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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
LETTERS PATENT APPEAL No. 524/2011
IN WRIT PETITION No. 5956 OF 2011.
with
LETTERS PATENT APPEAL No. 523/2011
IN WRIT PETITION No. 5957 OF 2011.
with
LETTERS PATENT APPEAL No. 525/2011
IN WRIT PETITION No. 5958 OF 2011.
---------
LETTERS PATENT APPEAL No. 524/2011
IN WRIT PETITION No. 5956 OF 2011.
Lakhansingh s/o Sadhusingh Chandel,
Aged about 63 years, Occ - Business,
r/o. Shivaji Ward, Ballarpur, Tah. Ballarpur,
District Chandrapur. .... APPELLANT.
VERSUS
1. Vinod s/o Manohar Atram,
Aged about 40 years, Occ - Nil,
r/o. F.D.C.M. Ballarshah, District
Chandrapur.
2. Vikas s/o Govardhan Gedam,
Aged about 35 years, Occ - Lawyer,
r/o. Zakir Hussain Ward, Ballarpur, District
Chandrapur.
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3. Vinod s/o Madhukar Atram,
Aged about 32 years, Occ - Nil,
r/o. Balaji Ward, Ballarshah, District
Chandrapur.
4. Nandkishore s/o Laxman Bhoyar,
Aged about 45 years, Occ - Business,
r/o. Shivaji Ward, Ballarpur, District
Chandrapur.
5. Mukundrao s/o Govindrao Tekam,
Aged about 58 years, Occ - Labourer,
r/o. Ravindra Ward, Ballarpur, District
Chandrapur.
6. Returning Officer, Ballarpur Municipal
Council, Ballarpur, District Chandrapur.
7. Ballarpur Municipal Council, through
its Chief Officer, Ballarpur, District Chandrapur
8. The Hon'ble District Judge,
Chandrapur, District Chandrapur. .... RESPONDENTS.
With
LETTERS PATENT APPEAL No. 523/2011
IN WRIT PETITION No. 5957 OF 2011.
Ku. Kiran d/o Sadhusingh Chandel,
Aged about 43 years, Occ - Teacher,
r/o. Shivaji Ward, Ballarpur, Tah. Ballarpur,
District Chandrapur. .... APPELLANT.
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VERSUS
1. Sau. Seema w/o Shamkul Ramteke,
Aged about 40 years, Occ - Household,
r/o. W.C.L. Colony, Ballarpur, District
Chandrapur.
2. Chhaya w/o Ramesh Madavi,
Aged about 45 years, Occ - Housewife,
r/o. Paper Mill Colony, Ballarpur, District
Chandrapur.
3. Nilima w/o Asaram Dhurve
Aged about 30 years, Occ - Housewife,
r/o. Zakir Hussain Ward, Ballarshah, District
Chandrapur.
4. Nirmaladevi Surendra Bahadursingh,
Aged about 60 years, Occ - Nil,
r/o. Dindayal Ward, Ballarpur, District Chandrapur.
5. Returning Officer, Ballarpur Municipal
Council, Ballarpur, District Chandrapur.
6. Ballarpur Municipal Council, through
its Chief Officer, Ballarpur, District Chandrapur.
7. The Hon'ble District Judge,
Chandrapur, District Chandrapur. .... RESPONDENTS.
With
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LETTERS PATENT APPEAL No. 525/2011
IN WRIT PETITION No. 5958 OF 2011.
Shankar s/o Durgayya Kampelli,
Aged about 58 years, Occ - Contractor,
r/o. Pandit Dindayal Ward, Tahsil Ballarpur,
District Chandrapur. .... APPELLANT.
VERSUS
1. Pavan s/o Deorao Meshram,
Aged about 35 years, Occ - Lawyer,
r/o. Shastri Nagar Ward, Ballarpur,
District Chandrapur.
2. Sampat s/o Ghurku Korde,
Aged about 38 years, Occ - Attorney,
r/o. Dr. Rajendraprasad Ward,
Ballarpur, District Chandrapur.
3. Mahesh s/o Mallaya Sadala,
Aged about 37 years, Occ - Service,
r/o. Kannamwar Ward, Ballarpur,
District Chandrapur.
4. Manoj s/o Udhaorao Satkar,
Aged about 28 years, Occ - Nil,
r/o. Dr. Rajendraprasad Ward, Ballarpur,
District Chandrapur.
