Kalpana Dilip Bahirat Vs Pune Municipal Corp..

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REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 4805 OF 2013 ARISING OUT OF

SPECIAL LEAVE PETITION (C) NO. 19296 of 2013

KALPANA DILIP BAHIRAT Petitioner(s)

VERSUS

PUNE MUNICIPAL CORP.& ORS. Respondent(s)

JUDGMENT

Leave granted.

2. This is an appeal against the judgment dated 9th

April, 2013 of the Bombay High Court in Writ Petition

No. 3315 of 2013 by way of special leave petition

under Article 136 of the Constitution.

3. The facts very briefly are that the appellant

contested election to the Pune Municipal Corporation

held in December, 2011 to a seat reserved for Other

Backward Classes and filed as proof of his caste a

caste certificate dated 3-7-2008 issued by the

competent authority and caste validity certificate

dated 26-8-2010 purportedly issued by the Caste

Scrutiny Committee under the Maharashtra Schedule

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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 (for

short 'the 2000 Act'). She was declared elected as a

Corporator for Ward No. 40-A on 17-02-2012. Mrs. Laxmi

Balasaheb Ghodake, who also contested the election as

a member of Other Backward Class filed Election

Petition No. 26 of 2012 before the Court of the

Principal Judge of Small Causes, Pune challenging the

election of the appellant. Though the election

petition is pending and has not been decided, the

Commissioner of Municipal Corporation on receiving

information that the Caste Certificate, on the basis

of which the appellant contested the election, was

never actually issued by the concerned Caste Scrutiny

Committee, passed an order dated 26th March, 2013

holding that the appellant has not submitted genuine

caste certificate and because of that her election is

ab-initio null and void and declaring that the seat of

Pune Municipal Corporator from Ward No. 40-A has

become vacant retrospectively from the date of

election of the appellant. Aggrieved, the appellant

filed Writ Petition No. 3315 of 2013, but by the

impugned judgment and order, the High Court has

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refused to entertain the writ petition on the ground

that the appellant did not approach the High Court

under Article 226 with clean hands. Hence, the

appellant has preferred the present appeal before this

Court.

4. Mr. V.A. Mohta, learned senior counsel appearing

for the appellant submitted that the main contention

urged before the High Court by the appellant was that

Article 243ZG of the Constitution provides that no

election to any municipality shall be called in

question except by an election petition presented to

such authority and in such manner as is provided for

by or under any law made by the Legislature of a State

notwithstanding anything in the Constitution. He

submitted that since the appellant had been elected to

the Municipality, her election could be called in

question only by an Election Petition filed under

Section 16 of the Bombay Provincial Municipal

Corporations Act, 1949 (for short 'the 1949 Act'). He

submitted that the High Court has not gone into this

question and has dismissed the writ petition of the

appellant on irrelevant grounds.

5. Mr. Shekhar Naphade, learned senior counsel

appearing for the Municipal Corporation, on the other

hand, referred to the provisions of Section 5B of the

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1949 Act to submit that a person desirous of

contesting election to a seat reserved for Scheduled

Castes, Scheduled Tribes or Backward Class as the case

may be, has to submit along with the nomination paper,

a caste certificate issued by the competent authority

and a validity certificate issued by the Scrutiny

Committee in accordance with the provision of the 2000

Act. He further submitted that sub-section (4) of

Section 10 of the 2000 Act clearly provided that

notwithstanding anything contained in any law for the

time being in force, a person shall be disqualified

for being a member of any statutory body if he has

contested the election for local authority, co-

operative society or any statutory body on the seat

reserved for any of Scheduled Castes, Scheduled

Tribes, De-notified Tribes (Vimukta Jatis), Nomadic

Tribes, Other Backward Classes or Special Backward

Category by procuring a false caste certificate as

belonging to such caste, tribe or class on such false

caste certificate being cancelled by the Scrutiny

Committee and the election of such person shall be

deemed to have been terminated retrospectively from

the date of his election.

6. In rejoinder, Mr. Mohta submitted that the

appellant belongs to the Other Backward Class and her

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claim that she belongs to the other Backward Class has

not been decided by the Caste Scrutiny Committee and,

therefore, the provisions of Section 10 of the 2000

Act will not apply would be clear from sub-section (1)

of Section 10 of the 2000 Act.

