Mrs. Geeta Kisan Gore vs State Of Maharashtra Through ...
2003 Latest Caselaw 795 Bom

JUDGMENT

C.K. Thakker, C.J.

1. The petitioner by this petition challenges the order, dated April 10, 2003 passed by the Additional Chief Judge, Small Causes Court, Mumbai in Interim Notice No. 214 of 2003 in Election Petition No. 24 of 2003. In the operative part of the order, the Additional Judge of Small Causes Court observed as under:-

"Int. Notice No. 214 of 2003 in Election Petition No. 24 of 2002 is hereby made absolute in respect of prayer Clause (b) of paragraph 9 of the notice and it is hereby declared that the petitioner Mrs. Shahinara Salin Baig is hereby declared as an elected from Municipal Corporation Ward No. 108 of Municipal Corporation of Gr. Mumbai.

Int. Notice No. 237 of 2003 in Election Petition No. 24 of 2002 is hereby discharged.

Int. Notice No. 215 of 2003 in Election Petition No. 55 of 2002 is hereby discharged."

2. Certain facts are not in dispute. Petitioner herein was declared as elected Councillor from Ward No. 108 of Brihanmumbai Municipal Corporation, a constituency reserved for Other Backward Class Community Women. By a decision, dated December 13, 2002 taken by the Caste Certificate Verification Committee, Kokan Division, the Caste Validity Certificate of the petitioner of 'Kunbi' Community was held invalid and was cancelled. She, therefore, was held disqualified from contesting the election and retaining the seat as Councillor. The said action was challenged by the petitioner by filing a writ petition (Writ Petition No. 214 of 2003) in this Court and a Division Bench of this Court dismissed her Writ Petition on 13th February, 2003.

3. It is an admitted position that when the above decision was taken by the Committee as well as by this Court, respondent No. 4 had already instituted election petition on February 20, 2002 and the same was pending before the Small Causes Court. Relying on provisions of Section 32 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as "the Act"), the Additional Chief Judge of the Small Causes Court declared respondent No. 4 herein as elected candidate. The said action is challenged by the petitioner by filing this petition.

4. Several contentions have been raised by the learned Counsel for the petitioner. It was contended that the Additional Chief Judge of the Small Causes Court has committed an error of law and of jurisdiction in relying upon Sub-section (2) of Section 33 of the Act and declaring respondent No. 4 as elected from Ward No. 108 of Municipal Corporation of Greater Mumbai. It was urged that respondent No. 4 ought not to have declared as elected Candidate after Notification under Section 9 of the Act had been issued. The vacancy ought to have filled in as laid down in Section 9 and it was not open to the Additional Chief Judge of the Small Causes Court to pass an order under Section 33(2) of the Act. The said action, therefore, deserves to be quashed and set aside.

5. The Learned Counsel for respondent No. 4, on the other hand, raised a preliminary objection and contended that the petitioner has no locus standi to file a petition. Admittedly, the Scrutiny Committee invalidated the certificate granted in favour of the petitioner and the said order was confirmed by this Court on 13th February, 2003 in Writ Petition No. 214 of 2003 and she was held disqualified. She, hence, cannot file a petition against respondent No. 4.

6. Even on merits, the learned Counsel for respondent No. 4 submitted, the order passed by the Additional Chief Judge, Small Causes Court is in consonance with law. It was submitted that both the provisions viz. Sections 9 and 33 operate in different fields and deal with different situations.

7. Section 9 lays down as to how Casual vacancies should be filled up. It reads as under:

"In the event of non-acceptance of office by a person elected to be a councillor, or of the death, resignation or disqualification of a councillor, of his becoming incapable of acting during the term of his office there shall be deemed to be a casual vacancy in the office and such vacancy shall be filled up, as soon as it conveniently may be, by the election of a person thereto, who shall hold office so long only as the councillor in whose place he is elected would have been entitled to hold it if the vacancy had not occurred.

The casual vacancy in the office of an elected councillor shall be filled up in the manner provided in Section 34.

Provided that no election shall be held to fill up such vacancy if it occurs within six months preceding the date on which the term of office of the Councillor expires under Section 6A."

Section 33, on the other hand, provides for hearing of election petitions and an order to be passed by the Chief Judge of the Small Causes Court. Sub-section (2) of the said Section is material and may be quoted in extenso:

"If the said Chief Judge, after making such inquiry as he deems necessary,finds that the election was valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. If he finds that the person whose election is objected to is disqualified for being a councillor be shall declare such person's election null and void. If he finds that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person and against whose election no cause of objection is found, shall be deemed to have been elected."

8. In our opinion, the order passed by the Additional Chief Judge, Small Causes Court is legal, valid and in consonance with law. To us, it is clear that Sections 9 and 33 must be read harmoniously keeping in view the legislative intent and considering the special provision in Sub-section (2) of Section 33 of the Act.

9. In the event of contingency as contemplated by Section 9, the authorities are required to take action treating vacancies as "Casual Vacancies". It is, no doubt, true that one the eventualities and consequences relates to disqualification of the councilor and it has to be dealt with by issuing a notification for holding an election treating it as casual vacancy provided the proceedings under Section 33 have not been initiated by filing an election petition. Hence, where a returned candidate has been declared disqualified and no election petition is pending in which an order can be passed under Sub-section (2) of Section 33, the procedure laid down under Section 9 of the Act has to be followed. But where the returned candidate is declared disqualified under Section 9 of the Act and an election petition is pending, the 'Judge' is enjoined to declare the candidate who has obtained next highest number of valid votes as elected under Sub-section (2) of the Section 33 of the Act.

10. Language Sub-section (2) of Section 33 is explicitly clear and unequivocal. It states that if the Chief Judge fins that the Councilor is held disquantified and his election is declared null and void, the Chief Judge shall direct that "the candidate in whose favour the next highest number of valid votes is recorded... shall be deemed to have been elected."

11. In the instant case, it is admitted that the petitioner had obtained 3887 votes whereas respondent No. 4 had obtained 3241 votes i.e. second highest after the petitioner. The petitioner was held disqualified and at that time, election petition filed by respondent No. 4 was pending. In the circumstances, in our opinion, it cannot be said that by exercising the power under Sub-section (2) of Section 33 of the Act and by declaring respondent No. 4 as elected candidate, any illegality has been committed by the Additional Chief Judge of Small Causes Court. The said action, therefore, required no interference by this Court.

12. It was finally urged by the learned Counsel for the petitioner that even against respondent No. 4, an election petition is pending. Admittedly, respondent No. 4 was not an elected candidate. It was, therefore, submitted by respondent No. 4 that the said election petition would not lie and would not be maintainable. We may clarify that we express no opinion on that aspect at this stage. The fact, however, remains that the election petition has not been decided. In the circumstances, the order passed by the Additional Chief Judge, Small Causes Court, Mumbai cannot be said to be illegal, unlawful or contrary to law. The petition, therefore, deserves to be dismissed and is, accordingly, dismissed. In the facts and circumstances, however, there shall be no order as to costs.