Indian Kanoon - Search engine for Indian Law

(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.

(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.

SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC date for reckoning the disqualification. Section 16(1C) opens with a non-obstante clause that therefore operates irrespective of Section 16(1B). This speaks of a disqualification earned not on account of any judicial pronouncement of the Chief Judge of the Small Causes Court, but on the elected councillor's caste certificate being invalidated and ordered to be cancelled by the Caste Certificate Verification Committee or competent authority under the Caste Certificate Act. The disqualification runs from the date of the order of the Caste Certificate Verification Committee. For, Section 16(1C) also says that upon the declaration of the Caste Certificate Verification Committee and its order cancelling the caste certificate, the elected councillor shall be deemed to have vacated his office on and from the date of the declaration. A Section 16(1C) disqualification requires the State Government to notify it, and the disqualification operates for six years from the date of the State Government order.

SANDIP RAJU NAIK V STATE ELECTION COMMISSION & ORS | PATEL J (10)WPL1453-19.DOC

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.