1 Mgj IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Writ Petition No.1613 of 2009 Shirish Chintaman Chogle ..Petitioner vs. 1 Sunil Shripat Chavan & ors ..Respondents Mr.Y.S.Jahagirdar, Sr. Counsel i/b Mr.R.K.Mendadkar for the petitioner Mr.S.Aney, Sr.Counsel with Mr.Narvekar i/b Mr.Tayshette for respondent no.1 Ms.T.H.Puranik for respondent nos. 2 to 4 Judgment Reserved on 14.9.2009 Judgment pronounced on 25.9.2009 CORAM: S.J.KATHAWALLA J. 25th September,2009 P.C. 1 Heard Counsel for the parties. 2 Rule. Rule made returnable forthwith, by consent. Mr.Aney waives notice for respondent no.1. Ms.Purohit waives notice for respondent nos. 2 to 4. 3 By this writ petition, the petitioner Shirish Chintaman Chogle has challenged the judgment and order dated 23rd July 2009 passed under section 33(2) of the 2 Mumbai Municipal Corporation Act, 1888 (the Act) by the Additional Chief Judge of the Court of Small Causes, Mumbai declaring the petitioner s election as null and void and declaring respondent no.1 as the elected candidate from Ward No.11. 4 The respondent nos.2 and 3 declared the General Election of Brihan Mumbai Municipal Corporation for its various wards on 13th December, 2006 to be held on 1st February 2007, The date for counting of votes was declared as 2nd February, 2007. Ward No.11 was declared as reserved ward for candidates belonging to Other Backward Community (O.B.C.). The petitioner filed his nomination from Ward No.11 and along with his nomination form he submitted the caste certificate as belonging to Sutar (O.B.C.) The petitioner was declared as elected from the said Ward and Respondent No.1 who had submitted his nomination form being Hindu Bhandari, (O.B.C.) secured second highest number of votes. 3 5 Respondent no.1 having lost the elections against the petitioner, filed election petition no.39 of 2007 in the Small Causes Court, Mumbai under section 32 of the said Act, for setting aside the election of the petitioner and for declaring respondent no.1 as elected from the said Ward No.11. Respondent no. 1 also filed a complaint before the Caste Scrutiny Committee and the Caste Scrutiny Committee after hearing the parties, by an order dated 4th May 2007 cancelled and confiscated the caste certificate dated 28th December, 2006 of the petitioner as Sutar Caste. It was contended by the petitioner that when he had approached the concerned authorities for obtaining the caste validity certificate, as it was one of the requirements whilst filing the nomination form, he was advised to obtain the caste certificate of Sutar (OBC) and he, therefore, surrendered his certificate of Panch Kalashi and obtained the caste certificate of Sutar which was 4 submitted along with his nomination form. The caste scrutiny committee by its order dated 4th May 2007 also invalidated the caste certificate of the petitioner as belonging to Panch Kalashi, (O.B.C.) 6 Relying upon the said order dated 4th May 2007 invalidating both the caste certificates of the petitioner, respondent no.2 Corporation passed an order thereby disqualifying the petitioner from the post of Corporator. The petitioner filed writ petition no. 4519 of 2007 in this Court challenging the legality and validity of the order passed by the Caste Scrutiny Committee dated 4th May 2007. This Court by its order dated 28th March, 2008 remanded the matter to the Caste Scrutiny Committee with a direction to decide which of the two caste certificates of the petitioner is valid or both are invalid. By an order dated 28th December, 2008 the Caste Scrutiny Committee cancelled and confiscated the certificate of Sutar caste. The petitioner again challenged 5 the said order in Writ Petition No. 2253 of 2008 before this Court and by an order dated 1st December, 2008 this Court directed the Committee to return the original caste certificate to the petitioner as belonging to Panch Kalashi (OBC) within two weeks and to pass an appropriate order holding the caste certificate as valid or invalid as directed in earlier Writ Petition No.4519 of 2007. The Caste Scrutiny Committee accordingly passed an order on 23rd December, 2008 declaring that the petitioner belongs to Panch kalashi and the caste certificate of Sutar caste was cancelled and confiscated. Thereafter the petitioner filed writ petition no.744 of 2009 before this Court which came to be disposed of by this Court on 22nd July 2009 referring the matter to the Municipal Commissioner with certain directions. The Additional Chief Judge, Small Causes Court, Mumbai by his order dated 23rd July 2009 disposed of the Appeal filed by respondent no. 1 by passing 6 the following order: Municipal Election Petition is hereby allowed. The Municipal Corporation Election of Respondent No.1 from Ward No.11 Bansi Nagar, Tata Power House, Mumbai held on 1-2-2007 is declared as null and void and hereby set aside. The Petitioner is hereby declared as elected candidate as Corporator from Ward No.11, Bansi Nagar, Tata Power House, Mumbai having secured second highest number of votes after respondent no.1. Respondent No.1 shall pay the costs of the petitioner of this petition and all the respondents shall bear their own costs. Decree be drawn up accordingly. The said order of the Additional Chief Judge, Small Causes Court, Mumbai is impugned by the petitioner in the present writ petition. Though several grounds are raised in the writ petition, Mr.Y.S.Jahagirdar, learned Senior Advocate appearing for the petitioner has advanced the following two submissions before this Court: 7 i) The said Ward No.11 was reserved for (O.B.C.) class of citizen and thus was not reserved for any particular caste like Sutar, Koli, Panch Kalashi etc. The petitioner was