vss IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.4295 OF 2009 WRIT PETITION NO.4295 OF 2009 WRIT PETITION NO.4295 OF 2009 Anjum Fatima Aslam ... Petitioner V/s. Ayesha Anis Shaikh & Ors. ... Respondents Mr.A.A. Kumbhakoni i/b Bharat Joshi for Petitioner Mr.S.U. Kamdar i/b R.K. Mendadkar for Respondent No.1 CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: MAY 2, 2009 MAY 2, 2009 MAY 2, 2009 P.C.: P.C.: P.C.: . The petitioner is aggrieved by the order passed in Municipal Election Petition No.51 of 2007 by which her election as a Municipal Councillor has been set aside. While doing so, the Small Causes Court has directed that Respondent No.1 is deemed to have been elected from Ward No.130, Shivaji Nagar-1, Govandi, Mumbai-400043 as she had secured highest number of votes after the petitioner herein. 2. It is submitted on behalf of the petitioner by the learned Counsel appearing for her that although the petitioner is not challenging the disqualification that she incurred and the setting aside of her election, the petitioner now contends that Respondent No.1 could not have been declared elected from that Ward. It is submitted that Respondent No.1 had incurred a : 2 : disqualification in view of the fact that charges were framed against her in criminal prosecutions pending in various criminal Courts. It is further submitted that the affidavit which was filed by her alongwith her nomination form did not disclose that charges had been framed against her. 3. A Councillor who is elected can be disqualified under section 16 of the Mumbai Municipal Corporation Act. The grounds for disqualification are enumerated in this section. Admittedly, the only ground on which the petitioner contends that Respondent No.1 is disqualified is because there are prosecutions pending against her. However, Section 16(1)(a) indicates that unless there is a conviction by a Court in India of any offence punishable u/s 153(a) or subsections (2) or (3) of section 505 of the Indian Penal Code or (b) a conviction for any offence involving moral turpitude, a disqualification cannot be incurred. In fact, if the conviction in respect of the offence involving moral turpitude has occurred more than six years prior to the election, this would not amount to a disqualification. In my view, therefore, unless there is a conviction as envisaged by clauses (a) or (b) of subsection (1) of section 16 of the Mumbai Municipal Corporation Act, a the candidate will not be deemed to be disqualified. : 3 : 4. The submission that the affidavit which was filed alongwith the nomination form did not disclose correctly that the Respondent No.1 was facing criminal action and, therefore, she earned disqualification also cannot be accepted. Assuming such a disclosure was not made, a Councillor can be disqualified only u/s 16 of the Mumbai Municipal Corporation Act. Pending criminal cases is not a ground on which Section 16 is attracted. 5. Petition rejected. Interim order, if any, stands vacated.