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3. The general elections for electing councillor for Bombay Municipal Corporation were held in February, 2017. One Mrs. Kesharben Murji Patel was declared elected on 23.02.2017 as councillor from Ward No.76. Ward No.76 was reserved for backward class of citizens. Mrs. Kesharben Murji Patel had wrongly claimed to be a member of backward class citizen. The appellant filed a complaint before District Caste Certificate Scrutiny Committee and has also filed Election Petition No.52 of 2017 before Chief Judge of Small Causes Court, Mumbai under Section 33 of the Mumbai Municipal Corporation Act, 1888 (hereinafter referred to as “Act, 1888) challenging the election of Mrs. Kesharben Murji Patel. The District Caste Certificate Scrutiny Committee by its order dated 19.08.2017 invalidated the caste certificate of Mrs. Kesharben Murji Patel. Writ Petition No. 181 of 2018 was filed by Mrs. Kesharben Murji Patel seeking direction to the Corporation not to disqualify her. The writ petition No. 181 of 2018 was dismissed on 02.04.2019 against which special leave petition (C) No.8946 of 2019 was filed, which too was dismissed on 24.04.2019. Mrs. Kesharben Murji Patel was disqualified by order dated 05.04.2019 of the Corporation. On account of disqualification of Mrs. Kesharben Murji Patel from Ward No.76, a casual vacancy arose in the said ward. The appellant claimed to have secured second highest number of votes from Ward No.76, hence he claimed that he ought to have been declared by Chief Judge of Small Causes Court as having elected from Ward No.76. The State Election Commission, Maharashtra issued a notification dated 09.05.2019 notifying the byelection for Ward No.76 of the Corporation to fill up casual vacancy arising under Section 9 of the Act, 1988. The Writ Petition (C) No.1577 of 2019 has been filed by the appellant in the Bombay High Court praying for following reliefs:-

8. We have heard the learned counsel for the parties and have perused the records.

9. The present is a case where returned candidates have been held to be disqualified on account of invalidation of caste certificate. The disqualification of the returned candidates, who were initially elected from concerned ward of the Municipal Corporation has attained finality giving rise to casual vacancy in the office of councillor. Section 9 of the Act, 1888 deals with casual vacancy, which is as follows:-

25. When a casual vacancy arises due to disqualification of a returned candidate, whether that is not covered by Section 34(1)? In the cases before us, the returned candidate is disqualified by invalidation of caste certificate, the outcome of invalidation of caste certificate is same as setting aside their election. When we read Section 9 and Section 34, the event of invalidation of caste certificate of returned candidate shall also be covered by Section 34(1) and contingency as provided under Section 34(1) shall be held applicable in that event.
(ii) A casual vacancy caused due to invalidation of caste certificate of returned candidate has to be filled up in a manner provided in Section 34 of Act, 1888.
(iii) When an election petition has already been filed challenging the election of returned candidate since before invalidation of his or her caste certificate in which election petition prayer is also made to declare the candidate securing second highest votes as deemed elected, the State Election Commission may not call for fresh election without considering the above aspect of the matter.