WRIT PETITION NO. 566 OF 2019

4th March 2020

Petitioner Counsel: Shri N.C.Phadnis
Respondent Counsel: Shri J.B.Kasat Shri N.R.Patil Shri Tejas Deshpande
Act Name: Maharashtra Municipal Corporations Act, 1949

Section :
Section 5B Maharashtra Municipal Corporations Act, 1949

JUDGEMENT

R.K.DESHPANDE, J.

1. Rule returnable forthwith. Heard finally by consent of the learned counsels appearing for the parties.

2. On 23.2.2017, respondent no.6 - Syyeda Khatun Nijamuddin Ansari was elected as Corporator from Prabhag 8-B against a seat reserved for other backward class category. Respondent no.6 was permitted to contest election against this post on the basis of the Caste Certificate dated 8/9-6.2011 said to have been issued by the Deputy Collector, Nagpur, certifying that respondent no.6 belongs to `Jullah’ other backward class category. In terms of Section 5B of the Maharashtra Municipal Corporations Act, the validity certificate for other backward class category was required to be produced within a period of one year, which expired in the month of February 2018.

3. The caste certificate produced by the petitioner was verified and scrutinized by the Scrutiny Committee and accordingly, the claim was validated by order dated 12.9.2018, which is the subject matter of challenge in this petition. The order holds that caste certificate issued in Revenue Case No.MRC-81/63548/2010-11 dated 8.6.2010 is validated.

4. Our attention is invited by Shri Phadnis, learned counsel for the petitioner, to the affidavit filed by respondent no.5 – the Collector, Nagpur, stating in paragraph 3 as under:
“3. It is pertinent to submit here that the case bearing No.MRC/81/63548/2010-2011 which is mentioned in the said Caste Validity Certificate dated 25.10.2011 as pointed out in impugned order dated 12.09.2018 is issued by the Divisional Caste Scrutiny Committee at page No.20. After scrutiny of official record no caste certificate has been issued in favour of Sayyada Khatun Nijamuddin Ansari bearing the said case number from the office of the answering respondent. However, from the official record available in the Zilla Setu Centre Collectorate Nagpur, it appears that on 08.06.2011 a Non-Creamy Layer Certificate came to be issued in the name of Sayyada Khatoon Jamal Ahmad having the reference of `Julaha’ Caste which falls under O.B.C. Category bearing the Case No. MRC/81/63548/2010-2011. The said certificate of Non Creamy Layer of “Julaha Caste” was issued in the name of Sayyada Khatoon Jamal Ahmad. The copy of statement which shows the issuance of Non-Creamy Layer Certificate in favour of Sayyada Khatoon Jamal Ahmad is annexed herewith and marked as Annexurer R-1 for kind perusal of this Hon’ble High Court”.

5. It is urged that the Certificate dated 8.6.2011 could not have, therefore, been held as valid by the Scrutiny Committee.

6. We asked learned counsel appearing for respondent no.6 elected candidate to produce the Application Form, affidavit and other documents relied upon for issuance of caste certificate. The petitioner is unable to produce it before this Court. The Deputy Collector, Nagpur, has stated that he has not issued caste certificate in question, but has merely certified the Non-creamy Layer Certificate in Part-B of the said Certificate. According to him, Part-A, which is the caste certificate, has not been issued by him. There is no challenge raised to this position at the instance of respondent no.6.

7. In view of the aforesaid position, the very basis for issuance of caste validity certificate for `Jullah’ other backward category at Sr.no. 56 in the list has gone. The caste certificate in question on the basis of which the election was contested, is non-exist in the eyes of law. We have, therefore, no option but, to set aside the order dated 12.9.2018 along with the validity certificate issued to respondent no.6 and caste certificate dated 8.6.2011. Respondent no.6 cannot continue to hold the post of the Corporator and has incurred disqualification.

8. In the result, Writ Petition is allowed. The order dated 12.9.2018 passed by the Scrutiny Committee and the Caste Certificate dated 8.6.2011 issued by the Deputy Collector, Nagpur to respondent no.6 are hereby quashed and set aside. Respondent no.6 is disqualified from holding the post and the seat occupied by her is declared as vacant.

9. Rule is made absolute in above terms. No order as to costs.

Decision : Petition allowed.