Bombay High Court
VISHAKHA SHARAD RAUT ALIAS VISHAKHA MORESHWAR RAUTversusTHE STATE OF MAHARASHTRA THROU. THE ADDL CHIEF SEC. URBAN DEVELOPMENT DEPT AND ORS
- Decided
- Disposal
- Rejected
Holding
The Municipal Commissioner’s communication was lawful; the statutory deeming disqualification under Section 16(1C) of the MMC Act and Section 10(4) of the 2000 Act stands notwithstanding the procedural appeal provisions, and the petition is dismissed.
Summary
The petitioner, Vishakha Raut, was elected as a councillor from an OBC‑reserved ward in the Mumbai Municipal Corporation elections of January 2026. Her caste certificate, issued on 19 December 2025, was invalidated by the District Caste Scrutiny Committee on 20 August 2026 on the ground that the issuing authority lacked jurisdiction and she failed to prove her claim. The petitioner appealed to the Divisional Commissioner under the newly‑amended Section 6B of the 2000 Act and sought a stay of the Municipal Commissioner’s communication dated 25 August 2026, which invoked Section 16(1C)(a) and (b) of the MMC Act to deem her election void and to recommend a six‑year disqualification. The High Court held that the amendment introducing Section 6B and Section 10(5) did not disturb the substantive deeming provision of Section 10(4) of the 2000 Act and Section 16(1C) of the MMC Act. Consequently, the Municipal Commissioner acted within his statutory authority, and the petition for reinstatement and mandamus was dismissed.
Issues considered
- The Municipal Commissioner’s jurisdiction to issue a disqualification communication under Section 16(1C)(a) and (b) of the MMC Act despite the amendment introducing Section 6B of the 2000 Act.
- Whether the filing of an appeal under Section 6B and the procedural time‑limits in Section 10(5) bar the immediate operation of the disqualification provisions.
- Whether the invalidation of the caste certificate on jurisdictional grounds amounts to a ‘false’ certificate triggering the deeming disqualification under Section 10(4) of the 2000 Act.
- Whether the petitioner is entitled to a writ of mandamus for reinstatement as councillor.
Legislation cited
- 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 — s. 10(4), 10(5), 6, 6A, 6B
- Mumbai Municipal Corporation Act, 1888 — s. 16(1C)(a), 16(1C)(b), 5B
Subjects
- caste certificate
- reservation
- disqualification
- municipal corporation
- election
- OBC
- Section 16
- Section 6B
- appellate authority
- writ petition
- Article 226
Judgment
Digitally
signed by
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PRASHANT
PRASHANT VILAS
VILAS RANE
RANE Date:
2026.09.02
23:08:36
+0530
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11625 of 2026
Vishakha Sharad Raut alias Vishakha Moreshwar Raut ...Petitioner
Vs.
1. The State of Maharashtra
2. Municipal Commissioner, BMC.
3. The District Caste Scrutiny Committee Palghar
4. The Divisional Commissioner, Konkan Division.
5. Smt.Priya Sadanand Sarvankar Gurav ...Respondents
_________
Mr. Surel Shah, Senior Advocate with Shrishailya Deshkumh with V. P. Shelar, for
the Petitioner.
Mr. Diwankar Tayshete with Mr. D. R. Kawale, for Respondent No.2
Mr.Rajendra V. Pai with Aloukik R. Pai with Bina R. Pai with Akshay R. Pai with
Siddhi Bhosale with Avadhut V. Patil with Rishabh Shanbaug with Rashmi
Nikam with Omkar Kalundrekar i/b. Mr. Suryajeet Ravrane, for Respondent
No.5.
Mr. Aditya R. Deolekar, AGP for the State.
Mr. Mahesh Guhle (Election Dept. BMC) Officer present.
__________
CORAM: G. S. KULKARNI &
Dr. NEELA GOKHALE, JJ.
DATE: 2 September 2026.
ORAL JUDGMENT (Per G. S. Kulkarni, J.)
1. We have heard Mr. Surel Shah, learned Senior Advocate with Mr.
Shrishailya Deshmukh, learned Counsel for the petitioner, learned Assistant
Government Pleader for respondent Nos.1, 3 and 4 – State of Maharashtra, Mr.
Pai, learned Senior Advocate for respondent No.5, who is the private respondent
and the complainant who is immediately the next candidate defeated by the
petitioner in the election of the Mumbai Municipal Corporation held in January
2026.
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2. This petition under Article 226 of the Constitution of India challenges the
communication(s) dated 25 August 2026 addressed by respondent No.2 –
Municipal Commissioner of the Brihanmumbai Municipal Corporation (for short
‘the Municipal Commissioner’) whereby invoking the provisions of Section
16(1C)(a) of the Mumbai Municipal Corporation Act, 1888 (MMC Act), the
Commissioner has informed the petitioner that, as the caste certificate dated 19
December 2025 issued to the petitioner has been invalidated by the Caste
Scrutiny Committee, Palghar by its order dated 20 August 2026, the petitioner’s
election as a Councillor from Ward No.191 has stood automatically cancelled. On
the even date, another communication was addressed by the Municipal
Commissioner to the Principal Secretary, Urban Development Department,
Government of Maharashtra, Mantralaya, Mumbai, informing him of the
invalidation of the petitioner’s caste certificate as per the orders of the Caste
Scrutiny Committee dated 20 August 2026 and that as per the provisions of
Section 16(1C)(a) read with Section 16(1C)(b) of the MMC Act, an appropriate
action would be required to be taken by the State Government by issuing a
notification in the Official Gazette, to the effect that, from the date of the
invalidation of the petitioner’s caste certificate by the Caste Scrutiny Committee
(i.e. from 20 August 2026) for a period of six years, the petitioner would not be
eligible to contest the elections. The legality of the said communication(s) of the
Municipal Commissioner dated 25 August 2026 falls for determination in the
present proceedings.
3. The facts lie in a narrow compass. There is no dispute in regard to
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elections of the Mumbai Municipal Corporation held in the month of January
2026, in which, the petitioner participated from the constituency reserved for the
candidate belonging to the Other Backward Class (OBC Woman), being Ward
No.191.
4. As the petitioner contested the elections from the reserved constituency, as
per the provisions of Section 5B of the MMC Act, a person contesting election on
a reserved seat is required to submit a caste certificate and a validity certificate,
and in the event an application is made prior to the election, the said certificate
would be required to be obtained within a period of six months and to that effect
an undertaking is required to be given by the candidate. Section 5B of the MMC
Act is required to be noted which reads thus:
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, alongwith the
nomination paper, 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.
