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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Letters Patent Appeal No. 322/2009 in
Writ Petition No. 907/2009 (D)
Aziz Ahmad Gulam Rasul, aged 51 years,
Occ. Business r/o Gangadhar Plot, Akola,
Tq. Dist. Akola. .....APPELLANT
...V E R S U S...
1. Akola Municipal Corporation, through
its Municipal Commissioner, Akola.
2. The Returning Officer, Akola Municipal
Corporation, Election Akola.
3. Assistant Returning Officer, Zone No.4,
Akola Municipal Corporation, Akola.
4. Iqbal Ahmad s/o Abdul Gaffar, aged 28 years,
Occ. Business, r/o Khair Mohd Plot, Akola. ....RESPONDENTS
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Mr. A. S. Mardikar, Advocate for appellant.
Mr. K. S. Malokar, Advocate for respondent no.1
Mr. M. K. Pathan, A.G.P. for respondent nos. 2 and 3
Mr. R.C.Madkholkar with Mr. S.V.Sohoni, Advocate for respondent no.4.
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CORAM: S.A.BOBDE AND S. B. DESHMUKH, JJ.
Date of Reserving the Judgment : 29th March, 2011
Date of Pronouncing the Judgment: 21 st April, 2011
JUDGMENT (Per:- S. A. Bobde, J.)
1. Heard learned counsel for the parties.
2. The appellant-Aziz Gulam Rasul has preferred this
appeal against judgment and order of the learned Single Judge of this
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Court setting aside a declaration that he is duly elected from Ward No.
16 of the Municipal Corporation, Akola.
3. Respondent no.4-Iqbal Ahmad and appellant-Aziz Ahmad
both had contested the election of a Councillor from Ward No. 16 of
Municipal Corporation, Akola under the provisions of the Bombay
Provincial Municipal Corporations Act, 1949 (hereinafter referred to as
“the BPMC Act”). The ward was reserved for candidates belonging to
Other Backward Classes (OBC).
ig Iqbal Ahmad had claimed that he
belongs to the OBC category and had, along with his nomination form,
filed a certificate issued by Sub Divisional officer, Akola that he
belongs to Kasai caste, a notified OBC. He was declared elected. On
12.02.2007, Aziz Ahmad filed an Election Petition before the Civil Judge
Senior Division, Akola claiming that the certificate produced by Iqbal
Ahmad as belonging to Kasai caste is false though pending verification
by the Caste Scrutiny Committee, and he is, therefore, not qualified for
contesting the election from a seat reserved for an OBC candidate. It
was, therefore, prayed that Iqbal Ahmad be declared as disqualified
from contesting the election from Ward No. 16 and his election be set
aside. It was further prayed that the appellant Aziz Ahmad be declared
elected being the only other candidate in the fray.
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4. The learned Civil Judge Senior Division, Akola
(hereinafter referred to as the “Election Court”) allowed the election
petition filed by the appellant and set aside the election of Iqbal
Ahmad. While the election petition was pending, the Caste Scrutiny
Committee invalidated the caste certificate of Iqbal Ahmad that he
belongs to the Kasai caste. Iqbal Ahmad challenged the invalidation
before this Court by way of Writ Petition No. 1912/2008, which was
dismissed on 12.02.2008. A Special Leave Petition filed against the
said judgment was also dismissed by the Supreme Court of India on
27.01.2009.
on 18.02.2009, the learned Election Court decided the
election petition filed by Aziz Ahmad and set aside the result of the
election of Ward No. 16 of the Municipal Corporation, Akola and
declared that Iqbal Ahmad was disqualified from contesting the
election even as on the date of filing of the nomination papers. By the
same order, the learned Election Court granted a declaration that the
election petitioner-Aziz Ahmad is entitled to be declared as elected
being the only other validly nominated candidate in the fray, after
observing that he belongs to Momin caste, which is a notified OBC.
5. Aggrieved, Iqbal Ahmad-respondent no.4, challenged the
decision of the Election Court by way of a writ petition. On
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10.07.2009, that writ petition has been allowed by a learned Single
Judge of this Court, who held that the Election Court had no jurisdiction
to decide the election petition under Section 16 of the BPMC Act since
a returned candidate’s disqualification on the ground of invalidation of
his caste claim cannot be the subject matter of an election dispute,
which falls within the ambit of section 16 (1) of the BPMC Act in such
an election petition. There was, thus, no occasion for the Election
Court to grant a declaration that Aziz Ahmad, the petitioner in the
Election Petition, was elected from Ward No. 16. This Letters Patent
Appeal is against the said judgment and order.
6. Mr. Mardikar, the learned counsel for the appellant,
submitted that the learned single Judge committed an error of law in
setting aside the declaration that Aziz Ahmad was entitled to be
declared as duly elected candidate since there were only two
candidates in the field. According to the learned counsel, the decision
of the supreme Court in Vishwanath Reddy ..vs.. Konappa
Rudrappa Nadgouda and anr., AIR 1969 Supreme Court 604
clearly supported the declaration made by the Election Court that
where there are only two candidates in the field and the election of the
returned candidate is liable to be set aside, the other candidate may
be declared elected.
