Mohammed Ishak Kasim Ali Shaikh vs Municipal Corporation Of Greater ...
2016 Latest Caselaw 5872 Bom

                                                                            WP 7961-16

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                CIVIL APPELLATE JURISDICTION
    Amk
                                     WRIT PETITION NO. 7961 OF 2016




                                                                                     
                                                             
                   Mohammed Ishak Kasim Ali Shaikh              ]
                   Son of Kasim Ali Shaikh                      ]
                   Age 37 years, Occ.- Business,                ]
                   Add.-Room No.100, Gaibanshah Nagar,          ]




                                                            
                   Near Home Guard, Ghatkopar (W),              ]
                   Mumbai-400 086                               ]       .. Petitioner

                           Vs.




                                                   
          1.       Municipal Corporation of Gr. Mumbai          ]
                   through its Municipal Commissioner
                                         ig                     ]
                   MCGM Head Office, Mahapalika Marg,           ]
                   Mumbai CST, Mumbai-400 001.                  ]
                                       
          2.       The State Election Commission,               ]
                   New Administrative Building,                 ]
                   Opp. Mantralaya, Mumbai.                     ]

          3.       Harish Krishna Bhandirge                     ]
            


                   Age-adult, Occ.-Not known,                   ]
                   Room No.12, Shakti Co-op. Housing            ]
         



                   Society, Kajupada, Kurla (W),                ]
                   Mumbai-400 072.                              ]       .. Respondents





          Mr. A. V. Anturkar, Sr. Advocate i/b Yusuf Khan for the Petitioner.
          Mr. A. Y. Sakhare, Sr. Advocate a/w. Mr. Vinod Mahadik for the
          Respondent-BMC.
          Mr. S. B. Shetye for Respondent No.2.
          Mr. R. K. Mendadkar for Respondent No.3.





                                    CORAM : RANJIT MORE AND
                                            DR. SHALINI PHANSALKAR-JOSHI, JJ.

          Judgment reserved on                : 20th SEPTEMBER, 2016.
          Judgment pronounced on: 6th OCTOBER, 2016.



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                                                                        WP 7961-16

    JUDGMENT

1. By this petition, filed under Article 226 of the Constitution of

India, the petitioner is taking an exception to the Judgment and Order

dated 08.07.2016, passed by the Additional Chief Judge of Small Causes

Court, Mumbai in Municipal Election Petition No.87 of 2012. By the said

Judgment and Order, the election of the petitioner, dated 17.02.2012 from

Ward No.156 of the Mumbai Municipal Corporation was declared as null

and void. At the same time, respondent No.3 herein was declared as

elected from the said ward under the provisions of Section 33(2) of the

Mumbai Municipal Corporation Act, 1882 (hereinafter referred to as the

'MMC Act').

2. Certain facts are not in dispute. The petitioner herein has

contested the election for the post of councillor from Ward No.156 of the

Mumbai Municipal Corporation, from a constituency reserved for Other

Backward Class Community (hereinafter referred to as the 'OBC'). The

result of the election was declared on 17.02.2012. The petitioner was

declared as elected having secured highest number of votes. Respondent

No.3 herein has also contested the said election from the same ward and

he has secured second highest number of votes.

3. Being aggrieved, respondent No.3 had filed Municipal Election

Petition No. 87 of 2012 before the Trial Court on the count that the

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petitioner does not belong to the 'Mansuri' caste which is recognized as

OBC and hence his election from the said ward be declared as null and

void and in consequence, respondent No.3 be declared as elected from

the said ward having secured second highest number of votes after the

petitioner. The said election petition was filed on 02.03.2012.

4. Meanwhile, the caste certificate of the petitioner was sent for

verification to the Caste Scrutiny Committee and the Scrutiny Committee

by its order dated 20.12.2012 validated the caste certificate of the

petitioner. However, the legality of the said order was challenged by

respondent No.3 by preferring Writ Petition No. 398 of 2013. By its

detailed Judgment and Order dated 28.08.2015, this Court was pleased to

allow the said Writ Petition thereby invalidating the caste certificate of the

petitioner. As a result thereof, by order dated 07.09.2015, Additional

Municipal Commissioner disqualified the petitioner for the post of

councillor retrospectively with effect from 17.02.2012. The said order has

not been challenged by the petitioner and, therefore, it has become final

having not been set aside by any other competent Court.

5. In view of this legal position, the learned Trial Court vide, its

impugned order, allowed Election Petition No. 87 of 2012, filed by

respondent No.3, declaring the election of the petitioner from Ward

No.156, as null and void and at the same time declaring respondent No.3

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herein as elected from the said ward under the provisions of Section 33(2)

of the MMC Act.

