SEEMA DATTATRAYA PHUGE Vs. MUNICIPAL COMMISSIONER

JUDGEMENT

(1.) Heard learned Counsel appearing for the petitioner. The question before us is whether a litigant who is a party to a fraud can be allowed to invoke extraordinary jurisdiction of this Court. The General Ward Elections of the Municipal Corporation of Pimpri-Chinchwad were declared in December, 2011. The petitioner contested the election from Bhosari Gaothan (Ward No. 35A) constituency which was admittedly reserved for Backward Class of citizens Women. It is not in dispute that the caste certificate and caste validity certificate for showing that she belongs to Backward Class of citizens produced by the petitioner along with nomination form were fabricated and admittedly, the petitioner had neither applied to the Competent Authority for grant of caste certificate nor had applied to any Caste Scrutiny Committee for grant of caste validity certificate. It is not in dispute that as per the provisions of Section 5B of the Maharashtra Municipal Corporation Act, 1949 (hereinafter referred to as "the said Act of 1949") along with the nomination form, a candidate who is contesting the election for a reserved seat is required to file a caste certificate as well as caste validity certificate. In February, 2012, the result of the elections was declared. The petitioner was declared as elected. The challenge in this petition under Article 226 of the Constitution of India is to the order dated 7th March, 2013 passed by the Commissioner of the said Municipal Corporation which holds that the election of the petitioner is ab initio null and void and the seat occupied by the petitioner reserved for Backward Class of citizens for women shall become vacant.

(2.) The submission of learned counsel appearing for the petitioner is that apart from the fact that the impugned order passed by the Commissioner is in breach of the principles of natural justice, the Commissioner has no jurisdiction under the said Act of 1949 to adjudicate upon the issue of genuineness of the documents produced by the petitioner as well as the legality and validity of the election. The submission is that the petitioner being a legally elected candidate under a popular mandate could have been unseated only in accordance with law. The submission is that the impugned order is a nullity as the Commissioner lacked the jurisdiction to pass the impugned order.

(3.) The submission of learned counsel appearing for the petitioner is that in November, 2008 and in particular on 6th November, 2008, the petitioner accompanying with her husband went to the office of the Collector to obtain a caste certificate. He submitted that due to lack of knowledge and red-tapeism, they were unable to obtain the caste certificate and then one Mrs. Seema Waghmare approached them and convinced them that she would be in a position to obtain the caste certificate. Accordingly, on the representation made by the said Mrs. Seema Waghmare, the petitioner entrusted the work of obtaining the caste certificate to her. He pointed out that in the last week of 2008, the petitioner's husband collected the caste certificate from said Mrs. Seema Waghmare. For obtaining the caste validity certificate on the basis of the said caste certificate, the petitioner contacted said Mrs. Seema Waghmare in the first week of December, 2010. On intimation given by the said Mrs. Seema Waghmare, the petitioner collected the caste validity certificate from said Mrs. Seema Waghmare in the last week of December, 2010. He pointed out that after the petitioner realized that she has been cheated by said Mrs. Seema Waghmare, in the last week of May, 2012 the petitioner tried to approach the police station for lodging a First Information Report (for short FIR). As the Police refused to register the FIR, on 1st June, 2012, the petitioner filed a private complaint in the Court of Judicial Magistrate, First Class alleging offences under Sections 420, 467 and 468 of the Indian Penal Code against said Mrs. Seema Waghmare. He pointed out that on 6th June, 2012 the petitioner applied for a caste certificate and ultimately on 14th August, 2012, the petitioner was granted the caste certificate. He submitted that this is a case where the petitioner genuinely believed in said Mrs. Seema Waghmare and was under a bona fide impression that the documents obtained by said Mrs. Seema Waghmare were genuine documents. The submission is that the moment she realized that the said documents were fabricated documents, the petitioner took several steps and in fact at the earliest opportunity attempted to prosecute the said Mrs. Seema Waghmare. He invited attention of the Court to the observations made by this Court while granting anticipatory bail to the petitioner. He submitted that specific observation of the Court is that there is nothing on record to show that the petitioner had assigned the work to Mrs. Seema Waghmare with the knowledge or instructions of securing a bogus or forged caste validity certificate. He, therefore, urged that the conduct of the petitioner is honest and bona fide and there was never any intention to secure a bogus caste certificate and caste validity certificate. He submitted that when the documents were produced along with her nomination form, the petitioner was not even aware that the documents were fabricated. He urged that in any event, the subsequent caste certificate obtained by the petitioner shows that the petitioner belongs to Backward Class of citizens category and could have always contested the election on a reserved seat. He submitted that the requirement of Section 5B of the said Act of 1949 is merely a procedural requirement and the petitioner cannot be unseated on the ground of failure to comply with the procedural requirement. Lastly, he urged that even an opportunity of being heard was not granted by the Municipal Commissioner to the petitioner before passing the impugned order. The submission is that the order being without jurisdiction and illegal, the Writ Court must interfere.