercised the powers aimed at free and fair elections in the field, which is yet not occupied by any legislation and, therefore, the circular can not be branded as ultra vires the provisions of the Act. He also claimed that it can not be said to be crossing the limits of fairness and reasonableness. In fact, Shri Shelke has relied upon further orders issued by State Election Commission on 21.8.2007 No._______/______/2007/____-20/___-8 wherein the philosophy in issuing the directions to all the Election Officers / Returning Officers to hold only first nomination to be valid and reject the rest in case there are more than one nominations filed for more than one seats from the same ward, is explained. In these orders issued by State Election Commissioner himself, the source of powers to issue orders is indicated in unnumbered para 3. Reliance is placed upon Article 243-K of the Constitution of India as also Section 10A of Bombay Village Panchayat Act, 1958 and more particularly sub-section (4). It is said that in case a single individual is allowed to contest for more than one seats from the same ward, that may cause confusion amongst the voters. This is because there is likelihood of the same election symbol being given to more than one candidates in the same ward or to the same candidate for more than one seats from which he may contest. In order to avoid any confusion amongst the voters, the directions are issued as a precaution against the same. . This is because there is likelihood of the same election symbol being given to more than one candidates in the same ward or to the same candidate for more than one seats from which he may contest. In order to avoid any confusion amongst the voters, the directions are issued as a precaution against the same. . According to Senior Counsel Shri P.M. Shah, the petitioner is guilty of laches, the writ petition can not be entertained, because there is specific remedy provided by the statute in the form of election petition u/s 15 and there is bar against entertainment of the dispute by any other judicial forum in the form of Section 15-A of Bombay Village Panchayat Act and Article 243-O of the Constitution. During the course of his reply, Advocate Shri Thombre for petitioner, has submitted that the bar, as interpreted by the Constitution Bench of the Supreme Court in Ponnuswami’s case, which is relied upon by counsel for respondent no.4, is diluted by another Constitution Bench of the Supreme Court in the matter of Mohinder Singh Gill & another V/s The Chief Election Commissioner and it is so interpreted by the Supreme Court in the matter of Election Commission of India through Secretary V/s Ashok Kumar & others (2000 AIR SCW 3274). 5. Consequently, following points would arise for our consideration: (i) The validity of circular dated 7.5.2007 ? (ii) Whether rejection of nomination of the petitioner can be challenged by a writ petition under Article 226 ? (iii) Whether writ petition is maintainable due to availability of alternative remedy or because of specific bar as contained in Article 243-O(b) of the Constitution and Section 15-A of Bombay Village Panchayat Act ? (iv) Whether bar, if any, as created by above provisions is relaxable as contended by Advocate Shri Thombre ? 6. So far as validity of the circular is concerned, Advocate Shri Thombre has placed reliance upon Rule 8(3) and demonstrated that the said provision gave liberty to the individual to contest the election from any number of wards he liked, but no specific bar is created against individual contesting elections for more seats than one from the same ward. It was submitted that hence State Election Commission could not have issued a circular / letter creating such a bar. It was submitted that hence State Election Commission could not have issued a circular / letter creating such a bar. According to Advocate Shri Thombre, the bar, which is not created by the statute, can not be created by State Election Commission. According to Advocate Shri Thombre, rule making power, if any, is vested with the State Government by virtue of Section 176 of BVP Act. The learned counsel for Election Commission has placed reliance upon Articles 324 and 243-K of the Constitution of India togetherwith Section 10-A of BVP Act and more particularly sub-section (4). We have already reproduced Section 10A and sub-sections (1) and (4) thereof in the earlier part of this judgment. Article 324 is contained in Part XV of the Constitution chapter titled as "Elections" and the superintendence, direction and control of the preparation of the electoral rolls for and the conduct of all elections of Parliament and to the legislature of every State and of elections to the offices of President and Vice President held under the Constitution is vested in Commission referred as the "Election Commission" in the Constitution. According to Advocate Shri Shelke, Article 243-K is worded in the similar language as Article 324. The only difference is Article 324 speaks about the powers of Election Commission for the purpose of Parliamentary elections and elections for the State Legislative Assemblies of all the States, whereas Article 243-K speaks about the powers of State Election Commission for the purpose of elections to the panchayats and that is why Article 243-K is included in Part IX relating to Panchayats introduced by the Constitution (73rd Amendment Act, 1992). According to Advocate Shri Shelke, Section 10-A in BVP Act and its sub-sections (1) and (4) are practically replica of the powers of Election Commission as