Case Note & Summary
The petitioner, Mohammed Ishak Kasim Ali Shaikh, contested and won the election for councillor from Ward No.156 of the Mumbai Municipal Corporation, a constituency reserved for Other Backward Class (OBC) community, on 17.02.2012. Respondent No.3, Harish Krishna Bhandirge, who secured the second highest number of votes, filed Municipal Election Petition No.87 of 2012 before the Small Causes Court, Mumbai, challenging the petitioner's election on the ground that the petitioner did not belong to the 'Mansuri' caste recognized as OBC. The election petition was filed on 02.03.2012. Meanwhile, the petitioner's caste certificate was sent for verification to the Caste Scrutiny Committee, which validated the certificate by order dated 20.12.2012. The trial court, by judgment dated 08.07.2016, declared the petitioner's election null and void and declared respondent No.3 as elected under Section 33(2) of the Mumbai Municipal Corporation Act, 1882. The petitioner challenged this order by way of a writ petition under Article 226 of the Constitution of India before the Bombay High Court. The High Court held that the validation of the caste certificate by the Scrutiny Committee has retrospective effect, meaning the petitioner is deemed to belong to the OBC category from the date of issuance of the certificate. The court noted that the trial court had not considered the effect of the validation order and had erroneously placed the burden on the petitioner to prove his caste. The High Court set aside the trial court's order and dismissed the election petition, thereby upholding the petitioner's election.
Headnote
A) Election Law - Caste Certificate Validation - Retrospective Effect - Validation of caste certificate by Scrutiny Committee after election date does not invalidate election - The validation relates back to the date of issuance of the certificate, and the candidate is deemed to belong to the OBC category from the beginning - Held that the election petition was liable to be dismissed (Paras 5-10).
B) Election Law - Reserved Constituency - Burden of Proof - The burden to prove that the elected candidate does not belong to the reserved category lies on the election petitioner - In the absence of any finding that the caste certificate was fraudulently obtained, the validation by the Scrutiny Committee is conclusive - Held that the trial court erred in declaring the election void (Paras 7-9).
Issue of Consideration
Whether the election of a candidate from a reserved OBC constituency can be declared null and void on the ground that the candidate's caste certificate was validated by the Scrutiny Committee after the date of election, and whether such validation has retrospective effect.
Final Decision
The High Court allowed the writ petition, set aside the judgment and order of the trial court dated 08.07.2016, and dismissed Municipal Election Petition No.87 of 2012. The election of the petitioner was upheld.
Law Points
- Election petition
- caste certificate
- OBC reservation
- validation by Scrutiny Committee
- retrospective effect
- Section 33(2) MMC Act
- Article 226
Case Details
2016 LawText (BOM) (10) 43
WRIT PETITION NO. 7961 OF 2016
RANJIT MORE, DR. SHALINI PHANSALKAR-JOSHI
Mr. A. V. Anturkar, Sr. Advocate i/b Yusuf Khan for the Petitioner; Mr. A. Y. Sakhare, Sr. Advocate a/w. Mr. Vinod Mahadik for the Respondent-BMC; Mr. S. B. Shetye for Respondent No.2; Mr. R. K. Mendadkar for Respondent No.3
Mohammed Ishak Kasim Ali Shaikh
Municipal Corporation of Gr. Mumbai, The State Election Commission, Harish Krishna Bhandirge
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Nature of Litigation
Writ petition under Article 226 challenging the judgment and order of the Small Causes Court declaring the petitioner's election as null and void and declaring respondent No.3 as elected.
Remedy Sought
Petitioner sought to set aside the trial court's order and uphold his election.
Filing Reason
The trial court declared the petitioner's election void on the ground that his caste certificate was validated after the election date.
Previous Decisions
The Additional Chief Judge of Small Causes Court, Mumbai, by judgment dated 08.07.2016, declared the petitioner's election null and void and declared respondent No.3 as elected under Section 33(2) of the MMC Act.
Issues
Whether the validation of a caste certificate by the Scrutiny Committee after the date of election has retrospective effect so as to validate the candidature from a reserved constituency.
Whether the election petition challenging the election on the ground of caste invalidity can succeed when the caste certificate has been subsequently validated.
Submissions/Arguments
Petitioner argued that the validation of his caste certificate by the Scrutiny Committee on 20.12.2012 has retrospective effect and therefore his election from the OBC reserved ward is valid.
Respondent No.3 argued that the petitioner did not belong to the OBC category at the time of election and the subsequent validation cannot cure the defect.
Ratio Decidendi
The validation of a caste certificate by the Caste Scrutiny Committee has retrospective effect, meaning the candidate is deemed to belong to the reserved category from the date of issuance of the certificate. Therefore, the election of a candidate from a reserved constituency cannot be declared void merely because the validation occurred after the election date.
Judgment Excerpts
By this petition, filed under Article 226 of the Constitution of India, the petitioner is taking an exception to the Judgment and Order dated 08.07.2016, passed by the Additional Chief Judge of Small Causes Court, Mumbai in Municipal Election Petition No.87 of 2012.
The caste certificate of the petitioner was sent for verification to the Caste Scrutiny Committee and the Scrutiny Committee by its order dated 20.12.2012 validated the caste certificate of the petitioner.
Procedural History
The petitioner won the election on 17.02.2012. Respondent No.3 filed an election petition on 02.03.2012 challenging the election. The caste certificate was validated by the Scrutiny Committee on 20.12.2012. The trial court declared the election void on 08.07.2016. The petitioner filed the present writ petition on an unspecified date, and the High Court pronounced judgment on 06.10.2016.
Acts & Sections
- Mumbai Municipal Corporation Act, 1882: Section 33(2)
- Constitution of India: Article 226
