-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE WRIT PETITION NO.8389 OF 2005 Ramesh Suresh Kamble, age about 35 years, An Adult Indian Inhabitant, Residing at Buddhanagar Hsg. Soc. Buddhanagar Star Seva Mandal, P.L. Lokhande Marg, Govandi, Mumbai--400 043. : Petitioner V/s. 1. The State of Maharashtra Through its Secretary, Social Welfare Department, Mantralaya, Mumbai--400 032. 2. Divisional Caste Certificate Scrutiny Committee, Through its Member Secretary, Kokan Region, Kokan, Having office at Kokan Bhavan, 5th Floor, C.B.D., Belapur, New Bombay. 3. Municipal Corporation of Greater Mumbai, Through its Commissioner, having its office at Mahapalika Marg, Mumbai--400 001. 4. Rajendra Waman Waghmare, An Adult Indian Inhabitant, Residing at Buddhanagar Hsg. Soc. Buddhanagar Star Seva Mandal, P.L. Lokhande Marg, Govandi, Mumbai--400 043. 5. The Deputy Collector, Mumbai Suburban District, Mulund, Mumbai. : Respondents ... Ms Varsha Palav with Mr.R.V.Govilkar for the petitioner. -: 2 :- Mr.C.R.Sonawane, Assistant Government Pleader for respondent nos.1, 2 and 5. Mr.A.Y.Sakhare, Senior Counsel, with Mr.A.J.Bhor for respondent no.3. Mr.R.K.Mendadkar for respondent no.4. .... CORAM : R.M.LODHA, S.A.BOBDE & S.B.DESHMUKH,JJ. DATE : OCTOBER 20, 2006. ORAL JUDGEMENT (Per R.M.Lodha,J.) Ramesh Suresh Kamble - the petitioner - has filed this Writ Petition challenging the order dated 5.12.2005 passed by the respondent no.3 disqualifying him under section 16(1C)(a) of the Mumbai Municipal Corporation Act, 1888 (for short the "M.M.C. Act") as Councillor with effect from 24.11.2005. The order dated 5.12.2005 came to be passed because the petitioner’s caste certificate dated 9.10.1998 was invalidated by the Divisional Caste Scrutiny Committee, Konkan Division. The Division Bench before which the matter came up for consideration was of the view that it required consideration by the larger Bench. This is what the Division Bench observed in the order dated 12.7.2006:- "By this petition, petitioner has questioned his automatic disqualification under the provisions of Sec.16(1C)(B) of BMC Act. Division Bench of this court of which I, (V.G.Palshikar,J.) was member, had taken a -: 3 :- view that in order to attract provisions of Sec.16(1C)(B), Caste Scrutiny Committee has imposed fine and stated that the certificate was false and the order was obtained by false claim or representation. Similar view is taken in reported decision in 2006(1) MH.L.J. Surendra Vs. State of Mah. 308. When both the matters were argued and decided, Full Bench judgment of this court reported in 2004(3)MH.L.J. Sujit Vasant Patil Vs. State of Mah. 1109 was not brought to the notice of the Bench. Today, when this matter was heard for quite some time, Shri Mendadkar, learned counsel for the respondent, relied on this judgment for contending that the petition is liable to be dismissed. Reference was made by him to paragraphs 12A and 12B of the Full Bench judgment. From the perusal of the contents of the paragraphs, it appears that provisions contained in Sec.16(1C) and similar provisions in other enactments were not brought to the notice of Full Bench. If those provisions are looked into, in our opinion, matter requires re-consideration. Hence, place the papers of this petition before My Lord The Chief Justice for appropriate orders regarding hearing." 2. Hon’ble the Chief Justice, accordingly, has assigned the Writ Petition for hearing to this Full Bench. 3. We may set out the essential facts first. The Deputy Collector, Mumbai Suburban District, on the application made by the petitioner, granted certificate to him on 9.10.1998 certifying that he belongs to Scheduled Caste community, viz., Boudha. Armed with the said certificate, the petitioner contested the general election to the Municipal Corporation of Brihan Mumbai from ward no.192 - reserved ward for Scheduled Castes -: 4 :- held on 10.2.2002. The respondent no.4, amongst others, also contested the said election. The petitioner was declared as the elected candidate. 4. On the complaint of the respondent no.4, the caste claim of the petitioner was sent to the Divisional Caste Scrutiny Committee, Konkan Division, for verification. The Divisional Caste Scrutiny Committee, after holding the necessary inquiry, by its order dated 11.11.2005 declared that the Caste Certificate dated 9.10.1998 issued by the Deputy Collector, Mumbai Suburban District to the petitioner, was invalid. The Caste Scrutiny Committee, accordingly, cancelled the said certificate. The operative order of the Divisional Caste Scrutiny Committee dated 11.11.2005, on translation into English, reads thus:- The Committee made scrutiny of proofs (No.1 to 88) submitted by the candidate, complainant and police vigilance squad and took the same into consideration. Similarly, the evidence and proofs submitted before the committee have been discussed from time to time as above and on that basis the committee has arrived at the decision that as Baptism of Shri Suresh Waman Kamble, the father of Candidate Shri Ramesh Suresh Kamble is performed on the date 22/3/1970, and as his mother is Christian, the candidate Shri Ramesh Suresh Kamble becomes Christian by birth. Even the proof of first entry made in his school of he being a Christian is submitted before the committee and the committee has considered even the same. As on today he may be "Boudha" but, no proof of he being "Mahar" earlier has been produced -: 5 :- before the committee. Even the certificate produced by his father regarding his own birth registration, is of the year 1951, wherein Suryabhan