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2013 Supreme(Bom) 800
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
A.S. OKA & MRS. MRIDULA BHATKAR, JJ.
Kalpana Dilip Bahirat
Vs.
Pune Municipal Corporation & Ors.
Writ Petition No. 3315 of 2013
Decided On: 9th April, 2013
Mr. S.S. PATWARDHAN i/b. Mr. PURUSHOTTAM G. CHAVAN for the Petitioner.
Mr. ABHIJIT P. KULKARNI for Respondent nos. 1 and 2.
Mr. C.R. SONAWANE, AGP for the State.
Mr. S.B. SHETYE for Respondent no. 4.
Headnote: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 Certificate) Act, 2000 - Sections 4 and 6 - CPC, 1908, Section 35 - Validity of Caste Certificate.
Where petitioner filed nomination form without possessing genuine caste certificate therefore petition deserves to be dismissed with casts. - In the present case, the petitioner has not come to the Court with clean hands. She has not candidly stated the correct facts. At no stage right from the reply to the first show-cause notice of July, 2012, the petitioner made any serious attempt to dispute that the documents produced by her along with the nomination papers were fabricated. In any event, not only that she has failed to explain as to how she obtained the caste validity certificate dated 26th August, 2010, she has candidly stated before the Court that she did not appear before any Scrutiny Committee for inquiry. Surprisingly, she has claimed that she applied to the Scrutiny Committee on 15th November, 2011. Apart from the failure of the petitioner to explain as to how she could obtain caste validity certificate on 26th August, 2010 on the basis of application of 15th November, 2011, there is enough material to show that the petitioner could not have filed the nomination form as she was not possessing a genuine caste certificate as well as the caste validity certificate on the date of filing nomination form. Court has perused the bound book of the office copies of the caste validity certificates issued by the concerned Scrutiny Committee. It shows that certificate No. 31456 was issued to one Poddar Pooja.
However, the conduct of the petitioner is such that she cannot be permitted to invoke discretionary jurisdiction of the Court under Article 226 of the Constitution of India. Going by the admitted facts, the petitioner produced a caste validity certificate, which was not at all issued by the Caste Scrutiny Committee. The said certificate was produced along with a nomination form, which is the mandatory requirement of Section 5- B of the said Act of 1949. Thus, the petitioner contested the election on the basis of caste validity certificate which was not genuine. If at the instance of the petitioner this Court exercise writ jurisdiction by setting aside the impugned order, the same will amount to restoring something which is completely illegal in as much as the petitioner was never entitled to comes the election and the petitioner contested the election by producing documents which are fabricated. Thus, exercising writ jurisdiction at the instance of such a litigant will amount to allowing the petitioner to secure a dishonest advantage. Moreover, the petitioner will be permitted to take advantage of the gain made by her by relying upon fabricated documents. But for production of the fabricated documents the petitioner could not have contested the election. The petitioner has prevented candidate who was possessing a lawful caste validity certificate from getting elected. Such conduct defeats the very object of reservation policy. The petitioner has relied upon several decisions by contending that the elected representatives cannot be thrown out in this manner. Court is testing the conduct of a person who claims to be an elected representative and who is seeking to invoke extraordinary jurisdiction of the Court under Article 226 of the Constitution of India. Such litigant should never be permitted to invoke extraordinary jurisdiction of the Court. A writ Court is not open for such litigant who has shown total disregard for the truth.
Yesterday we have heard the submissions of the learned counsel appearing for the contesting parties at some length. The challenge in this Writ Petition under Article 226 of the Constitution of India is to the order dated 26th March, 2013 passed by the second respondent (the Commissioner of the Pune Municipal Corporation). The question involved in this petition is whether writ jurisdiction under Article 226 of the Constitution of India can be allowed to be invoked by the petitioner who has produced a fabricated caste validity certificate for contesting election of a reserved post.
2. The petitioner claims that she belongs to a caste 'Kunbi'. The claim of the petitioner is that the caste Kunbi is recognized as 'Other Backward Class'. Reliance is placed by the petitioner on the caste certificate dated 3rd July, 2008 and the caste validity certificate dated 26th August, 2010 bearing sr. no. 31456.
3. The General Ward Election of the first respondent-Pune Municipal Corporation was declared in the December 2011. Ward No. 40-A was reserved for Other Backward Class - Women. The petitioner filed her nomination paper. The petitioner produced the caste certificate dated 3 rd July, 2008 (Exhibit A to the petition) and caste validity certificate dated 26th August, 2010 (Exhibit B to the petition) along with her nomination form. The petitioner was declared as elected on 17th February, 2012. The election of the petitioner was subjected to a challenge by one Laxmi B. Ghodake, a defeated candidate, by filing an Election Dispute under section 16 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as the "said Act of 1949"). There is a separate petition being Writ Petition no. 4700 of 12 filed by the said Ms. Ghodake contending that the caste certificate as well as caste validity certificate referred to above are fabricated.
4. On 13th March, 2013 the second respondent issued a notice to the petitioner. The second respondent stated in the said notice that the Secretary of the Caste Scrutiny Committee No.3, Pune by communication dated 28th August, 2012 informed the first and second respondents that one Kalpana Anantrao Mane (maiden name of the petitioner) has not been issued caste validity certificate no. 31456 by the Caste Scrutiny Committee No.3. In the said communication dated 28th August, 2012, it was stated that the proposal for caste verification of the petitioner was never received by the Caste Scrutiny Committee. We may note here that the caste validity certificate dated 26th August, 2010 is purportedly issued by the said Caste Scrutiny Committee. It is alleged in the notice that the caste validity certificate bearing no. 31456 was issued to a student by the name Ms. Pooja Vasudev. In the said notice dated 13th March, 2013, the second respondent relied upon the directions issued by the State Election Commission on 31st January, 2013 to the Municipal Corporation. The petitioner was called upon to remain present for hearing on 25th March, 2013. We may note here that on 25th July, 2012, there was a notice addressed by the second respondent to the petitioner. In the said notice, it was pointed out that the Divisional Caste Scrutiny Committee No.3, Pune by letter dated 9th July, 2012 informed the first respondent that the caste validity certificate no. 31456 produced by the petitioner in the name of Kalpana Anantrao Mane was not at all issued by the Office of the Scrutiny Committee and in fact a certificate bearing the said number was issued to one Poddar Pooja Vasudev. The petitioner was informed that she had committed breach of the provisions of Section 5B of the said Act of 1949 and therefore she should submit her clarification/reply. Accordingly, the petitioner filed reply on 8th August, 2012.
5. We may note here that being aggrieved by the show cause notice dated 13th March, 2013, the petitioner has filed a Writ Petition. However, this Court did not grant any ad-interim relief. The petitioner has pointed out