5. Ritesh s/o Bhaiyyaji Waghmare,
Aged about 26 years, Occ - Nil,
r/o. Dr. Rajendraprasad Ward,
Ballarpur, District Chandrapur.
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6. Returning Officer, Ballarpur Municipal Council,
Ballarpur, District Chandrapur.
7. Ballarpur Municipal Council,
through its Chief Officer, Ballarpur,
District Chandrapur.
8. The Hon'ble District Judge,
Chandrapur, District Chandrapur. .... RESPONDENTS.
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Shri M.G. Bhangde, learned Senior Counsel with
Shri A.S. Chandurkar, learned Counsel for appellant in
Letters Patent Appeal No. 524/2011.
Shri Chandurkar, learned Counsel for appellant in
Letters Patent Appeal Nos.523/2011 & 525./2011.
Mrs. Dangre, learned Additional Government Pleader and
Mrs. Joshi, learned A.G.P. for respondent - Returning Officer
and Appellate Court in all the matters.
Shri S.V. Sirpurkar, learned Counsel had appeared for
respondent nos. 1 to 4 in L.P.A.No. 524/2011.
Shri M.I. Dhatrak, learned Counsel for respondent no.7 Municipal Council
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CORAM : B.P.DHARMADHIKARI
& P.D. KODE, JJ.
DATED : DECEMBER 12, 2011.
ORAL JUDGMENT : (Per - B.P. Dharmadhikari, J) Heard finally with consent of the parties by Admitting the appeals and making Rule returnable forthwith.
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2. Challenge in these Letters Patent Appeals is to identical orders passed by the learned Single Judge of this Court on 02.12.2011, dismissing the challenge of petitioners/appellants to rejection of their nomination paper for contesting election to respondent No.7 Municipal Council. It is not in dispute that actual polling is scheduled on 13.12.2011.
3. We have heard Shri M.G. Bhangde, learned Senior Counsel with Shri A.S. Chandurkar, learned Counsel for appellant in Letters Patent Appeal No. 524/2011 and Shri Chandurkar, learned Counsel for appellant in Letters Patent Appeal No.523/2011. Mrs. Dangre, learned Additional Government Pleader has appeared for respondent no.6 and Appellate Court.
Shri S.V. Sirpurkar, learned Counsel had appeared for respondent nos. 1 to 4 and Shri M.I. Dhatrak, learned Counsel represents respondent no.7 Municipal Council, in both these Appeals. Appellants in Letters Patent Appeal Nos. 524 and 523 of 2011 are brother and sister.
4. We have also heard Shri A.S.Chandurkar, learned Counsel for appellant in Letters Patent Appeal No.527/2011, Mrs. Dangre, learned Additional Government Pleader and Mrs. Joshi, learned A.G.P. for respondent nos.6 and 8 and Shri M.I. Dhatrak, learned Counsel for ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 7 respondent no.7 Municipal Council.
5. Challenge in all these three Appeals is, that invalidation of caste claims of appellants before us has been questioned independently by them in Writ Petitions, which are already admitted and in which orders of the Scrutiny Committee have been stayed. The appellants in Letters Patent Appeal Nos. 524 and 523 of 2011 claim to belong to Thakur, Scheduled Tribe; while Appellant in Letters Patent Appeal No. 525/2011 claims to belong to Madgi, Scheduled Caste.
6. In this background, after inviting attention to the interim order dated 16.07.1999 passed in Writ Petition No. 3914/1998, learned Senior Counsel has contended that prima facie observations therein in paragraph no.4 clearly show that a provisional or interim validity has been granted by this Court in favour of the appellant. In this view of the matter, his nomination paper could not have been rejected on the ground that it was not accompanied by a caste validity certificate, as required by Section 9A of the Maharashtra Municipal Councils, Nagar Panchayat and Industrial Township Act, 1965 (hereinafter referred to as "the 1965 Act" for short).
Learned Senior Counsel has invited attention to the appreciation of similar ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 8 condition imposed as Condition No.7 by Government Resolution dated 05.11.2009 by the Division Bench of this Court at Aurangabad in Writ Petition No.2136/2011 and other connected matters on 25.08.2011 (Shrikant Chandrakant Saindane .vrs. .The State of Maharashtra and others). According to the learned Senior Counsel, as condition imposed by Section 9A of the 1965 Act is impossible of compliance by appellants, the appellants could not have been made to suffer for not having a caste validity certificate. This doctrine of impossibility is, also pressed into service by drawing support from judgment reported at (2011) 7 SCC 639 (State of Madhya Pradesh .vrs. Narmada Bachao Andolan and another), particularly from paragraph nos. 39 and 40 therein. In order to show that in this situation, despite bar under Article 243ZG, High Court can in its exercise of extra ordinary jurisdiction interfere in the election process, Division Bench judgments of this Court reported at 2006 (3) Mh.L.J. 592 (Dalsingh Shamsing Rajput .vrs. State of Maharashtra), 2004 (5) Bom.C.R.