Waman Kamble is seen to be mentioned therein. This person can be another person. Similarly, no old entries are found anywhere to show that Suryabhan and Suresh is one and the same person. Similarly, entry as regards marriage of Shri Suresh Waman Kamble being performed on the date 15.5.1970 by Christian rites and rituals, is found in the old records with St. Paul’s church, Matunga Labour Camp. From this it appears that before embracing "Boudha" religion, this family was Christian. Even if a person belongs to Scheduled Caste earlier, he can get constitutional benefits despite belonging to "Boudha" religion. As per the constitution order (Scheduled Caste) 1950 as well as according to para 20 of the Government Resolution dated 21.3.1979, a person claiming to be belonging to scheduled caste can be of either Hindu, Sikh, or Bouddha religion. In case of conversion or reconversion, if any person has embraced his original religion, he gets the status of his original religion. Shri Ramesh Kamble was initially Christian and subsequently he embraced "Boudha" religion. That means he has not adopted his original Hindu Religion. That means as the candidate was Christian earlier, he is not eligible for the concessions and benefits of Scheduled Caste on the point of religion. Similarly, the School Certificate produced by him as that of his father’s at the time of obtaining his Caste Certificate, is not of his father. Similarly, before obtaining certificate belonging to "Boudha" caste he has not produced any proof before the Tahasildar about he being "Mahar" and, therefore, the Caste Certificate bearing No.MSC/SR/B/K-3121/19 dated 9.10.1998, issued by the Deputy Collector and Special Land Acquisition Officer, Mumbai suburban District, is being declared invalid and the same is being cancelled. Similarly even the candidate’s claim of he belonging to "Boudha" (Scheduled Caste) is being declared invalid." 5. The order dated 11.11.2005 came to be challenged by -: 6 :- the petitioner by filing Writ Petition no.8301 of 2006 before this Court. The said Writ Petition was dismissed by the Division Bench on 12.7.2006 by the following order:- "By this petition, petitioner has impugned the order passed by the Caste Scrutiny Committee holding invalidity of his certificate and proclaiming him to be Christian Caste person. Voluminous evidence was led before Caste Scrutiny Committee and the Committee has, by elaborated well reasoned order, came to the conclusion that the petitioner has failed to prove that he belongs to Mahar Community which is scheduled caste and therefore certificate of validity was not granted. Jurisdiction of High Court under Art. 226 and 227 of the Constitution of India, of scrutinizing the judgment and order of subordinate courts, is limited. If the order does not violate principles of natural justice and infringe fundamental rights and is based on permissible evidence, then interference is not possible. In this case, there is no question of fundamental right being infringed. There is no complaint of violation of principles of natural justice. Entire evidence before the committee was scrutinized by the Committee and at a time which was either rejected or accepted, such well reasoned order can not be interfered under Art. 226 and 227 of the Constitution of India. Hence, petition is dismissed." 6. The petitioner challenged the order of the Division Bench dated 12.7.2006 by filing Petition for Special Leave to Appeal (Civil) before the Supreme Court which came to be dismissed on 18.8.2006. Thus, the -: 7 :- invalidation of the Caste Certificate obtained by the petitioner from the Deputy Collector, Mumbai Suburban District, on 9.10.1998 has attained finality right upto the highest Court. 7. 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 (for short "Maharashtra Act No.XXIII of 2001" came into effect on 23.5.2001. Section 3 thereof, inter alia, provides that any person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category, if intend to take benefit of any reservation provided to such Castes, Tribes or Classes, shall apply to the Competent Authority for issue of a Caste Certificate in such form and in such manner as specified. Section 4 provides that the Competent Authority, after satisfying itself about the genuineness of the claim and following the procedure as prescribed, may issue a Caste Certificate to such candidate. The Caste Certificate issued by any person, officer or authority other than the Competent Authority is invalid; the Caste Certificate issued by the Competent Authority is valid only subject -: 8 :- to verification and grant of validity certificate by the Scrutiny Committee. Under sub-section (1) of section 6, the Government is required to constitute Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities. Any person who has obtained Caste Certificate from the Competent Authority, if he desires to avail of the benefit or concession available to such caste, has to make an application for verification of the caste claim to the concerned Scrutiny Committee in such form and in such manner as provided. 8. Section 7 of Maharashtra Act No.XXIII of 2001 is quite relevant, and we reproduce the same as it is:- "7.(1) Where, before or after the commencement of this Act, a person not belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes, the Scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed, after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority, if any. (2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority -: 9 :- or court except the High court under Article 226 of the Constitution of India." 