Bombay High Court
Nitin Bandopant Salagre vs State Election Commission Maharashtra ... on 10 June, 2019
Author: S.C. Dharmadhikari
Bench: S.C. Dharmadhikari, G.S. Patel
(10)WPL1453-19.DOC
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO. 1453 OF 2019
Shri Sandip Raju Naik, aged 43 years, ]
residing at Om Sai Apartment, D Wing, ]
Inside Akal Society, J.B. Nagar, ]
Andheri East, Mumbai - 59. ] ... Petitioner
Versus
1 State Election Commission, Maharashtra ]
State, through its Commissioner, having ]
its office at New Administrative Building ]
Opposite Mantralaya, Madam Cama Road, ]
Mumbai - 400 021 ]
2 Municipal Corporation of Greater Mumbai ]
through its Commissioner, having its ]
Commissioner, having its office at Municipal ]
HQ, Opposite CSMT Nagar Chowk, Fort, ]
Mumbai - 1. ]
3 Murji Kanji Patel, Aged Adult, Occ:Business ]
Residing at F-302, Ashok Vihar, Military ]
Road, Andheri (E), Mumbai - 400 072. ] ... Respondents
WITH
WRIT PETITION (L) NO. 1577 OF 2019
Shri Nitin Bandopant Salagre, aged 49 years ]
residing at 1/28, Gomantak Society, Mahant ]
Road, Vileparle (E), Mumbai - 400 067 ] ... Petitioner
Versus
1 State Election Commission, Maharashtra ]
State, through its Commissioner, having ]
SRP 1/76
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(10)WPL1453-19.DOC
its office at New Administrative Building ]
Opposite Mantralaya, Madam Cama Road, ]
Mumbai - 400 021 ]
2 Municipal Corporation of Greater Mumbai ]
through its Commissioner, having its ]
Commissioner, having its office at Municipal ]
HQ, Opposite CSMT Nagar Chowk, Fort, ]
Mumbai - 1. ] ... Respondents
WITH
WRIT PETITION (L) NO. 1578 OF 2019
Geeta Kiran Bhandari,aged 54 years, residing ]
at Keshav Nivas, Bhandarwada, Malvani ]
Village, Marve Road, Malad (West), ]
Mumbai - 400 095. ] ... Petitioner
Versus
1 State Election Commission, Maharashtra ]
State, through its Commissioner, having ]
its office at New Administrative Building ]
Opposite Mantralaya, Madam Cama Road, ]
Mumbai - 400 021 ]
2 Municipal Corporation of Greater Mumbai ]
through its Commissioner, having its ]
Commissioner, having its office at Municipal ]
HQ, Opposite CSMT Nagar Chowk, Fort, ]
Mumbai - 1. ] ... Respondents
WITH
WRIT PETITION (L) NO. 1462 OF 2019
Shri Eknath (Shankar) Dnyandeo Hundare ]
Aged 51 years, residing at Shriramnagar, ]
Mahabal Yadav Chawl, Tanaji Road No.1, ]
Malad (E), Mumbai - 97. ] ... Petitioner
Versus
SRP 2/76
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1 State Election Commission, Maharashtra ]
State, through its Commissioner, having ]
its office at New Administrative Building ]
Opposite Mantralaya, Madam Cama Road, ]
Mumbai - 400 021 ]
2 Municipal Corporation of Greater Mumbai ]
through its Commissioner, having its ]
Commissioner, having its office at Municipal ]
HQ, Opposite CSMT Nagar Chowk, Fort, ]
Mumbai - 1. ]
3 Rajpati Bargun Yadav, Aged adult, ]
Occ: Business, residing at Jai Bajrang ]
Welfare Soc. Wadarpada Road No.2, ]
Hanuman Nagar, Kandivali (East), ]
Mumbai - 400 101. ] ... Respondents
Mr. R.K. Mendadkar for the Petitioner in WPL 1453/2019 & WPL
1462/2019.
Mr. G.S. Godbole with Mr. C.K. Bhangoji for the Petitioner in WPL
1577 of 2019.
Mr. Sanjeev Kadam with Mr. C.K. Bhangoji for the Petitioner in
WPL 1578 of 2019.
Mr. Surel Shah with Mr. Pramod G. Kathane for the Respondent
in WPL 1606 of 2019.
Mr. Irfan A. Shaikh i/b S.B. Shetye for the Respondent No.1 in all
the petitions.
Ms. Vandana Mahadik for the MCGM - Respondent No.2 in all the
petitions.
Mr. Ajit Hon with Mr. Sanjay Dudhane i/b PNP Associates for the
Respondent No.3 in WPL 1453 of 2019 & WPL 1577 of 2019.
SRP 3/76
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Mr. Somnath Anchan for the Respondent No.3 in WPL 1462 of
2019.
CORAM : S.C. DHARMADHIKARI &
G.S. PATEL, JJ.
MONDAY, 10TH JUNE, 2019
ORAL JUDGMENT : [Per S.C. Dharmadhikari, J.]
1 All the petitions raise a common question of law and fact. They were heard together and are being disposed of by a common judgment. Hence, Rule. Respondents waive service. By consent, heard finally and filing of the affidavits dispensed with.
The petitions being Civil Writ Petition Nos. 1453 and 1462 of 2019, argued by Mr. Mendadkar, seek a peculiar relief. The first prayer is that the Election Petition styled as Municipal Election Petition No. 34 of 2017 be directed to be disposed of expeditiously.
2 Thereafter, the Writ Petition was amended and the amended prayers (a-1) and (b-3) read thus :
"(a-1) that this Hon'ble Court be pleased to issue a Writ of mandamus and/or any other Writ, order or direction in the SRP 4/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC nature of mandamus directing the Respondent No.1 State Election Commission, Maharashtra State to forthwith withdraw and/or cancel impugned notification dated 9.5.2019 qua the Petitioner;
... ... ...
(b-3) Pending hearing and final disposal of this Writ Petition, the Respondent No.1 State Election Commission be restrained by an order of injunction from proceeding further pursuant to the impugned notification dated 9.5.2019 from filling up casual vacancy from ward no.81 of the Respondent no.2 corporation till the election Petition no.34 of 2017 filed by the Petitioner in the Court of Chief Judge of the Small Causes Court, Mumbai is decided."
3 It is in furtherance of the amended prayers (a-1), that interim relief in terms of prayers (b-1) and (b-3) is sought and the argument is that this petition survives for these reliefs.
4 Mr. Mendadkar's argument, to be appreciated, would require us to refer to the petitioner's position, which is that of a voter of Ward No.81 of the Municipal Corporation of Greater Mumbai.
5 The State Election Commissioner is the supervising SRP 5/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC and controlling authority of this Municipal election whereas the third respondent was another candidate. The third respondent at the election to this Ward was declared elected. Ward No.81 was reserved for backward class of citizens. The petitioner is the rival candidate who suffered defeat in the election at the hands of this third respondent. Unfortunately for the third respondent, it was found that he does not belong to Leva Patidar OBC. The petitioner raked up this issue by filing a complaint to the Caste Scrutiny Committee in charge of scrutinizing and verifying caste claims.
The complaint of the petitioner was not being considered and, therefore, he came to this Court. Thereafter, the complaint was decided. The petitioner succeeded in obtaining a declaration that the third respondent is not a Leva Patidar. The Scrutiny Committee's order was unsuccessfully challenged by the third respondent. However, prior to this, the petitioner had already filed the subject Election Petition.
6 Now the subject Election Petition is also disposed of in the sense, relying upon the Scrutiny Committee's order and that of this Court so also the Hon'ble Supreme Court, the learned Chief SRP 6/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC Judge of the Court of Small Causes has held that the third respondent was disqualified from contesting the elections to a reserved post being not a Leva Patidar. So far so good.
7 Mr. Mendadkar says that this petition and the Election Petition are both surviving and in that Election Petition there is a prayer consistent with the mandate of sub-section (2) of section 33 of the Mumbai Municipal Corporation Act, 1888.
The Election Petition survives insofar as the declaration which follows after the elected candidate is held to be disqualified by the Court of Small Causes. There is an opportunity for the petitioner, who claims to have obtained the next highest number of votes, to substitute himself as a Councillor for the remainder of the term of the third respondent. For that aspect to be considered in the pending Election Petition, it is necessary that we should step in and stay the impugned Notification. The copy of the impugned Notification is at Exhibit-D2 to this petition.
8 The submission of Mr. Mendadkar is that now the State Election Commission is apprised of the fact that the election SRP 7/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC of the elected Councillor of Ward No.81 and other Councillors similarly situated having been declared to be vitiated and they having being declared as disqualified, there are casual vacancies.
The preparatory steps to fill in these casual vacancies would now be concluded and thereafter the casual vacancies would be filled in by the same process. That is by holding by-elections. The by-
elections are scheduled to be held for filling up the casual vacancies.