1
[Provided that, a person who has applied to the Scrutiny Committee for the
verification of his Caste Certificate before the date of filing of the nomination
papers, but who has not received the Validity Certificate on the date of filing
of the nomination papers shall submit, alongwith the nomination papers,-
(i) a true copy of the application submitted by him to the Scrutiny Committee
for issuance of the Validity Certificate or any other proof of having made such
application to the Scrutiny Committee; and
(ii) an undertaking that he shall submit the Validity Certificate issued by the
Scrutiny Committee, within a period of six months from the date on which he
is declared elected:
Provided further that, if such person fails to produce the Validity Certificate
within a period of six months from the date on which he is declared elected,
his election shall be deemed to have been terminated retrospectively and he
1 Amended by Maharashtra Act No 49/2025
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shall be disqualified for being a Councillor. ]
5. Considering the requirement of the said provision, the petitioner had made
an application to the Sub-Divisional Officer, Palghar, who had granted a caste
certificate dated 19 December 2025, to the petitioner, certifying that the
petitioner belongs to “Kunbi Caste”, which falls in the Other Backward Class
category at Sr.No.83. The petitioner also made an application to the Caste
Scrutiny Committee, Palghar, for validation of the caste certificate. However, on
the date of the declaration of the result of the election on 16 January 2026 when
the petitioner was declared to be elected, the Caste Scrutiny Committee was yet to
pass its order.
6. Be that as it may, the Caste Scrutiny Committee (respondent No.3),
adjudicated the caste claim of the petitioner, also considering the objections /
complaints as made by respondent No.5, and had passed a final order on the
petitioner’s application being order dated 20 August 2026, by which, the
petitioner’s caste certificate stands invalidated. The controversy in the present
petition has arisen as a consequence of the Caste Scrutiny Committee passing
such order invalidating the caste certificate.
7. In such context, at the outset, we may observe that 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 (for short
‘the 2000 Act’), contains substantive provisions inter alia in regard to
constitution of the Caste Scrutiny Committee and the proceedings before the
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Committee and the provisions incidental thereto. The 2000 Act was recently
amended by the Maharashtra Act No.XXXVIII of 2026 whereby relevant to the
context in hand, the provisions of Section 6B providing for appeal against the
orders passed by the Scrutiny Committee came to be incorporated. Also some
other provisions including Section 10 of the 2000 Act providing for benefits
secured on the basis of false caste certificate to be withdrawn was amended, to
which we shall advert a little later. The said amending Act was brought into force
with effect from 22 July 2026.
8. Section 6B of the 2000 Act provides that any person aggrieved by an order
of the Scrutiny Committee passed under Sections 6, 6A or 7 may, within ninety
days from the date of receipt of such order, file an appeal before the Appellate
Authority, as specified by the Government, by a notification in the Official
Gazette, and the Appellate Authority shall within a period of three months from
the date of receipt of an appeal and after giving the appellant an opportunity of
being heard, pass such orders. It further provides that the order passed by the
Appellate Authority under this section shall be final and shall not be challenged
before any authority or Court, except the High Court under Article 226 of the
Constitution of India. It is not in dispute that the State Government has
constituted the Appellate Authority and the jurisdiction to adjudicate the appeals
under Section 6B of the 2000 Act is conferred on the Divisional Commissioner.
9. Also by the said Amending Act, an amendment was incorporated under
Section 10 of the 2000 Act. Section 10 provides for “benefits secured on the basis
of a false caste certificate be withdrawn”. Sub-section (5) was inserted by the
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Amending Act inter alia providing that after the Caste Certificate has been
cancelled and confiscated by the Scrutiny Committee, the concerned Appointing
Authority, Local Authority, Government, Educational Institution, Statutory Body
or Agency shall take an action for withdrawal of benefits given to such person. It
makes provisions that such action would be required to be taken within thirty
days from the date of order of the Appellate Authority if appeal is filed and it is
rejected by the Appellate Authority; and within thirty days from the lapse of
appeal period specified in sub-section (1) of section 6B, if appeal is not filed. It
would be imperative to note the amended provisions which read thus:-
Section 6B. Appeal against order of Scrutiny Committee: (1) Any person
aggrieved by an order of the Scrutiny Committee under section 6, 6A or 7
may, within ninety days from the date of receipt of such order, file an appeal
before the Appellate Authority, as specified by the Government, by
notification in the Official Gazette.
(2) The Appellate Authority shall within a period of three months from the
date of receipt of an appeal and after giving the appellant an opportunity of
being heard pass such orders as it deems fit.
(3) The order passed by the Appellate Authority under this section shall be
final and shall not be challenged before any authority or court, except the
High Court under article 226 of the Constitution of India.
Section 10 Benefits secured on the basis of false Caste Certificate to be
withdrawn.
2
[1) Whoever not being a person belonging to any of the Scheduled castes,
Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward Category secures admission in
any educational institution against a seat reserved for such Castes, Tribes or
Classes, or secures any appointment in the Government, local authority or in
any other Company or Corporation, owned or controlled by the Government
or in any Government aided institution or Co-operative Society against a post
reserved for such Castes, Tribes or Classes by producing a false Caste
Certificate / fake Caste Certificate shall, on cancellation of the Caste
Certificate by the Scrutiny Committee, be liable to be debarred from the
concerned educational institution, or as the case may be, discharged from the
said employment forthwith and any other benefits enjoyed or derived by
virtue of such admission or appointment by such person as aforesaid shall be
withdrawn forthwith.
(2) Any amount paid to such person by the Government or any other agency
by way of scholarship, grant, allowance or other financial benefit shall be
2 Amended by Amendment Act No. XXXVIII of 2026
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recovered from such person as an arrear of land revenue.
(3) Notwithstanding anything contained in any Act for the time being in
force, any Degree, Diploma or any other educational qualification acquired by
such person after securing admission in any educational institution on the
basis of a Caste Certificate which is subsequently proved to be fake or false
shall also stand cancelled, on cancellation of such Caste Certificate, by the
Scrutiny Committee.
(4) 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 the Scheduled Castes,
Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes,
Other Backward Classes or Special Backward Category by procuring a fake
Caste Certificate or false Caste Certificate as belonging to such Caste, Tribe or
Class on such fake Caste Certificate or 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.
(5) After Caste Certificate has been cancelled and confiscated by the Scrutiny
Committee, the concerned Appointing Authority, Local Authority,
Government, Educational Institution, Statutory Body or Agency shall take
action for withdrawal of benefits given to such person,—
(a) within thirty days from the date of order of the Appellate Authority if
appeal is filed, and it is rejected by the Appellate Authority;
(b) within thirty days from the lapse of appeal period specified in sub-section
(1) of section 6B, if appeal is not filed. ];
(emphasis supplied)
10. Having noted the aforesaid provisions, we may observe that in the present
case, the Caste Scrutiny Committee has taken a decision by an order dated 20
August 2026 rejecting the petitioner’s claim for validity of the Caste Certificate.
