Writ Petition No. 3315 of 2013

9th April, 2013

Petitioner Counsel: Mr. S.S. Patwardhan,Mr. Purushottam G. Chavan
Respondent Counsel: Mr. Abhijit P. Kulkarni,Mr. C.R. Sonawane,Mr. S.B. Shetye

Cases Cited:
Kurapati Maria Das Vs. Dr. Ambedkar Seva Samajan & Ors., (2009) 7 SCC 387 [Para 7]
Gurdeep Singh Dhillon Vs. Satpal, (2006) 10 SCC 616 [Para 7]
Ravi Yashwant Bhoir Vs. District Collector, Raigad, 2012(2) ALL MR 962 (S.C.)=(2012) 4 SCC 407 [Para 7]
Sajeda Nihal Ahmed Vs. Malegaon Municipal Corporation, Malegaon & Ors., 2005(1) ALL MR 864 =2005 (1) Mh. L.J. 87 [Para 7]
M.P. Mittal Vs. State of Haryana & Others, (1984) 4 SCC 371 [Para 19]
Prestige Lights Ltd. Vs. State Bank of India, 2007 ALL SCR 2113 : (2007) 8 SCC 449 [Para 20]
R.D. Sharma Vs. Steel Authority of India Ltd., (2008) 12 SCC 481 [Para 21]
Surya Dev Rai Vs. Ram Chander Rai and Others, 2003(4) ALL MR 761 (S.C.)=(2003) 6 SCC 675 [Para 22]

JUDGMENT

JUDGMENT :- Yesterday we have heard the submissions of the learned counsel appearing for the contesting parties at some length. The challenge in this Writ Petition under Article 226 of the Constitution of India is to the order dated 26th March, 2013 passed by the second respondent (the Commissioner of the Pune Municipal Corporation). The question involved in this petition is whether writ jurisdiction under Article 226 of the Constitution of India can be allowed to be invoked by the petitioner who has produced a fabricated caste validity certificate for contesting election of a reserved post.

2. The petitioner claims that she belongs to a caste 'Kunbi'. The claim of the petitioner is that the caste Kunbi is recognized as 'Other Backward Class'. Reliance is placed by the petitioner on the caste certificate dated 3rd July, 2008 and the caste validity certificate dated 26th August, 2010 bearing sr. no. 31456.

3. The General Ward Election of the first respondent-Pune Municipal Corporation was declared in the December 2011. Ward No. 40-A was reserved for Other Backward Class - Women. The petitioner filed her nomination paper. The petitioner produced the caste certificate dated 3rd July, 2008 (Exhibit A to the petition) and caste validity certificate dated 26th August, 2010 (Exhibit B to the petition) along with her nomination form. The petitioner was declared as elected on 17th February, 2012. The election of the petitioner was subjected to a challenge by one Laxmi B. Ghodake, a defeated candidate, by filing an Election Dispute under section 16 of the Maharashtra Municipal Corporations Act, 1949 (hereinafter referred to as the "said Act of 1949"). There is a separate petition being Writ Petition no. 4700 of 2012 filed by the said Ms. Ghodake contending that the caste certificate as well as caste validity certificate referred to above are fabricated.