9 Mr. Mendadkar contends that the scheme of the Act is that when the Election Petition is pending for consideration of the other contested issue, namely, applicability of sub-section (2) of section 33, then, declaring and holding a by-election would totally defeat and frustrate the Election Petition. That issue is pending and tomorrow if the Chief Judge of the Court of Small Causes, Mumbai, holds that the petitioner is the Councillor in place of this third respondent, that declaration cannot be implemented and given effect to simply because a by-election by then would have already been held. The elected candidate at such a by-election would then be the Councillor. The petitioner not only would lose a SRP 8/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC opportunity granted by the statute, but his Election Petition is now rendered infructuous by the impugned Notification.
10 Mr. Mendadkar submits that the three provisions, namely, sections 9, 33 and 34 of the Act should be read harmoniously and in a manner preserving and protecting the mandate of sub-section (2) of section 33 and not frustrating it.
11 Even in the absence of such a legal provision, this result would follow, according to Mr. Mendadkar.
12 Mr. Godbole appearing in the other petitions would submit that it may be that a specific statutory provision or law would be required so as to disable the State Election Commission from filling up the casual vacancy. However, absent such a statutory provision, even by interpretative process and by properly understanding the underlying theme, we can achieve the same result and we must reach the same conclusion as desired by Mr. Mendadkar.
SRP 9/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC 13 We are sorry. We cannot uphold either contention for more than one reason.
14 The Mumbai Municipal Corporation Act, 1888, having been enacted as far back as in 1888, is a law which consolidates and amends the law relating to Municipal Corporation of Brihanmumbai. It contains in Chapter I, preliminary provisions including the definitions. Section 3 says that the term "Corporation" means the Municipal Corporation of Brihanmumbai constituted or deemed to have been constituted under this Act. The word "Councillor" is defined in section 3 clause (c) as under :
"3. In this Act, unless there be something repugnant to the subject or context, -
(a) *** *** ***
(c) "Councillor" means a person duly elected as a member
of the Corporation ; and includes a nominated Councillor who shall not have the right, -
(i) to vote at any meeting of the Corporation and Committee of the Corporation ; and
(ii) to get elected as a Mayor of the Corporation or a Chairperson of any of the Committees of the Corporation;"SRP 10/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::
(10)WPL1453-19.DOC 15 Then the word "Election" is defined in section 3 clause
(h) to mean an election to fill a seat or seats of a councillor or councillors under this Act. The words "Small Causes Court" is defined to mean the Court of Small Causes at Bombay [see section 3 clause (l)]. Clause (la) of section 3 defines the words "State Election Commission" to mean the Commission appointed in accordance with clause (1) of Article 243-K of the Constitution of India. There are other definitions with which we are presently not concerned.
16 Chapter II is titled as "The Municipal Constitution".
The sub-heading is "Municipal Authorities". Therein appears section 4 which says that Municipal authorities charged with carrying out the provisions of this Act, inter alia, are a Corporation. Section 5 sets out the composition of Corporation.
The composition is of two hundred and twenty-seven Councillors directly elected at ward elections and five nominated Councillors to be nominated by the Corporation. Section 5A enables reservation of seats. Section 5B requires a person contesting election for reserved seat to submit a caste certificate and caste SRP 11/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC validity certificate. Section 6 sets out the duration of the Corporation and the term of office of the Councillors is co-
terminus to the duration of the Corporation. Elections to constitute the Corporation shall be completed before the expiry of its duration specified in section 6.
17 Section 7B requires a person who ceases to be Councillor to ipso facto vacate his office. Any person who ceases to be a Councillor shall, unless disqualified, be re-eligible. This provision has an important bearing to the issue at hand for the simple reason that none of the petitioners before us are ineligible to contest or offer themselves as a candidate even at a by-
election. Since heavy reliance is placed on sections 9, 33 and 34, they are reproduced hereunder :
"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 maybe, 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 SRP 12/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC had not occurred.
............
33 Elections petitions to be heard and disposed of by Chief Judge of the Small Cause Court, - (1) If the qualification of any person declared to be elected for being a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the State Election Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time, within ten days form the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Cause Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.
(1A) The applicant shall, whenever so required by the Chief Judge, deposit in the Court a sum of Rs.500 in cash or Government securities of equivalent value at the market rate of the day as security for any costs which the applicant, may be ordered to pay to other parties to the said application.
SRP 13/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC (2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a 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.
(2A) When an election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of Section 28F, the Chief Judge, if he is satisfied that a candidate has committed such corrupt practice, declare a candidate disqualified both for the purposes of that election and of such fresh election as may be held during the current term of office of the councillors elected at the general election and shall set aside the election of such candidate if he has been elected.
(3) The said Chief Judge's order shall be conclusive. *** *** *** (5) Every election not called question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election.
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34. Procedure if election fails or is set aside. (1) If any general election or an election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place under the said sub-section, the State Election Commissioner shall appoint another day for holding a fresh election and a fresh election shall be held accordingly.
(2) A councillor elected under this section shall be deemed to have been elected to fill a casual vacancy under section 9."
18 The question as to whether a person is disqualified has to be decided and determined by resorting to section 33. The prior sections, therefore, would indicate that it is not only the disqualifications being incurred or alleged to be incurred would follow the steps taken in terms of section 27 onwards. The corrupt practices would be the other ground on which an election can be held to be vitiated, and this, therefore, means that election Petitions have to be resorted to, to decide the issue of disqualification or for disputing the qualifications of a person elected and declared to be a Councillor. Thus, a person for being elected as a Councillor and continuing to be a Councillor should be SRP 15/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC free of these disqualifications. Sub-section (1) enables a dispute to be raised about qualifications of an elected Councillor or raising the issue of validity of elections and a person enrolled as a voter after applying to the Chief Judge of the Court of Small Causes, has to follow a certain procedure. Sub-section (2) is a provision enabling the Chief Judge to make inquiries and if after making such inquiry, he finds that the Election was a valid election and that the person whose election is objected to is not disqualified, he shall confirm the declared result. However, 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 any 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.
19 However, for such deemed election to take effect, the election petition must be taken up for trial. The further aspect which Mr. Mendadkar and Mr. Godbole project has also to be SRP 16/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC decided strictly in consonance with sub-section (2) of section 33 of the Mumbai Municipal Corporation Act. 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, must then follow. There is no quarrel on the meaning of the expression "after the said person" and that refers to the person declared to be elected for being a Councillor, and whose qualification is disputed. It is only after that person is held to be disqualified that the candidate, if any, in whose favour the next highest number of valid votes is recorded and against whose election, no cause of objection is found shall be deemed to have been elected. The inquiry into these vital aspects is imperative.
Following a finding and conclusion therein alone can the deeming fiction come into play. Thus, the prerequisites for that also have to be complied with. The Court has to hear parties on the abovenoted issue. The deeming fiction does not follow as a matter of course. It does not automatically follow the declaration contemplated by the first part of sub-section (2) of section 33.
SRP 17/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC 20 Moreover, it is a notorious fact that election petitions or election disputes do not get decided and settled for decades together. They remain pending even after the duration of the Corporation. The pre-established or pre-existing Courts, particularly Civil Courts which decide the election petitions have other work and duties to discharge. They are flooded with other equally important litigation. In the instant case, the Court of Small Causes is also a Special Court or Tribunal deciding the disputes and matters under the Maharashtra Rent Control Act, 1999. In the circumstances, it is not possible for Judges of these Courts to dispose of elections petitions within the time prescribed by the Legislature. However, merely because an election dispute or petition is pending does not mean that the triggering action, namely, of a casual vacancy occurring in terms of section 9 as also the enabling power to fill up that casual vacancy by holding a by-election, has to await the result of the election petition and exercise of the abovenoted power ought to be held in abeyance.
Something more in terms of a statutory prescription was necessary and absent that, we cannot suspend or hold up the by-
election till election disputes or election petitions are decided only SRP 18/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC because the remaining or later issue projected aforesaid is not decided or is pending. That is merely for parties like the petitioner to take a chance and for that, we cannot stall the democratic process.
21 Once the person who was elected by the voters is held to be disqualified and cannot continue as their representative or Councillor, they must be given an opportunity to substitute him.
That is the known electoral process. Ultimately you are elected to be a Councillor and, therefore, if you are disqualified for continuing as a Councillor, naturally the fresh election must follow.