holding the caste certificate as belonging to Panch Kalashi caste which was initially surrendered and thereafter it was validated. The petitioner was, therefore, qualified to contest the election from Ward No.11 as a candidate of (O.B.C.) class. Mere cancellation of the caste certificate of the petitioner showing that he belongs to Sutar caste is not sufficient to declare his election as null and void. ii) The provisos of section 5B of the Act have been deleted by virtue of Maharashtra Act XIII of 2008 and, therefore,the candidate is required to produce the caste validity certificate along with his nomination paper itself. Respondent no.1 is not in possession of his caste validity certificate even today. Therefore, 8 the respondent no.1 ought not to have been declared as elected by the impugned order. Mr.Jahagirdar, learned Senior Advocate, for the petitioner has, therefore, submitted that in view of the aforesaid two submissions the present petition be allowed 6A Mr.Aney, learned Senior Advocate appearing for the respondent no.1 has submitted that the petitioner submitted his nomination on the basis of the caste certificate issued to him by the Competent Authority being Sutar (O.B.C.) The petitioner, therefore, contested the election by setting up a claim of belonging to Sutar (O.B.C.) caste. The Scrutiny Committee upon enquiry into the correctness of the said certificate has declared the said certificate as invalid and has cancelled the same. Such a caste certificate was obtained by the petitioner on the basis of the declaration or information or claim which was not correct or true and upon invalidation and cancellation of the caste 9 certificate by the scrutiny committee, the petitioner has automatically incurred disqualification. In support of the aforesaid submission, Mr.Aney has relied on the Full Bench decision of this Court in the case of Ramesh Suresh Kamble Vs. State of Maharashtra and others reported in 2006(6) Bom CR 820. 7 Mr.Aney has further submitted that admittedly the nomination paper is accepted on the basis of the caste certificate issued by the Competent Authority. The said caste certificate would be treated as valid subject to grant of validity certificate. Therefore, the acceptance of the nomination paper of the petitioner as valid will also be subject to the grant of validity certificate by the Caste Scrutiny Committee. Since the Caste Scrutiny Committee rejected the caste certificate produced by the petitioner claiming to be of Sutar (OBC) caste, the nomination of the petitioner itself cannot survive and if the nomination 10 cannot survive, the election of the petitioner cannot survive. Therefore, cancellation of the election of the petitioner is a natural consequence of his caste certificate being found invalid. Mr.Aney has further submitted that since the Scrutiny Committee refused to issue the final caste certificate to the petitioner confirming that he belongs to the Sutar (O.B.C.) Caste, the caste certificate issued by the Competent Authority and filed with his nomination papers, seizes to exist, with the result there is no caste certificate filed at the time of scrutiny of the nomination papers and, therefore, the nomination paper itself becomes infirm and incomplete, and therefore, the petitioner has lost his qualification to contest the said election and, therefore, he has to vacate his seat. In support of this contention, Mr.Aney has relied on the Full Bench decision of this Court in the case of Sujit Vasant Patil vs. State of Maharashtra 11 and others reported in 2004(3) Mh.L.J.1109. 8 As regards the second contention advanced on behalf of the petitioner, namely, that the provisos to sub-section 5B of the said Act are deleted and the petitioner is not holding a caste validity certificate till date and therefore by the impugned order the respondent no.1 ought not to have been declared as elected, Mr.Aney has submitted that at the relevant time the provisos to section 5B of the Act were in force which permitted the candidate to produce the caste validity certificate within a period of four months from the date of his elections. It is further submitted by Mr.Aney that the provisos to section 5B were deleted under the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act, 2008. Under Clause 6 of the said Act for removal of doubt it is declared that the election to a reserved seat to the Municipal Corporations or Municipal Councils, before the date of 12 coming into force of the said Act shall be regulated interalia by the relevant provisions of the Bombay Municipal Corporation Act (Bom.III of 1888), as existed immediately before such date of commencement. Mr.Aney, therefore, submitted that section 5B of the Bom.III of 1888 along with the provisos would be applicable to the facts of the instant case and respondent no. 1 will have to submit his caste validity certificate issued by the Scrutiny Committee within a period of four months from the date of order of the Additional Chief Judge, Small Causes Court, Mumbai coming into force/effect. He has submitted that respondent no.1 has already started taking steps to get the validity certificate issued by the Scrutiny Committee and will produce the same before the authorities within a period of four months from the date of the order impugned herein coming into force/effect. 13 9 I have considered the submissions of the learned Advocates appearing for the petitioner as well as respondent no.1. I have also gone through the impugned order as well as the case law relied upon by Mr.Aney. 10 Section 5B of the M.M.C.Act is reproduced hereunder. 