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7. Mr. Madkholkar, the learned counsel for respondent
no.4-Iqbal Ahmad, however, submitted that the contention of the
appellant does not merit any consideration since it is rightly held by
the learned Single Judge that the election petition itself could not have
been decided by the Election Court under Section 16 of the BPMC Act.
According to the learned counsel, Section 10 (4) of the 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, (Act XXIII of 2001) and the second proviso to Section 5 (b) of
the BPMC Act, resulted in an automatic disqualification of a returned
candidate and, therefore, there remains no election to be set aside in
an election petition.
Section 10 (4) of the Act XXIII of 2001 reads as follows:
“10.(1)…..
(2) ……
(3) ……
(4) Notwithstanding anything contained in any law for the
time being in force, a person shall be disqualified for being
a member of any statutory body if he has contested the
election for local authority, co-operative society or any
statutory body on the seat reserved for any of Scheduled
Castes, Scheduled Tribes, De-notified Tribes (Vimukta
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Jatis), Nomadic Tribes, Other Backward Classes or Special
Backward Category by procuring a false caste certificate as
belonging to such caste, Tribe or Class on such false Caste
Certificate being cancelled by the Scrutiny Committee, and
any benefits obtained by such person shall be recoverable
as arrears of land revenue and the election of such person
shall be deemed to have been terminated retrospectively.”
So also Section 5(b) as it then stood reads as follows:
“5B.Person contesting election for reserved seat to
submit Caste Certificate and Validity Certificate-
Every person desirous of contesting election to a seat
reserved for the Scheduled Castes, Scheduled Tribes or, as
the case may be, Backward Class of Citizens, shall be
required to submit, along with the nomination paper, Caste
Certificate issued by the Scrutiny Committee in accordance
with the provisions of the 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.
Provided that, a person who has applied to the
Scrutiny Committee for the verification of his Caste
Certificate before the date of filing the nomination paper
but who has not received the validity certificate on the
date of filing of the nomination paper shall submit, along
with the nomination paper,-
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(i) a true copy of the application preferred by him to the
Scrutiny Committee for issuance of the validity certificateor any other proof for having made such application to the
Scrutiny Committee; and
(ii) an undertaking that he shall submit, within a period of
four months from the date of his election, the validitycertificate issued by the Scrutiny Committee:
Provided further that, if the person fails to produce
the validity certificate within a period of four months fromthe date of his election, his election shall be deemed to
have been terminated retrospectively and he shall be
disqualified for being a Councillor.”
We might note at this juncture that we are not called
upon to consider whether the Election Court under Section 16 (b) of
the BPMC Act can entertain and decide an election petition questioning
the validity of election of a candidate, for having produced a false
caste certificate, though there is no declaration by a Caste Scrutiny
Committee that such a certificate is false. The question of jurisdiction
of Election Court arises in this case because the caste certificate of the
returned candidate has been invalidated by the Caste Scrutiny
Committee.
8. In the present case, the election petition before the
Election Court may have been tenable and the learned Election
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Tribunal may have been competent to entertain and decide it when it
was instituted on 12.02.2007. The question is whether the election
petition filed by Aziz Ahmad was tenable after the Caste Scrutiny
Committee had, on 30.04.2007, decided that the caste certificate
produced by Iqbal Ahmad as belonging to Kasai caste is invalidated.
9. Section 16 of the BPMC Act provides a forum for
disputing the qualification by a returned candidate or the validity of
any election by way of an election petition before “the Judge” defined
vide Section 2(29) of the Act as a Civil Judge Senior Division having
jurisdiction in the city. There is, thus, no doubt about competence of
the learned Civil Judge Senior Division, Akola for entertaining the
petition as filed. Aziz Ahmad had questioned validity of the election of
Iqbal Ahmad on the ground that the latter could not have validly
contested the election from Ward No. 16, which was reserved for a
OBC category candidate since the caste certificate produced by him
was false. The question is, whether the continuation of such a petition
becomes untenable after invalidation of the caste certificate by
Scrutiny Committee on 30.04.2007. The invalidation attained finality
after the writ petition and the Special Leave Petition against the said
decision were dismissed by this Court and the Supreme Court on
12.12.2008 and 27.01.2009 respectively. The consequence of a
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declaration by the Scrutiny Committee that the Caste Certificate is
invalidated and found to be fake, is provided by Section 10 (4) of the
Act No. XXIII of 2001. Section 10 (4) provides for disqualification of a
member if he has contested the election for a local authority etc. by
procuring a false caste certificate as belonging to such caste–“on such
false caste certificate being cancelled by the Scrutiny Committee”.
Similarly, the proviso to section 5(B) of the BPMC Act provides for such
a disqualification if caste certificate is not produced within four
months.
