{"id":31600,"date":"2011-04-21T00:00:00","date_gmt":"2011-04-20T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/aziz-ahmad-gulam-rasul-vs-konappa-on-21-april-2011"},"modified":"2019-02-28T05:07:54","modified_gmt":"2019-02-27T23:37:54","slug":"aziz-ahmad-gulam-rasul-vs-konappa-on-21-april-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/aziz-ahmad-gulam-rasul-vs-konappa-on-21-april-2011","title":{"rendered":"Aziz Ahmad Gulam Rasul vs Konappa on 21 April, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Aziz Ahmad Gulam Rasul vs Konappa on 21 April, 2011<\/div>\n
Bench: S.A. Bobde, S.B. Deshmukh<\/div>\n
                                                     1\n\n                IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH AT NAGPUR\n\n\n\n\n                                                                                                 \n                        Letters Patent Appeal No. 322\/2009 in\n                            Writ Petition No. 907\/2009 (D)\n\n\n\n\n                                                                         \n          Aziz Ahmad Gulam Rasul, aged 51 years,\n          Occ. Business r\/o Gangadhar Plot, Akola,\n          Tq. Dist. Akola.                                                  .....APPELLANT\n\n\n\n\n                                                                        \n                                ...V E R S U S...\n\n    1.    Akola Municipal Corporation, through\n          its Municipal Commissioner, Akola.\n\n\n\n\n                                                         \n    2.    The Returning Officer, Akola Municipal\n          Corporation, Election Akola.\n    3.    Assistant Returning Officer, Zone No.4,\n          Akola Municipal Corporation, Akola.\n                                     \n    4.    Iqbal Ahmad s\/o Abdul Gaffar, aged 28 years,\n          Occ. Business, r\/o Khair Mohd Plot, Akola.   ....RESPONDENTS\n\n    ---------------------------------------------------------------------------------------------------\n             \n\n\n    Mr. A. S. Mardikar, Advocate for appellant.\n    Mr. K. S. Malokar, Advocate for respondent no.1\n          \n\n\n\n    Mr. M. K. Pathan, A.G.P. for respondent nos. 2 and 3\n    Mr. R.C.Madkholkar with Mr. S.V.Sohoni, Advocate for respondent no.4.\n    ---------------------------------------------------------------------------------------------------\n\n\n\n\n\n    CORAM: S.A.BOBDE AND S. B. DESHMUKH, JJ.\n\n    Date of Reserving the Judgment : 29th March, 2011\n    Date of Pronouncing the Judgment: 21 st April, 2011\n\n    JUDGMENT (Per:- S. A. Bobde, J.)\n<\/pre>\n
    1.                 Heard learned counsel for the parties.\n<\/p>\n
    2.                 The appellant-Aziz Gulam Rasul has preferred this<\/p>\n
    appeal against judgment and order of the learned Single Judge of this<\/p>\n
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\n                                        2<\/span><\/p>\n
    Court setting aside a declaration that he is duly elected from Ward No.<\/p>\n
    16 of the Municipal Corporation, Akola.\n<\/p>\n
    3.            Respondent no.4-Iqbal Ahmad and appellant-Aziz Ahmad<\/p>\n
    both had contested the election of a Councillor from Ward No. 16 of<\/p>\n
    Municipal Corporation, Akola under the provisions of the Bombay<\/p>\n
    Provincial Municipal Corporations Act, 1949 (hereinafter referred to as<\/p>\n
    “the BPMC Act”). The ward was reserved for candidates belonging to<\/p>\n
    Other Backward Classes (OBC).\n<\/p>\n
                              ig       Iqbal Ahmad had claimed that he<\/p>\n
    belongs to the OBC category and had, along with his nomination form,<\/p>\n
    filed a certificate issued by Sub Divisional officer, Akola that he<\/p>\n
    belongs to Kasai caste, a notified OBC. He was declared elected. On<\/p>\n
    12.02.2007, Aziz Ahmad filed an Election Petition before the Civil Judge<\/p>\n
    Senior Division, Akola claiming that the certificate produced by Iqbal<\/p>\n
    Ahmad as belonging to Kasai caste is false though pending verification<\/p>\n