Admittedly, such order has been passed after the provisions of the Amended Act
(Maharashtra Act XXXVIII of 2026.) were brought into force as noted by us
hereinabove. Even in the order dated 20 August 2026 passed by the Caste
Scrutiny Committee in paragraph 4 of the operative part of the order, the
provisions of Section 6B are recognised when it has been stated that an appeal
against the said order would be available to the petitioner under Section 6B of the
2000 Act, to be filed within a period of 90 days from the date of the said order
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before Divisional Commissioner, Konkan Division.
11. It is the petitioner’s case that the petitioner has, accordingly, approached
the appellate authority i.e. the Divisional Commissioner, Konkan Division. Such
appeal was filed by the petitioner along with the stay application on 31 August
2026. A copy of the appeal memo alongwith the stay application are annexed to
the Writ Petition’s paperbook.
12. On perusal of the prayers as made in the stay application, it is seen that the
petitioner has prayed for stay of the order dated 20 August 2026 passed by the
Caste Scrutiny Committee invalidating the petitioner’s caste claim, under the
certificate issued by the Sub Divisional Officer, of the petitioner’s belonging to
the Other Backward Class (OBC). We also find that there is a specific prayer
made in the Stay/Interim Application, filed by the petitioner in the said appeal,
that the communication(s) as impugned in the present petition, issued by the
Municipal Commissioner dated 25 August 2026 be also stayed. The prayers as
made by the petitioner in the Interim Application are required to be noted, which
reads thus:
“a) Pending hearing and final disposal of the present Appeal this Hon'ble
Authority be pleased to grant an ex-parte ad-interim and interim stay to the
execution, operation and effect of the Impugned Order No.
जा.क् र.जिज.जा.प्र.प.स.पालघर/जि Palghar;
b) Pending hearing and final disposal of the present Appeal this Hon'ble
Authority be pleased to stay the execution, operation, and effect of the
consequential Order No. MGC/F/1877 dated 25.08.2026 passed by the
Brihanmumbai Municipal Corporation, and direct the immediate
reinstatement of the Applicant as Corporator for Ward No. 191;
c) Pending hearing and final disposal of the present Appeal this Hon'ble
Authority be pleased to stay the execution, operation, and effect of the
consequential intimation letter No. MGC/F/1877 dated 25.08.2026 sent to
the Additional Chief Secretary - 2, Urban Development Department
regarding the 6-year disqualification of the Applicant;
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d) Restrain the Brihanmumbai Municipal Corporation (BMC) and
Respondent No. 2 from taking any coercive steps, initiating disqualification
proceedings against the Applicant under Section 1 of the Mumbai Municipal
Corporation Act, 1888, or declaring a vacancy for Ward No. 191, in strict
compliance with the absolute statutory embargo mandated under Section
10(5) of the Maharashtra Caste Certificate (Amendment) Act, 2026;
(emphasis added)
13. Admittedly, such appeal and stay application are pending consideration of
the Appellate Authority. It is in these circumstances on the very same day (31
August 2026) when the petitioner filed the said appeal before the appellate
authority along with the stay application, the present petition appears to have
been filed praying for substantive reliefs in regard to the communication dated 25
August 2026 addressed by the Municipal Commissioner. The prayers as made in
the present petition are required to be noted which read thus:-
a) This Hon'ble Court be pleased to allow the Writ Petition with costs.
b) This Hon'ble Court be pleased to issue a writ of certiorari, or a writ in the
nature of certiorari, or any other appropriate writ, order, or direction, calling
for the records and proceedings and, after examining the legality and
propriety thereof, be pleased to quash and set aside the Impugned Order No.
MGC/F/1877 dated 25.08.2026 at Exhibit D passed by Respondent No. 2;
c) This Hon'ble Court be pleased to issue a writ of certiorari, or a writ in the
nature of certiorari, or any other appropriate writ, order, or direction, to
quash and set aside the consequential intimation letter/communication
dated 25.08.2026 at Exhibit E addressed by Respondent No. 2 to
Respondent No. 1 recommending the 6-year electoral disqualification of the
Petitioner and the consequent gazette notification if any;
d) This Hon'ble Court be pleased to issue a writ of mandamus. or a writ in
the nature of mandamus, directing the Respondents to forthwith reinstate
the Petitioner as the elected Corporator for Ward No. 191 of the
Brihanmumbai Municipal Corporation, restoring all consequential statutory
benefits, privileges, and duties and also further till a period of 30 days from
the date of order in Appeal if the Appeal is rejected by the Appellate
Authority;
e) Pending the hearing and final disposal of this Writ Petition, this Hon'ble
Court be pleased to stay the execution, operation, and effect of the
Impugned Order No. MGC/F/1877 dated 25.08.2026 at Exhibit - D passed
by Respondent No. 2;
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f) Pending the hearing and final disposal of this Writ Petition, this Hon'ble
Court be pleased to stay the execution, operation, and effect of the
intimation letter dated 25.08.2026 at Exhibit - E, and explicitly restrain
Respondent No. 1 from publishing any Official Gazette notification
disqualifying the Petitioner for six years;
g) Pending the hearing and final disposal of this Writ Petition, this Hon'ble
Court be pleased to restrain Respondent No. 2 from taking any coercive
steps, initiating disqualification proceedings, or declaring a vacancy for Ward
No. 191, in strict compliance with the absolute statutory embargo mandated
under Section 10(5) of the Maharashtra Caste Certificate (Amendment) Act,
2026;
h) Pending hearing and final disposal of the present Petition and the Appeal
this Hon'ble Court be pleased to grant stay to the execution, operation and
effect of the Impugned Order No. जा.क् र.जिज.जा.प्र.प.स. पालघर/जि वडणूक
प्रकरण / क् र. २६२ / २०२६ / २०२६- २७/१३४५ dated 20.08.2026 at Exhibit A
passed by Respondent No. 3, District Caste Certificate Scrutiny Committee,
Palghar;
i) Grant ad-interim reliefs in terms of prayer clauses (e), (f), (g), and (h)
above;
j) Pass any such other and further reliefs as the nature and circumstances of
the case may require, and as this Hon'ble Court deems fit and proper to meet
the ends of justice.
(emphasis supplied)
14. We find that in prayer clause (d) (supra), the petitioner has categorically
prayed that the petitioner be forthwith reinstated as the elected Corporator.
15. Mr. Surel Shah, learned Senior Counsel appearing for the petitioner would
submit that the impugned communication(s) dated 25 August 2026 issued by
the Municipal Commissioner to the petitioner, as also, addressed to the State
Government in purported invocation of Section 16(1C)(a) and (b) of the MMC
Act, is arbitrary and illegal, inasmuch as such communication does not take into
consideration the substantive right of an appeal as provided to the petitioner by
virtue of Section 6B of the said 2000 Act, as incorporated by the Maharashtra
Amendment Act XXXVIII of 2026. It is submitted that coupled with the
provisions of Section 6B of the 2000 Act, also a substantive provision has been
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incorporated in Section 10 by incorporating sub-section (5)(a) & (b) which
specifically dealing in regard to an action to be taken of withdrawal of the
benefits, in the event the Caste Scrutiny Committee cancelled and confiscated the
caste certificate. It is submitted that such action would be required to be taken
only in accordance with clauses (a) and (b) of sub-section (5) and not otherwise.
