Bombay High Court
Mr. Kaustubh Dattatray Gokhale ... vs Mr. Harishchandra Gauru Hardas ... on 25 August, 2015
Bench: Anoop V. Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLTE JURISDICTION
WRIT PETITION NO.11797 OF 2012
...
1.Mr.Kaustubh D.Gokhale
2.Mr.Sulekh Anees Don ...Petitioners
v/s.
1.Mr.Harishchandra G.Hardas
2.Kalyan Dombivali Municipal Corporation
3.The State Election Commission
4.The Returning Officer
5.The Caste Certificate Scrutiny Committee
6. The State of Maharashtra
through its Secretary,
Mantralaya, Mumbai
Department of Administration,
...
...Respondents
Mrs.Neha Bhide with Mr.Y.M.Pendse for the Petitioners.
Mr.R.D.Soni I/b Ram & Co. for Respondent No.1.
Mr.A.S.Rao for Respondent No.2.
Ms.D.S.Mondkar-Hule for Respondent No.3.
Mr.C.P.Yadav, AGP for Respondents Nos.5 & 6.
...
CORAM : ANOOP V. MOHTA &
A.A.SAYED, JJ.
DATED : 25 AUGUST 2015
ORAL JUDGMENT: (Per Anoop V.Mohta, J.)
Rule. Returnable forthwith. Heard finally.
2. The Petitioners by this Petition have challenged the stated
inaction on the part of the Commissioner of Kalyan Dombivali Municipal
Corporation (K.D.M.C.) and prayed that the Office of the Municipal
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Councilor for Ward No.19 of Respondent No.2-KDMC be declared as
vacant and also prayed to set aside the Caste validity Certificate issued to
Respondent No.1. Prayer is also made to direct the Respondent No.2-
KDMC and Respondents Nos.3 & 4 to take steps to fill the vacant post of
Municipal Councilor for the said Ward and with further prayer to recover the
deposit availed by Respondent No.1 from the State Exchequer for the
period from 2010 to 2012 in his capacity as Municipal Councilor of Ward
No.19.
3. Respondents contested the issues in all respect. However,
considering the undisputed position on record and in view of the judgment
of Division Bench of this Court in Writ Petition No.10194 of 2010
(Smt.Chaitrali Prakash Borhade v/s. Mr.Rejendra Jaywant Dewalekar &
ors.) dated 8 June 2012, whereby this Court declared that "Dewalekar as
belonging to OBC are declared as non-est from its inception and the same
are quashed and set aside". By reasoned order highlighted portion of
paragraph 3 of the Government Resolution dated 19 July 2011 was also
quashed and set aside being illegal and unconstitutional. The Respondent
No.1 got elected on the basis of same Vaishya-Wani caste (OBC).
Therefore, in view of above judgment of this Court the caste Vaishya-Wani
itself is not in existence to claim the benefits of OBC so availed by
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Respondent No.1. Therefore, there is no question to continue to enjoy the
post of Councilor as contended by the learned Counsel appearing for the
Petitioners.
4. There is substance in the argument so made. However, the
contention of the Respondents is that by Government Resolution dated 1
March 2014 the same caste Vaishya-Wani (OBC) has been included in the
list and therefore Respondent No.1's case can be saved and/or protected in
view of this inclusion & it goes to the root so far as the Respondent No.1's
case is concerned. The fact of non-existence of the caste on the date of
claim of Respondent No.1, till Government Resolution dated 1 March 2014,
itself sufficient to dislodge the claim and the case and related benefits of
Respondent No.1.
5. However, in the interest of justice and by keeping all points
open we are inclined to direct Respondent No.2-KDMC to decide the
representation dated 14 August 2012 of the Petitioners afresh in
accordance with law, as the same is also supported by communication of
the Commissioner dated 6 October 2012. Since the representation is
pending since 2012 for no justifiable reason, we are inclined to direct the
Respondent-Corporation to dispose of this representation as early as
possible preferably within four weeks from today.
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6. Rule made absolute accordingly. The Petition is disposed of
with liberty. All points kept open. No order as to costs.
(A.A. SAYED, J.) (ANOOP V. MOHTA J.)
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