conferred by Articles 324 and 243-K pertaining to particular elections. In order to support his proposition that by virtue of these provisions, Election Commission is empowered to take suitable steps aimed at free and fair elections and for the purpose, is also empowered to issue guidelines, directions or restrictions, has placed reliance upon observations of the Supreme Court in the matter of Union of India V/s Association for Democratic Reforms & another [ (2002) 5 SCC 294 ]. We wish to reproduce certain portions from paras 23, 27 and 46, which were relied upon by the learned counsel. We wish to reproduce certain portions from paras 23, 27 and 46, which were relied upon by the learned counsel. In para 23, Court has borrowed certain observations from the decision of the Constitution Bench in the matter of Mohinder Singh Gill and observations from para 39 of that judgment as borrowed in para 23 read thus: "Article 324, in our view, operates in areas left unoccupied by legislation and the words "superintendence, direction and control", as well as "conduct of elections", are the broadest terms." In para 27, the Hon’ble Court had borrowed observations from its earlier decision in the matter of Kanhiya Lal Omar V/s R.K. Trivedi [ (1985) 4 SCC 628 ], which read thus: "The word "elections" in Article 324 is used in a wide sense so as to include the entire process of election, which consists of several stages and it embraces many steps, some of which may have an important bearing on the result of the process. India is a country which consists of millions of voters. Although they are quite conscious of their duties politically, unfortunately, a large percentage of them are still illiterate." In para 46, the Court has summed up legal and Constitutional position emerging from the discussion earlier as follows: "(1) The jurisdiction of the Election Commission is wide enough to include all powers necessary for smooth conduct of elections and the word "elections" is used in a wide sense to include the entire process of election which consists of several stages and embraces many steps. (2) The limitation on plenary character of power is when Parliament or State Legislature has made a valid law relating to or in connection with elections, the Commission is required to act in conformity with the said provisions. In case where law is silent, Article 324 is a reservoir of power to act for the avowed purpose of having free and fair election. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. The Constitution has taken care of leaving scope for exercise of residuary power by the Commission in its own right as a creature of the Constitution in the infinite variety of situations that may emerge from time to time in a large democracy, as every contingency could not be foreseen or anticipated by the enacted laws or the rules. By issuing necessary directions, the Commission can fill the vacuum till there is legislation on the subject................." We believe that learned counsel for Election Commission was justified in making a proposition that so far as field unoccupied by any election laws, Election Commission, by virtue of Article 324 of the Constitution, when it relates to elections pertaining to Houses of the Parliament or State Legislative Assemblies and Article 243-K when it relates to elections to the Panchayats (and there are identical Articles also in the chapters pertaining to elections to local bodies), is empowered to take suitable steps and, therefore, issue appropriate directions / instructions either to individuals or group of individuals or to its delegates in the field working for free and fair elections and also to impose certain restrictions. As pointed out by Advocate Shri Thombre, Rule 8(3) grants liberty to contest from more than one wards and does not take away liberty to contest from more than one seats from the same ward, but at the same time, it must be said that the rule does not grant liberty in express terms to contest for more than one seats from the same ward and, therefore, it must be said to be field unoccupied. The rules are silent on the issue whether an individual can / can not contest for more than one seats (categories) from the same ward and, therefore, Election Commission was justified in entering the field for the purpose of issuing instructions / directions aimed at free and fair elections. The factual aspect required to be considered is whether such directions are really necessary for free and fair elections. . In the orders dated 21.8.2007, couple of reasons are disclosed as to why State Election Commission was inclined to issue such directions / instructions to invalidate subsequent nominations of a candidate if he files more than one from the same ward and for more than one seats (categories). The Commission is convinced that this can cause confusion in the minds of voters. The Commission is convinced that this can cause confusion in the minds of voters. This is likely to cause more than one candidates being given same election symbol thereby causing further confusion. It is also said that this may be a hindrance in having clean, fearless, impartial and free elections. It is in the light of these apprehensions, Election Commission had issued directions that when a candidate files more nominations than one for more seats than one from the same ward, the first one should be treated as valid nomination and the subsequent to be declared as invalid on that count. Although such reasons or apprehensions are not recorded in the order passed by Election Commission