    by the Caste Scrutiny Committee, and he is, therefore, not qualified for<\/p>\n
    contesting the election from a seat reserved for an OBC candidate. It<\/p>\n
    was, therefore, prayed that Iqbal Ahmad be declared as disqualified<\/p>\n
    from contesting the election from Ward No. 16 and his election be set<\/p>\n
    aside. It was further prayed that the appellant Aziz Ahmad be declared<\/p>\n
    elected being the only other candidate in the fray.\n<\/p>\n
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\n                                             3<\/span><\/p>\n
    4.            The   learned     Civil       Judge   Senior    Division,        Akola<\/p>\n
    (hereinafter referred to as the “Election Court”) allowed the election<\/p>\n
    petition filed by the appellant and set aside the election of Iqbal<\/p>\n
    Ahmad.   While the election petition was pending, the Caste Scrutiny<\/p>\n
    Committee invalidated the caste certificate of Iqbal Ahmad that he<\/p>\n
    belongs to the Kasai caste. Iqbal Ahmad challenged the invalidation<\/p>\n
    before this Court by way of Writ Petition No. 1912\/2008, which was<\/p>\n
    dismissed on 12.02.2008.      A Special Leave Petition filed against the<\/p>\n
    said judgment was also dismissed by the Supreme Court of India on<\/p>\n
    27.01.2009.\n<\/p>\n
                  on 18.02.2009, the learned Election Court decided the<\/p>\n
    election petition filed by Aziz Ahmad and set aside the result of the<\/p>\n
    election of Ward No. 16 of the Municipal Corporation, Akola and<\/p>\n
    declared that Iqbal Ahmad was disqualified from contesting the<\/p>\n
    election even as on the date of filing of the nomination papers. By the<\/p>\n
    same order, the learned Election Court granted a declaration that the<\/p>\n
    election petitioner-Aziz Ahmad is entitled to be declared as elected<\/p>\n
    being the only other validly nominated candidate in the fray, after<\/p>\n
    observing that he belongs to Momin caste, which is a notified OBC.\n<\/p>\n
    5.            Aggrieved, Iqbal Ahmad-respondent no.4, challenged the<\/p>\n
    decision of the Election Court by way of a writ petition.                          On<\/p>\n
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\n                                         4<\/span><\/p>\n
    10.07.2009, that writ petition has been allowed by a learned Single<\/p>\n
    Judge of this Court, who held that the Election Court had no jurisdiction<\/p>\n
    to decide the election petition under Section 16 of the BPMC Act since<\/p>\n
    a returned candidate’s disqualification on the ground of invalidation of<\/p>\n
    his caste claim cannot be the subject matter of an election dispute,<\/p>\n
    which falls within the ambit of section 16 (1) of the BPMC Act in such<\/p>\n
    an election petition.   There was, thus, no occasion for the Election<\/p>\n
    Court to grant a declaration that Aziz Ahmad, the petitioner in the<\/p>\n
    Election Petition, was elected from Ward No. 16. This Letters Patent<\/p>\n
    Appeal is against the said judgment and order.\n<\/p>\n
    6.            Mr. Mardikar, the learned counsel for the appellant,<\/p>\n
    submitted that the learned single Judge committed an error of law in<\/p>\n
    setting aside the declaration that Aziz Ahmad was entitled to be<\/p>\n
    declared as duly elected candidate since there were only two<\/p>\n
    candidates in the field. According to the learned counsel, the decision<\/p>\n
    of the supreme Court in Vishwanath Reddy ..vs.. Konappa<\/p>\n
    Rudrappa Nadgouda and anr., AIR 1969 Supreme Court 604<\/p>\n
    clearly supported the declaration made by the Election Court that<\/p>\n
    where there are only two candidates in the field and the election of the<\/p>\n
    returned candidate is liable to be set aside, the other candidate may<\/p>\n
    be declared elected.\n<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 17:12:41 :::<\/span>
\n                                           5<\/span><\/p>\n