In such context Mr. Shah has drawn our attention to the operative orders which
are passed by the Caste Scrutiny Committee invalidating the caste claim of the
petitioner, to contend that the caste certificate dated 19 December 2025, issued in
favour of the petitioner has not been invalidated on the ground that a fraud is
practised by the petitioner in obtaining the Caste Certificate, but it has been
invalidated on the ground that the Competent Authority namely Sub Divisional
Officer (SDO) who had issued the caste certificate dated 19 December 2025 in
favour of the petitioner, was not the Competent Authority, as the relatives of the
petitioner were not the residents within the jurisdiction of the Competent
Authority, so as to confer jurisdiction with the SDO to issue the caste certificate.
The operative part of the orders dated 20 August 2026 passed by the Caste
Scrutiny Committee are required to be noted which reads thus:-
“(Official Translation )
ORDER
1. The Caste Certificate bearing No.41636350840, dated
19.12.2025, issued by the Sub-Divisional Officer and Sub-Divisional
Magistrate, Palghar, to the applicant, is hereby cancelled, as it has been proved
that the said Authority is not competent to issue the said certificate. The
Applicant is hereby directed to apply, along with the necessary proofs, to the
Competent Authority within whose jurisdiction the Applicant's paternal
family was residing as on the deemed date i.e. before the said Competent
Authority (Mumbai City).
2. On the basis of the affidavit and other documents produced by the
Applicant along with the application submitted for obtaining a Kunbi Caste
Validity Certificate, the Applicant has failed to establish the blood relationship
between the Applicant and the holders of the Kunbi Caste Validity
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Certificates.
3. The Applicant should deposit the Caste Certificate bearing No.
41636350840 dated 19.12.2025, issued to the Applicant by the Sub-
Divisional Officer and Sub-Divisional Magistrate, Palghar with the office of
the Committee, within 15 days from the date of receipt of the present order.
4. An appeal against the present order may be preferred before the
Divisional Commissioner, Konkan Division, under Section 6-B of the
Maharashtra Scheduled Castes, De-notified Tribes (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes and Special Backward Category (Regulation
of Issuance and Verification of) Caste Certificate Act, 2000, within ninety
days from the date of receipt of the said order.
This order has been prepared by Shri Pandurang Wable, the Member -
Secretary of the Committee and the Chairperson and the Members of the
Committee concur with the same.
Place : Palghar
Date : 20.08.2026
Sd/-
(Pandurang Wable)
Copy to :
1) Smt. Vishakha Moreshwar Rawool.
2) Smt. (Illegible) Sadanand Sarawankar
3) Sub-Divisional Officer and Sub-Divisional Magistrate, Palghar.
sd/-
Issued by
Pandurang Wable,
Member Secretary”
16. Mr. Shah would submit that necessarily the provisions of sub-section 5(b)
of Section 10 would become applicable in the facts of the present case, hence,
only after the period of 30 days from the lapse of the appeal period, as specified in
sub-clause (b) of Section 6B expires, only then the local authority / municipal
corporation can take an action for withdrawal of the benefits given to such person.
It is therefore Mr. Shah’s submission that the impugned communication(s) dated
25 August 2026 (Exhibit D and Exhibit E to the petition) are in the teeth of the
provisions of sub-section 5(b) of Section 10 of the 2000 Act. It is hence, his
submission that considering the said provisions, the Municipal Commissioner had
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no jurisdiction to issue the impugned communication(s) before expiry of the
specific period as provided in clause (b) of sub-section (5) which, according to Mr.
Shah, admittedly had not expired, inasmuch as the Caste Scrutiny Committee had
passed the order invalidating the petitioner’s caste certificate on 20 August 2026.
Mr. Shah submits that by virtue of provisions of Section 6B (supra) the period of
90 days was available to the petitioner to file an appeal before the Appellate
Authority, which in fact was filed earlier (on 31 August 2026) before the expiry of
such period, hence, once such appeal was filed along with the stay application,
the Municipal Commissioner was required to adhere to the mandate of the
provisions of clause (b) of sub-section (5) of Section 10, before the impugned
communication(s) were issued. It is, therefore, his submission that the impugned
order is required to be quashed and set aside.
17. Even on merits of the order passed by the Caste Scrutiny Committee, Mr.
Shah would submit that this is not the case where any findings are recorded by the
Committee that the Caste Certificate was fraudulently obtained by the petitioner,
and in the absence of any such observations made in the said order, certainly it
was not open to the Municipal Commissioner to assume any jurisdiction under
the provisions of Section 16(1C)(a) of the MMC Act, on an assumed
disqualification. Mr. Shah’s contention is that the recourse to the provision of
Section 16(1C)(a) of the MMC Act was certainly not available to be exercised by
the Municipal Commissioner by issuance of the impugned communication(s)
dated 25 August 2026. It is his submission that the provisions of Section 6B read
with Section 10(5) are procedural provisions and would have retrospective
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operation, placing reliance on the decision of the Supreme Court in Neena Aneja
& Anr. Vs. Jai Prakash Associates Ltd.3
18. On the other hand, learned Counsel for the Municipal Commissioner has
supported the impugned order passed by the Municipal Corporation. He would
submit that the impugned communication has been validly issued and more
particularly considering the mandate of Section 16(1C)(a) and (b) of the MMC
Act, which according to him, would bring about a legal effect of the petitioner
being deemed to have been disqualified on invalidation of the petitioner’s caste
certificate, by virtue of the order dated 20 August 2026 passed by the Caste
Scrutiny Committee. He has referred to the provisions of Section 16(1C)(a) as
also the provisions of Section 5B of the MMC Act (supra) to support his
contentions. Considering such provisions, it is submitted that the petitioner’s
contention that the Municipal Commissioner had no jurisdiction to issue the
impugned communication(s), is not tenable. He submits that in any event, the
petitioner cannot contend that no legal consequence(s) have occurred, qua the
petitioner’s position as an elected Corporator by virtue of the orders passed by the
Caste Scrutiny Committee dated 20 August 2026, invalidating the petitioner’s
caste certificate.