dated 21.8.2007, more reasons can be visualised justifying such a restriction. With the passage of time and people taking liberties to the extreme end of availability, the cases are not unknown that nominations are just filed for the purpose of withdrawal after a request for the same, for considerations best known to persons filing such nominations and subsequently withdrawing the same. A person filing nominations from the same ward for more than one seats if gets elected from both or all the seats from which he has filed his candidature, that compels the State authorities and Election Commission to go for further by-elections because after election on more than one seats, the candidate has to exercise his option as to which seat he would like to retain and from which seats, although elected, he would like to resign. Consequently, second election from the same constituency becomes inevitable thereby causing a burden on public exchequer. We need not quote more instances by imagination. Suffice it to say that confining a candidate to contest the election for only one seat within a ward is a justifiable restriction. It does not take away the right of an individual to contest an election, but it restricts his right limited to contest from one seat, in the interest of society, in the interest of purity of democratic process of election and also in the interest of burden on the public exchequer. We are, therefore, not inclined to uphold the contention of Advocate Shri Thombre on either counts. We find the circular / letter to be issued by Election Commission in exercise of the powers vested in it. We are, therefore, not inclined to uphold the contention of Advocate Shri Thombre on either counts. We find the circular / letter to be issued by Election Commission in exercise of the powers vested in it. The instructions being in the field unoccupied by Act or Rules, it can not be said to be in conflict with the provisions of the Act and, therefore, can not be said to be ultra vires. Having considered to some extent on the line of philosophy reflected in the orders of State Election Commission and to some extent by considering imaginary illustrations, we do not find that the restrictions so imposed are arbitrary nor we find those to be unfair or unreasonable. The prayer for striking down the instructions of State Election Commission, therefore, will have to be rejected. In fact, taking into consideration expenditure of time, money and energy, required to be incurred, for the purpose of by-election, when an individual contests and gets elected from more than one seats, and resigns except from one, statutory liberty, if any, to contest from more than one constituency, we feel, needs to be reconsidered. Although we do not intend to issue directions for modification of circular dated 7.5.2007, we intend to suggest that the Commission may consider modification of inviting the candidate before commencing the scrutiny of nominations to elect as to which nomination he desires to withdraw and which he desires to be considered for scrutiny. The Commission may take the decision on the issue only if the individual does not respond and fails to elect before the scrutiny. It may also reconsider if in such cases (where candidate doe snot respond) whether first nomination should be considered for scrutiny or the last (subject to fact that it is filed before the expiry of time limit for filing nominations), because subsequent nomination is the result and reflection of second thoughts of the candidate. 7. This brings us to consider the second issue. 7. This brings us to consider the second issue. In the light of Article 243-O (b), which is pari materia with Article 329 (b) and Section 15-A of the Act r/w Section 15, it was contended by all counsel for respondents that writ petition under Article 226 deserves to be dismissed not only because alternative remedy is available in the form of election petition u/s 15, but entertainment of writ petition is prohibited by Constitutional mandate as interpreted by the Hon’ble Apex Court in the matter of N.P. Ponnuswami V/s The Returning Officer, Namakkal pointing out that Article 243-K is similarly worded as Article 324 and Article 243-O (b) as Article 329 (b), learned Senior Counsel has placed heavy reliance upon following contents from the judgment of a Constitution Bench of the Supreme Court in the matter of N.P. Ponnuswami: "The word "election" has been used in Part XV of the Constitution in the wide sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in Art.324 specifically points to the wide meaning, and that meaning can also be read consistently into the other provisions which occur in Part XV including Art.329 (b). The term "election" may be taken to embrace the whole procedure which consists of several stages and embraces many steps, whereby an "elected member" is returned, whether or not it be found necessary to take poll. It is not used in a narrow sense. Rejection or acceptance of a nomination paper is included in the term "election". " In fact, these observations in paras 7 & 8 of the judgment are relied more for the purpose of pleading availability of alternative remedy. Since it was contended by Advocate Shri Thombre for the petitioner that for rejection of nomination, election petition u/s 15 is not the remedy available to the petitioner, it was contended that the word "election" is to be considered in a wider sense as laid down by the Apex Court and it includes rejection or acceptance of nomination paper. Thus, if Section 15 enables the petitioner to