Case Note & Summary
The petitioner, Mohammed Ishak Kasim Ali Shaikh, contested the municipal election from Ward No.156 of the Mumbai Municipal Corporation, which was reserved for the Other Backward Class (OBC) community. He was declared elected on 17.02.2012 having secured the highest number of votes. Respondent No.3, Harish Krishna Bhandirge, who secured the second highest votes, filed an election petition on 02.03.2012 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. During the pendency of the election petition, the petitioner's caste certificate was sent for verification to the Caste Scrutiny Committee, which by order dated 20.12.2012 validated the certificate. The trial court, however, 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. The petitioner challenged this order by way of a writ petition under Article 226 of the Constitution. The High Court observed that the trial court had ignored the subsequent validation of the caste certificate by the Scrutiny Committee, which has retrospective effect. The court held that the burden of proof was on the election petitioner to show that the returned candidate was disqualified, and the respondent failed to discharge that burden. The High Court allowed the writ petition, set aside the trial court's order, and dismissed the election petition, thereby upholding the petitioner's election.
Headnote
A) Municipal Law - Election Dispute - Caste Certificate Validation - Retrospective Effect - The election of a candidate from an OBC reserved ward was challenged on the ground that he did not belong to the OBC category. The Caste Scrutiny Committee validated his caste certificate after the election petition was filed. The High Court held that the validation has retrospective effect and the election tribunal ought to have considered it. The election petition was dismissed and the election of the petitioner was upheld. (Paras 1-13) B) Evidence - Burden of Proof - Election Petition - The burden lies on the election petitioner to prove that the returned candidate was disqualified. In this case, the respondent failed to discharge the burden as the caste certificate was validated by the Scrutiny Committee. (Paras 10-12) C) Interpretation of Statutes - Section 33(2) of Mumbai Municipal Corporation Act, 1882 - Declaration of Runner-up as Elected - The provision for declaring the runner-up as elected applies only when the election of the returned candidate is declared void. Since the election was upheld, the declaration of respondent No.3 as elected was set aside. (Paras 1, 13)
Issue of Consideration
Whether the election of a candidate from a reserved constituency can be declared void on the ground that he did not belong to the reserved category, when the Caste Scrutiny Committee subsequently validated his caste certificate with 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 the Municipal Election Petition No.87 of 2012. The election of the petitioner was upheld.
Law Points
- Caste certificate validation by Scrutiny Committee has retrospective effect
- Election Tribunal cannot ignore subsequent validation
- Burden of proof on election petitioner to show disqualification
- Section 33(2) MMC Act for declaring runner-up elected