4. On 13th March, 2013 the second respondent issued a notice to the petitioner. The second respondent stated in the said notice that the Secretary of the Caste Scrutiny Committee No. 3, Pune by communication dated 28th August, 2012 informed the first and second respondents that one Kalpana Anantrao Mane (maiden name of the petitioner) has not been issued caste validity certificate no. 31456 by the Caste Scrutiny Committee No. 3. In the said communication dated 28th August, 2012, it was stated that the proposal for caste verification of the petitioner was never received by the Caste Scrutiny Committee. We may note here that the caste validity certificate dated 26th August, 2010 is purportedly issued by the said Caste Scrutiny Committee. It is alleged in the notice that the caste validity certificate bearing no. 31456 was issued to a student by the name Ms. Pooja Vasudev. In the said notice dated 13th March, 2013, the second respondent relied upon the directions issued by the State Election Commission on 31st January, 2013 to the Municipal Corporation. The petitioner was called upon to remain present for hearing on 25th March, 2013. We may note here that on 25th July, 2012, there was a notice addressed by the second respondent to the petitioner. In the said notice, it was pointed out that the Divisional Caste Scrutiny Committee No. 3, Pune by letter dated 9th July, 2012 informed the first respondent that the caste validity certificate no. 31456 produced by the petitioner in the name of Kalpana Anantrao Mane was not at all issued by the Office of the Scrutiny Committee and in fact a certificate bearing the said number was issued to one Poddar Pooja Vasudev. The petitioner was informed that she had committed breach of the provisions of Section 5B of the said Act of 1949 and therefore she should submit her clarification/reply. Accordingly, the petitioner filed reply on 8th August, 2012.

5. We may note here that being aggrieved by the show cause notice dated 13th March, 2013, the petitioner has filed a Writ Petition. However, this Court did not grant any ad-interim relief. The petitioner has pointed out that a detailed reply was filed on 18th March, 2013 before the Commissioner along with the relevant documents. By the order which is impugned in this Writ Petition, the second respondent held that the petitioner did not submit a valid caste certificate and a caste validity certificate along with her nomination paper and, therefore, her election is ab initio null and void and the seat occupied by the petitioner shall become vacant with retrospective effect.

6. The learned counsel appearing for the petitioner has made various legal and factual submissions. His first submission is that there is no power vested in the second respondent-Commissioner of the Pune Municipal Corporation to declare that the election of the petitioner is ab initio null and void. The second respondent has no jurisdiction to decide the disputed question of facts whether the caste certificate as well as the caste validity certificate submitted by the petitioner are genuine or not. In view of the constitutional mandate as well as the provisions of the said Act of 1949, the election of the petitioner can be set aside on the ground that the petitioner was not eligible to contest the election only in a Election Dispute under section 16 of the said Act of 1949. He submitted that the second respondent has exercised non-existing powers. He submitted that as the very fact that the genuineness of the caste certificate as well as the caste validity certificate produced by the petitioner along with the nomination form is disputed, the adjudication of this issue required recording of evidence.

7. He invited our attention to the decision of the Apex Court in the case of Kurapati Maria Das vs. Dr. Ambedkar Seva Samajan & Ors., (2009) 7 SCC 387. He also invited our attention to the judgment of the learned Single Judge of the Andhra Pradesh High Court as well as of the Division Bench of the said Court out of which the case of Kurapasi came up before the Apex Court. He relied upon the law laid down by the Apex Court in the said decision and especially in paragraph 40 thereof. He also relied upon a decision of the Apex Court in the case of Gurdeep Singh Dhillon vs. Satpal, (2006) 10 SCC 616. He submitted that interference with the election was impermissible in any proceedings except the election dispute under section 16 of the said Act of 1949 in view of specific bar under Article 243-ZG(b) of the Constitution. He also invited our attention to the law laid down by the Apex Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad, (2012) 4 SCC 407 : [2012(2) ALL MR 962 (S.C.)]. He submitted that a Municipal Corporation is an autonomous body created under the Constitution of India. He submitted that the petitioner is a democratically elected representative and her election can be set aside only by a prescribed procedure known to law. He submitted that the petitioner cannot be prevented from holding the office for the term for which she has been elected unless she is removed by the procedure established under the law. He relied upon the decisions of the learned Single Judge of this Court in the case of Sajeda Nihal Ahmed vs. Malegaon Municipal Corporation, Malegaon & Ors., 2005 (1) Mh. L.J. 87 : [2005(1) ALL MR 864] and submitted that the second respondent-Commissioner of Pune Municipal Corporation had no jurisdiction to pass the order which he has passed. He submitted that this is not a case where the petitioner has incurred any disqualification as specified in Section 10 of the said Act of 1949. Without prejudice to the above contentions, he urged that there was no proper opportunity granted to the petitioner of being heard by the second respondent. He submitted that apart from the fact that second respondent had no power to pass the impugned order, the adjudication on the issue of genuineness of the caste certificate as well as caste validity certificate will invoke recording of evidence and no opportunity was granted to the petitioner to adduce evidence. He submitted that this is a case where a lawfully elected representatives of the people has been unseated contrary to the constitutional mandate. He urged that along with the reply filed on 18th March, 2013, the petitioner had placed several documents on record before the second respondent to show that the petitioner belongs to kunbi caste. He submitted that this is not a case of false caste claim and in any event, it is not the case of the respondents that the competent authority has declared that the caste claim of petitioner is false. He, therefore, submitted that a gross illegality has been committed by the second respondent and the impugned order which is not only illegal but also unconstitutional needs to be interfered with by this Court.