    7.               Mr. Madkholkar, the learned counsel for respondent<\/p>\n
    no.4-Iqbal Ahmad, however, submitted that the contention of the<\/p>\n
    appellant does not merit any consideration since it is rightly held by<\/p>\n
    the learned Single Judge that the election petition itself could not have<\/p>\n
    been decided by the Election Court under Section 16 of the BPMC Act.\n<\/p>\n
    According to the learned counsel, Section 10 (4) of the Maharashtra<\/p>\n
    Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis),<\/p>\n
    Nomadic Tribes, Other Backward Classes and Special Backward<\/p>\n
    Category (Regulation of Issuance and Verification of) Caste Certificate<\/p>\n
    Act, 2000, (Act XXIII of 2001) and the second proviso to Section 5 (b) of<\/p>\n
    the BPMC Act, resulted in an automatic disqualification of a returned<\/p>\n
    candidate and, therefore, there remains no election to be set aside in<\/p>\n
    an election petition.\n<\/p>\n
                     Section 10 (4) of the Act XXIII of 2001 reads as follows:\n<\/p>\n
          “10.(1)…..\n<\/p>\n
          (2)   ……\n<\/p>\n
          (3)   ……\n<\/p>\n
          (4)   Notwithstanding anything contained in any law for the
\n          time being in force, a person shall be disqualified for being<\/p>\n
          a member of any statutory body if he has contested the
\n          election for local authority, co-operative society or any
\n          statutory body on the seat reserved for any of Scheduled
\n          Castes, Scheduled Tribes, De-notified Tribes (Vimukta<\/p>\n
                                                         ::: Downloaded on – 09\/06\/2013 17:12:41 :::<\/span>
\n                                    6<\/span><\/p>\n
    Jatis), Nomadic Tribes, Other Backward Classes or Special
\n    Backward Category by procuring a false caste certificate as<\/p>\n
    belonging to such caste, Tribe or Class on such false Caste<\/p>\n
    Certificate being cancelled by the Scrutiny Committee, and
\n    any benefits obtained by such person shall be recoverable
\n    as arrears of land revenue and the election of such person<\/p>\n
    shall be deemed to have been terminated retrospectively.”\n<\/p>\n
            So also Section 5(b) as it then stood reads as follows:\n<\/p>\n
    “5B.Person contesting election for reserved seat to<\/p>\n
    submit Caste Certificate and Validity Certificate-
\n    Every person desirous of contesting election to a seat<\/p>\n
    reserved for the Scheduled Castes, Scheduled Tribes or, as
\n    the case may be, Backward Class of Citizens, shall be
\n    required to submit, along with the nomination paper, Caste
\n    Certificate issued by the Scrutiny Committee in accordance<\/p>\n
    with the provisions of the Maharashtra Scheduled Castes,<\/p>\n
    Scheduled    Tribes,   De-notified   Tribes     (Vimukta       Jatis),
\n    Nomadic Tribes, Other Backward Classes and Special
\n    Backward     Category     (Regulation    of      Issuance        and<\/p>\n
    Verification of) Caste Certificate Act, 2000.\n<\/p>\n
         Provided that, a person who has applied to the
\n    Scrutiny Committee for the verification of his Caste<\/p>\n
    Certificate before the date of filing the nomination paper
\n    but who has not received the validity certificate on the
\n    date of filing of the nomination paper shall submit, along
\n    with the nomination paper,-\n<\/p>\n
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\n                                          7<\/span><\/p>\n
          (i)    a true copy of the application preferred by him to the
\n          Scrutiny Committee for issuance of the validity certificate<\/p>\n
          or any other proof for having made such application to the<\/p>\n
          Scrutiny Committee; and\n<\/p><\/blockquote>\n
          (ii)   an undertaking that he shall submit, within a period of
\n          four months from the date of his election, the validity<\/p>\n
          certificate issued by the Scrutiny Committee:\n<\/p><\/blockquote>\n
