2004 Supreme(Bom) 1365

Bombay High Court
(October 1, 2004)
Janardhan Vasant Yadav
Versus
Vidyadhar Kanade

Headnote:Maharashtra Scheduled Castes, Scheduled Tribes, Denotified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Class and Special Backward Categories (Regulation of Issuance of Verification of) Caste Certificate Act, 2001 - Section 10(4). - See Mumbai Municipal Corporation Act, 1888, Section 16(1-C).

       Mumbai Municipal Corporation Act, 1888 - Sections 3(a-3) and 5-A(1) - Expression "Backward Classes". - A person belonging to Nomadic Tribe, can also claim that he belongs to a Backward Class. - A joint reading of Sections 5-A(1) and Section 3(a-3) of the Mumbai Municipal Corporation Act, 1888, makes it clear that certain number of seats to Municipal Corporation are reserved for the Backward Class candidates and that the phrase ``Backward Classes’’ does not merely include the Other Backward Classes. Section 3(a-3) provides that, apart from the Other Backward Classes, V.J. and N.T. are also included in the definition of Backward Classes. The definition is an inclusive definition and, therefore, a person belonging to Nomadic Tribe can also claim that he belongs to a Backward Class and contest the election as such on the basis of a certificate issued by the competent authority that he belongs to the Nomadic Tribe.

       Mumbai Municipal Corporation Act, 1888 - Section 16(1-C)(a) - 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 Cer tificate Act, 2001 Section 10(4) - Invalidation of caste claim. - Where caste of an elected councillor to reserve seat was invalidated by Scrutiny Committee, therefore seat of such Councillor deemed to have been vacated. 2004 (3) Mh LJ 1109 - Relied on - ’A’ counsel appearing for the petitioner, pressed into service certain observations in para 16 of that judgment which read as follows : -

        "The legislature therefore, advisedly did not regard the mere cancellation and invalidation of the caste certificate as a ground for disqualification but mandated that a disqualification will ensue where the invalidation and cancellation is on the ground set out by the legislature, namely that the certificate is based on a false claim or declaration by a person claiming to belong to a reserved category."

       ’J’ counsel appearing for respondent Nos. 1 and 2, on the other hand, submitted that these observations have to be seen in the background of the definition of something which is false as stated in para 15 of that judgment. That apart, he pointed out that in para 25 of that judgment, the Division Bench has stated that the letter of the Municipal Commissioner is only a formal communication. The disqualification under Section 10(1- C) is attracted once the Scrutiny Committee has declared the caste certificate of the Councillor to be invalid and has cancelled the same on the ground of the certificate having been based on a false claim or declaration. ’J’ drew our attention to the form filled up by the petitioner while contesting the election. The petitioner had enclosed with the form his caste certificate and the certificate issued by the Scrutiny Committee. It is unduboutedly true that the petitioner had applied to contest to a Backward class seat and his claim to the Backward Class seat was based on the caste certificate and the validity certificate. He pointed out that, admittedly, those certificates had been invalidated. The consequence of the invalidation has to be seen as provided under the Act. The order passed by the Scrutiny Committee cannot be read as holding that the petitioner belongs to the Hindu Ahir Caste, which falls under the category of Nomadic Tribe. Every candidate contesting the election to a reserved seat has to have a caste certificate as belonging to the particular reserved category and that certificate has to be validated by the Scrutiny Committee. In the instant case a particular certificate, which was enclosed with the Application Form, has been invalidated. Subsequent to the impugned order, the petitioner has applied for another caste certificate that he belonged to a Nomadic Tribe. The fact remains that such a certificate has not been issued as yet and in any case, the certificate, which was tendered when the election was contested, has been vitiated. Once that certificate is vitiated, the election will also stand vitiated, as held by the Full Bench in the case of Sujit V. Patil v. State of Maharashtra, 2004 (3) Mh LJ 1109.

       In connection with the aforesaid submission of ’J’, we will have to note that in the facts of the present case, undoubtedly, the petitioner was given an incorrect certificate that he belonged to O.B.C. when the caste "Ahir" was no longer in the O.B.C. category but was a Nomadic Tribe. It was undoubtedly a mistake on the part of the office of the Collector in not updating the computer and not issuing the correct certificate. However, what is important is that the right to contest the election is a legal right and has to be exercised by fulfilling the requirements which are expected to be fulfilled. These requirements are expected to be implemented strictly and that has been so held in a catena of judgment. If the requirement is not fulfilled, the election automatically gets vitiated. As far as the role of the Municipal Commissioner is concerned, he is only in the position of implementing authority.

       Having noted the legal position as above, in our view the first respondent-Additional Municipal Commissioner had no option but to obey the order passed by the Scrutiny Committee. The operative part of the order is clear that the caste certificate and the validity certificate of the petitioner were invalidated. If the petitioner was aggrieved by that order or if he thought that the order, in fact, did not vitiate his claim to belong to the Nomadic Tribe of Hindu Ahir caste, his remedy was to challenge that order under Section 7(2) of the Caste Certificate Act or to seek an appropriate direction from the High Court. To our repeated questions, Mr. Acharya has maintained that the petitioner is not aggrieved by the decision of the Scrutiny Committee and he is not challenging the same in this petition. The proceedings before the Caste Scrutiny Committee were on a complaint filed against the petitioner and it had led to the cancellation of his certificate. The petitioner had a remedy and Section 7(2) of the Caste Certificate Act, which in unmistakable terms, has provided that the decision of the Scrutiny Committee was final and could not be challenged before any authority except the High Court. What the petitioner wants the Municipal Commissioner to do is to read that in spite of the operative part of the order (which has been issued as claimed by him for technical reasons) the Municipal Commissioner ought to have noted that the petitioner continued to belong to the Hindu Ahir caste, which falls under the category of Nomadic Tribes. The 1st respondent-Additional Municipal Commissioner could not have done any such thing in the absence of a certificate being produced by the petitioner that he belonged to such a caste. No such certificate was produced to the 1st respondent nor has the same been issued as yet. As stated earlier, the right to contest the election is a legal right and can be exercised only if the legal requirements in that behalf are strictly fulfilled.

       In the circumstances, Court does not find any error in the order dated 14th August, 2002 passed by the 1st respondent-Additional Municipal Commissioner. The petition is, therefore, dismissed. However, there will be no order as to costs.