5B: 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) [provided that, a person who has applied to the Scrutiny Committee for the verification of his Caste Certificate before the date of 14 filing 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 for having made such application to the Scrutiny Committee; and (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 (four 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 Councillor. 11 It is clear from section 5B of the MMC Act that any person desirous of contesting the election to a seat reserved for Scheduled Caste, Scheduled Tribe or backward class of citizens, is required to submit with his nomination paper his caste 15 certificate issued by the Competent Authority and validity certificate issued by the Scrutiny Committee. Under the first proviso to section 5B, the requirement of submitting the validity certificate issued by the Scrutiny Committee along with the nomination paper of the candidate has been relaxed and a candidate may file his nomination paper even without a validity certificate provided he has applied to the scrutiny committee for verification of his caste certificate before the date of filing of his nomination paper. However, the candidate is required to submit along with his nomination paper a true copy of the application preferred by him to the Scrutiny Committee for issuance of the validity certificate or any such proof for having made such application to the Scrutiny Committee along with 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 16 Committee. The second proviso to section 5B of MMC Act clarifies that if a candidate fails to produce the validity certificate within a period of four months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being the councillor. From the second proviso it is clear that it is mandatory for a candidate to produce the validity certificate within a period of four months from the date of election, only in the case of a successful candidate and not those who have lost the election. 12 Section 10(4) of the Maharashtra Scheduled Caste, Scheduled Tribes Act, 2000 reads thus: 10(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, Cooperative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, Denotified Tribes 17 (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by producing 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 respectively. Disqualification referred to in section 5B of the MMC Act, therefore, refers to the disqualification under sec. 10(4) of the said Maharashtra Scheduled Caste, Scheduled Tribe Act, 2000. Thus, section 10(4) provides that if a person is elected by producing false caste certificate, which was cancelled by the Caste Scrutiny Committee, then election of such a person shall be deemed to have been terminated retrospectively. In the decision of the Full Bench of this Court in Sujit Vasant Patil Vs. State of Maharashtra and others (supra) this Court whilst considering the issue of 18 caste certificate submitted along with the nomination form by a person who was declared as elected in the reserve ward and invalidated by the scrutiny committee in para 12(A) has observed thus: 12A&&&..If his nomination paper is accepted on the basis of caste certificate issued by the competent authority and as the caste certificate itself is valid subject to the grant of validity certificate, obviously acceptance of his nomination paper as valid will also be subject to the grant of validity certificate by the scrutiny committee. Therefore, once the scrutiny committee refuses to issue a validity certificate the nomination cannot survive and if the nomination cannot survive, election cannot survive. Therefore, cancellation of the election of such a candidate is a natural consequence of his caste certificate being found invalid. In paragraph 12B it is further observed: The job of the Scrutiny Committee is of either issuing the final caste certificate or refusing to do so. If the Scrutiny Committee refuses to issue final caste certificate then the caste certificate 19 issued by the competent authority ceases to exist. With the result, there is no caste certificate filed at the Scrutiny of the nomination papers and, therefore, the nomination paper itself becomes infirm and incomplete and, therefore, the returned candidate loses qualification to contest the seat and, therefore, he has to vacate his seat. In our opinion, in view of this scheme of the Act, even in the absence of sub- section (4) of Section 10, the consequences in law of the Scrutiny Committee refusing to issue valid caste certificate would be vacation of seat by the elected candidate. \ 13 In another Full Bench decision of this Court in Ramesh Suresh Kamble Vs. State of Maharashtra (supra), this Court on the issue pertaining to the false certificate has in paragraphs 20 and 26 of the judgment observed thus: 20. .....The cancellation of caste certificate by the Scrutiny Committee implies that in the opinion of the Scrutiny Committee, such certificate has been obtained fraudulently because the inquiry by the Scrutiny Committee centres around the correctness of such caste certificate obtained from the Competent Authority. 