Bombay High Court
Lakhansingh vs Vinod on 12 December, 2011
Bench: B. P. Dharmadhikari, P. D. Kode
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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.
-------------------------
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
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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
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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
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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
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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
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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
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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
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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
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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