146 (Mayaraju Ghavghave .vrs. Returning Officer) as followed by one of us (B.P. Dharmadhikari, J) in judgment reported at 2011 (2) All M.R. 561 (Manchak Shahaji Pawar .vrs. State of Maharashtra and others), are also relied upon.
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7. Attention is invited to consideration of effect of somewhat similar interim order by Hon'ble Apex Court by placing reliance on judgment reported at 2007 (1) SCC 673 (Ravikant S. Patil .vrs.
Sarvabhouma S. Bagali), particularly paragraph nos. 15, 17 and 18 therein.
Learned Senior Counsel states that in view of this position, the nomination paper of appellant could not have been rejected. He further points out that as polling is by using EVM, the question of printing of ballot paper is not involved and hence, without any more labour and trouble, the name of appellant can be added to said EVM as contesting candidate.
8. Shri A.S. Chandurkar, learned Counsel appearing for appellants in Letters Patent Appeal Nos. 523 and 527 of 2011, has adopted the arguments of learned Senior Counsel. He contends that appellant in Letters Patent Appeal No. 523/2011 being real sister of appellant in Letters Patent Appeal No. 524/2011, interim order passed by this Court on 13.12.2006 in her Writ Petition No. 249/1999 serves very same purpose for her. Attention is also invited to orders dated 17.12.2002 passed in Writ Petition No. 4602/2002 in so far as Letters Patent Appeal No. 525/2011 is, concerned.
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9. Mrs. Dangre, learned Additional Government Pleader for Returning Officer has contended that the election process has sufficiently progressed further and hence, interference at eleventh hour is, definitely not countenanced by Article 243ZG. She has also attempted to distinguish the judgments on which reliance is being placed by learned Senior Counsel.
10. Shri S.V. Sirpurkar, learned Counsel on behalf of respondents in Letters Patent Appeal Nos. 524 and 523 of 2011 has invited attention to Division Bench judgment of this Court reported at 2010 (2) Bom.C.R. 656 (Bipinchandra Shahurao Thombre and others .vrs. State of Maharashtra and others) to urge that provisions of Section 9A of the 1965 Act, after 2008 amendment thereto are found to be mandatory, and therefore, non-
submission of caste validity certificate must result in rejection of nomination paper. He has further pointed out that the interim order passed by this Court does not amount to grant of validity, in so far as caste claims are concerned. According to him, even if ultimately those petitions are allowed, the same may not result in grant of validity. To explain the operation of interim order staying operation of impugned order, he is relying upon judgment of Hon'ble Apex Court reported at AIR 1992 SC 1439 (M/s. Shree Chamundi Mopeds Ltd. .vrs. Church of South India Trust ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 11 Association, Madras). According to him, grant of stay by this Court does not have the effect of reviving the proceedings which were disposed of by the Caste Scrutiny Committee. In this situation he prays for dismissal of Letters Patent Appeals.
11. In brief reply, learned Senior Counsel points out that all the Letters Patent Appeals were before this Court on Friday the 9th December, 2011 and were adjourned to today at the request of Shri Sirpurkar, learned Counsel who had then filed caveat on behalf of the contesting respondents.
12. After hearing respective counsel, we find that the Division Bench judgment in Bipinchandra Shahurao Thombre and others .vrs. State of Maharashtra and others (supra) has found requirement that nomination paper must be accompanied by a caste validity certificate, imposed by Section 9A of the 1965 Act, mandatory. Here it is not in dispute that none of the nomination papers were accompanied by validity certificate.
13. The interim orders passed by this Court on 16.07.1999 in Writ Petition No. 3914/1998 show that the said petition has been filed by the appellant in Letters Patent Appeal No. 524/2011. In paragraph no.4 this ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 12 Court has noticed some pre-independence era documents with great probative value and therefore, has recorded a prima facie finding that the said petitioner belongs to Thakur community, which is recognized as Scheduled Tribe in the State of Maharashtra. Because of this finding it has granted interim relief in terms of prayer clause (G). That prayer clause (G) reads as under :
"(G) -
Stay the effect and operation of the impugned order dated 3rd March, 1999 passed by the respondent no.2 Committee invalidating the petitioner's tribe claim and directing cancellation of his caste certificate."
