JYOTI SUNIL SHINDE Vs. SHOBHA LAXMAN KHEDEKAR

JUDGEMENT

(1.) BY this writ petition the petitioner has challenged the order dated November 30, 1992 passed by the Additional Chief Judge, Small Causes Court, Bombay, in Municipal election petition No.74 of 1992. Government of Maharashtra-Urban Development Department-respondent No.3 issued a notification dated October 11, 1991 and November 29, 1991 declaring that there would be 221 Wards of the Bombay Municipal Corporation for the purpose of elections which were held on February 25, 1992. Out of the said 221 Wards, 10 Wards were reserved for the Scheduled Caste candidates and Ward No.69 was reserved for scheduled caste women. It is an admitted position that Ward No.69, where from petitioner also contested the election, was reserved for scheduled caste women. In the said Ward the petitioner, who was the Congress candidate, contested the election along with respondent No.1, the Shiv Sena candidate. On February 27, 1992 results of the elections were declared and as per the said results, the petitioner secured 6,127 votes while respondent No.1 secured 5,486 votes. Pursuant to the said results the present petitioner took charge as elected Corporator for Ward No.69. Respondent No.1, the defeated candidate, thereafter filed election petition on or about March 10, 1992 challenging the election of the present petitioner on the ground that the Returning Officer illegally accepted the nomination paper of the petitioner as the petitioner was not scheduled caste candidate and also on the ground that the certificate produced by the petitioner showing that she is scheduled caste candidate is invalid as the same is not according to law. It was contended by respondent No.1 in the said petition that the present petitioner was Shimpi belonging to Other Backward Classes. However, she got married to Mr. Sunil Shinde belonging to Hindu Kankayya, a caste declared as scheduled caste. The certificate of the competent authority produced by the petitioner, according to respondent No.1, only stated that the petitioner, Hindu Shimpi, belonging to Other Backward Classes married with Mr. Sunil Shinde, belonging to Hindu Kankayya caste, declared as scheduled caste, on February 7, 1989. The certificate further states that this couple as well as their progenies will be eligible for the concessions admissible to the scheduled caste as per the orders issued. According to respondent No.1 the said certificate produced by the present petitioner was only a certificate from the competent authority for showing that the petitioner is eligible for certain concessions admissible to scheduled caste and the said certificate is not valid certificate for the purpose of showing that she is reserved class candidate belonging to scheduled caste as contemplated by the Act. Therefore, according to respondent No.1 the Returning Officer illegally accepted the nomination paper of the present petitioner relying on the said certificate. According to respondent No.1, since Ward No.69 was reserved for scheduled caste women and since the petitioner was not a reserved class candidate he wrongly accepted the nomination of the present petitioner the election of the petitioner is vitiated and is liable to be set aside.

(2.) AS against this, it was contended on behalf of the present petitioner that though originally she belonged to Other Backward Classes, on February 7, 1989 she married to Sunil Shinde belonging to Hindu Kankayya caste, admittedly scheduled caste, and by virtue of the marriage she is entitled to contest election from a ward reserved for scheduled caste women. To support her contention, the present petitioner also relied upon certain circulars to show as to how she is eligible for certain concessions admissible to scheduled caste. The trial Court mainly framed two issues. firstly, as to whether the petitioner proves that the certificate enclosed by the first respondent (present petitioner) along with the nomination paper is not prescribed caste certificate and secondly, as to whether the election of respondent No.1 (present petitioner) is to be set aside and whether the petitioner (respondent No.1 herein) is entitled to be declared as elected candidate being the second highest. The trial Court held that the said certificate is not the caste certificate as prescribed under the Law. The trial Court, therefore, set aside the election of the present petitioner on the ground that she was not entitled to contest the election as a scheduled caste candidate. The aforesaid decision given by the trial Court is the subject matter before me in this writ petition. In this case, it is an admitted position that the petitioner's election was challenged by respondent No.1 only on the ground that the petitioner was not scheduled caste candidate and had failed to produce a certificate as required under Law to be produced along with the nomination paper to show that she belonged to scheduled caste category. It is also an admitted position that the present petitioner is not scheduled caste by birth but she belonged to Shimpi community declared as Other Backward Classes and it is only by virtue of her marriage with Sunil Shinde on February 7, 1989, belonging to scheduled caste, she claims to be scheduled caste candidate. Excepting the pleadings and nomination forms including the certificate produced by the present petitioner, the parties led no oral evidence but proceeded to argue their respective cases on the basis of the aforesaid facts and also relying on certain Government circulars.

(3.) IN the present case respondent No.1 has taken a specific objection as regards the validity of the certificate and as regards the entitlement of the petitioner to contest the election as a scheduled caste-candidate. IN spite of that the petitioner has led no evidence whatsoever to show that in fact there is a custom in Hindu Kankayya caste that if a non-member of Kankayya community marries with a person belonging to Hindu Kankayya caste and if the said marriage is accepted by the caste, then by virtue of the said marriage the person belonging to non-Hindu Kankayya caste becomes a member of Hindu Kankayya caste as per the custom prevailent in the said caste. IN view of this, the observations made by the Supreme court in the case of N.E.Horo Vs. Jahan Ara (supra) do not in any way help the petitioner in advancing her case any further.