22 We do not think that sections 9, 33 and 34 can be read as suggested either by Mr. Mendadkar or Mr. Godbole. Section 9 is inserted in the statute so as to fill up casual vacancies. Section 9 itself clarifies that in the event of non-acceptance of office by a person elected to be a Councillor or of the death, resignation of the elected Councillor, the Legislation contemplates that to be a vacancy and deems it to be a casual vacancy in the office and SRP 19/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC such vacancy shall be filled up as soon as convenient may be by the election of a person thereto who shall hold office so long as the Councillor in whose place he is elected would have been entitled to hold it if the vacancy had not occurred. This provision also takes within its import a case of a subsequent disqualification of an elected Councillor. That also is causing a casual vacancy. That is also contemplated to be filled in and by the same process which enables filling up of casual vacancy caused by the reluctance of the elected Councillor to accept office or of his death or resignation. The filling up of the casual vacancy is by the manner provided in section 34. No election to fill up the casual vacancy can be held if it occurs within six months preceding the date on which the term of the Councillor expires under section 6A of the Mumbai Municipal Corporation Act. That term is co-terminus with the duration of the Municipal Corporation.
23 Section 34 says that if at any general election or an election held to fill a casual vacancy no Councillor is elected, or the election of any Councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to SRP 20/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC be elected in his place under the said sub-section, the State Election Commissioner shall appoint another day for holding a fresh election and a fresh election shall be held accordingly.
24 The precise argument is that sub-section (1) of section 34 which is a manner or procedure to fill up a casual vacancy specifically referring to sub-section (2) of section 33 so also going further and saying that there is no other candidate who can be deemed to be elected in the place of the Councillor who has been held to be disqualified within the meaning of sub-section (2) of section 33, necessarily means that no election to fill up the casual vacancy can be held till the other candidate is held to be unavailable or if available, cannot step in as provided by that sub-
section. The argument is that sub-section (2) of section 33 must be allowed to run its full course and until then, no by-election can be held because the casual vacancy has not occurred at all. That will occur only after the election petition is decided finally and on both aspects enumerated in section 33(2) of the Mumbai Municipal Corporation Act, 1888. That is the mandate of the section. We are unable to read the section in that manner. If, as SRP 21/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC suggested by Mr. Godbole, the whole process has to be completed and should be undergone and till then the casual vacancy caused by the disqualification of a elected Councillor should not be filled up is the mandate flowing from this section, then, section 9 would be rendered redundant. The language of that section is that the vacancy caused by the above is deemed to be a casual vacancy.
That would include a vacancy caused by disqualification of a Councillor and the election to fill it shall be held as soon as convenient. That vacancy has to be filled in by the election of a person thereto. The mandate is very clear. The object and purpose is to give an opportunity to the residents of the ward to elect another representative. No ward can be left unrepresented or without any elected representative. He alone can espouse their grievances and take up their causes and place them before the House when the House is convened. Merely because the vacancy can be filled in as conveniently as may be does not mean that the State Election Commissioner must necessarily wait till the conclusion of the election petition, even though the concerned Judge has already given a declaration that the elected Councillor is disqualified. The Election Petition is then pending only for the SRP 22/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC remaining issue. That remaining issue may not be decided on account of the pressure of work on the Court. That may not get decided till the duration of the Corporation. That means that an elected Councillor having been disqualified the ward would be deprived of a representative and must continue to be deprived until the Election Petition is disposed of. In the duration of the Municipal Corporation, the casual vacancy would continue and that will never be filled. One has to balance the hopes and aspirations in a democratic set up of the public. The voters having already made their choice, but the elected person is later found to be disqualified does not mean that the voters must suffer. If election disputes and election petitions are not decided for decades together, such a position will result in a vacuum. No provision of law can be construed so as to create or perpetuate such a vacuum. If we take into account a further notorious fact, frequently the decisions in the election petitions are challenged in higher Courts and they are requested to stay the fresh or by-
election. If the arguments of the petitioners are accepted, then, a casual vacancy cannot be filled up till the aforesaid request is pending and no stay is granted as prayed.
SRP 23/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC 25 The argument of the petitioners is based on a Division Bench judgment of this Court and several interim orders following the same. Mr. Mendadkar would submit that sub-
section (2) of section 33 has been interpreted as suggested by him in this judgment.
26 We are unable to agree with him. A judgment of this Court cannot be read like a statute. Judgments but interpret statutes. The Division Bench judgment heavily relied upon in the case of Gita Kisan Gore vs. State of Maharashtra & Ors. 2003 (4) Mh.L.J. 287 was rendered in the backdrop of the typical facts and circumstances and the scope of sections 9 and 33 was the issue for consideration, but in a peculiar factual backdrop. There, the petitioner before the Court was declared as elected Councillor from ward No.108 of the Bombay Municipal Corporation. That was a reserved seat for OBC. The caste certificate was declared as invalid and came to be cancelled. Hence, the petitioner was disqualified from contesting the election and retaining the seat as Councillor. She filed a writ petition challenging that action. The SRP 24/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC writ petition was dismissed by this Court. After that decision rendered by the Committee as also by this Court, the fourth respondent to that writ petition in which the reported judgment has been rendered instituted Election Petition and even before the judgment of this Court was pronounced, the Additional Chief Judge of the Court of Small Causes proceeded with it and declared the fourth respondent as elected candidate after the petitioner before this Court was held to be disqualified. The disqualified Councillor challenged this action by filing a second writ petition and in that several contentions were raised, inter alia, that the Judge fell in error in declaring the next candidate as deemed to be elected as Councillor.
27 In the circumstances, this Court was considering not only the argument based on the language of the two provisions, namely, sections 9 and 33, but the merits as well. It is in those circumstances that the Division Bench opined that sections 9 and 33 may be read keeping in view the legislative intent and considering the special provision in sub-section (2) of section 33.
The Court specifically held in paragraph 9 that one of the SRP 25/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC eventualities and consequences relating to the disqualification of the Councillor has to be dealt with by issuing a notification for holding an election treating it as casual vacancy. That is 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. These observations are made bearing in mind the extreme argument that law does not enable the Judge trying the election petition to declare the next candidate obtaining highest number of valid votes to be a Councillor. That is permissible given the clear language of sub-
section (2) of section 33. The language is that the Judge can either confirm the declared result of the election, but if he finds that the person whose election is objected to is disqualified, he should declare such person's election null and void. If he finds SRP 26/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC 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. Therefore, the Division Bench held that there is no merit in the argument that the course adopted by the learned Judge of the Court of Small Causes was impermissible in law. If we read the further paragraphs, this aspect becomes clear. This Court was not considering the argument or the contingency brought before us.
In our case, the argument is that the Election Petition has not ended completely. It is not disposed of finally, but remains pending insofar as the declaration to follow in terms of sub-
section (2) of section 33 of the Mumbai Municipal Corporation Act, 1888. If that is yet to follow, then, the by-election cannot be held is the argument. If such a by-election to fill up a casual vacancy cannot be held on account of mere pendency of the Election Petition before the Court of Small Causes, then, that eventuality has to be expressly provided in law. Merely because section 34 of the Act employs the words that the election to fill up SRP 27/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC casual vacancy can be held when there is no other candidate who can be deemed to be elected in its place under sub-section (2) of section 33, that by itself will not enable this Court to stay the by-
election to fill up the casual vacancy. The by-election or fresh election cannot be stayed on the specious ground as is projected before us. That is not how the legal provisions can be construed and read. Rather read together and harmoniously, these provisions would mean that the election of any Councillor if set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place, then, even if the election petition is decided on the first aspect, during the duration of the Municipal Corporation, no by-election or fresh election to fill up the casual vacancy can be held until the State Election Commissioner ascertains that the elected Councillor has accepted the adverse verdict or list in his challenge to it in the highest Court. He may also have to ascertain whether for the remaining aspect covered by section 33(2) how early the pending petition can be decided. That means that the vacancy remains and no election to fill up the same can be held merely because the election dispute or Election Petition is pending. None has control SRP 28/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC over such legal proceedings and none can predict as to when they will be disposed of. Is it suggested that the Election Petition, even if disposed of by the trial Judge, but that order is under challenge before this Court in a writ petition and, therefore, disposal of the writ petition would mean till disposal of the Writ Petition, the by-
election to fill up the casual vacancy cannot be held. This is not the result which can be achieved and particularly when one fully knows the basic tenets of election law.
28 It may be apprehended that the view taken by us obliges the State Election Commissioner / Commission to hold a by-election to fill up the casual vacancy even before the election petitions are decided and that would frustrate the remedy. This argument is also of no substance. Section 9 has latitude and discretion in-built in it. The words "as soon as it is convenient"
would enable the State Election Commission to take note of the facts in a individual case. If the Election Petition has to necessarily pass through and cover both aspects enumerated in sub-section (2) of section 33, then, after the elected candidate is disqualified or his election is set aside, the Election Commissioner SRP 29/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC can make appropriate inquiries and find out as to when the Election Petition would be decided. If it is to be decided in a short time, then, the State Election Commission can take an appropriate call. The State Election Commission can ascertain for itself as to whether the decision covering the other aspect is being rendered immediately or shortly. It may then decide to wait for that judgment. However, no general rule can be laid down and everything would depend on the facts and circumstances of each case. Our view is not as rigid and inflexible as is projected before us. It is only while dealing with the extreme arguments canvassed before us that we were obliged to interpret the relevant legal provisions. Once the interpretation placed on them by the counsel for the petitioners is unacceptable for the above reasons, then, it is only to clarify the view taken by us and as and by way of abundant caution, we have stated as above.
