F. I. REBELLO, J.

( 1 ) APPEARANCE has been put up on behalf of Respondent No. 3. None present for Respondent Nos. 1 and 2. Even otherwise considering the order to be passed, notice on them dispensed with. Rule, made returnable forthwith.

( 2 ) AT the general election held to fill in the seats to Respondent No. 3 corporation, Respondent No. 1 was declared elected. The seat was reserved for female (OBC) candidate. An election petition was filed by a voter before the Additional Chief judge, Court of Small Causes at Mumbai being election Petition No. 30 of 2002. Reliefs sought were to set aside the election of respondent No. 1 and to declare Respondent no. 2 as elected. The Petition was allowed and the election of Respondent No. 1 was set aside. At the same time, the Learned additional Chief Judge, Court of Small Causes declared Respondent No. 2 deemed to be elected against the vacancy occasioned by unseating of Respondent No. 1. It appears that an objection came to be raised against respondent No. 2 on the ground that she did not belong to the notified OBC caste. The matter for verification of the caste claim of respondent No. 2 was forwarded to the caste scrutiny committee which rejected the claim of Respondent No. 2 as belonging to the o. B. C. Caste. Respondent No. 2 filed a petition challenging the said order before this court being Writ Petition No. 4272 of 2005. The Petition was dismissed. Consequently, respondent No. 2 ceased to hold office. Counsel appearing for the Petitioner points out that the Petition filed by Respondent No. 1 has also been dismissed.

( 3 ) IT is the case of the Petitioner, that Petitioner ought to have been declared as deemed to be elected pursuant to the vacancy which has been occasioned by the unseating of Respondent Nos. 1 and 2. It is on this basis that the present Petition has been filed. It may be mentioned that the Petitioner herein was not a party in the Municipal election Petition No. 30 of 2002.

( 4 ) AT the hearing of the Petition, on behalf of the Petitioner learned counsel points out placing reliance on Sections 33 and 34 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as the Act) that she should be declared as deemed to be elected to the seat on account of the vacancy having arisen by the unseating of Respondent Nos. 1 and 2. We may gainfully reproduce Section 33 (2) of the Act which reads as under :"33 (2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. [if he finds that the person whose election is objected to is disqualified for being a councillor he shall declare such persons election null and void. If he finds that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person, and against whose election no cause of objection is found, shall be deemed to have been elected. ]"similarly Section 34 also needs to be reproduced and it reads as under :"34. Procedure if election fails or is set aside.- [ (1) If at any general election or on election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place under the said sub-section [the State Election Commissioner] shall appoint another day for holding a fresh election and a fresh election shall be held accordingly. ] (2) A councillor elected under this section shall be deemed to have been elected to fill a casual vacancy under section 9. ]"section 33 (1) requires that when a Petition is filed, disputing the election of a councillor and in case the application is for a declaration that any particular candidate shall be