Thus in effect, the operation of the order dated 03.03.1998 passed by the Scrutiny Committee invalidating the caste claim of said appellant and directing cancellation of his caste certificate, has been stayed.
14. The interim orders dated 13.12.2006 in Writ Petition No. 249/1999 show that the said petition has been filed by appellant in Letters Patent Appeal No. 523/2011 and there the order dated 16.06.1999 in Writ Petition No.3914/1998 was noticed and then similar interim relief has been ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 13 granted. Infact matter is directed to be heard along with Writ Petition No.3914/1998.
15. In Letters Patent Appeal No. 525/2011 perusal of order dated 17.12.2002 passed in Writ Petition No. 4602/2002 shows that there while adjourning the matter this Court has given ad-interim stay in terms of prayer clause (c) till 18.01.2003. The prayer clause (c) is, on more or less same lines, as prayer clause (g) already reproduced above. That interim order has been continued while issuing Rule in the matter on 10.07.2003.
16. The Division Bench judgment relied upon by the learned Senior Counsel and as looked into in the case of Manchak Shahaji Pawar .vrs. State of Maharashtra and others (supra), clearly show that in appropriate cases this Court, in exercise of its extra ordinary jurisdiction, can interfere with the ongoing election process, if such interference is going to sub-serve the said process and is conducive to holding of fair elections in accordance with law.
17. The judgment of Hon'ble Apex Court in the case of Ravikant S.
Patil .vrs. Sarvabhouma S. Bagali (supra), considers the challenge which ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 14 arose out of election under Representation of Peoples Act. Facts show that the appellant who had succeeded in those elections was unseated because of orders of High Court against him. High Court found him disqualified because of his conviction for criminal offence. The Hon'ble Apex Court has in paragraph no.15 considered the effect of stay of his conviction. This stay of conviction and its meaning has been explained in the background of the concept of stay of execution of sentence by the Hon'ble Apex Court. The Hon'ble Apex Court has held that when execution of sentence is stayed, the conviction continues to operate. It has been observed that where conviction itself is stayed, the effect is conviction is not operative after said date on which stay is granted. The Hon'ble Apex Court has also clarified that the order of stay does not render such conviction non-existent, but only non-
operative. It is because of this non-operative conviction the Hon'ble Apex Court has interfered in the matter, has set aside the order of High Court and allowed the appeal of returned candidate.
18. In this background when the present controversy is looked into, it is clear that Section 9A of the 1965 Act contemplates that nomination paper must be accompanied by a caste validity certificate. Admittedly none of the appellants before us possess that validity. The validity can be ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 15 granted after completing verification in accordance with the procedure prescribed under the Maharashtra Scheduled Castes, Scheduled Tribes, De-
notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance & Verification of) Caste Certificates Act, (Act No. 23 of 2001) and that procedure is still not completed. The respective orders of the Scrutiny Committee which form subject of the petitions which are pending before the Division Bench had canceled the caste certificates and those orders have been stayed.
Therefore, at the most it can be said that their canceled caste certificates have been revived. However, revival of those caste certificates is not of any help in present matter. The said certificates , after they become operative, need validity, and grant of caste validity is an independent statutory exercise. The invalidity of caste certificate of respective appellants by the Scrutiny Committee is eclipsed by interim orders of this Court. But that does not mean that the caste certificates are given validity in terms of Act No.23 of 2001, as envisaged by Section 9A of the 1965 Act. If the appellants wanted to contest election & legally, it was possible for them to have any provisional validity, they ought to have made attempt therefor in their pending Writ Petitions. None of them have made any such effort. Hence, without undertaking that exercise, they cannot resort to "impossibility ::: Downloaded on - 09/06/2013 18:00:07 ::: lpa524.11 16 doctrine". In view of this position, as apparent from the scheme of Maharashtra Act No.23 of 2001 and insistence upon the said caste validity certificate in Section 9A of the 1965 Act, we find that it is not necessary for this Court to look into the doctrine of impossibilities, as canvassed by the learned Senior Counsel in more details.
19. The learned Single Judge of this Court has correctly looked into the controversy. We do not see any jurisdictional error or perversity in the same. All the Appeals are, therefore, rejected. No costs.
JUDGE JUDGE
Rgd
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