19. Mr. Pai, learned Senior Counsel appearing for Respondent No.5 has
opposed this petition by referring to the provisions of the 2000 Act as also the
provisions of the MMC Act. Mr. Pai would submit that operation of the
provisions of Section 10 of the 2000 Act, insofar as the benefits secured on the
basis of the false certificate stand withdrawn, are clear. He has referred to the
3 2022(2) SCC 161
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provisions of sub-section (4) to submit that the provisions begin with a non-
obstante clause, providing for an overriding effect, on any law for the time being
in force, to provide that a person shall be disqualified for being a member of any
statutory body if he has contested the election for local authority, (as in the
present case) etc., on a seat reserved for any of the 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 accordingly, 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. It is
submitted that sub-section (4) in no manner has undergone any amendment
although sub-section (5) has been incorporated by the Maharashtra Amendment
Act No.XXXVIII of 2026 by incorporating the provision of sub-section (5) which
provides in regard to the legal effect which would be brought about by
cancellation and confiscation of the Caste Certificate under the orders of the
Caste Scrutiny Committee, on the benefits of such person being withdrawn as
provided in clause (a) and (b) of sub-section (5). It is his submission that such
provision is required to be considered to be independent which does not affect the
operation of the provisions of Section 16(1C)(a) of the MMC Act. It is hence,
submitted that the legal effect as brought about by the Caste Scrutiny Committee
passing an order invalidating the caste certificate of the petitioner was of
automatic deemed disqualification. Hence, the petitioner would not be correct in
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her contention that the Municipal Commissioner had no jurisdiction and/or the
impugned communication in any manner is illegal or arbitrary. In supporting his
submission, Mr. Pai has placed reliance on the decision of the Full Bench of this
Court in Sujit Vasant Patil vs State Of Maharashtra And Ors. 4 wherein the Full
Bench has held that once the scrutiny committee refuses to issue a validity
certificate the nomination cannot survive and if the nomination cannot survive,
election cannot survive, and hence, cancellation of the election of such a
candidate is a natural consequence of his caste certificate being found invalid. Mr.
Pai has also placed reliance on the order passed by the Division Bench of this
Court in Mr. Ashutosh s/o Shivajirao Amberao vs. State of Maharashtra 5, wherein
the Division Bench in considering the provisions of Section 6B of the 2000 Act
has held that the provision is prospective in operation referring to the principles
of law. It is, therefore, Mr. Pai’s contention that the impugned orders are required
to be held to be legal and valid.
Analysis
20. Having heard learned Counsel for the parties and having perused the
record as also the submissions as urged before us, the question which would fall
for our determination is ‘whether the Municipal Commissioner in issuing the
impugned communication(s) dated 25 August 2026 has acted in accordance with
law and/or had jurisdiction to issue such communication(s).’
21. At the outset, we find that the impugned communication has been issued
4 2004(3)MHLJ1109
5 Writ Petition No.10108 of 2026 decision dt. 13/08/2026.(Aurangabad Bench)
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by the Municipal Commissioner invoking the provisions of Section 16(1C)(a) &
(b) of the MMC Act, which inter alia provides for “Disqualifications for being a
Councillor”. Sub-section (1) thereof provides that “a person shall be disqualified
for being elected and for being a councilor if such person inter alia has been so
disqualified by or under any law, for the time being in force for the purpose of
elections to the Legislature of the State ; and secondly, he shall also be so
disqualified under any law made by the Legislature of the State of Maharashtra .
The provision which is specifically invoked is the provision of sub-section (1C)(a)
& (b) of Section 16, which provides that a Councillor who has been elected to a
reserved seat, who stands disqualified, consequent upon the concerned Scrutiny
Committee constituted under the provisions of Section 6 of the 2000 Act
declaring the Caste Certificate of such Councillor to be invalid and cancelling the
same, on the ground of the same having been based on a false claim or declaration
made by such person, claiming to belong to the reserved category, and thereupon,
the Councillor “shall be deemed to have”, vacated his office on and from the date
of declaration of such Certificate to be invalid and being cancelled by the Scrutiny
Committee or by the competent authority. Section 16(1) and the relevant
provision being sub-section (1C)(a) and (b) of the MMC Act are required to be
noted, which reads thus:
16. Disqualifications for being a councillor
(1) A person shall be disqualified for being elected and for being a
councillor if such person -
(a-1) has been disqualified by or under any law -
(i) for the time being in force for the purpose of elections
to the Legislature of the State.
Provided that no person shall be disqualified on the ground
that he is less than twenty-five years fo age, if he has attained
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the age of twenty one years.
(ii) made by teh Legislature of the State of Maharashtra.
.....…
(1C) (a) Notwithstanding anything contained in sub-section (1B), a
Councillor who has been elected to a reserved seat as mentioned in
subsection (1B), shall be disqualified for being such Councillor
consequent upon the concerned Scrutiny Committee constituted
under subsection (1) of section 6 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 or any other competent authority specified by
the State Government for the purpose of scrutiny of the Caste
Certificates, declaring the Caste Certificate of such Councillor to be
invalid and cancelling the same, on the ground of the same having
been based on a false claim or declaration made by such person
claiming to be belonging to the reserved category, and thereupon the
Councillor shall be deemed to have vacated his office on and from the
date of declaration of such Certificate to be invalid and cancellation of
the same by the said Scrutiny Committee or by the competent
authority.
(b) On any person having been disqualified for being a Councillor
and consequently, his seat as such Councillor having become vacant
under clause (a), the State Government shall, by notification in the
Official Gazette, disqualify such person for being elected or being a
Councillor for a period of six years from the date of such order.”
22. Thus, sub-section(1C)(a) of Section 16 of the MMC Act in the context of
Caste Scrutiny Committee declaring the Caste Certificate of the Councillor to be
invalid, stipulates a deeming effect, namely, that in such eventuality, the
Councillor shall be deemed to have vacated his office on and from the date of
declaration of the Caste Certificate as invalid and cancelled by the Scrutiny
Committee. Sub-section (1C)(b) provides that on any person having been
disqualified as a Councillor, consequently, his seat as Councillor having become
vacant as a consequence of clause (a) of sub-section (1C), the State Government,
shall by notification in the Official Gazette, disqualify such person for being
elected or being a Councillor for a period of six years from the date of such order.
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Thus, clause (b) of sub-section (1C) is a consequence of what is provided for in
clause (a) of sub-section (1C). It is this provision which has been invoked by the
Municipal Commissioner while issuing the impugned communication(s).
23. The contention as urged on behalf of the petitioner is, however, to the
effect that the provisions of sub-section (1C) (a) and (b) of Section 16 of the
MMC Act were not available to be invoked by the Municipal Commissioner
considering the amendment as incorporated to the 2000 Act by Maharashtra Act
No. XXXVIII of 2026 by incorporating the provisions of Section 6B providing
for an “Appeal against the order of the Scrutiny Committee”, with an amendment
as brought about in Section 10 by incorporating sub-section (5) inter-alia
providing for actions which can be taken in terms of clauses (a) and (b) of sub-
section (5) providing the prescribed limitation for action to be taken for
withdrawal of the benefits given to any persons whose Caste Certificate has been
invalidated by the Caste Scrutiny Committee. Thus, the contention is that once
the provisions of Section 6B of the 2000 Act, providing for an appeal against the
order passed by the Caste Scrutiny Committee were available, to the Petitioner as
a necessary corollary, the provisions of sub-section (5) of Section 10 of the 2000
Act, incorporated by the said Amendment Act were required to be adhered by the
Municipal Commissioner, and it is only after taking into consideration such
provisions, recourse to the provisions of Section 10 (4) of the 2000 Act and/or the
provisions of Section 16(1C)(a) and (b) could have been taken and not otherwise.