9. It is pertinent to notice that the Scrutiny Committee has been empowered to inquire into the correctness of the Caste Certificate obtained by a person from the Competent Authority and if the Scrutiny Committee is of the opinion that the certificate has been obtained fraudulently, it is further empowered to cancel and confiscate such certificate. 10. Section 10 makes a provision for withdrawal of the benefits secured by a person on the basis of false Caste Certificate. Sub-section (4) thereof reads thus:- "10.(1) ................................. (2) .................................... (3) .................................... (4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively." -: 10 :- 11. Pursuant to Maharashtra Act No.XXIII of 2001, amendments have been brought in various enactments providing for election to local authority, co-operative society and statutory body wherein seats have been reserved for reserved category candidates. M.M.C. Act also underwent change accordingly. Section 5A of the M.M.C. Act provides for reservation of seats for the members belonging to Scheduled Castes, Scheduled Tribes, Women and the Backward Class of Citizens in the Municipal Corporation of Brihan-Mumbai. By Maharashtra Act No.XI of 2002, the following provision was inserted in section 16:- "16.(1B)(a) A person shall be disqualified for being a Councillor or for contesting an election for being elected as a Councillor, for a period of six years, if, an order is passed by the concerned authority, under section 18 or as the case may be, section 33, holding that such person was elected as a Councillor to a seat which was reserved for a member belonging to a Scheduled Caste, Scheduled Tribe or a Backward Class of Citizens (hereinafter referred to as "a reserved category"), on the basis of a false claim or a false Caste Certificate declaring that such person belonged to such reserved category. (b) Such period of disqualification shall be computed with effect from the date of passing of such order by the concerned authority. (1C)(a) Notwithstanding anything contained in sub-section (1B), a Councillor -: 11 :- who has been elected to a reserved seat as mentioned in sub-section (1B), shall be disqualified for being such Councillor consequent upon the Caste Certificate Verification Committee or any other Competent Authority specified by the State Government for the purpose of scrutiny of the Caste Certificates, declaring the Caste Certificate of such Councillor to be invalid and cancelling the same, on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category, and thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such Certificate to be invalid and cancellation of the same by the said Committee or the Competent Authority. (b) On any person having been disqualified for being a Councillor and consequently, his seat as such Councillor having become vacant under clause (a), the State Government shall, by notification in the Official Gazette, disqualify such person for being elected or being a Councillor for a period of six years from the date of such order. (1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; and has directly or indirectly been responsible for, or helped in his capacity as such Councillor, in carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the -: 12 :- Councillor against the Competent Authority." 12. Section 16(1C)(a), thus, provides that a Councillor elected to a reserved seat shall be disqualified for being Councillor upon the Caste Certificate of such Councillor being invalidated and cancelled by the Scrutiny Committee on the ground of such Caste Certificate having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category. The disqualification, in that event, comes into effect from the date such certificate has been declared invalid and cancelled by the Scrutiny Committee. 13. At this stage, we may notice few judgements of this Court bearing some relevance on the issue under consideration by us. 14. In the case of Dattatraya Ramrao Thorat v. State of Maharashtra and others (2003 (5) Mh.L.J. 539), before the Division Bench, the constitutional validity of section 10(4) of Maharashtra Act No.XXIII of 2001 was under consideration. The Division Bench in paragraphs 33 and 37 of the report held thus:- "33. Sub-section (4) of section 10 of the Act fell for our consideration in Writ -: 13 :- Petition No.916 of 2000 decided on 24th October, 2001 and in para 12 of that judgement we held that a candidate who is elected against a reserved seat could not continue to represent the electorate immediately after invalidation of his caste status and this disability/disqualification did exist right at the time when he submitted his nomination form and hence the declaration made by the verification committee relates back to the stage of submission of such nomination form. We have also held that such a person was not eligible to contest the election against a seat reserved for a respective category right at the time when the elections were announced. The provisions in section 10(4) regarding retrospective operation for disqualification on the caste certificate being cancelled cannot be faulted with and it cannot be held to be ultra-vires the constitution. Section 10(4) further provides that on such disqualification any benefits obtained by such person shall be recoverable as arrears of land revenue. It was contended by the learned counsel for the petitioner assuming that there may not be anything illegal in declaring the election of such person deemed to have been terminated retrospectively recovery of benefits obtained by such person as arrears of land revenue is illegal and unconstitutional on the grounds that when he has acted as a Corporator till his caste claim was invalidated, such recoveries cannot be held to be a State largese and such monetary benefits by way of allowances etc. are obtained by him in lieu of the services he has rendered as a Corporator/Councillor. 