7. We have considered the submissions of the learned

senior counsel for the parties and we find that

Section 5B of the 1949 Act provides as follows:

5B. Person contesting election for reserved seat to submit Caste Certificate and Validity Certificate.

Every person desirous of contesting election to a seat reserved for the Scheduled Castes, Scheduled Tribes or, as the case may be, Backward Class of citizens, shall be required to submit, along with the nomination papers, Caste certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of 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.

The language of the aforesaid provision makes it clear

that the nomination paper of a candidate contesting

from a seat reserved for Scheduled Castes, Scheduled

Tribes or Backward Class citizens has to be

accompanied by a Caste Certificate issued by a

competent authority and the Validity Certificate

issued by the Scrutiny Committee in accordance with

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the provisions of the 2000 Act. In this case, the

nomination of the appellant was accompanied by a caste

validity certificate purported to have been issued by

the Scrutiny Committee constituted under the 2000 Act

and admittedly Scrutiny Committee has not issued the

caste validity certificate which accompanied the

nomination paper. In other words, admittedly, the

certificate which accompanied the nomination of the

appellant was a false certificate and was not required

to be cancelled by the Caste Scrutiny Committee.

8. We have perused sub-section (1) of Section 10 of

the 2000 Act and we find that it applies to admission

to reserved seat in an educational institution and to

appointment to a reserved post in the Government,

local authorities, Government Corporations, Government

aided institutions or co-operative societies and will

not be attracted to the facts of the case. Instead,

the consequences as provided in sub-section (4) of

Section 10 of the 2000 Act will follow. Sub-Section

(4) of Section 10 reads :

“Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory body if he has contested the election for local authority, co-operative society or any statutory body on the seat reserved for any of Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by

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procuring a false caste certificate as belonging to such caste, tribe or class on such false caste certificate being cancelled by the Scrutiny Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be deemed to have been terminated retrospectively.”

The consequence is that the election of a person who

has contested on a seat reserved for the

aforementioned categories on false caste certificate

as belonging to such caste, tribe or class “shall be

deemed to have been terminated retrospectively”. The

deeming provision in sub-section (4) of Section 10 of

the 2000 Act is a statutory fiction which has to be

given effect to and the Commissioner of the Municipal

Corporation has given effect to the deeming provision

and has thus acted in accordance with law.

9. Mr. Mohta is right that in view of the provisions

of Article 243ZG of the Constitution, the election of

a person elected to the Municipality can only be

called in question by an Election petition presented

to such authority and in such manner as is provided

for by or under any law made by the Legislature of the

State and Section 16 of the 1949 Act provides for the

manner in which election to any municipality can be

called in question, but the opening words of sub-

section (4) of Section 10 of the 2000 Act, provide

that “notwithstanding anything contained in any law

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for the time being in force”, which obviously will

also include Section 16 of the 1949 Act, the deeming

provision in sub-section (4) of Section 10 of the 2000

Act will have to be given effect to and will not await

the outcome of an election petition. We, therefore,

maintain the order passed by the High Court for the

reasons indicated in this judgment.

10. We however make it clear that it will be open for

the appellant to pursue her claim before the Caste

Scrutiny Committee that she is entitled to a caste

certificate as a person belonging to Backward Class

and the Caste Scrutiny Committee will consider the

same on its own merits in accordance with the

decisions of this Court including the decision in

Anand Vs. Committee for Scrutiny and Verification of

Tribe Claims (2012) 1 SCC 113. We also make it clear

that in case the appellant is furnished with a caste

certificate by the Caste Scrutiny Committee, she will

be entitled to contest the election on the basis of

such Caste Certificate irrespective of what we have

said in this order.

11. Considering the facts and circumstances of the

case, the costs awarded by the High Court are deleted.

The interim order dated 17th June, 2013 passed by this

Court stands vacated and the appeal and the

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interlocutory application No. 4 stand disposed of

accordingly.

............................J. (A.K. PATNAIK)

............................J. (RANJAN GOGOI)

NEW DELHI, JUNE 27, 2013