                 Provided further that, if the person fails to produce
\n          the validity certificate within a period of four months from<\/p>\n
          the date of his election, his election shall be deemed to<\/p>\n
          have been terminated retrospectively and he shall be
\n          disqualified for being a Councillor.”\n<\/p><\/blockquote>\n
                    We might note at this juncture that we are not called<\/p>\n
    upon to consider whether the Election Court under Section 16 (b) of<\/p>\n
    the BPMC Act can entertain and decide an election petition questioning<\/p>\n
    the validity of election of a candidate, for having produced a false<\/p>\n
    caste certificate, though there is no declaration by a Caste Scrutiny<\/p>\n
    Committee that such a certificate is false. The question of jurisdiction<\/p>\n
    of Election Court arises in this case because the caste certificate of the<\/p>\n
    returned candidate has been invalidated by the Caste Scrutiny<\/p>\n
    Committee.\n<\/p><\/blockquote>\n
    8.              In the present case, the election petition before the<\/p>\n
    Election Court may have been tenable and the learned Election<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:12:41 :::<\/span>
\n                                        8<\/span><\/p>\n
    Tribunal may have been competent to entertain and decide it when it<\/p>\n
    was instituted on 12.02.2007.    The question is whether the election<\/p>\n
    petition filed by Aziz Ahmad was tenable after the Caste Scrutiny<\/p>\n
    Committee had, on 30.04.2007, decided that the caste certificate<\/p>\n
    produced by Iqbal Ahmad as belonging to Kasai caste is invalidated.\n<\/p>\n
    9.            Section 16 of the BPMC Act provides a forum for<\/p>\n
    disputing the qualification by a returned candidate or the validity of<\/p>\n
    any election by way of an election petition before “the Judge” defined<\/p>\n
    vide Section 2(29) of the Act as a Civil Judge Senior Division having<\/p>\n
    jurisdiction in the city. There is, thus, no doubt about competence of<\/p>\n
    the learned Civil Judge Senior Division, Akola for entertaining the<\/p>\n
    petition as filed. Aziz Ahmad had questioned validity of the election of<\/p>\n
    Iqbal Ahmad on the ground that the latter could not have validly<\/p>\n
    contested the election from Ward No. 16, which was reserved for a<\/p>\n
    OBC category candidate since the caste certificate produced by him<\/p>\n
    was false. The question is, whether the continuation of such a petition<\/p>\n
    becomes untenable after invalidation of the caste certificate by<\/p>\n
    Scrutiny Committee on 30.04.2007. The invalidation attained finality<\/p>\n
    after the writ petition and the Special Leave Petition against the said<\/p>\n
    decision were dismissed by this Court and the Supreme Court on<\/p>\n
    12.12.2008 and 27.01.2009 respectively. The consequence of a<\/p>\n
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\n                                           9<\/span><\/p>\n
    declaration by the Scrutiny Committee that the Caste Certificate is<\/p>\n
    invalidated and found to be fake, is provided by Section 10 (4) of the<\/p>\n
    Act No. XXIII of 2001. Section 10 (4) provides for disqualification of a<\/p>\n
    member if he has contested the election for a local authority etc. by<\/p>\n
    procuring a false caste certificate as belonging to such caste–“on such<\/p>\n
    false caste certificate being cancelled by the Scrutiny Committee”.\n<\/p>\n
    Similarly, the proviso to section 5(B) of the BPMC Act provides for such<\/p>\n
    a disqualification if caste certificate is not produced within four<\/p>\n
    months.\n<\/p>\n
    10.               It is settled law, vide two Full Bench decisions of this<\/p>\n
    Court that in such a case a candidate, whose caste certificate has been<\/p>\n
    invalidated, ipso facto loses his seat and such a loss has nothing to do<\/p>\n
    with a challenge to the election of the candidate in an election petition.\n<\/p>\n