challenge the validity of any election, it enables him to challenge the correctness of decision of rejection of his nomination. Thus, if Section 15 enables the petitioner to challenge the validity of any election, it enables him to challenge the correctness of decision of rejection of his nomination. Advocate Shri Thombre has placed reliance upon sub-section (7) of Section 15, which reads thus: "(7) If the validity of any election is brought in question only on the ground of an error made by the Officer charged with carrying out the rules made in this behalf under Section 176 read with sub-section (2) of Section 10 and Section 11, or of an irregularity or informality not corruptly caused, the Judge shall not set aside the election." Submission of Advocate Shri Thombre that Section 15 enables challenging the election only on the grounds of corrupt practice, we are afraid, is not well founded. Section 15, although indicates that validity of election of a member of panchayat can be challenged, it lays down time limit of 15 days and prescribes the forum to be Civil Judge (Junior Division) or Civil Judge (Senior Division) if a junior division Judge is not available, Section 15(1) or to that extent any of the sub-sections of Section 15 do not prescribe the grounds those can be raised for challenging the validity of an election. No doubt, Sub-Rule 5 lays down that if a returned candidate is found to have committed a corrupt practice at the election, he shall be declared as disqualified and sub-section (6) practically defines corrupt practice, but we have failed to find anything in the entire Section 15 that limits the challenge to the validity of election only on the ground of corrupt practice. . Second line of argument of Advocate Shri Thombre is that by virtue of Sub-Section 7, an election petition to be filed by his client may suffer fate accompli. It may be treated as error on the part of the officer charged with the election duty and Election Tribunal may dismiss the election petition on that count. But as a second string of his argument, he has contended that the challenge raised by his client does not amount to a challenge to the election of respondent no.4. The petitioner is trying to assert his right to contest the election, which is denied by wrong execution of the orders dated 7.5.2007. We shall come to this aspect little later. The petitioner is trying to assert his right to contest the election, which is denied by wrong execution of the orders dated 7.5.2007. We shall come to this aspect little later. Learned Senior Counsel Shri Shah has placed reliance upon further observations in the matter of Ponnuswami, which read as follows: "The law of election in India does not contemplate that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Art.226 of the Constitution (the ordinary jurisdiction of the Courts having been expressly excluded), and another after they have been completed by means of an election petition. Any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before a special tribunal and should not be brought up at an intermediate stage before any Court. Under the election law, the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question. Article 329 (b) was apparently enacted to prescribe the manner in which and the stage at which this ground, and other grounds which may be raised under the law to call the election in question, could be urged." It was also observed, "Where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of." The argument that since the Representation of People Act was enacted under Article 327 subject to the provisions of the Constitution, it can not bar the jurisdiction of the High Court to issue writs under Article 226 of the Constitution, was held completely shut out by reading the Act with Article 329 (b), which started with non obstante clause. It was, therefore, held that right to vote or stand as a candidate for election is not a civil right, but a creature of statute or special law and must be subject to limitations imposed by it. Reliance was also placed upon the judgment in the matter of Nanhoo Mal V/s Hira Mal ( AIR 1975 SC 2140 ) wherein the ratio laid down by the Supreme Court in the matter of Ponnuswami was followed with approval. Reliance was also placed upon the judgment in the matter of Nanhoo Mal V/s Hira Mal ( AIR 1975 SC 2140 ) wherein the ratio laid down by the Supreme Court in the matter of Ponnuswami was followed with approval. In the matter of Rama Wakhare V/s Kashinath Gahane (1996 (1) Mh.L.J., 478), learned Single Judge of this High Court at Nagpur Bench has observed thus: "In an election petition filed under Section 15 of Bombay Village Panchayats Act, it is open to the election officer to consider proper or improper acceptance of nomination paper of a candidate." For a similar view, reliance is placed upon another judgment of Division Bench at Nagpur in the matter of Vinod Bharsakade V/s Returning Officer (2003 (4) Mh.L.J., 359). It was held that improper rejection or acceptance of nomination paper can be made the subject matter of challenge in an election petition u/s 15 of Bombay Village Panchayats Act and writ petition under Article 226 of the Constitution challenging rejection of nomination paper was not maintainable in view of provisions of Article 243-O (b) r/w Sections 15 and 15-A of Bombay Village Panchayats Act. The reliance upon these judgments is countered by learned counsel for petitioner by placing reliance upon judgment of another Division Bench at Nagpur in the matter of Smt.Mayaraju Ghavghave V/s