24. Such contention as urged by Mr. Shah, at the first blush, appears to be
attractive, however, a deeper scrutiny of the said provisions would not permit us
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to accept such contention of Mr. Shah. The following discussions would throw
light on the legal consequences as may be brought about.
25. Section 10 of the 2000 Act provides for “Benefits secured on the basis of
false Caste Certificate to be withdrawn”. Sub-section (4) of Section 10 begins with
a non-obstante clause providing 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 inter alia on reserved 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 by
virtue of such cancellation 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. We find that by incorporating
sub-section (5) by the Amendment Act XXXVIII of 2026 (with effect from 22
July, 2026), the Legislature has not in any manner disturbed the provisions of
sub-section (4) and more particularly, when it ordains an overriding effect in
respect to any other law for the time being in force, so as to bring about a situation
that election of such person “shall be deemed” to have been terminated
retrospectively, i.e., on the date on which the person contested the election. In the
context of what is provided by sub-section (4) of Section 10 of the 2000 Act if the
provisions of sub-section (5) are seen, such deeming effect which is brought about
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by sub-section (4) that the election of such person “shall be deemed” to have been
terminated retrospectively, have remained undisturbed/untouched inasmuch as
sub-section (5) of Section 10 speaks about the action for withdrawal of the
benefits given to such person and it is only in the context of such benefits, clauses
(a) and (b) of sub-section (5) are required to be read and not otherwise, so as to
obliterate the deemed disqualification.
26. Once such is the effect as brought about by the provisions of sub-section
(4) of Section 10, which remains unaffected by the amendment brought about by
incorporation of sub-section (5)(a) and (b), the consequence is not too far to be
seen, namely, that in the present case the petitioner’s caste certificate having been
declared to be invalid by the Caste Scrutiny Committee on 20 August, 2026,
necessarily the petitioner’s election is “deemed to have” been terminated
retrospectively. Merely because, clause (b) of sub-section (5) provides for a
limitation of thirty days from the lapse of the appeal period for withdrawal of the
“benefits”, in our opinion, the said provision would not dilute or extinguish or
affect, in any manner, the deeming effect as brought about by the provisions of
sub-section (4) of Section 10 of the 2000 Act.
27. Having considered the provisions of the 2000 Act, we now advert on the
provisions of Section 16 of the MMC Act, which have been invoked by the
Municipal Commissioner in addressing the impugned communication(s).
28. As noted herein above, Section 16 is an independent provision under the
MMC Act providing for ‘disqualification for being a Councilor’. Sub-section (1C)
(a) of Section 166 of the MMC Act is the relevant provision, as invoked by the
6 Sub-Sections (1B) & (1C) were re-inserted by Mah. 43 of 2015, dt. 31-12-2015
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Municipal Commissioner. The purport of which appears to us is not different
from what has been provided for under Section 10 (4) of the 2000 Act. Sub-
section (1C)(a) categorically provides that a Councilor who has been elected to a
reserved seat as mentioned in sub-section (1B) shall be disqualified for being a
Councilor consequent upon the concerned Scrutiny Committee constituted
under sub-section (1) of section 6 of the 2000 Act, declaring the Caste Certificate
of such Councilor to be invalid and canceling the same, on the ground of the
same being based on a false claim or declaration made by such a person claiming
to belong to the reserved category, and thereupon the Councilor shall be ‘deemed’
to have vacated his office on and from the date of declaration of such Certificate
to be invalid and canceled by the said Scrutiny Committee or by the competent
authority. Thus, this is the second “deeming provision” when it comes to the
election in addition to what has been provided under Sub section (4) of section 10
of the 2000 Act. Thus by virtue of Section 16 of the MMC Act, the Councilor is
deemed to have vacated his office from the date of declaration of the Caste
Certificate to be declared invalid by the Caste Scrutiny Committee. As noted
herein above, clause (b) of Section 16 (1C) is consequential, providing that the
State Government would be required to issue appropriate notification in the
Official Gazette disqualifying such person for being elected or being a Councilor
for a period of six years from the date of such order.
29. If there are provisions which are invoked by the Municipal Commissioner
merely because there is a provision for an appeal under Section 6B of the 2000
Act (supra), for that matter sub-section 5 being incorporated in Section 10
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(supra), there is no gainsaying that sub-section (1C) (a)(b) of Section 16 would
cease to operate and/or the deeming effect which is provided for under sub-
section (1C)(a) of Section 16 would stand deferred in view of the provisions of
clause (a) and (b) of sub-section (5) of Section 10 of the 2000 Act. This is what is
sought to be contended on behalf of the petitioner, that the provision of Section
16 (1C) of the MMC Act cannot be invoked in the teeth of what has been
provided for in clauses (a) and (b) of sub-section (5) of Section 10. Such
contentions, on a plain reading of the aforesaid provision and for the reasons as
discussed herein above, are misconceived, hence, unacceptable. The legislature in
providing for an amendment of the 2000 Act, by incorporating sub-section (5) in
Section 10, certainly was conscious of the consequences of the two fold situations;
firstly, sub-section (4) of Section 10 providing for a deeming effect, of bringing
about a disqualification in the manner as provided, namely, that election of such
person, whose caste certificate has been invalidated, shall be deemed to have
terminated retrospectively; and secondly, sub-section (4) of Section 10 was a
provision having an overriding effect on any law for the time being in force. The
legislature was also not oblivious to the specific provisions of Section 16(1C) (a)
and (b) of the MMC Act, which contemplated a similar effect providing for
disqualification of an elected councilor in the event the caste certificate is
invalidated by the Scrutiny Committee. No amendment was made to the MMC
Act to dilute and/or to take away the effect of what has been provided for in
Section 16(1C) (a) and (b). For such reasons, we are not inclined to accept the
case of the petitioner that the Municipal Commissioner had no authority to issue
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the impugned communications, which, in our opinion, clearly flows from the
provisions of Section 16(1C) (a) and (b) of the MMC Act.