    In Sujit Vasant Patil ..vs.. State of Maharashtra and ors. 2004<\/p>\n
    (3) Mh. L. J. 1109 (Full Bench), a case which arose under the<\/p>\n
    provisions of the Maharashtra Act No. XXIII of 2001, the Full Bench,<\/p>\n
    after referring to Section 10 of the Maharashtra Act No. XXIII of 2001<\/p>\n
    including sub section (4) thereof, observed as follows:\n<\/p>\n
          “7. …..\n<\/p><\/blockquote>\n
               Now consequence of cancellation of a social status
\n          certificate by the Scrutiny committee is that the elected<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 17:12:41 :::<\/span>
\n                                         10<\/span><\/p>\n
         candidate automatically loses his seat.”\n<\/p><\/blockquote>\n
                    The Full Bench further proceeded to observe as follows:\n<\/p><\/blockquote>\n
         “12B.           …..In our opinion, therefore, in the face of
\n         the provisions of the Act, the nomination papers which
\n         have been accepted on the basis of certificate issued by<\/p>\n
         the competent authority gets rejected on the refusal by the
\n         Scrutiny    Committee    to   issue    validity    certificate      and
\n         therefore the candidate loses his title to the seat against<\/p>\n
         which he has been elected.          There is no question of the
\n         election of that candidate being set aside by the Scrutiny<\/p>\n
         Committee. The j ob of the Scrutiny Committee is of either
\n         issuing the final caste certificate or refusing to do so. If the<\/p>\n
         Scrutiny    Committee     refuses     to   issue   a    final     caste
\n         certificate,   then   the caste certificate        issued by the
\n         competent authority ceases to exist. With the result, there<\/p>\n
         is no caste certificate filed at scrutiny of the nomination<\/p>\n
         papers and therefore the nomination papers itself becomes
\n         infirm   and    incomplete,   and     therefore,     the     returned
\n         candidate loses qualification to contest the seat and<\/p>\n
         therefore he has to vacate his seat. In our opinion, in view
\n         of this scheme of the Act, even in the absence of sub-
\n         section (4) of section 10, the consequence in law of the
\n         Scrutiny Committee refusing to issue valid caste certificate<\/p>\n
         would be vacation of seat by the elected candidate.”\n<\/p><\/blockquote>\n
                    The Full Bench rejected the contention of the returned<\/p>\n
    candidate that the bar enacted by Article 243 (ZG) of the Constitution<\/p>\n
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\n                                          11<\/span><\/p>\n
    of India, which prohibits an election from being questioned, except by<\/p>\n
    way of an election petition, would protect an election from being<\/p>\n
    nullified due to the invalidation of a caste certificate by the Scrutiny<\/p>\n
    committee. It was observed that an election is not called in question<\/p>\n
    before a Scrutiny Committee and this Committee only scrutinizes and<\/p>\n
    pronounces upon the validity of a caste certificate on the basis of<\/p>\n
    which an election is contested. It is, thus, clear that the validity of a<\/p>\n
    caste certificate on the basis of which an election is contested is within<\/p>\n
    the domain of a Scrutiny Committee and where that is invalidated, the<\/p>\n
    election is automatically nullified vide Section 10 (4) and the second<\/p>\n
    proviso to Section 5 (B) of the BPMC Act. When an election is nullified,<\/p>\n
    there is no election which remains to be set aside. An election petition<\/p>\n
    already instituted to set aside such an election becomes untenable<\/p>\n
    since the jurisdictional part for an election is itself extinguished.\n<\/p><\/blockquote>\n
    11.            We are, therefore, of the view that the election petition<\/p>\n