6. While challenging this impugned order of the Trial Court, the

main contention advanced by the learned Senior Counsel for the petitioner

is that once the petitioner was declared to be disqualified for contesting

the election itself, that too retrospectively with effect from 17.02.2012 by

the order dated 07.09.2015, petitioner has ceased to be elected councillor

and as such he also ceased to continue as 'respondent' in the Election

Petition filed before the Trial Court under the provisions of Section 33 of

the MMC Act. It is urged that, under Section 33 of the MMC Act, the

Election Petition can be filed only against the existing elected councillor for

challenging or disputing his election and, therefore, once the petitioner

was held as disqualified to be the councillor, he ceased to continue as

'respondent' in the Election Petition. As a result thereof, the Election

Petition has become redundant, infructuous, meaningless and was liable

to be disposed of as such by the Trial Court.

7. Learned Senior Counsel for the petitioner has, in this respect,

placed reliance on Section 9 of the MMC Act to advance his submission

that once the petitioner was held to be disqualified to be a councillor, there

has to be a deemed 'casual vacancy' in the office and such vacancy has to

be filled in by holding the fresh election in the manner provided in Section

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34 of the MMC Act. It is urged that in view of the Proviso to Section 9 of

the MMC Act, no fresh election can be held as this vacancy has occurred

within six months preceding the date on which the term of the office of

councillor expires under Section 6A of the MMC Act. By further relying on

Section 10(4) of the Maharashtra Scheduled Caste, Scheduled Tribes, De-

notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes

and Special Backward Category (Regulation of Issuance and Verification

of) Caste Certificate Act, 2000 (hereinafter referred to as the "Caste

Certificate Act"), it is urged that whenever an elected member incurs the

disqualification for being a member of such statutory body like Municipal

Corporation on account of his caste certificate being declared invalid, then

the election of such person shall be deemed to have been terminated

retrospectively. Thus, it is urged that in view of this deeming provision

also, it has to be held that on 07.09.2015 itself, when the petitioner was

held to be disqualified as councillor with retrospective effect, it has the

automatic impact of terminating his election. In such situation, the only

option was for the Election Commission to declare the casual vacancy

under Section 9 of the MMC Act. It was not possible in the instant case as

the vacancy has occurred within six months, preceding the date on which

the term of office of the councillor expires under Section 6A of the MMC

Act. Hence, according to learned counsel for the petitioner, the Trial Court

has committed a grave error in proceeding with the hearing of the election

petition, even after the order dated 07.09.2015 was brought to the notice

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of the Trial Court, according to which, the petitioner was disqualified as

councillor by respondent No.1-Corporation. In such situation, there was

no occasion for the Trial Court to proceed further with hearing of petition

filed under Section 33 of the MMC Act and declare respondent No.3 as

elected from the said constituency having secured second highest number

of votes. It is the submission of learned Senior Counsel for the petitioner

that on this very ground itself, the impugned Judgment and Order of the

Trial Court is liable to be quashed and set aside especially, considering

that the Trial Court has no jurisdiction in itself to proceed further with the

hearing of the elected petition.

8. Per contra, learned counsel for respondent No.3 has fully

supported the impugned Judgment and Order of the Trial Court by placing

reliance on the decision of the Division Bench of this Court in Geeta Kisan

Gore Vs. State of Maharashtra, 2003(4) Mh.L.J. 287 for submitting that

the provisions of Sections 9 and 33 of the MMC Act must be read

harmoniously. It is urged that, where returned candidate is declared

disqualified and the election petition is pending, the Trial Court is enjoined

to declare candidate obtaining next highest number of valid votes as

elected. Here in this case, it is submitted that the petitioner is not

challenging the fact that his election was declared as null and void and

hence, there was a casual vacancy which was required to be filled up and

Section 33(2) of the MMC Act authorized the Trial Court to do so. The

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Trial Court has, therefore, rightly exercised the discretion and the

jurisdiction vested in it by law, especially, considering undisputed position

that respondent No.3 has obtained next highest number of valid votes in

the said election.

9. In our considered opinion, in order to effectively decide the

controversy involved in this petition, it would be useful to reproduce

Section 9 of the MMC Act which lays down as to how casual vacancy

should be filled up. It reads as under:

"9.

Casual vacancies how to be filled up.- "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."

10. Section 33 of the MMC Act, 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

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for our purpose and it may be quoted in extenso as follows:

"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 he 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."

11. Thus, the conjoint reading of Sections 9 and 33(2) of the MMC

Act makes it clear that whenever after making necessary enquiry in the

Election Petition the returned candidate is declared disqualified and the

Chief Judge finds that his election is required to be declared as null and

void and accordingly declare it to be so, then Sub-section (2) of Section 33

makes it incumbent on the Chief Judge to declare the candidate who has

obtained next highest number of valid votes, as elected.