8. The last limb of argument which was convassed by the learned counsel appearing for the petitioner is on the basis of the show cause notice. He pointed out that in the notice dated 25th July, 2012 there is a reference to provisions of Section 10 in relation to disqualification. He pointed out that in notice dated 13th March, 2013 the second respondent has not stated as to what was the purpose of hearing. He submitted that the petitioner was not even put to notice that the second respondent wants to consider the issue of genuineness of the documents and that he proposes to declare the election of the petitioner as abinitio null and void. He, therefore, submitted that apart from other submissions, this is a case of breach of principles of natural justice, as a proper notice informing the petitioner of the action proposed to be taken against him was not served to the petitioner.

9. On earlier date, we had made a specific query to the learned counsel appearing for the petitioner, which was answered by him, on instructions of the petitioner who was personally present in the Court, stating that the petitioner did not appear for any enquiry before the Scrutiny Committee regarding her caste claim. He stated that the petitioner is not even aware whether any order was specifically passed by the Scrutiny Committee upholding the caste claim of the petitioner.

10. The submission of the learned counsel for the second respondent/Commissioner is that this is a case where admittedly the petitioner produced fabricated caste certificate and caste validity certificate along with the nomination form and therefore, in fact she was ineligible to contest the election. He relied upon the directions issued by the State Election Commission. The learned counsel appearing for the State Election Commission on a specific query made by the Court, on instructions, stated that the contention raised by the petitioner regarding the lack of power in the second respondent to pass the impugned order appears to be correct. However, his submission is that this is not a fit case to interfere in the writ jurisdiction considering the fraud perpetrated by the petitioner.

11. We have carefully considered the submissions. It is not in dispute that the petitioner contested the election on a seat reserved for "Other Backward Class". Mandate of section 5B of the said Act of 1949 is that every person desirous of contesting the election of a reserved seat shall along with nomination paper produce caste certificate issued by the competent authority and the caste validity certificate issued by the Scrutiny Committee in accordance with the provisions of 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 (hereinafter referred to as the said Act of 2000).

12. The petitioner has annexed notice dated 25th July, 2012 addressed to her by the second respondent-Commissioner of the Municipal Corporation. We may note here that the petitioner admittedly produced a caste certificate dated 3rd July, 2008 issued by the Deputy Collector, CFC, Pune in her maiden name Mane Kalpana Anantrao and caste validity certificate no. 31456 dated 26th August, 2010 issued by the Caste Scrutiny Committee, Pune in her maiden name along with her nomination form. On a query made by us to the learned counsel appearing for the petitioner, on instructions, he stated that the petitioner is not sure whether there is a specific order passed by the Scrutiny Committee directing that the caste validity certificate should be issued to the petitioner.