    filed by the appellant Aziz Ahmad became untenable on the passing of<\/p>\n
    the order of the Scrutiny Committee invalidating the caste claim of<\/p>\n
    Iqbal Ahmad since this order nullified the election of Iqbal Ahmad by<\/p>\n
    virtue of operation of Section 10 (4) of the Act read with the second<\/p>\n
    proviso to Section 5(B) as it then stood.\n<\/p>\n
                   The decision of the Court in such an election petition is<\/p>\n
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\n                                       12<\/span><\/p>\n
    without jurisdiction and, therefore, liable to be set aside. In such an<\/p>\n
    election petition, the Court could not have granted a declaration that<\/p>\n
    the election petitioner-Aziz Ahmad was entitled to be elected. Hence,<\/p>\n
    we see no reason to interfere with the judgment of the learned Single<\/p>\n
    Judge.\n<\/p>\n
    12.           Mr. Mardikar, the learned counsel for the appellant,<\/p>\n
    submitted that Iqbal Ahmad could not have preferred the writ petition<\/p>\n
    itself since his election was nullified with effect from the nomination<\/p>\n
    i.e. to say as if he was not elected. According to the learned counsel,<\/p>\n
    since there was no election at all and since the order of the Court is<\/p>\n
    being held to be without jurisdiction, the writ petition by Iqbal Ahmad<\/p>\n
    itself was untenable. We see no merit in this contention at all. Iqbal<\/p>\n
    Ahmad’s election was in fact declared illegal at the instance of the<\/p>\n
    election petition although in the election petition which had become<\/p>\n
    untenable and in which the appellant-Aziz Ahmad was declared as<\/p>\n
    elected instead certainly constitutes a legal injury for which Iqbal<\/p>\n
    Ahmad had a right of redressal.    It hardly lies in the mouth of the<\/p>\n
    appellant-Aziz Ahmad, who claims that the returned candidate whose<\/p>\n
    election was set aside and due to which alone he himself has been<\/p>\n
    declared elected, to contend that Iqbal Ahmad could not have filed the<\/p>\n
    writ petition. It was also suggested by Mr. Mardikar, the learned<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 17:12:41 :::<\/span>
\n                                        13<\/span><\/p>\n
    counsel for the appellant, that the appellant has subsequently been<\/p>\n
    designated as Deputy Mayor of Akola and that in any case general<\/p>\n
    elections to the Akola Municipal Corporation have been announced and<\/p>\n
    it would, therefore, be futile if election of Ward No. 16 were to be held<\/p>\n
    again due to nullification of the election of respondent no.4-Iqbal<\/p>\n
    Ahmad. There is no merit in this contention also since the holding of<\/p>\n
    general election soon, which is denied by respondents, is completely<\/p>\n
    an independent event having no bearing on the correctness of the<\/p>\n
    decision of the Court.\n<\/p>\n
                  In the result, the appeal is dismissed. No order as to<\/p>\n
    costs.\n<\/p>\n
                  At this stage, Mr. Mardikar, the learned counsel for the<\/p>\n
    appellant, prays for continuation of the interim order.\n<\/p>\n
                  We do not consider it appropriate to continue the interim<\/p>\n
    order. The prayer is, therefore, rejected.\n<\/p>\n
                             JUDGE                             JUDGE\n\n\n\n\n\n    kahale\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 17:12:41 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Aziz Ahmad Gulam Rasul vs Konappa on 21 April, 2011 Bench: S.A. Bobde, S.B. Deshmukh 1 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-31600","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nAziz Ahmad Gulam Rasul vs Konappa on 21 April, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/aziz-ahmad-gulam-rasul-vs-konappa-on-21-april-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Aziz Ahmad Gulam Rasul vs Konappa on 21 April, 2011 - 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