12. As to the provisions of Section 10(4) of the Caste Certificate

Act, they provide as follows:

"(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election

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for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes,

Other Backward Classes or Special Backward Category by

procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such

person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively."

13. The entire emphasis of learned Senior Counsel for the

petitioner is on this non-obstante clause in Section 10(4) of the Caste

Certificate Act to advance his submission that once the caste certificate is

cancelled by the Scrutiny Committee, then the election of such person

shall be deemed to have been terminated retrospectively. It is urged that,

in view of this deeming provision, there was a casual vacancy and in view

of Section 9 of the MMC Act such casual vacancy has to be filled by

holding the election. There was no occasion thereafter for the Trial Judge

to proceed further with the hearing of the election petition and to declare

respondent No.3 as elected from the said constituency.

14. We are, however, not inclined to accept this submission as in

our opinion the legal controversy raised in this petition is no more res

integra and is already set at rest in the above said decision of Geeta

Kisan Gore (supra), relied upon by learned counsel for respondent No.3.

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The facts of the said decision are identical even to the extent of being

replica of the facts of the present petition. In that case also, at the time

when the caste validity certificate of the petitioner therein was held invalid

and cancelled, the election petition filed by respondent No.4 therein was

pending before the Small Causes Court. In the said election petition, the

election of the petitioner was declared as null and void in view of the

decision of the Caste Scrutiny Committee, which was confirmed by the

High Court also in that case and thereafter relying on the provisions of

Sections 9 and 33(2) of the MMC Act, the learned Additional Chief Judge

of the Small Causes Court has declared next candidate, namely,

respondent No.4 therein as elected having secured next highest number

of valid votes. The said decision of the Additional Chief Judge was

challenged on the similar ground as raised in this petition that once the

caste certificate was invalidated and the petitioner was held disqualified,

then in view of the provisions of Section 9 of the MMC Act, there was

casual vacancy which had to be filled up by the election and not in the

Election Petition by the Court.

15. While rejecting this submission, the Division Bench of this

Court, after considering, in detail, the provisions of Sections 9 and 33(2) of

the MMC Act held 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 MMC Act. In paragraphs 9 and 10

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of the Judgment it was observed as follows:

"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 once the

eventualities and consequences relates to disqualification of the Councillor then it has to be dealt with by issuing a notification for holding and 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. (Emphasis supplied)

(10) Language sub-section (2) of section 33 is explicitly clear and unequivocal. It states that if the Chief Judge finds that the

Councillor is held disqualified 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."

16. While taking the above view of the matter, it was held by the

Division Bench that as the petitioner in that case was held disqualified and

as at that time election petition filed by respondent No.4 was pending, no

illegality has been committed by the Additional Chief Judge of the Small

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Causes Court in exercising the powers under sub-section (2) of Section 33

of the MMC Act and declaring respondent No.4 therein as elected

candidate. It was held that the impugned order of the Additional Chief

Judge required no interference in such situation by this Court.

17. In the facts of the present case also, as stated above,

admittedly when the petitioner was declared as disqualified on account of

invalidation of his caste certificate, at that time the Election Petition No. 87

of 2012 filed by respondent No.3 against the petitioner was pending before

the Additional Chief Judge. Hence, there was nothing wrong or illegal on

the part of the Additional Chief Judge in proceeding with the hearing of the

said Election Petition and by exercising its powers and jurisdiction vested

in him under Section 33(2) of the MMC Act declaring respondent No.3 to

be elected from the said constituency.

18. In our view, the provisions of Section 10(4) of the Caste

Certificate Act also cannot make any difference to the legal position, as

laid down in the above said authority. Once, it is held that the provisions

under Sections 9 and 33(2) of the MMC Act are to be read conjointly and

harmoniously and when language of Section 2 of Section 33 is explicitly

clear and unequivocal, then allowing the provisions of Section 10(4) of the

Caste Certificate Act to prevail over this provision to make Section 33(2) of

the MMC Act redundant, cannot be the way of interpreting or reading the

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legislative provisions. The Court has to construe all the provisions of the

statute harmoniously with each other and not allow any of the provision to

become redundant.

19. In this view of the matter, we do not find that the Trial Court

has committed any error, much less illegality, in passing the impugned

order of declaring respondent No.3 as elected from the said constituency.

20. The petition, therefore, holds no substance or merits and

hence stands dismissed.

21. In the facts and circumstances of the case however, there

shall be no order as to costs.

[DR. SHALINI PHANSALKAR-JOSHI, J.] [RANJIT MORE, J.]