Returning Officer for Grampanchayat, Dhamangaon reported at 2004 (4) All MR 258. In this matter, the Division Bench at Nagpur has considered the ratio laid down by the Supreme Court in the matter of Ponnuswami’s case in the light of observations of the Supreme Court in another Constitution Bench judgment in the matter of Mohinder Singh Gill’s case [ (1978) 1 SCC 405 ] and Election Commission of India V/s Ashok Kumar [ (2000) 8 SCC 216 ]. Observations from para 28 of Mohinder Singh Gill’s case are borrowed in para 18 of the Division Bench judgment, which read thus: "What emerges from this perspicacious reasoning, if we may say so with great respect, is that any decision sought and rendered will not amount to calling in question an election if it subserves the progress of the election and facilitates the completion of the election. We should not slur over the quite essential observation "Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. We should not slur over the quite essential observation "Anything done towards the completion of the election proceeding can by no stretch of reasoning be described as questioning the election. Likewise, it is fallacious to treat a single step taken in furtherance of an election as equivalent to election." In para 29 of Mohinder Singh Gill’s case, the Constitution Bench of the Supreme Court had observed thus: "Thus, there are two types of decisions, two types of challenges. The first relates to proceedings which interfere with the progress of the election. The second accelerates the completion of the election and acts in furtherance of an election. So, the short question before us, in the light of the illumination derived from Ponnuswami, is as to whether the order for re-poll of the Chief Election Commissioner is anything done towards "the completion of the election proceeding" and whether the proceedings before the High Court facilitated the election process or halted its progress. The question immediately arises as to whether the relief sought in the writ petition by the present appellant amounted to calling in question the election. This, in turn, revolves round the point as to whether the cancellation of the poll and the reordering of fresh poll is part of election and challenging it is calling it in question." In para 31 of the judgment of Election Commission of India’s case, the Supreme Court observed thus: "The founding fathers of the Constitution have consciously employed use of the words "no election shall be called in question" in the body of Section 329(b) and these words provide the determinative test for attracting applicability of Article 329(b). If the petition presented to the Court "calls in question an election" the bar of Article 329(b) is attracted. Else it is not." In fact, the conclusions drawn by the Court in the Election Commission of India’s case are summed up in para 32 of that judgment and those read: " (1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections. (2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election. (3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well settled parameters which enable judicial review of decisions of statutory bodies such as on a case of malafide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law. (4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the Court. (5) The Court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The Court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilize the court’s indulgence by filing the petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material." Advocate Shri Thombre submitted that the case of the petitioner falls in the category of conclusion at Sr.No.(2). The petitioner is not calling election in question. He is challenging the correctness of the decision of rejection of his nomination. The petitioner is not calling election in question. He is challenging the correctness of the decision of rejection of his nomination. Even if the circular / letter dated 7.5.2007 is upheld, according to learned counsel, there is still some error in the actions of the Returning Officer by both - nominations of the petitioner became non-existent and he could not contest the election. Taking into consideration the observations of the Supreme Court in the matter of Mohinder Singh Gill’s case and also conclusions drawn by the Hon’ble Apex Court in the matter of Election Commission of India’s case, it must be said that total ban against entertainment of writ petition under Article 226, as it appeared from the ratio laid down in Ponnuswami’s case, stands explained and, thus, diluted to some extent. It is said that the decision rendered if does not amount to calling in question election and if it subserves the progress of the election and facilitates completion of election, such a writ petition can be entertained without coming into clutches of Article 329(b). 