WP/3362/2011 1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 3362 OF 2011 Khumansing Hilal Patil, Age 45 years, Occ. Agriculture, r/o at and post Shivni, Tq. Bhadgaon, Dist. Jalgaon. ..Petitioner VERSUS 1. The State of Maharashtra Through it's Secretary, Rural Development Department, Mantralaya, Mumbai 32 2. The Divisonal Commissioner, Nashik Division, Nashik. 3. The Collector, Jalgaon. 4.Tahsildar, Bhadgaon, Tq. Bhadgaon, Dist. Jalgaon. 5.The State Election Commission Through its Commissioner, New Administrative Building, Opp. Mantralaya, Mumbai 32 6. Shri Swarupsing Shivsing Patil Age 26 years, Occ. Agriculture, r/o at and post Shivni, Tq. Bhadgaon, Dist. Jalgaon. 7. The Caste Certificate Verification and Scrutiny Committee No.1, 7th Floor, Konkan Bhavan, Navi Mumbai. ..Respondents ... Advocate for Petitioner : Shri S.B.Talekar AGP for Respondents 1 to 4 & 7 : Smt. A.V.Gondhalekar Advocate for Respondent 5 : Shri U.S.Malte Advocate for Respondent 6 : Shri A.R.Kawade ... WP/3362/2011 2 CORAM : D B BHOSALE & S B DESHMUKH, JJ. Dated: August 03, 2011 ... ORAL JUDGMENT : (Per S.B.Deshmukh, J.) :- 1. Heard learned counsel for the parties. 2. By consent, Rule made returnable forthwith and the petition is taken up for final disposal. 3. The petitioner seeks following prayers :- "(A) To declare that the election of Respondent No.6 as Member of Gram Panchayat, Shivni from Ward No.2 as well as Sarpanch of Gram Panchayat, Shivni stands terminated automatically with retrospective effect and he stood disqualified being a Member as well as Sarpanch of Gram Panchayat, Shivni. (C) To direct the Respondent No.7 - Scrutiny Committee to decide the caste claim of the Respondent No.6 within a period of three months, by issuing a writ of mandamus, orders, directions or any other appropriate writ as the case may be." 4. This petition filed on 15.4.2011 was before this Court on 4.5.2011. Notice, returnable on 16.6.2011 was issued. On behalf of respondents 1 to 4 and 7, notice was accepted by the learned AGP present WP/3362/2011 3 before the Court. 5. Learned counsel for the petitioner submits that the petitioner belongs to Rajput Bhamta (Vimukta Jati). The petitioner contested the election from Ward No.2 which was reserved for backward class of citizens, held on 22.8.2010. Respondent 6, according to the learned counsel appearing for the petitioner, does not belong to Rajput Bhamta (Vimukta Jati). However, he managed to obtain a false and bogus certificate from the authorities, submitted his nomination paper from Ward No.2 - reserved for a seat meant for backward class of citizens. Thus, the petitioner and respondent 6 contested the election of Village Panchayat from the seat reserved for backward class. The petitioner states in his writ petition that he lost the election by 20 votes, as respondent 6 secured 224 votes whereas, the petitioner could secure 204 votes in the election. Learned counsel for the petitioner submits that respondent 6 did not submit a certificate of validity along with his nomination form as required under section 10(1A) of the Bombay Village Panchayat Act, 1958 ("the Act of 1958" hereinafter). 6. The petitioner challenged the election of respondent 6 by filing an election petition before the learned Civil Judge J.D. Bhadgaon. Crime no.12 of 1994, according to the petitioner, has been registered against the ex Resident Naib Tahsildar Shri C.V.Patil, who allegedly issued the caste certificates in favour of respondent 6 and some other citizens. WP/3362/2011 4 According to the petitioner, instead of filing caste validity certificate along with the nomination paper, respondent 6 gave an undertaking to the Returning Officer that he will submit the caste validity certificate within a period of four months from the date of declaration of result of the election. It is submitted on behalf of the petitioner that despite expiration of four months' period of undertaking, respondent 6 has not submitted caste validity certificate. The petitioner approached respondent 7 and sought permission to participate in the proceeding pending before the committee regarding verification of social status of respondent 6. The petitioner also approached the Sub Divisional Officer with a request to lodge a criminal complaint against respondent 6 for practicing fraud and cheating. Shri Talekar, learned counsel submitted that on 2.12.2010, the petitioner approached the Collector, Jalgaon with a request to declare the office of the Member of the Village Panchayat concerned as well as office of Sarpanch of the same Gram Panchayat i.e. Shivni held by respondent 7 has fallen vacant and direct Tahsildar Bhadgaon to take immediate steps for filling the aforesaid vacancies. There was neither response from the Scrutiny Committee nor from the Collector. The petitioner, therefore, filed this Writ Petition under Article 226 of the Constitution of India for the aforesaid prayers, which we have noticed in the foregoing paragraphs. 