29 In the case of Jyoti Basu & Ors. vs. Debi Ghosal & Ors., AIR 1982 SC 983, taken to be a locus classicus on this issue, the Hon'ble Supreme Court had the following to say about the nature SRP 30/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC of the right to elect, the right to be elected and the right to dispute election and the scheme of the constitutional and statutory provisions in relation to these rights.. In paragraphs 7 and 8, the Court held thus :
"7 The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 :
(AIR 1952 SC 64) and Jagan Nath v. Jaswant Singh, AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case.
8 A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in the equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity SRP 31/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes, Court is put in a straight jacket. Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties to an election dispute and who may be impleaded as parties to an election petition. We have already referred to the Scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?"
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30 In this context, a reference can surely be made to the Representation of the People Act, 1951.
31. There as well, for the election of a House of People and the Council of State so also the State Legislative Council and the State Legislative Assemblies, the Election Commission is the ultimate authority. The various Chapters of this law would denote that it is for providing the elections to the House of Parliament and to the House of Legislature of each State the qualification and disqualification for membership of that House, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections. This Act is construed to be a complete code for the conduct of elections by the Election Commission of India, appointed under Article 324 of the Constitution which provides for superintendence, direction, control and conduct of elections. Chapter I Part I of the Statues contains similar provisions and in Part IX titled as "Bye-
Elections", appear sections 147 to 151A. Section 147 deals with casual vacancies in the Council of States and Section 149 deals SRP 33/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC with casual vacancies in the House of the People. Whereas section 150 deals with casual vacancies in the State Legislative Assemblies, section 151 deals with casual vacancies in the State Legislative Councils. There was no section 151A in the original enactment, but this section is now inserted by Act 21 of 1996.
This provides for a time limit for filling vacancies referred in the foregoing sections and these bye-elections have to be held within a period of six months from the date of occurrence of the vacancy provided, however, that there is no obligation to hold the bye-
elections within this period of six months if the remainder of the term of membership in relation to vacancies less than one year or the Election Commission in consultation with the Central Government, certifies that it is difficult to hold the bye-election within the said period.
32 Thus, everything in relation to the bye-election or the obligation to fill up the casual vacancy is left to the Election Commission. It has a certain latitude and discretion in the matter. The time limits having not been prescribed in the present Statute and even when there is an outer limit prescribed by SRP 34/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC section 151A of the Representation of the People Act, which also is subject to the proviso, then, we do not think that the Election Commission can be mandated not to fill up the casual vacancies as desired by the petitioners before us. They desire that the casual vacancy should not be filled up till the Election Petition is decided in accordance with section 33 of the Mumbai Municipal Corporation Act, which includes sub- section (2) thereof and that casual vacancy may have to continue as apprehended by us in the above paragraphs. Hence the Legislature in its wisdom made the Election Commission the authority to decide whether to fill up the casual vacancy and when to fill it up. We also do not think that we should define the limits of this power vesting in the State Election Commission and its Commissioner or direct it to exercise it in a particular manner so as to harmonize them and it is equally well settled that provisions of one section cannot be used to defeat those of another unless reconciliation is impossible (D. Sanjeevayya vs. Election Tribunal, Andhra Pradesh & Ors.. AIR 1967 SC 1211). We think that harmonizing these provisions so as to preserve in the Election Commission the power vesting in it would be most appropriate and apposite.
SRP 35/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC 33 We have also been taken through a judgment of the Division Bench of this Court rendered in the case of Rajendra Dhanji Sakhala Vs. State Election Commission & Ors., reported in 2008 (1) Mh. LJ., 398.
34 There, the issue was that the general elections to the Municipal Corporation were held on 1st February, 2007 and the respondent No.4 to that petition was declared elected under a reserved seat. The election results were declared on 2nd February, 2007. The Caste Certificate produced by the fourth respondent, on inquiry, was invalidated by the Caste Scrutiny Committee by its order dated 2nd June, 2007. Consequently, the election of the fourth respondent to the post of Councillor was deemed to be invalidated under second proviso to section 5B of the Mumbai Municipal Corporation Act, 1888. Though respondent No.4 challenged the order of the Caste Scrutiny Committee invalidating the Caste Certificate by filing writ petition, no stay either to the order of the Caste Scrutiny Committee or to the termination of her election was granted.
SRP 36/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::(10)WPL1453-19.DOC Relying on section 33, the person who was not a candidate to the election, but merely a voter, filed an election petition for declaring election of the respondent No.4 as null and void and declaring the candidate who had been elected second after securing the next highest number of valid votes at the election to be deemed to have been elected. The election petition was filed after considerable delay. An application for condoning the delay was also filed. Before that could be taken up, the State Election Commission declared that the election of the fourth respondent as terminated and, therefore, issued further notification for by-
election to this ward. That was challenged in this petition.
35 This Court outlined the mandate flowing from section 33 sub-section (2) and turned down the challenge in the following words :
"6. Sub-section (2) of Section 33 of the Act provides that if a person whose election is objected to (by filing an election petition) is disqualified for being a councillor then the Judge (Election Court) declare such person's election to be null and void, and shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded shall be deemed to have been elected. Relying upon SRP 37/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC this provisions Counsel for the petitioner submitted that as the respondent No. 4 was disqualified on account of his not belonging to the OBC, the Election Court would not only be required to formally set aside his election but also be required to declare that the candidate who secured the next highest number of votes is elected from the Ward No. 13. Counsel further submitted that as the election Court would, on conclusion of the election petition declare that the candidate securing next highest number of votes is elected it is inappropriate for the Election Commission to issue a notification for holding of by-elections to the Ward No. 13.
7 At the outset it may be noted that the caste claim of the respondent No. 4 was invalidated on 2nd June, 2007. Therefore, on account of the second proviso to Section 5B of the Act, the election of the respondent No. 4 stood terminated retrospectively by the operation of law. The seat became vacant with retrospective effect. On seat of the Ward No. 13 becoming vacant, under Section 9 of the Act the respondent No. 1 is bound to hold the fresh election as expeditiously as possible, and has accordingly issued a notification dated 12th September, 2007 for holding elections. It may be noted that on the date of notification dated 12th September, 2007 no election petition was pending challenging the election of the respondent No. 4. The election petition has been filed by the petitioner only on 22nd September, 2007 along with the application for condonation of delay. Since no election petition was pending there was no occasion for the State Election Commission to await decision SRP 38/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC of the election petition. On the date of the impugned notification there was no question of declaring the candidate who had secured the second highest number of valid votes to be elected. We therefore cannot find any fault in the notification dated 12th September, 2007 issued by the respondent No. 1."
36 We do not think that this judgment militates against the view taken by us. Far from it, it suggests that mere pendency of a writ petition in this Court challenging the order of the Caste Scrutiny Committee would not disable the State Election Commission from going ahead with a by-election.
37 To our mind, therefore, the view taken by us is consistent with the object and scheme of the law. We do not find any substance in the arguments to challenge the notification declaring the by-election. The writ petitions are, therefore, devoid of merits and are dismissed, but without any order as to costs.
38 Mr. Godbole submits that in these petitions, a Vacation Bench was persuaded to pass an order dated 16th May, SRP 39/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC 2019, by which the State Election Commission was permitted to proceed and prepare the Voters' List, but it was prohibited or injuncted from declaring elections to the wards in question upto 12th June, 2019.
39 Mr. Godbole and Mr. Mendadkar would submit that this order be continued further for a period of four weeks so as to enable the petitioners to challenge this judgment in a higher Court. This request is opposed by the counsel for the State Election Commission.
40 Once we have found that the Municipal Corporation must have two hundred twenty seven elected Councillors and the petitioners in these petitions were only candidates at the prior election and can contest even the fresh elections or by-election, then, we are disinclined to continue this ad-interim order. We have also found no substance in the arguments of the petitioners and they were merely taking a chance. They seem to suggest that nothing further is required to be done in the pending Election Petition and that their election as Councillors or the deemed SRP 40/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: (10)WPL1453-19.DOC election would necessarily follow. No adjudication is required at all. That is not the language of sub-section (2) of section 33 and far from that it suggests otherwise and even the objection to their election can be raised and if raised, it must necessarily must be dealt with.
41 All the more, therefore, we are disinclined to grant the request of Mr. Godbole and Mr. Mendadkar. The request is rejected.
