Sunil C. Bhalerao vs Navneet R. Rana

1] This application is filed by the respondent (returned candidate) under Order VII Rule 11 of the Code of Civil Procedure contending that the

challenge raised by the petitioner to the status of the respondent as a Scheduled Caste candidate cannot be examined in this election petition as the

Competent Authority i.e. the Sub-Divisional Officer, Eastern Suburban, Mumbai Suburban District has issued caste certificate dated 30/08/2013

certifying that the respondent belongs to “Mochi†caste which is recognized as “Scheduled Caste†in the State of Maharashtra, and the

District Caste Certificate Scrutiny Committee, Mumbai Suburban by the decision dated 03/11/2017 has validated the caste certificate issued in favour

of the respondent.

2] Learned advocate for the respondent pointed out that admittedly the decision of the District Caste Certificate Scrutiny Committee is challenged by

the petitioner before the High Court in W.P. No. 3370/2018 which is pending but interim order is not granted in that petition. According to the

respondent, as the legality of the caste certificate and validity certificate issued in favour of the respondent by the Competent Authority cannot be the

subject matter of challenge in the election petition filed under Section 80 of the Representation of the People Act, 1951 (for short ""the Act of 1951â€),

the petitioner cannot succeed in getting declaration from this Court in terms of the prayer made in the election petition and it being so, there is no need

to consider the election petition on merits and it be rejected under Order VII Rule 11 of the Code of Civil Procedure. It is further submitted that the

copy of election petition supplied by the petitioner for service on the respondent is not true copy of the election petition and the petitioner has not

attested it as true copy of the election petition. In para no. 5 of the application (Exh. 8), it is stated that the respondent is served with only one page of

the petition with the endorsement as true copy which is also vague and it does not show that it is true copy of which document / petition. It is alleged

that the petitioner has not supplied true copy of the documents filed alongwith the petition and therefore there is non-compliance of Section 81(3) of

the Act of 1951. On these grounds, the respondent has prayed that the election petition be rejected under Order VII Rule 11 of the Code of Civil

Procedure.

3] Learned advocate for the petitioner submitted that the election petition cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure

on the grounds raised in the application (Exh. 8). Referring to para no. 23 of the election petition, learned advocate for the petitioner submitted that the

challenge of the petitioner is that the respondent belongs to “Lubana†caste which is not recognized as “Scheduled Caste†either in the State

of Maharashtra or State of Punjab or any other state and therefore the respondent was not qualified to contest on the seat reserved for Scheduled

Caste candidate. Learned advocate for the petitioner relied on the provisions of Articles 330 and 84(c) of the Constitution of India, Sections 4(a) and

33(2) of the Act of 1951 and Sections 3 and 6(3) 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

(for short ""the Maharashtra Act No. 23 of 2001â€) and argued that to be the member of Parliament, the candidate should possess such qualifications

as may be prescribed in that behalf by or under any law made by Parliament (emphasis supplied) and for the elections held as per / under the Act of

1951, if a candidate contests from a Constituency where the seat is reserved, he shall not be deemed to be qualified to be chosen to fill that seat unless

his nomination papers contain a declaration by him / her specifying the particular caste or tribe of which he is a member and the area in relation to

which that caste or tribe is a Scheduled Caste or as the case may be a Scheduled Tribe of the State, and the certificate and validity certificate issued

by the Competent Authority / Scrutiny Committee under the Maharashtra Act No. 23 of 2001 is not required for the contestants under the Act of

1951. It is submitted that the certificate and validity certificate issued under the Maharashtra Act No. 23 of 2001 is required where a candidate claims

benefit of reservation either in any public employment, or for admission to any educational institution, or any other benefit under any special provisions

made under Article 15(4) of the Constitution of India or for the purpose of contesting for elective post in any local authority or in the Co-operative

Societies; or for purchase or transfer of land from a tribal land holder or for any other purposes specified by the Government (emphasis supplied).

4] According to the petitioner, the status claimed by the respondent as a Scheduled Caste candidate can be challenged by the petitioner independently

in the election petition and the certificate issued under the Maharashtra Act No. 23 of 2001 cannot be of any help to the respondent to counter the

challenge of the petitioner in the election petition.

5] After considering the rival submissions and examining the provisions of the enactments referred above, I am of the view that the election petition

cannot be rejected under Order VII Rule 11 of the Code of Civil Procedure only because the respondent is having a certificate issued by the

Competent Authority and a validity certificate issued by the Scrutiny Committee upholding her claim that she belongs to “Mochi†caste which is

recognized as “Scheduled Caste†in the State of Maharashtra. Of course, the certificate issued by the Competent Authority and the validity

certificate issued by the Scrutiny Committee may have persuasive value while dealing with the challenge raised by the petitioner but the petitioner

cannot be precluded from raising the challenge as raised by him in the election petition. In my view, the challenge raised by the petitioner will have to

be examined on merits, giving opportunity to the petitioner to prove his case.

6] The learned advocate for the respondent, referred to Article 15(4) of the Constitution of India and Section 3 of the Maharashtra Act No. 23 of

2001 and submitted that the Maharashtra Act No. 23 of 2001 has been enacted by the State Government for advancement of the persons belonging to

the Scheduled Castes and therefore the certificate issued by the Competent Authority and the validity certificate issued by the Scrutiny Committee

under the provisions of the Maharashtra Act No. 23 of 2001 cannot be the subject matter of scrutiny in the election petition. This submission cannot be

accepted as it cannot be said that the Maharashtra Act No. 23 of 2001 has been enacted for the advancement of the citizens belonging to Scheduled

Castes. Maharashtra Act No. 23 of 2001 has been enacted to provide for the regulation of the issuance and verification of the caste certificates to the

persons belonging to Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special

Backward Category, and the provisions of the Maharashtra Act No. 23 of 2001 does not confer any privileges or benefits as intended by Article 15(4)

of the Constitution of India.

7] As far as the contention of the respondent that the copy supplied by the petitioner to be served on the respondent cannot be said to be true copy of

the election petition, it is too general to non-suit the petitioner under Order VII Rule 11 of the Code of Civil Procedure. Before issuing notice of the

election petition, by the order dated 24/07/2019, this Court had directed the office of this Court to verify whether the provisions of Sections 81, 82 and

117 of the Act of 1951 were complied with by the petitioner or not. The office submitted its report on 26/07/2019 which shows that there was

compliance of the provisions of Section 81, 82 and 117 of the Act of 1951, and then notice of the election petition was issued. Hence, the election

petition cannot be rejected summarily for non-compliance of any of the mandatory provisions of Sections 81, 82 and 117 of the Act of 1951.

8] In view of the above, the application (Exh. 8) is dismissed. In the circumstances, the parties to bear their own costs.

9] The dismissal of the application (Exh. 8) does not mean that the contentions raised by the respondent in the application are decided. The

observations made in the order are only for the purposes of considering the prayer of the respondent to reject the petition under Order VII Rule 11 of

the Code of Civil Procedure. The contentions, if raised by the respondent at appropriate stage, would be examined according to law at appropriate

stage of the proceedings.

ELECTION PETITION NO. 01/2019

List the election petition for further consideration on 09/12/2020 at 4:15 pm.