10. It is settled law, vide two Full Bench decisions of this
Court that in such a case a candidate, whose caste certificate has been
invalidated, ipso facto loses his seat and such a loss has nothing to do
with a challenge to the election of the candidate in an election petition.
In Sujit Vasant Patil ..vs.. State of Maharashtra and ors. 2004
(3) Mh. L. J. 1109 (Full Bench), a case which arose under the
provisions of the Maharashtra Act No. XXIII of 2001, the Full Bench,
after referring to Section 10 of the Maharashtra Act No. XXIII of 2001
including sub section (4) thereof, observed as follows:
“7. …..
Now consequence of cancellation of a social status
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10candidate automatically loses his seat.”
The Full Bench further proceeded to observe as follows:
“12B. …..In our opinion, therefore, in the face of
the provisions of the Act, the nomination papers which
have been accepted on the basis of certificate issued bythe competent authority gets rejected on the refusal by the
Scrutiny Committee to issue validity certificate and
therefore the candidate loses his title to the seat againstwhich he has been elected. There is no question of the
election of that candidate being set aside by the ScrutinyCommittee. The j ob of the Scrutiny Committee is of either
issuing the final caste certificate or refusing to do so. If theScrutiny Committee refuses to issue a final caste
certificate, then the caste certificate issued by the
competent authority ceases to exist. With the result, thereis no caste certificate filed at scrutiny of the nomination
papers and therefore the nomination papers itself becomes
infirm and incomplete, and therefore, the returned
candidate loses qualification to contest the seat andtherefore he has to vacate his seat. In our opinion, in view
of this scheme of the Act, even in the absence of sub-
section (4) of section 10, the consequence in law of the
Scrutiny Committee refusing to issue valid caste certificatewould be vacation of seat by the elected candidate.”
The Full Bench rejected the contention of the returned
candidate that the bar enacted by Article 243 (ZG) of the Constitution
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11of India, which prohibits an election from being questioned, except by
way of an election petition, would protect an election from being
nullified due to the invalidation of a caste certificate by the Scrutiny
committee. It was observed that an election is not called in question
before a Scrutiny Committee and this Committee only scrutinizes and
pronounces upon the validity of a caste certificate on the basis of
which an election is contested. It is, thus, clear that the validity of a
caste certificate on the basis of which an election is contested is within
the domain of a Scrutiny Committee and where that is invalidated, the
election is automatically nullified vide Section 10 (4) and the second
proviso to Section 5 (B) of the BPMC Act. When an election is nullified,
there is no election which remains to be set aside. An election petition
already instituted to set aside such an election becomes untenable
since the jurisdictional part for an election is itself extinguished.
11. We are, therefore, of the view that the election petition
filed by the appellant Aziz Ahmad became untenable on the passing of
the order of the Scrutiny Committee invalidating the caste claim of
Iqbal Ahmad since this order nullified the election of Iqbal Ahmad by
virtue of operation of Section 10 (4) of the Act read with the second
proviso to Section 5(B) as it then stood.
The decision of the Court in such an election petition is
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without jurisdiction and, therefore, liable to be set aside. In such an
election petition, the Court could not have granted a declaration that
the election petitioner-Aziz Ahmad was entitled to be elected. Hence,
we see no reason to interfere with the judgment of the learned Single
Judge.
12. Mr. Mardikar, the learned counsel for the appellant,
submitted that Iqbal Ahmad could not have preferred the writ petition
itself since his election was nullified with effect from the nomination
i.e. to say as if he was not elected. According to the learned counsel,
since there was no election at all and since the order of the Court is
being held to be without jurisdiction, the writ petition by Iqbal Ahmad
itself was untenable. We see no merit in this contention at all. Iqbal
Ahmad’s election was in fact declared illegal at the instance of the
election petition although in the election petition which had become
untenable and in which the appellant-Aziz Ahmad was declared as
elected instead certainly constitutes a legal injury for which Iqbal
Ahmad had a right of redressal. It hardly lies in the mouth of the
appellant-Aziz Ahmad, who claims that the returned candidate whose
election was set aside and due to which alone he himself has been
declared elected, to contend that Iqbal Ahmad could not have filed the
writ petition. It was also suggested by Mr. Mardikar, the learned
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counsel for the appellant, that the appellant has subsequently been
designated as Deputy Mayor of Akola and that in any case general
elections to the Akola Municipal Corporation have been announced and
it would, therefore, be futile if election of Ward No. 16 were to be held
again due to nullification of the election of respondent no.4-Iqbal
Ahmad. There is no merit in this contention also since the holding of
general election soon, which is denied by respondents, is completely
an independent event having no bearing on the correctness of the
decision of the Court.
In the result, the appeal is dismissed. No order as to
costs.
At this stage, Mr. Mardikar, the learned counsel for the
appellant, prays for continuation of the interim order.
We do not consider it appropriate to continue the interim
order. The prayer is, therefore, rejected.
JUDGE JUDGE
kahale
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