7. In view of the submissions of the learned counsel for the parties, Section 10-1A of the Act of 1958 is relevant for our purpose, WP/3362/2011 5 which we are quoting herein below :- S.10-1A. Person contesting election for reserved seat to submit Caste Certificate and Validity Certificate : Every person desirous of contesting election to a seat reserved for the Scheduled Castes, Scheduled Tribes or, as the case may be, Backward Class of Citizens, shall be required to submit, along with the nomination paper, Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Mah.XXIII of 2001). Provided that, for the General or bye-elections for which the last date of filing of nomination falls on or before the 31st December, 2010, in accordance with the election programme declared by the State Election Commission, a person who has applied to the Scrutiny Committee for verification of his caste certificate before the date of filing of the nomination paper but who has not received the Validity Certificate on the date of filing of the nomination paper shall submit, along with the nomination paper, -- (i) a true copy of the application preferred by him to the Scrutiny Committee for issuance of the Validity Certificate or any other proof of having made such application to the Scrutiny Committee'; and WP/3362/2011 6 (ii) an undertaking that he shall submit, within a period of four months from the date of his election, the Validity Certificate issued by the Scrutiny Committee : Provided further that, if the person fails to produce the Validity Certificate within a period of seven months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a member." 8. Shri Talekar, learned counsel for the petitioner, in support of his submission, relied upon the judgment of the Division Bench of this Court in that mater of Sadashiv Jagannath Shrote Vs. State of Maharashtra [2010 (1) Mh.L.J. 203]. In the matter of Sadashiv (supra), contention was raised that the petitioner was elected as a Councilor of Municipal Council on 8.10.2007, as per the then proviso to Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 ("the Act of 1965" hereinafter). The petitioner, therein, was entitled to submit caste validity certificate within a period of three months from the date of election provided that he has applied for verification of caste claim prior to filing of the nomination. The petitioner therein had contested the election for the seat reserved for Scheduled Tribe. Factually, the caste certificate of the petitioner was submitted for verification to Caste Scrutiny Committee prior to filing of his nomination paper. However, the validity certificate could not be submitted within a period of three months from the date of election i.e. 8.10.2007. The WP/3362/2011 7 petitioner therein had contended that his social status claim was pending consideration / verification before the Scrutiny Committee. In action on the part of the Scrutiny Committee, it was argued, cannot be considered an impediment against the petitioner, since the petitioner was not at fault. Directions were, therefore, sought to Scrutiny Committee to consider the caste claim and meanwhile, stay to the impugned order was sought for. There in that case, the Collector, Nagpur had formally passed an order in view of Section 9A of the Act of 1965 declaring the election of the petitioner therein being terminated and said petitioner had also incurred disqualification for being the Councilor. Said order was thus subject matter of Writ Petition before this Court. The learned Division Bench, while considering the provisions laid down under Section 9A of the Act of 1965 held that failure of submission of validity certificate within a period of three months from the date of election entails cessation / termination of the election of the candidate with retrospective effect and such candidate shall also be disqualified for being a Councilor. (Emphasis supplied). Shri Talekar, learned counsel appearing for the petitioner, relying on this judgment, submitted that in the case on hand also respondent 6, who did file an undertaking instead of filing validity certificate along with his nomination that he would submit the certificate of validity within a period of four months from the date of declaration of election result, has even after expiration of four months did not produce such a validity certificate. Shri Talekar, learned Advocate seeks the declaration i.e. in terms of prayer clause (A) and also direction against the WP/3362/2011 8 Scrutiny Committee to decide the social status of respondent 6 within a period of three months, by issuing a writ of Mandamus. 