1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5314 OF 2010 Pravin Narayan Devare Petitioner versus Brihan Mumbai Municipal Corporation, Mumbai and others Respondents Mr.B.D.Joshi for petitioner. Mr.S.S.Pakale a/w Mr.Malvankar for respondents 1 to 3. Mr.D.B.Sawant for respondent no.4. CORAM : R.V.MORE, J. DATE : 12th July 2010 PC : 1. Heard Mr.Joshi, learned counsel for the petitioner, Mr.Pakle for respondent nos.1 to 3 and Mr.Sawant for respondent no.4. 2. The petitioner and the respondent no.4 along with other candidates contested the election from electoral ward no.185 of Brihan Mumbai Municipal Corporation ("BMC" for short) in the year 2007. The said ward was reserved for Other Backward Class category. The petitioner claimed to belong "Sutar" caste and the respondent no.1 contested the election claiming that he belonged to "Vaishya Wani" caste. 3. The petitioner got elected and hence his caste certificate was sent 2 for scrutiny to the Caste Scrutiny Committee. The caste scrutiny committee invalidated the petitioner's caste certificate. This order of caste scrutiny committee was confirmed by the High Court and the Apex Court. 4. The respondent no.4 thereafter preferred a petition under section 33 of the BMC Act for a declaration that the election of petitioner as a Councilor is null and void with a further prayer to declare him elected from Ward No.185. This election petition was allowed by the learned Additional Chief Judge of the Court of Small Causes and, therefore, the petitioner is before this Court. 5. Mr.Joshi, learned counsel for the petitioner took me through the provisions of sub clause (2) of clause-33 of the BMC Act and submitted that he objected the declaration claimed by respondent no.4 on the ground that his nomination is not valid. He submitted that in view of the purport of the provisions of section 5(b) of BMC Act, it was mandatory for the respondent no.4 to submit his caste certificate along with his nomination form. He submitted that as the respondent no.4 submitted caste certificate of his son along with the nomination, his nomination ought to have been rejected being illegal. He further submitted that on this ground alone the learned Trial Judge ought to have rejected the election petition and ought not to have granted the declaration claimed by the respondent no.4. 6. Mr.Sawant and Mr.Pakale, learned counsel appearing for the 3 respondents on the contrary supported the impugned judgment and order. It was submitted that the respondent no.4 along with his nomination not only submitted the caste certificate of his son but also submitted Collector's letter dated 27th November 2006 under which it is confirmed by the Collector that the caste certificate of respondent no.4 is sent for scrutiny to the Caste Scrutiny Committee. They prayed for dismissal of the petition being devoid of any merit. 7. Following facts are not disputed. The petitioner secured 9,607 votes whereas respondent no.4 secured 8,698 votes. The petitioner's caste claim has been turned down by the caste scrutiny committee and he has been held disqualified. The respondent no.4 belongs to "Vaishya Wani" caste. The petitioner did not object respondent no.4's nomination during the process of election to the BMC.. 8. The respondent no.4 along with his nomination paper annexed the letter issued by the Collector dated 27th November 2006 and the caste certificate of his son. The Collector's letter categorically states that the respondent no.4 has submitted his caste certificate to him, to forward the same to the caste scrutiny committee for scrutiny. The caste scrutiny committee has, so far, not invalidated the caste claim of respondent no.4. 9. Under section 33(1) of the Bombay Municipal Corporation Act, 1888 any person enrolled in the municipal election roll may apply to the Chief Judge of the Small Causes Court questioning the validity of 4 any election on various grounds mentioned therein. Under section 33(2) of the said Act, the Chief Judge after making necessary inquiries if finds that the person whose election is objected to, is disqualified for being a councillor, he shall declare such person’s election null and void. Further, if the Chief Judge finds that the election is not a valid election, he shall set it aside. In either of the case mentioned above, the Chief Judge shall direct that the candidates in whose favour next highest number of valid votes are recorded after the said person and against whose election no cause of objection is found shall be deemed to have elected. Under section 5(B) of the BMC Act, the person contesting seat from reserved category is required to submit alongwith the nomination papers, Caste Certificate issued by the Competent Authority and Validity Certificate issued by the Scrutiny Committee. However, in case the said person has applied to the Scrutiny Committee for verification of his Caste Certificate before the date of filing the nomination papers but has not received the Validity Certificate on the date of filing of the nomination papers, he shall submit alongwith the nomination papers, a true copy of the application preferred by him to the Scrutiny Committee for issuance of the Validity Vertificate or any other proof for having made such application to the Scrutiny Committee and 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. 5 10. The declaration claimed by the Respondent No.4 is being objected by the Petitioner on the ground that the nomination form of Respondent No.4 was not valid in as much as in accordance with the provisions of section 5B of the BMC Act, the Respondent No.4 did not submit Caste Certificate alongwith the nomination form. Under section 5 B of the B.M.C. Act, it is required that the Caste Certificate should be submitted alongwith nomination papers. However, exception is carved out to this rule by the proviso under which where a person has applied to the Scrutiny Committee for the verification of his Caste Certificate before the date of filing of the nomination paper, he can submit alongwith 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 for having made such application to the Scrutiny Committee. The undisputed fact mentioned above clearly shows that though the Respondent No.4 has not submitted the Caste Certificate alongwith the nomination form, he submitted Collector’s letter dated 27th November, 2006 and the caste certificate of his son. The said letter of the Collector in terms disclosed that the Respondent No.4’s Caste Certificate is sent to the Caste Scrutiny Committee for scrutiny. It is not the case of the Petitioner that the Respondent No.4 has not given undertaking as contemplated under proviso (ii) of section 5B of the B.M.C.Act. In my 6 view, the above letter of the Collector is a proof of Respondent No.4 having made an application to the Scrutiny Committee. The nomination of Respondent No.4 therefore cannot be said illegal. Admittedly, the Respondent No.4 has secured next highest number of votes after the petitioner. The impugned order therefore, cannot be questioned. 11. The learned Additional Chief Judge of the Court of Small Causes has considered all the aspects and found that respondent no.4 has made out a case for a declaration as claimed by him. In the circumstances, I find that the petitioner has failed to make out a case to enable me to interfere with the impugned order in exercise of jurisdiction under Articles 226 and 227 of the Constitution of India and the writ petition is dismissed accordingly. 12. Mr.Joshi, learned counsel for the petitioner at this stage prays for stay of this order. The prayer is opposed by Mr.Sawant on the ground that respondent no.4 has already taken charge. In these circumstances, no case for stay is made out. The prayer for stay is rejected. (R.V.MORE, J.)