8. Since Advocate Shri Thombre has placed reliance upon such an interpretation, naturally the question to be considered is what is the error in the rejection of nomination of the petitioner and whether while challenging the correctness of such rejection of the petitioner, he is obstructing the election process or he is facilitating the completion of the election. The factual details in the matter at hands are not in debate. The petitioner had filed his nomination for general seat from ward no.1 on 21.9.2007. As and when the acknowledgement of caste scrutiny committee was available, he has filed second nomination on 22.9.2007 from the same ward no.1, but for a seat reserved for OBC. As per election programme, 25.9.2007 was the date fixed for scrutiny of nominations and 26.9.2007 for withdrawal of nominations. On 26th itself, after 3 p.m., final list of candidates was published and election symbols were to be allotted. In order to examine whether any error was committed in rejecting the nomination of the petitioner, a reference to some of the rules is necessary. On 26th itself, after 3 p.m., final list of candidates was published and election symbols were to be allotted. In order to examine whether any error was committed in rejecting the nomination of the petitioner, a reference to some of the rules is necessary. On considering Rules 11 & 12, it is evident that after scrutiny is completed, the Returning Officer is required to publish a list of validly nominated candidates i.e. candidates whose nominations have been found valid and affix it on the notice board of village panchayat office and the village Chavdi. Advocate Shri Shelke has demonstrated by producing a copy of such notice that the petitioner was notified to be a valid candidate from general category. He has produced copy of another notice u/s 13 (3) indicating the list of candidates, who had withdrawn their nominations. The name of the petitioner appears at Sr.No.4 as a candidate who has withdrawn his nomination from a seat for general category in ward no.1. So far as petitioner’s nomination filed on 22.9.2007 from OBC category, it is informed that the same was held as invalid in view of circular dated 7.5.2007 and the fact that first nomination filed was for general category on 21.9.2007. We intend to reproduce Rules 13(1) to (3), except explanation, which read thus: "13. Withdrawal of candidature : (1) Any candidate may withdraw his candidature by notice in writing subscribed by him and delivered to the Returning Officer between the hours of eleven o’clock in the forenoon and three o’clock in the afternoon on the day not later than the last day appointed for the withdrawal of candidature under Rule 7. Such notice may be delivered either by the candidate in person or by a person authorised in writing by him in this behalf. Any notice of withdrawal which is given after the expiry of such last day shall not have any effect. (2) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel the notice. Any notice of withdrawal which is given after the expiry of such last day shall not have any effect. (2) No person who has given a notice of withdrawal of his candidature under sub-rule (1) shall be allowed to cancel the notice. (3) The Returning Officer, on receiving notice of withdrawal under sub-rule (1) shall, as soon as may be thereafter, cause a notice of withdrawal to be affixed at the Village chavdi and at the Village Panchayat Office." (emphasis added) From the portion underlined for the purpose of emphasis in sub-rule (1), it is evident that a candidate has liberty to submit notice for withdrawal of his candidature on any day till the time fixed for such withdrawal under Rule 7. In the matter at hands, the petitioner could have done so latest by 26.9.2007 by 3 p.m. From the paper book page 22, it is evident that notice was tendered to the Returning Officer on 24.9.2007. The Returning Officer has not endorsed the time, which he ought to have in such sensitive matters. If we take into consideration the effect of sub-rule (2), the petitioner had no liberty to withdraw the notice regarding withdrawal of his candidature for a seat of general category in ward no.1. Thus, his candidature stood withdrawn on 24.9.2007, the moment he tendered the notice to the Returning Officer. The liberty to tender such a notice in time before the dead line, we may say at the cost of repetition, is embodied in sub-rule (1). A duty is cast upon the Returning Officer to affix the withdrawal notice at the village chavdi and village panchayat office. The cumulative effect of these three sections appears to be that withdrawal of candidature becomes effective the moment a notice for such withdrawal is tendered before the Returning Officer. We have expressed that the Returning Officer ought to have mentioned the time as to when the notice was tendered. Fact remains that the notice was tendered on 24.9.2007. For the purpose of scrutiny, candidate or his representative is required to remain present before the Returning Officer. Therefore, although the Returning Officer has not endorsed the time as to when the notice was tendered, it can be presumed that it was tendered atleast at the time the Returning Officer was to proceed with the scrutiny of nominations. For the purpose of scrutiny, candidate or his representative is required to remain present before the Returning Officer. Therefore, although the Returning Officer has not endorsed the time as to when the notice was tendered, it can be presumed that it was tendered atleast at the time the Returning Officer was to proceed with the scrutiny of nominations. Papers supplied by learned counsel for the Election Tribunal (5 documents 6 papers in number are taken on record and marked as consolidated Exhibit X togetherwith the order regarding constitution of Bench and taken on record). From the notice u/s 12(3), it is evident that on 24.9.2007, the petitioner was shown as a candidate having filed his nomination for general category and which was found to be valid after the scrutiny. We feel that after the notice under Rule 13(1) tendered to the Returning Officer, this could not have been done. It was not necessary to wait till 26.9.2007 - the date fixed for withdrawal in order to say that nomination