30. Now coming to the next contention as urged by Mr. Shah, namely, that it
is clear from the order passed by the Caste Scrutiny Committee that the Caste
Certificate has not been invalidated on the ground of the petitioner having
practiced fraud, but on the ground of lack of jurisdiction of the competent
authority in issuing the Caste Certificate to the Petitioner, and hence, the
provisions of sub-section (4) of Section 10 as also the provisions of Section
16(1C) were not available to be invoked, in any manner whatsoever. Such
contention, in our opinion, cannot be accepted on a plain reading of the order
dated 20 August 2026 passed by the Caste Scrutiny Committee, as the Caste
Scrutiny Committee has also examined the merits of the petitioner’s case, as
clearly seen from the discussion in paragraph 6.2.2 to 6.2.5 of the order passed by
the Caste Scrutiny Committee invalidating the Caste Certificate issued to the
Petitioner. Such observations are required to be read in the context of the
operative paragraph 2 of the said order (supra), which concludes that the
petitioner was unable to prove her case for grant of validity of her caste certificate,
on the basis of the affidavit and documents submitted by her. Thus, necessarily, it
is a case that the claim of the petitioner for grant of validity to the caste certificate
firstly cannot be proven hence, necessarily the Caste Certificate accordingly was
obtained on an incorrect claim of the Petitioner, or in other words, it was a “false
caste certificate” based on an incorrect claim. As in our clear opinion, once sub-
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section (4) of Section 10 uses the words ‘false 7 Caste Certificate’, it would mean
that the certificate, which was issued by the competent authority, was not a correct
certificate. Thus, once a Caste Certificate is declared as a false certificate, when
tested on materials, it would not be tenable for the petitioner to contend that
merely because the Caste Scrutiny Committee, failing to observe that the caste
certificate was obtained by exercise of fraudulent means, sub-section (4) of
Section 10 of the 2000 Act or Section 16(1C) of the MMC Act would not be
attracted. This would be erroneous reading of sub-section (4) of Section 10 and
Section 16 (1C) (a) and (b) of the MMC Act, as these provisions do not
incorporate the word ‘fraud’, when these provisions specifically uses the words
‘false’. In this view of the matter, the petitioner’s case of there being no fraud
employed by the petitioner in obtaining the caste certificate, would certainly not
assist the petitioner.
31. We now come to the next leg of Mr. Shah’s submission, that Section 6B
would be a procedural provision and hence, once the provision of appeal is
provided, the provision of Clauses (a) and (b) of Sub-Section 5 as incorporated in
Section 10 of the 2000 Act, would be required to be given some meaning, and
thus, necessarily the benefit of period of 30 days from the lapse of appeal period
specified in sub-section (1) of Section 6B, if the appeal is not filed, would enure
to the benefit of the petitioner, before withdrawal of any benefits given to the
7 “false, fals, a. falser, falsest. [L. falsus, feigned, spurious, deceptive, false, pp. of fallere, deceive.] Contrary to what is true or
correct; erroneous, mistaken, untrue, or incorrect; uttering or declaring what is untrue; deceitful, treacherous, or faithless; deceptive;
as, false appearances; not genuine; counterfeit or artificial; employed to deceive or mislead; mus. inaccurate in pitch; as, a false note;
biol. having a deceptive resemblance to something that properly bears the name; as, the false Solomon's-seal; substituted for or
supple- menting, esp. temporarily.-adv. In a false manner; incorrectly or wrongly; treacher- ously or faithlessly. -falsely, adv. false.-
ness, n.”
New Webster’s Dictionary, Deluxe Encyclopedic Edition, 1981, Page No. 354
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petitioner. We are not persuaded to accept such submission for the reasons which
we have set out herein above. We have already observed that the deeming effect of
invalidity of the Caste Certificate i.e., the Caste Certificate of the petitioner being
declared to be false, the legal consequence is to the effect that the petitioner’s
election is rendered invalid by virtue of such order being passed by the Caste
Scrutiny Committee on 20 August, 2026, and now such invalidity in fact travels
to the date on which the petitioner filled the nomination form to contest the
election on the reserved seat.
32. We may observe that even assuming that Section 6B read with sub-section
(5) of Section 10 is procedural as noted hereinabove, it does not disturb the legal
effect of disqualification which has been incurred by the petitioner by virtue of
the provisions of Section 16(1C)(a) of the MMC Act read with Section 10(4) of
the 2000 Act. We are, therefore, not inclined to accept the petitioner’s case
relying on the decision of the Supreme Court in Neena Aneja & Anr. (supra), as
there cannot be any doubt in regard to the proposition as canvassed on behalf of
the petitioner and as observed in paragraphs 72 and 83 of the said decision,
however, certainly in the facts of the present case, such proposition canvassed on
behalf of the petitioner is not attracted. Paragraphs 72 and 83 of the said decision
read thus:
72. In considering the myriad precedents that have interpreted the impact
of a change in forum on pending proceedings and retrospectivity—a clear
position of law has emerged : a change in forum lies in the realm of procedure.
Accordingly, in compliance with the tenets of statutory interpretation applicable
to procedural law, amendments on matters of procedure are retrospective, unless
a contrary intention emerges from the statute. … … ...
“21. … no litigant has any vested right in the matter of procedural law
but where the question is of change of forum it ceases to be a question
of procedure only. The forum of appeal or proceedings is a vested right
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as opposed to pure procedure to be followed before a particular forum.
The right becomes vested when the proceedings are initiated in the
tribunal.”
(emphasis supplied)
In taking this view, the two-Judge Bench did not consider binding decisions.
Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] failed to consider
that the saving of pending proceedings in Mohd. Idris [Mohd. Idris v. Sat
Narain, (1966) 3 SCR 15 : AIR 1966 SC 1499] and Manujendra Dutt
[Manujendra Dutt v. Purnedu Prosad Roy Chowdhury , (1967) 1 SCR 475 : AIR
1967 SC 1419] was a saving of vested rights of the litigants that were being
impacted by the repealing Acts therein, and not because a right to forum is
accrued once proceedings have been initiated. Thereafter, a line of decisions
followed Dhadi Sahu [CIT v. Dhadi Sahu, 1994 Supp (1) SCC 257] , to hold
that a litigant has a crystallised right to a forum once proceedings have been
initiated. A litigant's vested rights (including the right to an appeal) prior to the
amendment or repeal are undoubtedly saved, in addition to substantive rights
envisaged under Section 6 of the General Clauses Act. This protection does not
extend to pure matters of procedure. Repeals or amendments that effect changes
in forum would ordinarily affect pending proceedings, unless a contrary
intention appears from the repealing or amending statute.
83. Having stated the above position, we need to harmonise it with the
principle that the right to a forum is not an accrued right, as discussed in Part C
of this judgment. Simply put, while Section 6( e) of the General Clauses Act
protects the pending legal proceedings for the enforcement of an accrued right
from the effect of a repeal, this does not mean that the legal proceedings at a
particular forum are saved from the effects from the repeal. The question
whether the pending legal proceedings are required to be transferred to the
newly created forum by virtue of the repeal would still persist. As discussed, this
Court in New India Assurance[New India Assurance Co. Ltd. v. Shanti Misra,
(1975) 2 SCC 840] and Maria Cristina [Maria Cristina De Souza Sodder v.
