D. G. Karnik, J

1. Rule. By consent rule is made returnable forthwith. Heard counsel for the parties.

2. By this petition the petitioner seeks a writ of certiorari or any other appropriate writ for setting aside the notification dated 12th September 2007 issued by the respondent no.1 - State Election Commission for holding of the by-election to Ward Nod. 13 of the Mumbai Municipal Corporation (for short, "the Corporation").

3. The general election to the respondent no.2 Mumbai Municipal Corporation were held on 1st February 2007 and the respondent no.4 was declared elected to a seat reserved for the "Other Backward Classes" (for short, "OBC"). The elections results were declared on 2nd February 2007. The caste certificate produced by the respondent no.4 declaring her caste to be Vaishyvani, on enquiry was invalidated by the Caste Scrutiny Committee by its order dated 2nd June 2007. Consequently, the election of the respondent no.4 to the post of Councilor was deemed to be invalidated under second proviso to section 5(b) of the Mumbai Municipal Corporation Act, 1888 (for short, "the Act".) . Though the respondent no.4 has challenged the order of the Caste Scrutiny Committee invalidating her caste certificate by filing a writ petition no stay either to the order of the Caste Scrutiny Committee or to the termination of her election has been granted.

4. Relying upon the provisions of Section 33 of the Act, the present petitioner, who is not a candidate at the election but merely a voter residing in Ward No.13, has filed an election petition, bearing No. Election Petition (stamp) No. 1107 of 2007 in the Small Causes Court, Mumbai for declaring election of the respondent no.4 as null and void and declaring the candidate who has secured the second highest number of votes from Ward No. 13 in the elections held on 2nd February 2007 is deemed to have been elected. That election petition has been filed on 21st September 2007 along with an application for condonation of delay in filing the election petition.

5. Even before the election petition along with the delay condonation application was filed by the petitioner, the State Election Commission has declared that the election of the respondent no.4 is terminated on her caste certificate being invalidated and has further issued a notification on 22nd August 2007 for by-elections to the Ward No. 13. This notification is impugned by the present petition.

6. Sub-section (2) of section 33 of the Act provides that if a person whose election is objected to (by filing an election petition) is disqualified for being a councilor then the Judge (Election Court) declare the such person’s election to be null and void, and shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded shall be deemed to have been elected. Relying upon this provisions Counsel for the petitioner submitted that as the respondent no.4 was disqualified on account of his not belonging to the OBC, the Election Court would not only be required to formally set aside his election but also be required to declare that the candidate who secured the next highest number of votes is elected from the Ward No.13. Counsel further submitted that as the election Court would, on conclusion of the election petition declare that the candidate securing next highest number of votes is elected it is inappropriate for the Election Commission to issue a notification for holding of by-elections to the Ward No.13.

7. At the outset it may be noted that the caste claim of the respondent no.4 was invalidated on 2nd June 2007. Therefore, on account of the second proviso to section 5B of the Act, the election of the respondent no.4 stood terminated retrospectively by the opera