filed by the petitioner in the general category did not exist, once the notice u/s 13(1) was tendered to the Returning Officer. It is admitted position that nomination for seat reserved for OBC category was invalidated because of nomination filed by the petitioner for the general seat. If cumulative effect of Rule 13 in the light of withdrawal notice tendered by the petitioner on 24.9.2007 is taken into account, the first nomination of the petitioner was non est when the scrutiny of second nomination was carried out and, therefore, the second nomination should not have been held invalid in the light of circular dated 7.5.2007, although we have upheld the same. The second nomination could not have been invalidated because it did not fulfil the requirement of the said circular. Merely because the deadline for withdrawal was 26.9.2007 upto 3 p.m., the Returning Officer could not have treated the first nomination filed by the petitioner surviving till the deadline and invalidated the second nomination on the ground that there are two nominations from the same ward. The petitioner, thus, can be said to have suffered wrong rejection of his nomination for the seat reserved for OBC category i.e. second nomination. 9. The petitioner, thus, can be said to have suffered wrong rejection of his nomination for the seat reserved for OBC category i.e. second nomination. 9. In order to propound that writ petition under Article 226 can be entertained for the purpose of challenging wrong rejection of nomination paper or to that extent even wrong election, Advocate Shri Thombre has placed reliance upon few decisions, which we wish to refer in brief. 1999 AIR SCW 1353 - K. Venkatachalam V/s Aswanichan. This was a matter pertaining to Tamilnadu Legislative Assembly Elections of 1984 and a clear case of impersonation. Taking benefit of similarity in the names, the dummy had contested the election in the name of a voter from the constituency. It was held by the Supreme Court that bar of Article 329(b) will not come into play when case is filed under Articles 191 (disqualification and 193 (penalty) and whole the election process is over. 2006 (3) Mh.L.J., 593 - Dalsing V/s State is a decision rendered by us in the matter of election of a cooperative society where there was no express bar as contained in Article 243-O. The candidate, who was not eligible, was likely to be allowed to contest and this Court stepped in by preventing him from contesting the election without otherwise disturbing the election process. The polling was on 26.3.2006 and decision was rendered by us on 21.3.2006. In the matter of Anant V/s State of Maharashtra (2002 (2) Mh.L.J., 238), a Division Bench of Bombay High Court observed that the bar of Article 243-O fundamentally rests on two planks. (i) the election process must culminate in formal declaration of result without intermediate interruption; (ii) the aggrieved party has adequate or efficient remedy under election law in questioning the election under available ground and that must exclude other forum. In the reported matter, the petitioner’s nomination was rejected. Such rejection was challenged under Article 226. Under interim orders, the same was accepted and the petitioner was elected unopposed thereafter. Unreported judgment in Writ Petition No.3095/2006 - Baburao V/s State of Maharashtra, on reading paras 17, 18 and 23 of the judgment, it is evident that this Court was inclined to set aside the elections in peculiar facts and circumstances. The election was carried out by the staff of the Returning Officer tampering with the reservations as fixed by the Election Commission. The election was carried out by the staff of the Returning Officer tampering with the reservations as fixed by the Election Commission. This was learnt by the petitioner only 5 months after the election because on the day of election, he was arrested in a false prosecution and, therefore, he had moved the Court only after he was released and he learnt about tampering of the record of election proceedings. It is evident that all four cases are peculiar in their own and the High Court had exercised its plenary jurisdiction under Article 226 in the peculiar facts and circumstances. Those can not be said to be laying down ratio that plenary powers under Article 226 can be exercised in each and every matter. However, reminding ourselves of the observations in the matters of Mohinder Singh Gill and Election Commission of India’s cases, we must accept the submission of learned Advocate for the petitioner that there can be cases where challenge to some part of the process of election can be entertained if that does not amount to calling the election in question and the challenge posed does not obstruct the election in totality, but advances and facilitates the election. 