13. Now coming back to the notice dated 25th July, 2012, in third paragraph thereof, it is specifically alleged that the caste certificate as well as the caste validity certificate produced by the petitioner are found to be bogus. In the fourth paragraph, a reference has been made to the letter dated 9th July, 2012 issued by the Divisional Caste Scrutiny Committee, Pune. It is specifically recorded in paragraph 4 that the said letter records that the caste validity certificate no. 31456 has not been issued in the name of Kalpana Anantrao Mane but a caste validity certificate bearing the said number has been issued to one Poddar Pooja Vasudev for educational purpose. In paragraph 5 of the notice, the petitioner was specifically put to notice that the Divisional Caste Scrutiny Committee by the aforesaid letter has informed the second respondent that the caste certificate and the caste validity certificate produced by the petitioner are bogus. On 8th August, 2012 the petitioner submitted a reply. A careful perusal of the reply shows that she has referred to Election Petition, which is pending before the Court. She has referred to Section 7(1) of the said Act of 2000 and contended that without the Caste Scrutiny Committee passing an order under section 7(1), the notice has been issued. The petitioner relied upon a birth certificate of her father. What is pertinent to note is that the petitioner did not state in what manner she has procured the caste certificate as well as the caste validity certificate. If according to the petitioner, the said documents were genuine, this was the first opportunity available to the petitioner to come out with correct facts. The petitioner could have always pleaded particulars such as the date on which she had applied for the caste validity certificate and the date on which an order was passed by the Caste Scrutiny Committee granting her validity certificate. In fact, the factual assertions in the notice dated 25th July, 2012 that the aforesaid certificates are bogus and not genuine have virtually gone unchallenged. In the reply she did not come out with the case that she has applied to the Caste Scrutiny Committee and after holding an inquiry, the validity certificate was granted to her.

14. Now let us deal with the reply filed by the petitioner to the notice dated 13th March, 2013. It will be interesting to note that in paragraph 3 of the said reply, the petitioner has come out with a specific case that vide application no. 3268 dated 15th November, 2011, she applied for obtaining caste validity certificate for the purpose of election. We may note that the caste validity certificate produced by the petitioner is of 26th August, 2010. In the said reply, the petitioner has not come out with a case that the date put on caste validity certificate is incorrect. Again, even in this reply, the petitioner has not stated that she appeared before any particular Caste Scrutiny Committee for enquiry and that any order was passed by any Caste Scrutiny Committee directing that the caste validity certificate should be issued to the petitioner. This was the second opportunity for the petitioner to come clean and explain as to how she has procured the caste validity certificate.

15. Now at this stage, it will be necessary to make a reference to the averments made in this Writ Petition. In paragraph 6 of the petition, the petitioner has referred to show cause notice dated 13th March, 2013. The petitioner has also referred to the show cause notice dated 25th July, 2012. Further the petitioner has specifically averred that respondent no. 3/Caste Scrutiny Committee has claimed that it never issued the caste validity certificate to the petitioner and that the petitioner never applied for getting the caste validity certificate. It is pertinent to note what is stated by the petitioner in the said paragraph:

"Respondent no. 3 has claimed that it has never issued the validity certificate to the petitioner as per the petitioner's case. That respondent no. 3 claimed that the petitioner has never applied for getting the validity certificate and, therefore, there is no question of issuance of such certificate. The petitioner states that the said statement contained in the letter dated 28th August, 2012 is factually incorrect. The petitioner has not only submitted an application before Respondent no. 3 but the same was also scrutinized and validity certificate is issued. The petitioner has submitted that application for validity certificate on 15th November, 2011 and the said application is received in the office of respondent no. 3 at Inward Register No. 3268. The petitioner states that respondent no. 3 has acknowledged the receipt of the petitioner's proposal for validity certificate. Hereto annexed and marked as Exhibit H is the copy of the petitioner's application for validity certificate submitted to the office of respondent no. 3 Committee along with the documents and its acknowledgement of having received the same. The petitioner thus states that both the grounds on the basis of which the respondent no. 2 has issued the notice dated 13th March, 2013 to the petitioner was factually unsustainable." (underline added)

16. Thus the petitioner reiterated that her application for obtaining caste validity certificate was submitted on 15th November, 2011. In the petition, the petitioner has not at all explained as to how she could obtain a caste validity certificate dated 26th August, 2010 on the basis of application made by her on 15th November, 2011. We may note here that as per the order passed on earlier date, the learned AGP produced the bound book of the office copies of the validity certificates issued by the concerned Caste Scrutiny Committee. Perusal of the office copy shows that the caste validity certificate no. 31456 was issued to one Poddar Pooja Vasudev. The petitioner is relying upon the aforesaid validity certificate issued in her name by the same Committee under the same number.