Amria Zurana Pereira Pinto, (1979) 1 SCC 92] has held that forum is a matter
pertaining to procedural law and therefore the litigant has to pursue the legal
proceedings at the forum created by the repealing Act, unless a contrary
intention appears. This principle would also apply to pending proceedings, as
observed in Ramesh Kumar Soni [Ramesh Kumar Soni v. State of M.P., (2013)
14 SCC 696 : (2014) 4 SCC (Cri) 340], Hitendra Vishnu Thakur [Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602 : 1994 SCC (Cri)
1087] and Sudhir G. Angur [Sudhir G. Angur v. M. Sanjeev, (2006) 1 SCC 141]
. In this backdrop, what is relevant to ascertain is whether a contrary intent to
the general rule of retrospectivity has been expressed under the 2019 Act to
continue the proceedings at the older forum.
33. In fact the aforesaid observations as made by the Supreme Court fortifies
our view of the petitioner having suffered a disqualification being not disturbed
by the said amended provisions of the 2000 Act.
34. The Supreme Court in the Chairman and Managing Director, Food
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Corporation of India & Ors. vs. Jagdish Balaram Bahira & Ors. 8 has taken a
review of the legal precedents in regard to the effect which would be brought
about once the Caste Certificate is invalidated by the Caste Scrutiny Committee.
The conclusions of the said decision are recorded in paragraph 69 of the said
decision, in which referring to the decisions in Madhuri Patil vs. Commr. Tribal
Development9, R. Vishwanatha Pillai vs. State of Kerala 10 and Union of India vs.
Dattatray11, the Supreme Court has held that where a benefit is secured by an
individual on the basis, that the candidate belongs to a reserved category for
which the benefit is reserved, the invalidation of the caste or tribe claim upon
verification would result in the appointment or, as the case may be, the admission
being rendered void or non est. It was observed that withdrawal of benefits
secured on the basis of a caste claim which has been found to be false necessarily
brings about a consequence which flows from the invalidation of the caste claim
and no issue of retrospectivity would arise. Considering such clear position in law,
we find ourselves in agreement with Mr. Pai in relying on the decision of the Full
Bench of this Court in Sujit Vasant Patil (supra) wherein the Full bench has
categorically held, as to what are the consequences, which would be brought
about once the Scrutiny Committee refuses to issue a validity certificate to the
Caste Certificate to the candidates, that the nomination itself would not survive
and if the nomination would not survive, election cannot survive. It was held that
cancellation of the election of such a candidate is a natural consequence of his
8(2017) 8 SCC 670
9(1994) 6 SCC 241
10(2004) 2 SCC 105
11(2008) 4 SCC 612
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caste certificate being found to be invalid. The following observations of the Full
Bench are required to be noted, which reads thus:
“12-A. Thus, the scheme of the various Local Self-Government Act in relation
to the filing of the nomination papers and their scrutiny and the scheme of the
Maharashtra Act No. XXIII of 2001 appears to be that in case a person desires
to contest an election to a reserved seat, it is obligatory on his part to get a caste
certificate from the competent authority and then immediately apply to the
Scrutiny Committee to get a validity certificate. Therefore, normally as the
candidate is required to make an application to the scrutiny committee as soon
as he receives a caste certificate from the competent authority, with the result
that in many cases his application before the scrutiny committee for validity
certificate would be pending when his nomination paper is accepted on the
basis of the caste certificate. If his nomination paper is accepted on the basis of
caste certificate issued by the competent authority and as the caste certificate
itself is valid subject to the grant of validity certificate, obviously acceptance of
his nomination paper as valid will also be subject to the grant of validity
certificate by the scrutiny committee. Therefore, once the scrutiny committee
refuses to issue a validity certificate the nomination cannot survive and if the
nomination cannot survive, election cannot survive. Therefore, cancellation of
the election of such a candidate is a natural consequence of his caste certificate
being found invalid.”
(emphasis supplied)
35. We may also usefully refer to the decision of the Supreme Court in
Kalpana Dilip Bahirat vs. Pune Municipal Corporation & Ors. 12 whereby the
provisions of Section 10(4) of 2000 Act fell for consideration of the Supreme
Court. In the said case, the appellant contested the elections of Pune Municipal
Corporation held in December 2011 to a seat reserved for Other Backward
Classes. The appellant had filed proof of her caste under a caste validity certificate
dated 3 July, 2008 issued by the Competent Authority. Subsequently, the Caste
Certificate on the basis of which the appellant had contested the election was
revealed to have never been issued and the Caste Scrutiny Committee passed an
order holding that the appellant had not submitted a genuine caste certificate and
as a consequence thereof, her election was declared to be abinitio null and void.
12(2014) 15 SCC 654
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The elected seat has become vacant retrospectively. A challenge was mounted by
the appellant before this Court to the disqualification, which was not successful.
In these circumstances, the proceedings reached the Supreme Court. The
Supreme Court considering the provisions of sub-section (4) of Section 10 of the
2000 Act observed that by virtue of such provisions, the consequence was that
the election of the person who contested election on a seat reserved for one of the
reserved categories, on a false caste certificate belonging to such caste, tribe or
class, shall be deemed to have been terminated retrospectively. It was observed
that the deeming provision in sub-section (4) of Section 10 of the 2000 Act was a
statutory fiction which was given effect to and the Commissioner of the
Municipal Corporation had given effect to the deeming provision and thus acted
in accordance with law. The position is not different, insofar the present
proceedings are concerned. The relevant observations as made by the Supreme
Court are required to be noted, which reads thus:
9. 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 cooperative
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:
“10. (4) 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,
cooperative society or any statutory body on the seat reserved for any of
Scheduled Castes, Scheduled Tribes, Denotified 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 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
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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.
10. Mr Mohta is right that in view of the provisions of Article 243-ZG 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 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.”
36. In any event as noted by us hereinabove, the petitioner is clearly aware
about the aforesaid legal position of a deemed disqualification having taken effect,
considering that the petitioner has categorically prayed in prayer clause (d)
(supra) that a writ of mandamus be issued to the respondent to forthwith reinstate
the petitioner as elected corporator. Thus, implicit in such prayer is the clear
recognition by the petitioner that the petitioner has stood disqualified by
operation of the provisions of Section 10(4) of the 2000 Act read with Section
16(1C)(a) of the MMC Act. In the present circumstances, such reinstatement as
prayed in prayer clause (d) cannot be granted by this Court by issuance of writ of
mandamus.
37. In the light of the above discussion, we find that there is no illegality in the
impugned communication(s) issued by the Municipal Commissioner. The
petition lacks merits. It is accordingly rejected. No costs.
38. Needless to observe that our observations are confined to the adjudication
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of the present proceedings. All contentions of the parties including that of the
petitioner in the pending appeal are expressly kept open. Mr. Shah requests that
the petitioner be granted liberty to approach the Appellate Authority for earlier
hearing of the proceedings. This liberty is available to the petitioner. Such request
be considered by the Appellate Authority.
(Dr. NEELA GOKHALE, J.) (G. S. KULKARNI, J.)
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