1 0. The Advocates for the respondents have also urged that the petition may not be entertained because the petitioner is guilty of laches. The time table to be considered for the issue of laches may be stated as under: 1) Cause of action 26.9.2007 (petitioner learns rejection of both the nominations) 2) Court working days 27.9.2007 28.9.2007 29.9.2007 3) Sunday 30.9.2007 4) Institution of petition and 01.10.2007 circulation for afternoon ("Not before me" by one of the Judges) 5) Holiday on account of 02.10.2007 Mahatma Gandhi Jayanti 6) Orders sought from Bombay office 03.10.2007 7) Orders constituting Special Bench 04.10.2007 8) Orders communicated to this Court 05.10.2007 and circulation sought 9) Matter was before this Bench for 06.10.2007 the first time. What happened after 6.10.2007 is already narrated in para 2 above of this judgment. As can be seen, the petitioner has taken three working days to file his writ petition. Had the matter been attended on 1.10.2007, it was possible to secure presence of respondent no.4 on 3.10.2007 and after hearing the parties to take a decision whether the petitioner is to be allowed an opportunity to contest the election or deny such an opportunity. Had the matter been attended on 1.10.2007, it was possible to secure presence of respondent no.4 on 3.10.2007 and after hearing the parties to take a decision whether the petitioner is to be allowed an opportunity to contest the election or deny such an opportunity. Time loss from 1.10.2007 afternoon till 5.10.2007 really can not be attributed as responsibility of the petitioner. He had approached this Court reasonably in advance. Although effect of his prayer, if granted impliedly challenges or rather sets aside the election of respondent no.4, it can not be ignored that he had come to assert his right to contest. ON examination of the events, we are convinced that his nomination paper was rejected totally on unsustainable grounds even after taking into consideration the circular dated 7.5.2007. We have upheld the circular to be a valid circular, but we have found that the requirements of the circular were not fulfilled, but treated as fulfilled in rejecting the nomination of the petitioner for OBC seat in ward no.1. Taking into consideration all the details, we do not think this to be a case wherein the petitioner should be thrown out on the ground of laches. 11. Coming back to the case at hands, the only question that we are required to determine whether it is a case where the petitioner really "calls in question the election" and whether his prayer is an obstruction to the election process or it facilitates the election. In the light of peculiar facts described hereinabove and the reaction of the petitioner to the same, atleast within reasonable time and well in advance of the polling day, we are not inclined to say that this is an innocuous writ petition as a tool to stall the election process. The petitioner had really come to assert his right to contest and not to "call in question the election". On reference to Rules 11, 12, 13 and 34 of BVP Election Rules, 1959, we have ascertained that there is no provision for declaring a candidate elected unopposed soon after, either the scrutiny or the withdrawal of candidature, when the picture becomes clear as to how many candidates are in fray for each seat. On reference to Rules 11, 12, 13 and 34 of BVP Election Rules, 1959, we have ascertained that there is no provision for declaring a candidate elected unopposed soon after, either the scrutiny or the withdrawal of candidature, when the picture becomes clear as to how many candidates are in fray for each seat. Even from the schedule of the election made available to us by learned counsel for the Commission, 9th October, 2007, was fixed as the date for commencing the counting of votes and thereafter declaration of election results. 15.10.2007 is fixed as the date for publication of election results as required by Rule 37. It is, thus, evident that election of respondent no.4 as elected unopposed is not yet officially declared. The prayer of the petitioner is not such which could have compelled the authorities to send the voters for second poll. In fact, the prayer of the petitioner sends the constituency to polls, which has not taken place due to erroneous rejection of nomination paper of the petitioner. We are, therefore, convinced that the writ petition was not for the purpose of interrupting, obstructing, protracting or stalling the election process. The relief sought and rendered does not call in question election, but it subserves the progress of the election by maintaining polity and purity of the democratic process. This is not a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. We, therefore, feel justified in interfering under Article 226 and in favour of the petitioner. We have taken a note of statement by Advocate Shri Thombre at bar that alongwith second nomination dated 22.9.2007, his client has submitted caste certificate togetherwith evidence regarding the same submitted to scrutiny committee for considering the same for validation. 12. The decision of respondent nos.2 & 3 invalidating the nomination of the petitioner for OBC seat from ward no.1 is quashed and set aside. Since his first nomination was otherwise held valid nomination, we believe that the petitioner does not incur any other disqualification also as OBC candidate except that he was held disqualified because candidature as OBC candidate was second nomination. We, therefore, direct respondent nos.2 & 3 to allow the petitioner to contest the election for seat reserved for OBC category in ward no.1 of village Khokarmoha Tq.Shirur (Kasar) Dist.Beed. We, therefore, direct respondent nos.2 & 3 to allow the petitioner to contest the election for seat reserved for OBC category in ward no.1 of village Khokarmoha Tq.Shirur (Kasar) Dist.Beed. We clarify that respondent no.4, whose nomination was held valid, would be the only other candidate in the fray. The election process shall start from the stage of nominations of the petitioner and respondent no.4 as having been accepted as valid nominations for OBC seat in ward no.1. Petition disposed of. Rule made absolute accordingly. Certified copy of this judgment be furnished to respondent no.2 free of cost immediately.