Hanif Musa Kazi vs State Of Maharashtra Thr Its ...
2023 Latest Caselaw 278 Bom

 Yugandhara Patil

                                                      Judgment in WP-6852-2022.doc

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                     CIVIL APPELLATE JURISDICTION

                        WRIT PETITION NO. 6852 OF 2022

 Hanif Musa Kazi                          ]
 aged 49 years, residing at 1321,         ]
 Bagkazi Mohalla, Dhopeshwar,             ]
 Rajapur, Dist. Ratnagiri                 ]     ... Petitioner

          Versus

 1.       The State of Maharashtra        ]
          through its Secretary, Urban    ]
          Development Department,         ]
          Mantralaya, Mumbai-32.          ]
 2.       Rajapur Municipal Council       ]
          Rajapur through its Chief       ]
          Officer, having its office at   ]
          Rajapur District, Ratnagiri.    ]
 3.       Collector, Ratnagiri,           ]
          District Ratnagiri.             ]       ... Respondents

                                ******
 Mr. Chintamani K. Bhangoji with Mr. Hamid Mulla, Advocate for the
 Petitioner.
 Mr. A.I. Patel, Additional Government Pleader with Mrs. M.S. Bane
 AGP for Respondent Nos. 1 and 3.
 Mr. Shashank C. Mangle Advocate for Respondent No. 2.

                                    ******
                                      CORAM: R. D. DHANUKA AND
                                             M.M.SATHAYE , JJ.

RESERVED ON: 14th DECEMBER 2022 PRONOUNCED ON : 9th JANUARY 2023

JUDGMENT [PER M.M.SATHAYE, J.]

1. Rule. The learned AGP waives service for Respondent

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Nos. 1 and 3. Adv. Mangale waives service for Resp. No. 2. Rule

made returnable forthwith. The Petition is heard finally by consent

of the parties.

2. By this Petition, filed under Article 226 of the

Constitution of the India, the Petitioner seeks writ of Certiorari for

quashing and setting aside order dated 25 th November 2021 passed

by the Respondent No. 3- Collector, Ratnagiri, exercising powers

under Section 16(1)(1C)(b) and other enabling provisions of the

Maharashtra Municipal Councils, Nagar Panchayats and Industrial

Township Act, 1965 (hereinafter referred to as "the said Act"),

thereby disqualifying the Petitioner from being a member of

Respondent No. 2 -Municipal Council or to be elected as such, from

22nd May 2017, for a period of 6 years.

3. The brief facts of the case, necessary for disposal of this

Petition are as under:-

(a) The Petitioner contested the election from a reserved

category and was elected as President of Respondent No. 2

Rajapur Municipal Council in the year 2016. The Petitioner

contested the said election on the claim that he belongs to

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Machhimar (Daldi) community and as such a member of OBC.

The Petitioner relied upon his caste certificate for the said

purpose.

(b) As per the provisions of law, Petitioner's caste

certificate was subjected to verification and the Scrutiny

Committee on appreciation of material before it, invalidated

the claim of the Petitioner.

(c) Being aggrieved by the invalidation, the Petitioner

filed Writ Petition in this Court. This Court remitted the matter

back to Scrutiny Committee for reconsideration. The scrutiny

Committee in its second round too, maintained earlier

decision thereby invalidating the caste claim of the Petitioner.

The Petitioner, thereafter, again filed a Writ Petition bearing

No. 614 of 2018 and same was dismissed by order dated

16th January 2018.

(d) It appears that the Petitioner carried the matter to

the Supreme Court by filing Special Leave Petition,

however, the same was also dismissed. Having lost the caste

claim upto the Supreme Court, the Petitioner resigned on

26th February 2018. As the seat of Respondent No. 2 fell

vacant, the State Election Commission conducted by-election

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and one Shri Jamir Khalife was declared as successful

candidate.

(e) In view of the fact that the Petitioner's caste claim was

found false, the necessary action for his disqualification was

initiated. By the impugned order dated 25th November 2021,

Respondent No. 3- Collector, Ratnagiri passed the

impugned order, as above stated.

4. Heard learned Counsel Mr. Chintamani Bhangoji for the

Petitioner and Mr. A.P. Patel, learned Additional Government Pleader

for Respondent Nos. 1 and 3 i.e State of Maharashtra and Collector,

Ratnagiri and Adv. Shashank Mangle for Respondent No. 2-Rajapur

Municipal Council. Perused the record.