9. We have given due consideration to the submissions of the learned counsel for the parties. There is no dispute that the election in question was held on 22.8.2010. Respondent 6 did not claim that he had submitted caste certificate issued by the competent authority and the validity certificate issued by the Scrutiny Committee, in accordance with the provisions of Maharashtra Scheduled Castes, Scheduled Tribes, De- notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 as contemplated under Section 10-1A. First proviso to Section 10-1A provides that in case of General or bye-elections for which the last date of filing of nomination falls on or before the 31st December, 2010, in accordance with the election programme declared by the State Election Commission, a person who has applied to the Scrutiny Committee for verification of his caste certificate before the date of filing of the nomination paper but who has not received the Validity Certificate on the date of filing of the nomination paper shall submit, along with the nomination paper, a true copy of the application preferred by him to the Scrutiny Committee for issuance of the Validity Certificate or any other proof of having made such application to the Scrutiny Committee and an undertaking as contemplated under section 10-1A(ii). In the case on hand, the election was held on 22.8.2010. Necessarily, the programme must WP/3362/2011 9 have been declared prior to it. Thus, the first proviso of Section 10-1A applies to the facts of the present case. In view of this first proviso, respondent 6 had filled in nomination, copy of which is on record at Exhibit "B" (page 19). Said nomination bears date 6.8.2010. Along with this nomination, copy of declaration is also placed on record by the petitioner at page 20. This declaration is given by respondent 6. This declaration reads that respondent 6 is 26 years old. The second declaration is rather important given by respondent 6 at same page 20. By the second declaration, respondent 6 declared and undertook that he belongs to Backward Class of Citizens. Further, it states that respondent 6 did apply to competent authority i.e. Scrutiny Committee under the Act of 2000 along with caste certificate for scrutiny thereof. Last particular of this undertaking states that after declaration of election and within the period of four months from the declaration of the result of the election, he shall submit caste validity certificate from the Scrutiny Committee concerned. Not only respondent 6 but such undertaking along with copy of nomination paper was also given by the petitioner. Copies of those documents are also seen by us (Exhibit "G"). Since that is not the issue on hand, we are not referring to all documents at Exhibit "G". Suffice to notice that respondent 6 did file nomination without validity certificate, however, with an undertaking that he shall submit the caste validity certificate within a period of four months as contemplated under the first proviso to Section 10-1A. WP/3362/2011 10 10. There is no dispute that the caste validity certificate is not submitted as undertaken by respondent 6 within a period of four months from the date of holding the elections i.e. 22.8.2010. Proviso laid down under section 10-1A is pari-materia to Section 9-A of the Act of 1965, which was in existence and considered by the learned Division Bench of this Court in the matter of Sadashiv (supra). In this view of the matter, respondent 6 did incur dis-qualification with retrospective effect as contemplated under second proviso to section 10-1A, meaning thereby the election of respondent 6 stands terminated with retrospective effect and he is dis-qualified from being a Member of the Gram Panchayat Shivni. In this view of the matter, prayer clause (C) now becomes redundant. 11. In the result, Writ Petition is allowed in terms of prayer clause (A). Rule made absolute accordingly. No order as to costs. (S.B.DESHMUKH, J.) (D.B.BHOSALE,J.) ... akl