JUDGMENT - R.M. LODHA, J.:---Rule. Returnable forthwith. Mrs. Dangre, learned A.G.P. waives service for respondent No. 1. Mr. Dubey, learned Counsel waives service for respondent No. 2. Mr. Raghute, learned Counsel, waives service for respondent No. 3.

2. By consent of learned Counsel for parties, we dispose of the Rule finally at this stage.

3.The petitioner is an elected Councillor/Corporator from Ward No. 23 of Nagpur Municipal Corporation, which is reserved for Scheduled Caste candidate. In the election held on 23-12-1997 the petitioner was elected defeating one Sheshrao Wasnik and Rajendra Tembhurne. Sheshrao Washik has filed Election Petition No. 73 of 1997 questioning petitioner's election as corporator from Ward No. 23. It appears that on the complaint of other defeated candidate, namely Rajendra Tembhurne respondent No. 3 herein the Divisional Social Welfare Officer (Caste Scrutiny Committee), invalidated petitioner's caste claim. The said order of Caste Scrutiny Committee invalidating petitioner's caste claim was challenged by petitioner in W.P. No. 2296 of 2000. The said petition stood dismissed on 28th June. The Commissioner, Nagpur Municipal Corporation, Nagar, vide communication dated 29-9-2000 (Annexure P-5) informed the petitioner that the Divisional Social Welfare Officer vide Order dated 8-6-1999 has invalidated petitioner's caste claim and the writ petition filed by the petitioner challenging the said order dated 8-6-1999 has been dismissed by the High Court on 28-8-2000. As a result thereof under section 15(g) of the City of Nagpur Corporation Act, 1948 petitioner was not qualified to be elected as Councillor and has ceased to be a Councillor under section 19(a) of the Act of 1948. The said communication dated 29-9-2000 is impugned before us in the present writ petition.

4.In our view, the communication dated 29-9-2000 sent by the Commissioner, Nagpur Municipal Corporation, Nagpur, is wholly without jurisdiction and amounts to usurping the power of Election Tribunal under section 428 of the Act of 1948. Section 15 of the Act of 1948 provides for disqualification of candidates. As we are concerned with Clause (g) of section 15, the relevant part of it provides that no person shall be eligible for election as a Councillor if he has been so disqualified by or under any law, (i) for the time being in force for the purpose of elections to the legislature of the State; and (ii) made by the legislature of the State of Maharashtra. Section 19 provides for effect of subsequent disabilities. The effect of section 19(a) that if any person has been elected or nominated a Councillor and subsequently becomes subject to any of the disqualifications specified in section 15 and such disqualification is not removable or being removable is not removed, such person shall cease to be a Councillor and the State Government shall, by notification, declare his seat to be vacant. Section 21 deals with the power of removal of any Councillor. It provides that any Councillor who becomes subject to any of the disqualifications specified in section 19 shall forthwith cease to be a Councillor and his office shall become vacant. Section 21(2) makes a provision that if any question arises whether a vacancy has occurred under sub-section (1), it shall be decided by State Government and its decision shall be final. Section 428 provides machinery to challenge the result of election. Section 428 along with Rules framed thereunder permit the person enrolled in the municipal election roll to question the validity of election on the grounds mentioned in sub-section (1), inter alia if the qualification of the elected Councillor is disputed. In other words, if the qualification of any elected Councillor is disputed the remedy provided under the Act is by way of election petition which is to be heard and disposed of by District Court. It would be, thus, seen that if the petitioner was not qualified to be elected as Municipal Councillor under section 15(

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