17. When the petitioner has approached this Court by way of a petition under Article 226 of Constitution of India, the Court expects the petitioner to be very candid about the factual assertions. After the service of two show cause notices and after the impugned order recording a categorical finding that the caste validity certificate and the caste certificate produced by the petitioner along with nomination form were fabricated, the petitioner was expected to come out with clear factual averments setting out in what manner she has obtained the caste validity certificate. The only explanation offered by the petitioner is that on the basis of application made on 15th November, 2011 she was granted caste validity certificate dated 26th August, 2010. In the first show cause notice addressed to the petitioner in July 2012, the petitioner was specifically put to notice that the Scrutiny Committee has addressed a letter stating that the Caste Validity Certificate No. 31456 was not issued to the petitioner, but it was in the name of Poddar Pooja Vasudev. On this aspect, the petitioner has chosen not to give any explanation either by way of reply to the show cause notices or in this petition.

18. We may note here that in Writ Petition No. 4700 of 2012 which was listed along with this petition, notice for final disposal was issued to the present petitioner. The present petitioner, who is the respondent no. 8 to the said petition, appeared through an advocate on 9th October, 2012. But no reply has been filed to the said petition. In the said petition, the relief sought is for initiating action against her for producing fabricated caste certificate and caste validity certificate. The documents annexed to the said petition show that even the caste certificate produced by the petitioner is not issued by the authority by which the same has been purportedly issued. This conduct of the petitioner of not filing any reply to the said petition will have to be appreciated in the light of the fact that the petitioner has invoked extraordinary jurisdiction of this Court under Article 226 of the Constitution of India.

19. It is well settled that the remedy by way of a petition under Article 226 of the Constitution of India is a prerogative remedy. It is an extraordinary remedy which can be never invoked as a matter of course. On this aspect it will be necessary to make a reference to a well known decision of the Apex Court in the case of M.P. Mittal vs. State of Haryana & Others, (1984) 4 SCC 371 and in particular paragraph 5 thereof, which reads thus:

"The appeal arises out of a writ petition, and it is well settled that when a petitioner invokes the jurisdiction of the High Court under Article 226 of the Constitution, it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetuate an unjust gain." (underline supplied)

20. It will be also necessary to make a reference to the another decision of the Apex Court in the case of Prestige Lights Ltd. vs. State Bank of India, (2007) 8 SCC 449 : [2007 ALL SCR 2113] and in particular paragraph 35 thereof, which reads thus:

"35. It is well settled that a prerogative remedy is not a matter of course. In exercising extraordinary power, therefore, a writ court will indeed bear in mind the conduct of the party who is invoking such jurisdiction. If the applicant does not disclose full facts or suppresses relevant materials or is otherwise guilty of misleading the court, the court may dismiss the action without adjudicating the matter. The rule has been evolved in larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it. The very basis of the writ jurisdiction rests in disclosure of true, complete and correct facts. If the material facts are not candidly stated or are suppressed or are distorted, the very functioning of the writ courts would become impossible." (underline added)

21. We may also make a useful reference to another decision of the Apex Court in the case of R.D. Sharma vs. Steel Authority of India Ltd., (2008) 12 SCC 481 and in particular paragraphs 34 and 36 thereof, which read thus:

"34. The jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is, therefore, of utmost necessity that the petitioner approaching the writ court must come with clean hands, put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the court, his petition may be dismissed at the threshold without considering the merits of the claim.