SRP 41/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC PER GS PATEL J (Concurring):
1. I have had the privilege of following the order SC Dharmadhikari J dictated in open court, and then studying a transcript. I agree entirely with his reasons and findings, and his conclusion that being entirely without merit, the Petitions must be dismissed. On reflection, however, I believe that even viewed from another angle, the same result must obtain. I have therefore ventured in this separate but concurring order to supplement Dharmadhikari J's reasons and conclusion.
2. The facts are sufficiently stated in the main judgment, and I will not repeat them here. Only three facts need to be noted in Mr Mendadkar's petition for my purposes:
(a) His client's Municipal Election Petition No. 34 of 2017 is even now pending;
(b) It was filed to unseat the 3rd Respondent, the candidate returned from Ward No. 81, which has a reserved OBC municipal councillor seat, on the ground that the 3rd Respondent's caste certificate that he is a Leva Patidar, is invalid;
(c) The invalidation of the 3rd Respondent's caste certificate was ordered not in the Petitioner's Municipal Election Petition, but in separate proceedings before the Caste 42/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC Scrutiny Committee. The 3rd Respondent's challenge to the Caste Scrutiny Committee's findings failed.
(d) In the election petition, the Chief Judge of the Small Causes Court has held that the 3rd Respondent was disqualified from contesting the seat, since his Leva Patidar caste certificate was invalidated. But the Chief Judge has yet to grant the next relief, viz., that Petitioner, having secured the next highest number of seats, is declared the returned or elected candidate.
(e) In the meantime, the Election Commission has called for fresh elections to this reserved seat. It has issued a notification dated 9th May 2019 calling an election to fill the casual vacancy in the reserved seat in Ward No. 81.
3. I will presently set out the relevant sections again to emphasise certain portions of the statute in question, viz., the Mumbai Municipal Corporation Act, 1888 ("the MMC Act"). Before I do that, a few salient aspects of this statute should be noticed. It is, for one thing, a very old statute, one never repealed or substituted, though much amended. The Municipal Corporation itself is very old. The statute is unique, in that it is a corporation-specific enactment, unlike the Maharashtra Municipal Corporations Act, 1949.1 The MMC Act is a complete code for a single municipal corporation. Of necessity, it is a 1 Until 2012 known as the Bombay Provincial Municipal Corporations Act, 1949.
43/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC broad-spectrum statute. Its provisions -- and there must be more than 500 distinct sections even allowing for periodic deletions -- range from the minutiae of building regulations, public utilities, roads, drains, and even cattle, to matters of municipal elections and civic urban governance.
4. I begin this part of the discussion with a quick overview. Chapter I has the usual sections regarding title, repeal and definitions. Chapter II contains the provisions of immediate relevance. This Chapter deals with the municipal constitution. It has many distinct parts, dealing with the corporation, councillors, the mayor, the Municipal Commissioner, etc. Of these, Sections 5, 5A, 5B, 6, 6A, 6B, 9, 16, 17, 18, 18A, 33 and 34 are important.
5. Section 3 in Chapter I contains important definitions including 'the city', 'extended suburbs', 'Brihan Mumbai', and 'suburbs'. The expression 'Backward Class of citizens' is defined to means such classes or parts of or groups within such classes as the State Government periodically declares to be Other Backward Classes and Vimukta Jatis and Nomadic Tribes ("VJNT").2 A 'councillor' is a person duly elected as a member of the Municipal Corporation of Brihan Mumbai,3 and includes a nominated Councillor.4 An election 2 Section 3(a3).
3 Corporation is defined in Section 3(b), and Brihan Mumbai is defined in Section 3(a1).
4 Section 3(c). Nominated councillors have restricted rights.
44/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC means an election to fill councillors' seats, or a single councillor's seat.5 Scheduled Castes are also defined, and the definition links to Maharashtra-specific scheduled castes under Article 341 of the Constitution of India.6 Similarly, Scheduled Tribes are defined with reference to Article 342 of the Constitution of India.7 The 'Small Cause Court' means the Court of Small Causes of Bombay.8 It has certain specific powers vis-à-vis the MMC Act. Then there is a reference to the State Election Commission.9
6. Section 5 tells us that the Mumbai Municipal Corporation consists of 227 councillors elected at the ward level, and five nominated councillor with special knowledge or experience in municipal administration. The MMC is a body corporate. It has perpetual succession, a common seal, and can sue and be sued in that name. Section 5A was added in 1994. It tells us that after the 1994 amending act there is to be a reservation of elected councillors' seats from the total number of 227 for Scheduled Castes, Scheduled Tribes, women and Backward Classes of citizens. The exact reservations are set out in sub-sections (2) to (5). These seats are to be allotted by the State Election Commissioner by rotation to different wards under Section 5A(6). Section 5B was inserted by an amendment that followed two years later, in 2006. It tells us that every candidate seeking to 5 Section 3(h).
8 Section 3(l).
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7. The term of the corporation -- and therefore of every councillor
-- is five years.11 Before its term end, an election is mandatory.12 Section 7B tells us that unless disqualified, any person who 'ceases' to be a councillor is re-eligible, i.e. he can contest an election again.
8. Now I come to Section 9. This deals with what are called 'casual vacancies', a familiar term in the many branches of law that have provisions for elections of one sort or the other, including statutory bodies, societies and companies. A 'casual vacancy' may occur in any one of a variety of ways. This is the section:
"§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 10 The full title is the 'Maharashtra Scheduled Castes, 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'.
11 Section 6 and 6A.
12 Section 6B.46/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::
SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC 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 34:13 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.14 (Emphasis added) Thus Section 9 tells us two things about casual vacancies: it tells us when and how they may occur, and it tells us how they are to be filled. A 'disqualification' is only one of several ways (and not the only way) in which a casual vacancy occurs.
9. Sections 16 to 18 are crucial to the issue at hand. The first of these three is very lengthy: it covers some three closely printed pages. But it is so central to the question that I cannot avoid reproducing it in full, along with its companion provisions. For compactness, I have removed references to the many amendments effected from the 1930s onwards. But I have retained even those portions of Section 16 that specifically lie outside a caste-related disqualification (such as having more than two children, or constructing illegally, convictions for 13 Added in 1935.
14 Added in 1936.
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§16. Disqualifications for being a councillor (1) A person shall be disqualified for being elected and for being councillor if such person--
(a-1) has been so disqualified by or under any law,--
(i) for the time being in force for the purpose of elections to the Legislature of the State:
Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;
(ii) made by the Legislature of the State of Maharashtra; or
(a) has, at any time after the commencement of section 2 of the Maharashtra Municipal Corporations (Amendment) Act, 1970, been convicted of an offence punishable under section 153A, or sub-section (2) or (3) of section 505 of the Indian Penal Code:
Provided that, such disqualifications shall be for a period of six years from the date of such conviction; or (aa) has been removed from the office under section 18-1A and five years have not elapsed from the date of such removal;
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(b) has been convicted by a Court in India of any offence involving moral turpitude, unless a period of six years has elapsed since the date of such conviction; or (ba) has more than two children:
Provided that, a person having more than two children on the date of commencement of the Maharashtra Municipal Corporations and Municipal Councils, Nagar Panchayats and Industrial Townships (Second Amendment) Act, 1995 (hereinafter in this clause referred to as "the date of commencement"), shall not be disqualified under this clause so long as the number of children he had on the date of such commencement does not increase:
Provided further that, a child or more than one child born in a single delivery within the period of one year from the date of such commencement shall not be taken into consideration for the purpose of disqualification mentioned in this clause;
Explanation.-- For the purposes of this clause,--
(i) where a couple has only one child on or after the date of such commencement, any number of children born out of a single subsequent delivery shall be deemed to be one entity;
(ii) "child" does not include an adopted child or children, if and while such person-
(c) having been adjudged or re-adjudged an insolvent, is under any disqualification imposed by section 103A of the Presidency-towns Insolvency Act, 1909; or section 73 of the Provincial Insolvency Act, 1920; or 49/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC
(d) is the Commissioner, the Director or a Deputy Commissioner or a Municipal Officer or servant, or a licensed surveyor or plumber or a member of a firm of which a licensed surveyor or plumber is a member; or
(e) is the Chief Judge of the Small Cause Court or is acting in that capacity; or (ee) fails to pay any arrears of any kind due by him (otherwise than as a trustee) to the corporation within three months after a special notice in this behalf has been served upon him; or (f ) has directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by or on behalf of, the corporation; or (fa) having been elected as Councillor, during his term of office as a Councillor, has directly or indirectly, by himself or his partner, any share or interest in any lease including any leave or licence (but excluding any official residence provided by the Corporation), sale or purchase of land or any agreement for the same, by or on behalf of the Corporation; or (ff ) having been elected a councillor is retained or employed in any professional capacity either personally or in the name of a firm in which he is a partner or with whom he is engaged in a professional capacity in connection with any cause or proceeding in which the corporation or the Commissioner is interested or concerned:
Provided that his disqualification shall not apply to a councillor who renders free service for securing the 50/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC enforcement of civic rights or removal of legitimate public grievances;
(g) is a Member of the State Legislature or Parliament:
Provided that, nothing in this clause shall effect the membership of a sitting councillor till the expiry of his current term of office as such Councillor:
Provided further that, any action taken by such Councillor during the period from the 7th October 2001, till the 20th October 2001, being the date of publication of the Maharashtra Municipal Corporations and Municipal Councils (Amendment) (Amendment) Ordinance, 2001, shall be deemed to have been validly taken and shall not be challenged in any court of law only on the ground that during the said period he had incurred disqualification under this clause;
Explanation I.-- For the purpose of clause (f )--
(i) a municipal pensioner shall not be deemed to have any share or interest in any employment with, by or on behalf of the corporation, by reason only of his pension;
(ii) a person shall not be deemed to have any share or interest in any employment with, by or on behalf of the corporation by reason only of any relation of his being employed with, by or on behalf of the corporation, as an officer or servant, thereof.
