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2016 Supreme(Bom) 1332
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
RANJIT MORE AND SHALINI PHANSALKAR-JOSHI, JJ.
Mohammed Ishak Kasim Ali Shaikh Son of Kasim Ali Shaikh - Petitioner
Vs.
Municipal Corporation of Gr. Mumbai and Ors. - Respondents
WRIT PETITION NO. 7961 OF 2016
Decided On : 06-10-2016
For the Petitioner:Mr. A.V. Anturkar, Sr. Advocate i/b Yusuf Khan.
For the Respondent-BMC:Mr. A.Y. Sakhare, Sr. Advocate a/w. Mr. Vinod Mahadik, Mr. S.B. Shetye, Mr. R.K. Mendadkar.
Headnote:Mumbai Municipal Corporation Act, 1888 - Sections 9 and 33(2)-Maharashtra S.C. and S.T. Caste Certificate Act, 2000, Sections 7 and 10(4)-Election to post of councillor.-Where election of petitioner to post of councillor was set aside on ground of invalid caste certificate therefore trial Court rightly disclosed next highest valid vote holder as elected.
The conjoint reading of Sections 9 and 33(2) of the Mumbai Municipal Corporation Act makes it clear that whenever after making necessary enquiry in the Election Petition the returned candidate is declared disqualified and the Chief Judge finds that his election is required to be declared as null and void and accordingly declare it to be so, then sub - Section (2) of Section 33 makes it incumbent on the Chief Judge to declare the candidate who has obtained next highest number of valid votes, as elected.
When the petitioner was declared as disqualified on account of invalidation of his caste certificate, at that time the election petition filed by respondent No. 3 against the petitioner was pending before the Additional Chief Judge. There was nothing wrong or illegal on the part of the Additional Chief Judge in proceeding with the hearing of the said Election Petition and by exercising its powers and jurisdiction vested in him under Section 33(2) of the Mumbai Municipal Corporation Act declaring respondent No. 3 to be elected from the said constituency.
1. By this petition, filed under Article 226 of the Constitution of India, the petitioner is taking an exception to the Judgment and Order dated 08.07.2016, passed by the Additional Chief Judge of Small Causes Court, Mumbai in Municipal Election Petition No.87 of 2012. By the said Judgment and Order, the election of the petitioner, dated 17.02.2012 from Ward No.156 of the Mumbai Municipal Corporation was declared as null and void. At the same time, respondent No.3 herein was declared as elected from the said ward under the provisions of Section 33(2) of the Mumbai Municipal Corporation Act, 1882 (hereinafter referred to as the 'MMC Act').
2. Certain facts are not in dispute. The petitioner herein has contested the election for the post of councillor from Ward No.156 of the Mumbai Municipal Corporation, from a constituency reserved for Other Backward Class Community (hereinafter referred to as the 'OBC'). The result of the election was declared on 17.02.2012. The petitioner was declared as elected having secured highest number of votes. Respondent No.3 herein has also contested the said election from the same ward and he has secured second highest number of votes.
3. Being aggrieved, respondent No.3 had filed Municipal Election Petition No. 87 of 2012 before the Trial Court on the count that the petitioner does not belong to the 'Mansuri' caste which is recognized as OBC and hence his election from the said ward be declared as null and void and in consequence, respondent No.3 be declared as elected from the said ward having secured second highest number of votes after the petitioner. The said election petition was filed on 02.03.2012.
4. Meanwhile, the caste certificate of the petitioner was sent for verification to the Caste Scrutiny Committee and the Scrutiny Committee by its order dated 20.12.2012 validated the caste certificate of the petitioner. However, the legality of the said order was challenged by respondent No.3 by preferring Writ Petition No. 398 of 2013. By its detailed Judgment and Order dated 28.08.2015, this Court was pleased to allow the said Writ Petition thereby invalidating the caste certificate of the petitioner. As a result thereof, by order dated 07.09.2015, Additional Municipal Commissioner disqualified the petitioner for the post of councillor retrospectively with effect from 17.02.2012. The said order has not been challenged by the petitioner and, therefore, it has become final having not been set aside by any other competent Court.
5. In view of this legal position, the learned Trial Court vide, its impugned order, allowed Election Petition No. 87 of 2012, filed by respondent No.3, declaring the election of the petitioner from Ward No. 156, as null and void and at the same time declaring respondent No.3 herein as elected from the said ward under the provisions of Section 33(2) of the MMC Act.
6. While challenging this impugned order of the Trial Court, the main contention advanced by the learned Senior Counsel for the petitioner is that once the petitioner was declared to be disqualified for contesting the election itself, that too retrospectively with effect from 17.02.2012 by the order dated 07.09.2015, petitioner has ceased to be elected councillor and as such he also ceased to continue as 'respondent' in the Election Petition filed before the Trial Court under the provisions of Section 33 of the MMC Act. It is urged that, under Section 33 of the MMC Act, the Election Petition can be filed only against the existing elected councillor for challenging or disputing his election and, therefore, once the petitioner was held as disqualified to be the councillor, he ceased to continue as 'respondent' in the Election Petition. As a result thereof, the Election Petition has become redundant, infructuous, meaningless and was liable to be disposed of as such by the Trial Court.
7. Learned Senior Counsel for the petitioner has, in this respect, placed reliance on Section 9 of the MMC Act to advance his sub