20 26. ....A candidate who sets up a claim as belonging to a particular caste by making an application to the Competent Authority and obtains the Caste Certificate based on such claim and information and contests the election of the councillor from the reserved seat and gets elected and if, ultimately, the Scrutiny Committee upon inquiring into the correctness of such certificate declares such certificate invalid and cancels the same, it is obvious that such Caste Certificate has been obtained by the person on the basis of the declaration or information or claim which was not correct or true and upon invalidation and cancellation of the caste certificate by the Scrutiny Committee, such person incurs disqualification automatically. There is no escape from it. Thus, it has been held by the Hon ble Full Bench that cancellation of the caste certificate implies that the Caste Scrutiny Committee was of the opinion that the certificate so cancelled has been obtained fraudulently. It is, therefore, obvious that such a caste certificate has been obtained 21 by a person on the basis of the declaration or information or claim which was not correct or true and, therefore, on cancellation of such certificate such person incurs disqualification automatically. 14 The Hon ble Division Bench of this Court in its decision in Nutan Vidarbha Shikshan Mandal Vs. The Presiding Officer School Tribunal Amravati reported in 2007(2) ALL MR 60 (DB), has observed in paragraph 23 that a term false caste certificate relates to that certificate which does not reveal the true and real caste of the claimant so also in paragrapah 29 the Hon ble Division Bench observed thus: The caste being within the knowledge of the claimant, by no stretch of imagination, it can be said that his claim can be false by mere mistake or by accident. It is pertinent to note that the caste certificate is essentially obtained to avail certain benefits in life of an individual either may be for educational purpose or for employment or for other benefits like contesting election. 22 15 In the backdrop of the aforesaid provisions of law and the case law the afore-stated submissions advanced by Mr.Y.S. Jahagirdar the learned Senior Advocate for the petitioner needs to be examined. 16 It is the case of the petitioner that prior to his filing the nomination paper, the petitioner was in possession of the caste certificate belonging to Panch Kalashi caste issued by the Competent authority. According to him, the said caste certificate belonging to Panch Kalashi caste was issued to him by the competent authority on 21st June, 2006. However, he was allegedly given ill advice and was directed to obtain a fresh caste certificate as belonging to Sutar (O.B.C.) Accordingly he surrendered the original caste certificate as belonging to Panch Kalashi (O.B.C.) to the Competent Authority and obtained a fresh caste certificate as belonging to Sutar (O.B.C.) dated 28th December, 2006. According to the petitioner, the caste certificate of 23 the petitioner belonging to Panch Kalashi caste was validated by the scrutiny committee by its order dated 23rd December, 2008. Thus, admittedly the petitioner along with his nomination papers submitted a caste certificate issued by the competent authority showing him as belonging to Sutar (O.B.C.). The nomination filed by the petitioner was, therefore, on the basis of a claim that he belongs to Sutar (O.B.C.) On that day, the caste certificate issued to him in December 2006 showing him as belonging to Panch kalashi (OBC) was not in existence as he had admittedly surrendered the same and staked the claim of belonging to Sutar (O.B.C.) The petitioner thereafter contested the election for the reserved seat on the strength of his nomination paper and the caste certificate issued by the Authority claiming that he belongs to Sutar (OBC). Therefore, it was mandatory for the petitioner under section 5B of the Act to produce his caste validity certificate 24 within a period of four months from the date of his election validating his caste claim of belonging to Sutar (OBC). Since the petitioner admittedly failed to produce a validity certificate from the caste scrutiny committee as required under section 5B of Act within a period of 4 months, his election under the second proviso of section 5B, stood terminated and he stood disqualified for being a Councillor. Admittedly, the Scrutiny Committee rejected the claim of the petitioner belonging to Sutar (OBC) and refused to issue the validity certificate showing the petitioner as belonging to Sutar (OBC). In view thereof, as held by the Hon ble Full Bench of this Court in the case of Sujit Vasant Patil Vs.State of Maharashtra and others (supra) the nomination of the petitioner based on the claim of the petitioner belonging to Sutar (O.B.C.) cannot survive and if his nomination cannot survive his election cannot survive. The cancellation of 25 election of the petitioner is, therefore, a natural consequence of his caste certificate allegedly belonging to Sutar (OBC) being found invalid and in view of the scheme of the Act (even in absence of sub-sec.(4) of section 10), the consequence in law of the scrutiny committee refusing to issue the valid caste certificate would be vacation of the seat by the petitioner. 17 As held by the Hon ble Full Bench of this Court in its decision in Ramesh Suresh Kamble Vs. State of Maharashtra and others (supra), cancellation of the caste certificate by the scrutiny committee implies that in the opinion of the scrutiny committee such a certificate has been obtained fraudulently because the enquiry by the scrutiny committee centers around the correctness of such certificate obtained from the competent authority and the person whose caste certificate has been so cancelled by the scrutiny committee incurs disqualification automatically and has no 26 escape from it. In the instant case the petitioner had set up a claim as belonging to Sutar (OBC) by making an application to the competent authority and obtained the caste certificate based on such a claim and information and contested the election of the councilor from the reserved seat and got elected on the basis of his claim that he belongs to Sutar (OBC). Upon the scrutiny committee declaring such a caste certificate of the petitioner belonging to Sutar (OBC)