Case Note & Summary
The petitioners, Mr. Kaustubh D. Gokhale and Mr. Sulekh Anees Don, filed a writ petition challenging the inaction of the Commissioner of Kalyan Dombivali Municipal Corporation (KDMC) and seeking a declaration that the office of Municipal Councilor for Ward No.19, held by Respondent No.1 (Mr. Harishchandra G. Hardas), be declared vacant. They also sought to set aside the caste validity certificate issued to Respondent No.1 and to recover the deposit availed by him from the State Exchequer for the period 2010 to 2012. The background of the case is that Respondent No.1 was elected as a councilor based on a caste validity certificate certifying him as belonging to the 'Vaishya-Wani' caste, which is classified as Other Backward Class (OBC). However, a Division Bench of the Bombay High Court in Writ Petition No.10194 of 2010 (Smt. Chaitrali Prakash Borhade v. Mr. Rejendra Jaywant Dewalekar & ors.) dated 8 June 2012 had declared that the caste 'Vaishya-Wani' is non-est from its inception and quashed the relevant portion of the Government Resolution dated 19 July 2011 that recognized it as OBC. The court noted that Respondent No.1 had obtained his caste certificate based on the same caste. The legal issue was whether Respondent No.1 could continue to hold the office of councilor when the very caste on which his election was based had been declared non-est. The respondents contested the petition, but the court found the position undisputed in light of the earlier judgment. The court reasoned that since the caste 'Vaishya-Wani' itself is not in existence, any benefits availed based on it, including the caste validity certificate and the consequent election, are void ab initio. The court allowed the petition, declaring the office of councilor for Ward No.19 as vacant and setting aside the caste validity certificate issued to Respondent No.1. It also directed the respondents to take steps to fill the vacant post and to recover the deposit availed by Respondent No.1 from the State Exchequer for the period he served as councilor.
Headnote
A) Municipal Law - Caste Validity Certificate - Void ab initio - Where a caste is declared non-est by a court, any certificate issued based on that caste is void from inception - The court held that the caste 'Vaishya-Wani' having been quashed, the certificate issued to Respondent No.1 is non-est and his election as councilor cannot stand (Paras 2-4). B) Election Law - Disqualification - Caste Certificate - If the caste based on which a candidate contested is invalid, the election is void - The court directed that the office of councilor for Ward No.19 be declared vacant and the election set aside (Paras 2-4).
Issue of Consideration
Whether the election of Respondent No.1 as Municipal Councilor based on a caste validity certificate for 'Vaishya-Wani' (OBC) can be sustained after the caste itself was declared non-est by a Division Bench of this Court.
Final Decision
The court allowed the petition, declared the office of Municipal Councilor for Ward No.19 of KDMC as vacant, set aside the caste validity certificate issued to Respondent No.1, directed the respondents to take steps to fill the vacant post, and directed recovery of the deposit availed by Respondent No.1 from the State Exchequer for the period from 2010 to 2012.
Law Points
- Caste validity certificate based on a caste not in existence is void ab initio
- Election of councilor based on such certificate is non-est
- Government Resolution declaring caste as OBC if quashed renders all benefits based on it void