5. It is argued on behalf of the Petitioner that the

impugned order could not have been passed by the Collector without

first passing an order thereby disqualifying the Petitioner for

remaining term. It is further argued that the disqualification for 6

years is different from the disqualification from the remaining term

of office. Learned Counsel for the Petitioner invited our attention to

the provisions of Section 16(1)(1C)(b) and Section 44 of the said

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Act, and argued that the opportunity available to the Petitioner to

challenge the order passed under Section 44 of the said Act, cannot

be taken away and directly an order disqualifying the Petitioner for 6

years can not be passed in the facts of the case.

6. Learned Counsel invited our attention to the

communication dated 5th February 2020 made by Desk Officer of

Respondent No. 1 to Respondent No. 3-Collector, Ratnagiri (Exh-F /

page 37 of the Petition). It is argued that by the said

communication, the Desk Officer had infact requested the Collector

to first complete the process of cancelling membership of Petitioner

by giving retrospective effect and then send proposal for Petitioner's

disqualification for 6 years, since his caste certificate is invalidated,

as per Section 16(1)(1C)(b) of the said Act.

7. Learned Counsel for Petitioner suggested an

interpretation of this communication dated 5th February 2020, to

mean that unless the direction given in para 2(a) of the said

communication is followed, direction in para 2(b) thereof, cannot be

given effect to, and therefore, the Respondent No. 3 was in error and

has acted beyond his jurisdiction to pass the impugned Order.

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8. On the other hand, Mr. Patel, learned Additional

Government Pleader, contended that the Collector is an "Authority"

as provided in Section 16(1)(1B) of the said Act and a conjoint

reading of Sections 16(1)(1B), 16(1)(1C) and 44 of the said Act, will

show that the Collector is well empowered to decide and pass an

order disqualifying the Petitioner for 6 years, since his caste claim is

found false and is invalidated. So far as communication dated 5 th

February 2020 is concerned, Mr. Patel contended that the Collector

has followed the direction given by the Desk Officer within four

corners of law and has passed impugned Order within his power,

keeping in view Section 16(1)(1B)(a) and Section 44 of the said Act.

9. Mr. Patel also invited our attention to the affidavit in

reply filed by Collector Ratnagiri affirmed dated 14 th July 2022 and

annexures thereto, in support of his case. It is submitted by the

Respondent No. 3 in para nos. 3 to 7 of his affidavit that he has

acted in terms of Circular dated 7th November, 2019 issued by State

Election Commission. He stated that in response to letter dated 13 th

January, 2020 issued by his office, instructions were received under

aforesaid communication dated 5th February, 2020 (Exhibit 'F') and

thereafter, impugned Order dated 25th November, 2021 was passed

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and simultaneously by a letter on the same date, the matter was

submitted to State Government for further necessary action.

10. We have heard the matter at length. We have perused

Section 16(1)(1B), 16(1)(1C) & 44 of the said Act. Upon raising a

specific query to the learned Counsel for the Petitioner as to under

which Section, according to him, Respondent No. 3-Collector was

supposed to follow the instructions of Desk Officer as per

communication dated 5th February 2020 (Exhibit 'F'), learned

Counsel for the Petitioner fairly submitted that the Collector was to

act under Section 44 of the said Act for actions required under the

said communication. In our view even otherwise on conjoint reading

of all these sections, clearly suggest that the Collector is the authority

mentioned in section 16(1)(1B) to pass order under Section 44 of

the said Act. Provisions regarding disqualification for 6 years is given

in Section 16(1)(1C)(b) of the said Act. It is, therefore, clear that

the impugned order is passed by Respondent No. 3-Collector

exercising powers, also under Section 44 of the said Act and

therefore, the impugned Order does not suffer from any infirmity.

11. The interpretation suggested by learned Counsel for the

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Petitioner of communication dated 5th February 2020 cannot be

accepted, in view of the last line of the said communication which

reads thus :

"hence, after the aforesaid action/process is completed, submit

a proposal for disqualification."

It is important to note that the aforesaid actions as meant in the said

communication, included both actions stated in clause 2(a) and 2(b)

thereof.

12. Learned Counsel for the Petitioner has relied upon the

Order passed by this Court in Writ Petition (L) No. 20389 of 2021

dated 17th December 2021 (Sagun Vsant Naik Vs. M.C.G.M., Mumbai

& Ors) and contended that unless notification is issued, it cannot be

said that the Petitioner is disqualified to contest the elections for a

period of 6 years. Per contra, Mr. Patel, relied upon Judgment of this

Court in case of Jagannath Vs. State of Maharashtra, reported in

2007(2) Mh. L.J. 260, in which Section 16(1)(1C)(a) & (b) were

directly involved. In our view, Mr. Patel is right in his submission

that the act of issuance of a notification in the official gazette by the

Government under the provisions of section 16(1)(1C)(b) of the said

Act is merely a ministerial act and it could not be said that the

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Petitioner was not disqualified merely because the Government has

failed to perform the ministerial act of issuing a notification in the

official gazette. On instructions, Mr. Patel submits that a notification

will be issued in due course.

