JUDGMENT - THAKKER C.K., C.J.:---The petitioner by this petition challenges the order, dated April 10, 2003 passed by the Additional Chief Judge, Small Causes Court, Mumbai in Interim Notice No. 214 of 2003 in Election Petition No. 24 of 2003. In the operative part of the order, the Additional Judge of Small Causes Court observed as under:---

"Int. Notice No. 214 of 2003 in Election Petition No. 24 of 2002 is hereby made absolute in respect of prayer Clause (b) of paragraph 9 of the notice and it is hereby declared that the petitioner Mrs. Shahinara Salin Baiq is hereby declared as an elected from Municipal Corporation Ward No. 108 of Municipal Corporation of Greater Mumbai."

(Emphasis supplied)

2. Certain facts are not in dispute. Petitioner herein was declared as elected Councillor from Ward No. 108 of Brihanmumbai Municipal Corporation, a constituency reserved for Other Backward Class Community Women. By a decision, dated December 13, 2002 taken by the Caste Certificate Verification Committee, Kokan Division, the Caste Validity Certificate of the petitioner of Kunbi Community was held invalid and was cancelled. She, therefore, was held disqualified from contesting the election and retaining the seat as Councillor. The said action was challenged by the petitioner by filing a writ petition (Writ Petition No. 214 of 2003) in this Court and a Division Bench of this Court dismissed her writ petition on 13th February, 2003.

3. It is an admitted position that when the above decision was taken by the committee as well as by this Court, respondent No. 4 had already instituted election petition on February 20, 2002 and the same was pending before the Small Causes Court. Relying on provisions of section 32 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"), the Additional Chief Judge of the Small Causes Court declared respondent No. 4 herein as elected candidate The said action is challenged by the petitioner by filing this petition.

4. Several contentions have been raised by the learned Counsel for the petitioner. It was contended that the Additional Chief Judge of the Small Causes Court has committed an error of law and of jurisdiction in relying upon sub-section (2) of section 33 of the Act and declaring respondent No. 4 as elected from Ward No. 108 of Municipal Corporation of Greater Mumbai. It was urged that respondent No. 4 ought not to have declared as elected candidate after notification under section 9 of the Act had been issued. The vacancy ought to have filled in as laid down in section 9 and it was not open to the Additional Chief Judge of the Small Causes Court to pass an order under section 33(2) of the Act. The said action, therefore, deserves to be quashed and set aside.

5. The learned Counsel for respondent No. 4, on the other hand, raised a preliminary objection and contended that the petitioner has no locus standi to file a petition. Admittedly, the scrutiny committee invalidated the certificate granted in favour of the petitioner and the said order was confirmed by this Court on 13th February, 2003 in Writ Petition No. 214 of 2003 and she was held disqualified. She, hence, cannot file a petition against respondent No. 4.

6. Even on merits, the learned Counsel for respondent No. 4 submitted, the order passed by the Additional Chief Judge, Small Causes Court is in consonance with law. It was submitted that both the provisions viz. Sections 9 and 33 operate in different fields and deal with different situations.

7. Section 9 lays down as to how casual vacancies should be filled up. It reads as under:

"In the event of non-acceptance of office by a person elected to be a councillor, or of the death, resignation or disqualification of a councillor, of his becoming incapable of acting during the term of his office there shall be deemed to be a casual vacancy in the office and such vacancy shall be filled up, as soon as it conveniently may be, by the election of a person thereto, who shall hold of

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