Explanation II.--For the purpose of clause (fa)--
(i) a Councillor shall not be deemed to have any share or interest in any lease including any leave or 51/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC licence, sale or purchase of land or any agreement for the same, by or on behalf of, the Corporation, if such share or interest is not acquired by him directly or indirectly by use of his position or office as a Councillor;
(ii) the expression "leave" or "licence" means a licence as defined in section 52 of the Indian Easement Act, 1882.
(h) has failed to submit to the Corporation a certificate of Assistant Commissioner or a self-certificate by such person, certifying that--
(i) he resides in a house owned by him and has a toilet in house and he regularly uses such toilet; or
(ii) he resides in a house not owned by him and has a toilet in such house and he regularly uses it or he has no such toilet but regularly uses the community or public toilet;
Provided that, no Councillor on the date of commencement of the Maharashtra Municipal Corporations and the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships (Fourth Amendment) Act, 2015, shall be disqualified under this clause, if he submits such certificate, within a period of one hundred eighty days from the date of such commencement:
Provided further that, if the Assistant Commissioner fails to take the decision in respect of such application within a period of thirty days from the date of receipt of the application; the application shall be deemed to have been granted and the 52/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC Assistant Commissioner shall issue such certificate accordingly.
(1-1A) If, a Councillor or a person is found to be guilty of misconduct in the discharge of his official duties, or of any disgraceful conduct while holding or while he was holding the office of the Mayor or, as the case may be, the Deputy Mayor, the State Government may, after giving such Councillor or person a reasonable opportunity of being heard,--
(a) disqualify such Councillor to continue as a Councillor for the remainder of his term of office as Councillor; and also for being elected as a Councillor for a period of six years from the date of order of such disqualification;
(b) disqualify such person for being elected as a Councillor for a period of six years from the date of order of such disqualification.
(1A) A person who at any time during the term of his office is disqualified under the Maharashtra Local Authority Members' Disqualification Act, 1986 for being a councillor shall cease to hold office as such councillor.
(1B)(a) A person shall be disqualified for being a Councillor or for contesting an election for being elected as a Councillor, for a period of six years, if, an order is passed by the concerned authority, under section 18 or as the case may be, section 33, holding that such person was elected as a Councillor to a seat which was reserved for a member belonging to a Scheduled Caste, Scheduled Tribe or a Backward Class of Citizens (hereinafter referred to as "a reserved category"), on the basis of a false claim or a false 53/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC Caste Certificate declaring that such person belonged to such reserved category.
(b) Such period of disqualification shall be computed with effect from the date of passing of such order by the concerned authority.
(1C)(a) Notwithstanding anything contained in sub- section (1B), a Councillor who has been elected to a reserved seat as mentioned in sub-section (1B), shall be disqualified for being such Councillor consequent upon the Caste Certificate Verification Committee or any other Competent Authority specified by the State Government for the purpose of scrutiny of the Caste Certificates, declaring the Caste Certificate of such Councillor to be invalid and cancelling the same, on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category, and 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.
(b) On any person having been disqualified for being a Councillor and consequently, his seat as such Councillor having become vacant under clause (a), the State Government shall, by notification in the Official Gazette, disqualify such person for being elected or being a Councillor for a period of six years from the date of such order.15 15 Sections 16(1B)(a), 16(1B)(b), 16(1C)(a) and 16(1C)(b) were inserted by an amendment of 2015.
54/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC (1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority.
(1E) If the State Election Commission is satisfied that a person,--
(a) has failed to lodge an account of election expenses within the time and in the manner required by the State Election Commission, and
(b) has no good reason or justification for such failure, the State Election Commission may, by an order published in the Official Gazette, declare him to be disqualified and such person shall be disqualified for being a Councillor or for contesting an election for being a Councillor for a period of three years from the date of the order.
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(2) But a person shall not be so disqualified or be deemed to have any share or interest in such a contract or employment by reason only of his receiving fee for attendance at meetings of the Brihan Mumbai Electric Supply and Transport Committee or of his having any share or interest in--
(g) subject to the provisions of clause (fa) of sub- section (1), any lease including any leave or licence, sale or purchase of land or any agreement for the same, by or on behalf of the Corporation; or
(h) any agreement for the loan of money or any security for the payment of money only; or
(i) any newspaper in which any advertisement relating to the affairs of the corporation is inserted; or
(j) any joint stock company which shall contract with or be employed by the Commissioner on behalf of the corporation; or
(k) the occasional sale to the Commissioner on behalf of the corporation to a value not exceeding in any official year two thousand rupees, of any article in which he regularly trades.
§17. A person becoming disqualified to cease to be a councillor.
Any councillor who,--
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(a) becomes disqualified for being a councillor for any reason mentioned in the last preceding section, or
(b) absents himself during three successive months from the meetings of the corporation, except from temporary illness or other cause to be approved by the corporation,
(d) absents himself from or is unable to attend the meetings of the corporation during twelve successive months from any cause whatever, whether approved by the corporation or not, shall cease to be a councillor and his office shall thereupon be vacant.
§18. Questions as to disqualifications to be determined by Chief Judge of the Small Cause Court.
Whenever it is alleged that any councillor has become disqualified for office for any reason aforesaid, and such councillor does not admit the allegation, or whenever any councillor is himself in doubt whether or not he has become disqualified for office, such councillor or any other councillor may, and the Commissioner, at the request of the corporation, shall apply to the Chief Judge of the Small Cause Court; and the said Chief Judge, after making such inquiry as he deems necessary, shall determine whether or not such councillor has become disqualified for being a councillor, and his decision shall be a conclusive.
(Emphasis added) 57/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC
10. Broadly speaking, Section 16 tells us when and in what circumstances a councillor is disqualified. Section 17 sets out the consequences of a disqualification. Section 18 then tells us in which legal forum any questions regarding disqualification must be raised. There is, therefore, a logical flow to these three tightly-knit sections. And we must bear in mind that this councillor-disqualification statutory troika has a direct nexus to that part of Section 9, which deals with casual vacancies. The hierarchical progression runs like this:
casual vacancy on disqualification (Section 9); when is a councillor disqualified (Section 16); the consequences of that disqualification (Section 17); and disqualification dispute resolution (Section 18).
11. Within Section 16, we are concerned with the newly-added provisions in Section 16(1B) and Section 16(1C). They operate in distinct ways.16 Section 16(1B)(a) tells us that a disqualification of the kind mentioned here, i.e. on a false caste claim or caste certificate, occurs in either of two eventualities. One, when (a) the Chief Judge of the Small Causes Court in a proceeding alleging an elected councillor's disqualification on this ground, viz., impugning the validity of that caste claim or certificate, decides that the caste claim or certificate is false; or, two, in an election petition under Section 33, impeaching the election of the elected councillor. The date of the order is the starting 16 There are evident syntactical errors in Section 16(1B)(a). The phrase should be 'authority concerned', meaning the authority in question, not the 'concerned authority', which can only mean the authority who is caused some sort of concern, or is worried. There should be no comma after 'authority', and there should be one after 'section 18 or'. I read the section with these obviously necessary corrections, though it is reproduced verbatim.
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12. Section 16(1B) requires us to immediately examine Section 33 and, with it, Section 34:
§33. Elections petitions to be heard and disposed of by Chief Judge of the Small Cause Court.--
(1) If the qualification of any person declared to be elected for being a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the State Election Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt 59/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time, within ten days form the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Cause Court.
If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.
(1A) The applicant shall, whenever so required by the Chief Judge, deposit in the Court a sum of Rs.500 in cash or Government securities of equivalent value at the market rate of the day as security for any costs which the applicant, may be ordered to pay to other parties to the said application.
(2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a 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.
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(3) The said Chief Judge's order shall be conclusive.
