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2009 DIGILAW 1785 (BOM)

GITA RUPCHAND DEKATE v. STATE OF MAHARASHTRA

2009-12-19

A.P.BHANGALE, D.D.SINHA

body2009
JUDGMENT D. D. SINHA, J. : - Rule. Rule made returnable forthwith with the consent of Mr. R. D. Wakode, learned counsel for the petitioner; Mr. A. S. Fu1zele, learned Assistant Government Pleader for Respondent Nos. 1 to 4 and Mr. Nitin Sambre, learned counsel for Respondent No.5. 2. Grievance of the petitioner in the present writ petition is in respect of declaration of election of the petitioner invalid for want of submission of caste validity certificate. Learned counsel for the petitioner has submitted that the petitioner is elected as a Councillor of Municipal Council on 8th October, 2007 and, as per the then proviso to section 9-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, ("the Act of 1965" in short) the petitioner was entitled to submit caste validity certificate within a period of three months from the date of election, provided that he/she has applied for verification of her caste claim prior to filing of the nomination. 3. It is contended that the petitioner has contested the election of Councillor for the seat reserved for Scheduled Tribes; she had submitted caste certificate for verification to the Caste Scrutiny Committee prior to filing of her nomination paper, however, could not submit validity certificate within a period of three months from the date of election i.e. 8th October, 2007 since the same was pending for verification before the Caste Scrutiny Committee. It is contended that the inaction on the part of the Scrutiny Committee to decide the caste claim of the petitioner within a period of three months is not the fault of the petitioner and the petitioner should not be punished for the said inaction of the Scrutiny Committee. It is contended that in such situation, the impugned order may kindly be stayed and a direction be given to the Scrutiny Committee to decide the caste claim of the petitioner within a stipulated period and till then petitioner be permitted to remain a Councillor. 4. Learned Assistant Government Pleader has supported the action taken by the respondents against the petitioner, being consistent with the provisions of law. 5. We have given our anxious thought to the contentions canvassed by the respective counsel and perused the proviso to section 9-A of the Act of 1965 which was inserted vide Clause 5 of the Maharashtra Ordinance No. XII of 2006. 5. We have given our anxious thought to the contentions canvassed by the respective counsel and perused the proviso to section 9-A of the Act of 1965 which was inserted vide Clause 5 of the Maharashtra Ordinance No. XII of 2006. It will be appropriate to reproduce the text of the said clause which read thus: "5. Amendment of section 9-A of Mah. XL of 1965 :- To section 9-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, the following provisos shall be added, namely :"Provided that, a person who has applied to the Scrutiny Committee for the verification of his Caste Certificate before the date of filing the nomination paper but who has not received the validity certificate on the date of filing of nomination paper, (i) a true copy of the application preferred by him to the Scrutiny Committee for issuance of the validity certificate of any other proof for having made such application to the Scrutiny Committee; and (ii) an undertaking that he shall submit, within a period of three months from the date of his election, the validity certificate issued by the Scrutiny Committee; Provided further that, if the person fails to produce the validity certificate within a period of three months from the date of his election, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Councillor." 6. In the instant case, the following facts are not in dispute; The petitioner contested the election of the Councillor from the Scheduled Tribe Category. The petitioner has submitted his caste claim to the Scrutiny Committee for verification before filing the nomination and, as per the proviso to section 9-A the petitioner was required to submit validity certificate within a period of three months from the date of election i.e. 8th October, 2007 which the petitioner could not submit since the caste claim of the petitioner was not decided by the Scrutiny Committee. 7. Proviso to section 9-A required candidate to give an undertaking, that he/she shall submit within a period of three months from the date of his/her election the validity certificate issued by the Scrutiny Committee. 7. Proviso to section 9-A required candidate to give an undertaking, that he/she shall submit within a period of three months from the date of his/her election the validity certificate issued by the Scrutiny Committee. It also gave consequences of failure to submit validity certificate within a period of three months from the date of election i.e. election of such candidate shall be deemed to have been terminated retrospectively and such candidate shall be disqualified for being a Councillor. It is, therefore, evident that the proviso to section 9-A which was inserted by the Maharashtra Municipal Corporations and Municipal Councils (Amendment) Ordinance, 2006 did not leave any room for doubt about the consequences, on failure to submit validity certificate within a period of three months from the date of election by the elected candidate. The provision is specific, clear and self-explanatory (now deleted). 8. It is no doubt true that once the caste claim is submitted to the Scrutiny Committee for verification, it is for the Scrutiny Committee to decide the same according to the procedure and provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (VJ) Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 and the candidate who has submitted his/her caste claim for verification has no role to play in this regard. However, the proviso to section 9-A not only gave time within which validity certificate was required to be submitted by the elected Councillor but also provided consequences for failure to submit validity certificate within a period of three months from the date of election. Thus, the consequences were automatic cessation/termination of election of such candidate with retrospective effect and such candidate shall also be disqualified for being a Councillor. It is in such situation not even a formal declaration in this regard by the Authority was necessary. If the elected candidate failed to submit the validity certificate within three months from the date of election, the election of such candidate would stand terminated automatically with retrospective effect and such candidate also stood disqualified for being a Councillor. The provision was self-contained code which had provided not only the procedure to be followed by the elected Councillor but also provided consequences in case of omission to follow the said procedure. The provision was self-contained code which had provided not only the procedure to be followed by the elected Councillor but also provided consequences in case of omission to follow the said procedure. As per the said provision it was not even necessary for the Collector to declare the election of such candidate was terminated and he/she has incurred disqualification for being a Councillor. However in the case of the petitioner, the Collector, Nagpur gave such declaration which is impugned in the present Writ Petition, It is not in dispute that the petitioner could not submit validity certificate within three months from the date of election and, therefore, the election of the petitioner was liable to be terminated with retrospective effect and petitioner was disqualified as a Councillor. 9. For the reasons stated hereinabove, in our view, petition suffers from lack of merit. Hence same is dismissed. Rule discharged. No order as to costs. Petition dismissed.