37. Subsection (4) of section 10 of the Act is, in fact, nothing short of an additional disqualification provided by the Legislature within the meaning of section 10(1)(a-ii)(ii) of the Corporation Act so that section 11 of the Corporations Act operates and the councillor shall cease to hold office automatically. The disqualifications set out under section 10 and their consequences, as set out under section 11, are independent of the remedy of election petition under section 16(1) of the Corporations Act so as to unseat the councillor/corporator. For example, if -: 14 :- an elected councillor has sustained the disqualification within the meaning of sections 10(1)(a), (b) and 10(1A) the provisions of section 11 therein shall automatically apply and the councillor shall cease to hold office forthwith, it is not contemplated that such a disqualified Corporator is required to be unseated by filing an election petition. The same logic must be made applicable to a disqualification sustained under section 10(1)(a-i) or (a-ii) of the Act. The State Legislature has enacted the Act which has come into force from 18th October, 2001 and the legislating power of the State Government in enacting such a statute are unquestionable. Article 13(3) of the Constitution defines the term "Law" which includes any ordinance, order, bylaw, rule, regulation, notification, custom or usages having in the territory of India the force of law. This provision of section 10(4) of the Act is a disqualification within the meaning of section 10(1) of the Act and, therefore, for its operation under section 11 or its consequential effects the bar of section 16(2A) of the Corporations Act shall not operate. We must also note that in such cases it is not the election of the concerned candidate which is brought in question and what is brought in question is his social status and thus his right to contest the said election against a seat reserved for a particular category in view of the mandate of Article 243T of the Constitution, which has been incorporated in terms of section 5A of the Corporations Act. Challenge to the election, as contemplated within the meaning of section 16, is totally different than termination of membership of the elected body on account of social claim being invalidated and such a contingency falls within the ambit of section 11 of the Corporations Act. We, therefore, hold that the provisions of section 10(4) of the Act do not run counter to the provisions of either section 16(2A) or section 12 of the Corporations Act. When a person was disqualified to contest the election on a seat reserved right at the threshold, he cannot be allowed to continue to hold the elected office even after his social status claim has been invalidated or found to be bogus merely by taking the -: 15 :- support of section 16(1) or 16(2A) of the Corporations Act. Any further continuation as such an elected representative would, undoubtedly, be a perpetuation of a fraud played on the Constitution as well as the voters concerned. The bar of Article 243-ZG is for interference in the election process already set in motion. Article 243-V(1) of the Constitution does provided (sic) for disqualification of being a member of the Municipal Corporation. A person who was disqualified at the threshold cannot be allowed to take a plea that he can be unseated only by way of an election petition. In this regard we refer to the Constitution Bench judgement of the Apex Court in the case of B.N.Kapur (supra)." 15. The judgement in the case of Dattatraya Ramrao Thorat’s case has been approved by the Full Bench in the case of Sujit Vasant Patil v. State of Maharashtra and others, 2004 (3) Mh.L.J. 1109. Inter alia, the issue before the Full Bench was whether the provisions contained in Maharashra Act No.XXIII of 2001 are in conflict with the constitutional mandate articulated in Article 243-O(b) and 243-ZG(b) of the Constitution of India. 16. The Full Bench, while dealing with the said issue, surveyed the provisions contained in Chapter IX-A and also Articles 14, 21, 223 and 234 of the Constitution of India. The Full Bench comprehensively referred to the provisions of Maharashtra Act No.XXIII of 2001 and also the provisions of the Bombay Provincial Municipal -: 16 :- Corporations Act and the Maharashtra Municipal Election Rules. In paragraphs 12A and 12B, the Full Bench crystalised the legal position thus:- "12A. Thus, the scheme of the various Local Self-Government Act in relation to the filing of the nomination papers and their scrutiny and the scheme of the Maharashtra Act No.XXIII of 2001 appears to be that in case a person desires to contest an election to a reserved seat, it is obligatory on his part to get a caste certificate from the competent authority and then immediately apply to the Scrutiny Committee to get a validity certificate. Therefore, normally as the candidate is required to make an application to the scrutiny committee as soon as he receives a caste certificate from the competent authority, with the result that in many cases his application before the scrutiny committee for validity certificate would be pending when his nomination paper is accepted on the basis of the