*** *** *** (5) Every election not called question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election.
§34. Procedure if election fails or is set aside.--
(1) If any general election or an election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place under the said sub-section, the State Election Commissioner shall appoint another day for holding a fresh election and a fresh election shall be held accordingly.
(2) A councillor elected under this section shall be deemed to have been elected to fill a casual vacancy under section 9."
(Emphasis added) 61/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC
13. Section 18 and Section 33 thus both contemplate a proceeding being brought before the Chief Judge of the Small Causes Court. But the two are different and distinct types of proceedings. A Section 18 proceeding is directed only to the question of qualification or disqualification. That disqualification may be of any kind, and it may have been triggered or incurred at any time during the term of office. For instance, a councillor may be within the two-child rule when elected, but may earn a disqualification if he or she has a third child during the term of councillorship. Or it may relate to an illegal or unauthorised construction done while serving as a councillor, or the acquisition in that interregnum of a disqualifying financial interest. The disqualification does not have to be initial, i.e. one that goes back to the date of the election. It can be one that comes up at any time.17 Section 33, however, operates entirely differently. It is not restricted to a contest in litigation about a disqualification. Its ambit is wider. It allows a challenge to an election result on broader grounds, including an electoral malpractice of the kind set out in Section 28F ("What is a corrupt practice"). Further, a Section 18 application cannot be for an order declaring that a particular candidate should be declared elected upon the returned candidate being held disqualified. This is in contrast to Section 33, which specifically allows a petitioner before the Chief 17 Most disconcerting is the potential disqualification under Section 16(1)(h), which requires every councillor to regularly use either a private toilet or a community or public toilet. How a petitioner would prove that an elected councillor has ceased use of such a privy, and thereby earned a disqualification, is a matter perhaps best left to riper speculation -- possibly a chronicling in a domestic context in the manner of John Mortimer's Rumpole of the Bailey, or AP Herbert's Uncommon Law.
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14. Section 33(2) is critical. Though bundled into a single composite provision, it has distinct components. It envisages at least three different, and distinct, outcomes of the election petition:
(a) If the Chief Judge finds the election to be valid and that the elected councillor is not disqualified -- the election result is to be confirmed. The election petition fails.
(b) Otherwise:
(1) If the Chief Judge finds the elected person was
disqualified, the election is declared null and void. The Petition succeeds.
(2) If the election is invalidated -- that is to say it suffers from an electoral defect or malpractice, a cause other than the elected person being disqualified, then the election is set aside. Again, the Petition succeeds.63/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::
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15. This has an almost Boolean or binary logical structure, following the if-then logical paradigm familiar to programming and coding. The confirmation of the second-highest vote-gatherer occurs only in these two circumstances, and it occurs only as a result of an election petition, i.e. following a judicial determination or final decision on an election petition. It follows, therefore, that for the second-highest vote-gatherer to succeed to the office, (1) there must be an election petition; (2) it must be finally decided; and (3) the final decision must be one or the other of outcomes (b)(i) or (b)(ii) above.
16. What happens if the returned candidate is disqualified outside of an election petition? Let us assume there is no election petition filed at all, but merely a successful challenge to the returned candidate's qualifications -- age, for instance, or the validity of his caste certificate (as in this case). When that happens, Section 33(2) has no role to play at all. It simply does not operate. Its trigger events do not exist. What then comes into operation is Section 9.
18 Provided, of course, that his own election is not similarly invalidated. This is why Section 33(1) requires the joinder to the law suit of all candidates who secured more votes than the candidate the plaintiff seeks should be declared elected.
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17. It is the in-between position that presents one conundrum -- viz., there is a pending election petition, not yet disposed of at all, and the returned candidate has earned a disqualification in other, separate proceedings (his caste certificate having been invalidated). On my analysis of the statute, this will make no difference at all, and Section 33 will simply not apply. This is because its parent trigger event or requirement, the final determination of the election petition, has not occurred. The mere pendency of an election petition cannot cause Section 33(2) to operate.
18. To hold otherwise would, in fact, require a wholesale rewriting of the statute, something along these lines:
§33(2) If the said Chief Judge, after making such inquiry as he deems necessary, finds or may or is likely to find that the election was a 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 or may or is likely to find 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 or may or is likely to find 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.
Any such insertion by a judicial order on statutory interpretation is wholly impermissible.65/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::
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19. But the position today is even more of a hybrid. For, on the basis of the invalidation of the 3rd Respondent's caste certificate, the Chief Judge has actually made an order that he stands disqualified. The first part of the election petition is over. The Petitioner before us has succeeded. But before the Chief Judge could get to the second part, viz., the declaration that the Petitioner, the candidate with the next highest number of votes, is 'deemed to have been elected', the Election Commission's machinery has been set in motion; a fresh Election has been called. What Mr Mendadkar and Mr Godbole canvas is that no such election can be called, and that the Petitioner must be allowed to occupy the office vacated by the 3rd Respondent until the end of the current term.
20. Election statutes must be strictly construed. The law in this regard is well-settled. There is no room in them for interpretive elasticity or latitude. A 'liberal' construction is impermissible, and I believe this to be true as much of the municipal election provisions of the MMC Act as it is undoubtedly true of the Representation of People Act, 1951.19
21. There are two aspects I believe I must consider immediately. The first is the meaning of 'casual vacancy', defined only in Section 9, which tells us when it occurs. The second is the question of 19 GV Sreereama Reddy & Anr v Returning Officer, (2009) 8 SCC 736; Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & Anr, (2014) 5 SCC 312; as also the decision of a learned single Judge of this Court, SV Gangapurwala J, in Khalil Ahmed Shaikh Mannu v Election Commissioner of India & Ors, 2011 (6) Mh LJ 177.
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22. Vacancy means emptiness. Black's Law Dictionary defines it like this:20
1. The state or fact of a lack of occupancy in an office, post or piece of property. 2. The time during which an office, post or piece of property is not occupied. 3. An unoccupied office, post, or piece of property. ... a vacancy, properly speaking, does not occur until the officer is officially removed.
(Emphasis added)
23. This takes us directly to the second point of temporality. The very expression 'casual vacancy' means, therefore, that there is a period of time during which the office lies unoccupied. Section 9 says that the State Election Commission must hold an election to fill that vacancy 'as soon as may be convenient' -- this provides no definite time-frame
-- and, further clarifies that this is not to be done if there are only six months left to go to the end of the term when fresh general elections would have to be held anyway. In other words, for that six-month term, the disqualified councillor's seat would continue to remain vacant.
24. Section 34 outlines two other, very specific, circumstances in which a fresh election is to be called for that seat: (1) at a general election or at an election to fill a casual vacancy no councillor is validly 20 Bryan Garner, ed; Black's Law Dictionary, 7th ed., West Group.
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25. The underlying rationale is plain to see: like nature, law abhors a vacuum; and this part of the municipal law particularly abhors an electoral vacuum. No constituency should remain unrepresented. Therefore the mandate to the election commission in Section 9 to fill up the vacancy as soon as convenient. This the Election Commission must also do whenever a Section 34 situation occurs: there is no validly returned candidate at a general election or one held to fill a casual vacancy; or, at the end of a Section 33 proceeding, there is no validly returned candidate holding the second-highest number of votes (what I call the runner-up). I see no reason why the Election Commission should be forbidden from acting in the in-between position either, i.e. when a declaration has been made that the returned candidate has been disqualified and is deemed to have vacated his seat, but the next necessary declaration, that the runner-up candidate is deemed to have been elected has not yet been made. As Dharmadhikari J notes, the completion of that legal proceeding has no prescribed limit. It simply cannot be that pending the second declaration under Section 33(2) in favour of the runner-up candidate, the seat remains vacant. Further, I do not believe that the second declaration under Section 33(2) of a candidate 'deemed to have been elected' is either a foregone conclusion, or that it is a relief that can be obtained for the asking. It is 68/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC not as if there is no adjudication required. Section 32(1) has these words:
If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate.