13. Perusal of Order in Sagun Vasant Naik's case (supra)

relied upon by the Petitioner, more particularly last para (8), shows

that in that matter, the issue of "disqualification" per se, was not

considered. Also it may not be out of place to mention that in that

matter, mere communication was under challenge and not an Order

passed by Collector, as is the case in hand. Needless to repeat that

the present impugned Order dated 25th November,2021 is an Order

passed by Collector Ratnagiri by exercise of his powers as already

held by us, above.

14. Perusal of the Judgment in Jagannath Vs. State (supra)

shows that issue of 'ministerial act of notification in official gazette

by State' was directly an issue and section 16(1)(1C)(a) and (b) and

section 44 of the said Act, were directly under consideration. Para 12

thereof reads thus :-

"12. The provisions of Section 16(1)(1C)(a) of

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the Act of 1965 start with a non-obstante clause. The aforesaid provision provides that notwithstanding anything contained in sub- section (1B) of section 16 (1), a Councillor shall be disqualified for being a Councillor consequent upon the Caste Certificate Verification Committee or any other competent authority declaring the caste certificate of such Councillor to be invalid and cancelling the same on the ground that it was based on a false claim or declaration. The provision stipulates that thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such certificate to be invalid and cancellation of the same by the said Committee or the competent authority. The provision further stipulates that the office of the Councillor would be automatically vacated on the invalidation and cancellation of the caste certificate of the Councillor concerned. Sub-clause (b) of Section 16 (1)(1C) of the Act of 1965 then stipulates that on any person having been disqualified for being a Councillor and consequently his seat having become vacant under clause (a), the State Government shall, by notification in the official gazette, disqualify such person for being a Councillor or being elected as a Councillor for a period of six years from the date of such order. A reading of clauses (a) and (b) of Section 16 ( 1)(1C) makes it clear that there is no discretion vested in the State Government to issue or not to issue a notification in the official gazette disqualifying such Councillor or person for being a Councillor or being elected as a Councillor for a period of six years from the date of such order. The act of issuance of a notification in the official gazettee by the Government under the provisions of Section 16(1)(1C)(b) of the Act of 1965 is merely a ministerial act and it could not

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be said that the Councillor was not disqualified for being elected for a period of six years merely because the State Government had failed to perform the ministerial act of issuing a notification in the official gazette, disqualifying such Councillor. Thus, a combined reading of sub-clauses (a) and (b) of Section 16 (1)(1C) of the Act of 1965 leaves no doubt that a Councillor would be disqualified for being a Councillor and for being elected as a Councillor for a period of six years after the order is passed by the Caste Certificate Verification Committee or any other competent authority declaring the caste certificate of the Councillor to be invalid. No sooner the Caste Certificate Verification Committee or any other competent authority passes an order cancelling the caste certificate of the Councillor than the Councillor is deemed to have vacated his office and is further disqualified for being a Councillor or being elected as a Councillor for a period of six years from the date of such order. The 2nd Adhoc Additional District Judge was, therefore, not justified in holding that the respondent No.5 could not have been held to be disqualified for being a Councillor or for being elected as a Councillor for a period of six years, in the absence of issuance of a notification by the Government in the official gazette under the provisions of Section 16(1)(1C)(b) of the Act of 1965."

15. We agree with the above view taken by learned single

Judge of this Court and, therefore, when the Petitioner's cast claim is

found false, the disqualification for 6 years has to follow, and

notification in the official gazette is mere ministerial act.

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16. This brings us to the last argument of Petitioner. Learned

Counsel made an attempt to distinguish the Judgment of Jagannath

Vs. State (supra) on the ground that, there, an Order was passed by

Collector and in the present case, there is no Order under Section 44

of the said Act and therefore Petitioner's opportunity to challenge an

order u/s. 44 is lost. There is no merit in this submission. Since the

impugned order itself is an order passed by the Respondent No. 3-

Collector, under Section 44 of the said Act, therefore, no opportunity

is lost as canvassed by the Petitioner. State Government only

performs ministerial act when it publishes the notification.

17. No other argument was advanced by the Petitioner. In view of

the aforesaid, there is no merit in the Petition and same is dismissed.

Rule is discharged. No order as to costs.

  [M.M.SATHAYE,J.]                                    [R. D. DHANUKA, J.]




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