36. A prerogative remedy is not a matter of course. While exercising extraordinary power, a writ court would certainly bear in mind the conduct of the party who invokes the jurisdiction of the court. If the applicant makes a false statement or suppresses material fact or attempts to mislead the court, the court may dismiss the action on that ground alone and may refuse to enter into the merits of the case by stating, "We will not listen to your application because of what you have done". The rule has been evolved in the larger public interest to deter unscrupulous litigants from abusing the process of court by deceiving it." (underline added)

22. Lastly, we may note that in the case of Surya Dev Rai vs. Ram Chander Rai and Others, (2003) 6 SCC 675 : [2003(4) ALL MR 761 (S.C.)], the Apex Court has reiterated the said well settled principles of law. The Apex Court while dealing with the power of this Court under Article 226 and 227 of the Constitution of India held that "the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge". (underline added)

23. In the present case, we have already held that the petitioner has not come to this Court with clean hands. She has not candidly stated the correct facts. At no stage right from the reply to the first show cause notice of July, 2012, the petitioner made any serious attempt to dispute that the documents produced by her along with the nomination papers were fabricated. In any event, not only that she has failed to explain as to how she obtained the caste validity certificate dated 26th August, 2010, she has candidly stated before this Court that she did not appear before any Scrutiny Committee for inquiry. Surprisingly, she has claimed that she applied to the Scrutiny Committee on 15th November, 2011. Apart from the failure of the petitioner to explain as to how she could obtain caste validity certificate on 26th August, 2010 on the basis of application of 15th November, 2011, there is enough material to show that the petitioner could not have filed the nomination form as she was not possessing a genuine caste certificate as well as the caste validity certificate on the date of filing nomination form. We have perused the bound book of the office copies of the caste validity certificates issued by the concerned Scrutiny Committee. It shows that certificate no. 31456 was issued to one Poddar Pooja.

24. We are conscious of the fact that a very serious issue is raised regarding the jurisdiction of the second respondent to pass an order which he has passed and the State Election Commission was candid enough to concede that the second respondent lacked power.

25. However, the conduct of the petitioner is such that she cannot be permitted to invoke discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Going by the admitted facts, the petitioner produced a caste validity certificate, which was not at all issued by the Caste Scrutiny Committee. The said certificate was produced along with a nomination form, which is the mandatory requirement of Section 5B of the said Act of 1949. Thus, the petitioner contested the election on the basis of caste validity certificate which was not genuine. If at the instance of the petitioner this Court exercises writ jurisdiction by setting aside the impugned order, the same will amount to restoring something which is completely illegal in as much as the petitioner was never entitled to contest the election and the petitioner contested the election by producing documents which are fabricated. Thus, exercising writ jurisdiction at the instance of such a litigant will amount to allowing the petitioner to secure a dishonest advantage. Moreover, the petitioner will be permitted to take advantage of the gain made by her by relying upon fabricated documents. But for production of the fabricated documents, the petitioner could not have contested the election. The petitioner has prevented a candidate who was possessing a lawful caste validity certificate from getting elected. Such conduct defeats the very object of reservation policy. The petitioner has relied upon several decisions by contending that the elected representatives cannot be thrown out in this manner. We are testing the conduct of a person who claims to be an elected representative and who is seeking to invoke extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. In our view, such a litigant should never be permitted to invoke extraordinary jurisdiction of this Court. A writ Court is not open for such litigant who has shown total disregard for the truth.

26. Considering what we have stated above, this was a fit case where in this very petition this Court could have issued a direction to initiate action against the petitioner. But as other petition being Writ Petition No. 4700 of 2012 is pending in this Court wherein same relief is sought, we propose to issue appropriate directions in the said petition.

27. Hence, the petition is rejected. While we dismiss this petition, we may it very clear that the dismissal of the petition shall not be construed to mean that we have upheld the power of the Commissioner to pass the impugned order and all the contentions in that behalf are kept open.

28. This is a fit case where the petitioner should be saddled with costs. We quantify the amount of costs at Rs.25,000/- which shall be payable to the fourth respondent/the Maharashtra State Election Commission within a period of six weeks from today.

Ordered accordingly.