This means that in a given case there may be more than one aspirant to the seat of the returned candidate who is disqualified or whose election is set aside. Moreover, Section 34 contemplates precisely this scenario, where there is no one who can obtain the second declaration under Section 33(2) of being 'deemed to have been elected'. Therefore, it is simply not possible to prescribe any rigid time-limit for the completion of the adjudication required for the second declaration under Section 33(2). Equally, that factual adjudication is not a task within our limited remit under Article 226 of the Constitution of India. It seems to me obvious that to obtain a declaration of being deemed to have been elected, the candidate aspiring to that declaration must show not only that he or she is the runner-up, i.e. has gathered the next highest number of votes, but also that he or she is not himself under any disqualification. Conceivably, there could be multiple layers to the second declaration under Section 33(2), and the proposition that Mr Mendadkar and Mr Godbole advance seems to me, for that reason, to be overbroad.69/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::
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26. For completeness, I should at this stage consider two decisions of Division Benches of this Court. The first is the decision in Geeta Kisan Gore v State of Maharashtra & Ors.21 That decision did consider Sections 9 and 33 of the MMC Act. The difference, and the distinguishing factor, was that the State Election Commission had done nothing by way of calling an election to fill a casual vacancy. What seems to have happened is that a returned candidate suffered a disqualification. Her OBC caste certificate was invalidated. Her challenge to that in this court failed. In the meantime, the 4th respondent had filed an election petition. The Chief Judge made an order declaring the 4th respondent duly elected, that is to say, the election petition was finally disposed with both declarations contemplated by Section 33(2) being made: unseating the returned candidate as disqualified, and also declaring the runner-up as being deemed to have been elected. The petitioner came to this court in a writ petition. It was in this context that the Division Bench upheld the order of the Chief Judge and said in paragraphs 8 and 9 that the runner- up had to be declared elected. There can be no quarrel with this ratio. In Mohammed Ishak Kasim Ali Shaikh v Municipal Corporation of Greater Mumbai,22 a later Division Bench, relied on the decision in Geeta Kisan Gore to take much the same view in very similar factual circumstances. One Mohammed Shaikh contested a municipal election for a seat reserved for OBC candidates. He was declared elected. The 3rd respondent was the losing runner-up. He filed an election petition 21 2003 (4) Mh LJ 287.
22 2017 (1) Mh LJ 402.
70/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC claiming that Shaikh was not of the OBC category at all. While this was pending, Shaikh's caste certificate came to be validated -- that is, held good and correct -- by the Caste Scrutiny Committee. The 3rd respondent challenged this order in a writ petition in this Court. He succeeded. The writ petition was allowed. As a result, the Additional Municipal Commissioner made an order disqualifying Shaikh. Since Shaikh never challenged that order, it attained finality. Therefore, the Civil Judge allowed the 3rd respondent's election petition and, since he had the second highest number of votes, also made the second order under Section 33(2), declaring that the 3rd respondent was deemed to have been elected. This is the precise point at which the Mohd Ishak Shaikh case diverges from the present one. Shaikh came back to this court in another writ petition, this time challenging the Chief Judge's order on the 3rd respondent's election petition. It was in these circumstances that the Division Bench in Mohd Ishak Shaikh upheld the Chief Judge's order, following, as it was bound to do, the previous decision in Geeta Kisan Gore. Again, there was no issue of the State Election Commission having put in motion its machinery to conduct an election to fill any casual vacancy. The scope for this did not arise. The election petition had been fully decided and the mandatory result of Section 33(2) had to follow in both cases.
27. In the present case, we are in a situation that never arose either in Geeta Kisan Gore or Mohd Ishak Shaikh. What has happened here is that the returned candidate's caste claim or certificate has been invalidated independently and outside the pending election petition 71/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC filed by the Petitioner against the 3rd Respondent. The Section 33 petition has received an order declaring that the 3rd Respondent was disqualified at the date of the election. But the second declaration in favour of the Petitioner, that he is deemed to have been elected, is yet to be made. What Mr Mendadkar and Mr Godbole seek is that the fresh election process mandated under Section 9 should now be stopped in its tracks to enable the Petitioner to take over the seat for which the 3rd Respondent has been disqualified. Their submission is that no election can ever be held for this seat until the next general elections, and it is wholly irrelevant that the election petition is yet pending the second declaration. The mere pendency of the election petition for the second declaration enthroning the Petitioner will ipso facto operate to stay any election is what they seem to suggest. Even if the election petition is not decided until the end of the present term, so be it, goes the argument (or its consequence). The ward's citizens can go without an elected representative so long as the Petitioner's election petition is pending. In other words, Mr Mendadkar and Mr Godbole commend a statutory interpretation that allows the indefinite continuance of an electoral vacuum.
28. This submission is, to all intents and purposes, not that Sections 9 and 33 must be harmonized, but that Section 33 trumps Section 9 every time. To put it shortly: whenever there is an election petition pending, no election can be held to fill the casual vacancy caused by the disqualification of the defendant or respondent to the election petition. This submission appeals neither to reason nor to any reasonable 72/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC interpretation of statutory intent and purpose. Indeed, it would render Section 9 almost entirely otiose: all that a losing candidate needs to do to stave off any election to fill a casual vacancy is to file an election petition and keep it pending for the second declaration under Section 33(2). That way, she or he can keep at bay any fresh election or bye- election. That is not the statutory mandate.
29. I venture the following illustration to explain the position. I will, for this example, assume that at a relevant general municipal election, A wins the most votes, and B polls the second highest number of votes, and that the seat is a reserved candidate seat.
(a) Scenario 1: B challenges A's qualification (questioning his caste validity, for instance) outside of an election petition. No election petition is filed. B succeeds in his challenge. A is held to have earned a disqualification. A casual vacancy occurs. Section 9 applies. A fresh election must be held as soon as convenient.
(b) Scenario 2: B challenges A's election, including on the question of qualification in an election petition. There are no separate proceedings challenging A's qualification. The election petition succeeds. A is found by a final order on the election petition to be disqualified, or the election is invalidated. Section 33(2) applies. A is unseated, and also receives an order declaring that he is deemed to have been elected. No question arises of a fresh election.
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(c) Scenario 3: B challenges A's qualification (questioning his caste validity, for instance) outside of an election petition. B also files an election petition, including on the question of A's qualification. The election petition remains wholly undecided. In the meantime, B's separate challenge to A's qualification succeeds. A is automatically unseated by Section 9, and a casual vacancy occurs. The Election Commission has not called any fresh election. B is entitled to an order in his election petition unseating A and declaring him to be the returned candidate. This is the Geeta Kisan Gore and Mohd Ishak Shaikh scenario.
(d) Scenario 4: B challenges A's qualification (questioning his caste validity, for instance) outside of an election petition. B also files an election petition, including on the question of A's qualification. In the meantime, B's separate challenge to A's qualification succeeds. A is automatically unseated by Section 9, and a casual vacancy occurs. B also gets the first declaration under Section 33(2) declaring A to have been disqualified. But there is no order in terms of the second part of Section 33(2) declaring that B is deemed to have been elected. The election petition continues to remain pending for this second declaration. Meanwhile, the Election Commission does call for a fresh election. This is the case at hand. B is not entitled to an order staying the fresh election called since he does not have the second declaration under Section 33(2) in hand.
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30. Lastly, there is nothing in Section 9, Section 16, Section 33 or Section 34 that can be interpreted to mean that the mere pendency of an election petition will operate to stay the Election Commission from performing its statutory duties. Section 9 is not made subject to Section 33 or subject to any proceeding in Section 33. Similarly, Section 33 does not contain any non-obstante provision that allows it to over-ride Section 9.
31. As the Geeta Kisan Gore court said, both sections must be harmonized. That harmony is not found by letting one trump the other, but by recognizing that the time-lines and time-frames involved may in a given case be determinative. At all times, this jurisprudential harmonisation demands a recognition of something fundamental: the interests and needs of the citizens of a ward are paramount. Those interests and needs must be served. They must receive preference and priority over all claims to being returned or winning a seat. There is no fundamental right to an electoral seat. The essence of a democratic system of governance is the right to vote, and to select a representative. Voters are not to be kept on hold while litigations wend their way through the legal system at a glacial pace. The needs of citizens, and their concerns, are matters that they expect their chosen, elected representatives to espouse. Voters select and elect their champions, not the other way around.
32. Therefore, if the election petition is decided first, or without there being any election call, the runner-up gets his or her seat. But if 75/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 ::: SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC the election petition is merely pending either in whole or in part, and an election is called (the returned candidate being disqualified elsewhere, and therefore to have vacated his seat), a delayed elevation of the runner-up to the reserved seat cannot, will not and should not be allowed to happen.
33. This of course raises the broader question whether any court should adopt an interpretation that results in a losing candidate securing a seat contrary to the popular mandate of an established, and Constitutionally valid, democratic electoral process. This is a sort of across-the-board double-reservation, and it is not contemplated by the law at all. Moreover, as a Division Bench of the Madhya Pradesh High Court correctly said in Arun Yadav v MP Rajya Nirvachan Ayog & Anr,23 citing the Supreme Court in NP Ponnuswami v Returning Officer,24 once a process of election has been set in motion, the High Court under Article 226 of the Constitution of India should not interfere.
34. For these reasons, I agree with Dharmadhikari J's conclusion that the petitions are misconceived and without merit, and ought to be dismissed.
(G.S. PATEL, J.) (S.C. DHARMADHIKARI, J.) 23 2015 (3) MP LJ 104, paragraph 12. 24 AIR 1952 SC 64. 76/76 ::: Uploaded on - 24/06/2019 ::: Downloaded on - 15/07/2019 00:56:01 :::