D.K. Deshmukh, J.@mdashThis Writ Petition has been placed before us because the Division Bench of this Court has referred following three
questions for consideration to the Full Bench by order dated 30-1-2004.
(1) Whether in the matter of scrutiny and verification of the caste certificate and/or the caste claims of candidates elected to the Local Self-
Government, the procedure laid down by the Apex Court in Kum. Madhuri Patil''s case so also the procedure prescribed by the Resolution dated
1st January 1998, 19th April 1999 and 25th January 2000 could have any application even before coming in force of Act No. XXIII of 2001 for
the reason that Local Self-Government Acts were holding field and more so in view of the bar contained in Article 243-O and 243-ZG of the
Constitution of India and other statutory provisions contained in the Local Self-Government Act providing for a remedy of an Election Petition?
(2) Whether the provision contained in Act No. XXIII of 2001 are repugnant to the scheme flowing from the provisions contained in Amending
Act No. XI of 2002 and XXIV of 2000 and the other relevant provisions contained in parent Local Self-Government Act?
(3) Whether the provisions contained in Act No. XXIII of 2001 are in conflict with the constitutional mandate contained in Article 243-O(b) and
243-ZG(b) of the Constitution of India?
2. Now, for the purpose of considering the first question, it becomes necessary to refer to the judgment of the Supreme Court in the case of
Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, . In that judgment the Supreme Court noted that the
Constitution permits reservation of seats in services under the State as also in Schools and Colleges for persons belonging to the Scheduled Caste
and Scheduled Tribes and also after referring the provisions of Articles 341 and 342 of the Constitution, whereunder the Scheduled Caste and
Scheduled Tribes have been declared, the Supreme Court noted in paragraph 9 of the judgment thus :--
It is common knowledge that endeavour of States to fulfil constitutional mandate of upliftment of Scheduled Caste and Scheduled Tribes by
providing for reservation of seats in educational institutions and for reservation of posts and appointments, are sought to be denied to them by
unscrupulous persons who come forward to obtain the benefit of such reservations posing themselves as persons entitled to such status while in
fact disentitled to such status.
The Supreme Court in paragraph 13 of its judgment in Madhuri Patil''s case observes thus :--
The admission wrongly gained or appointment wrongly obtained on the basis of the false social status certificate necessarily has the effect of
depriving the genuine Scheduled Castes or Scheduled Tribes or OBC candidates as enjoined in the Constitution of the benefits conferred on them
by the Constitution.
The Supreme Court, therefore, found that it has become necessary that the caste certificate issued by the authorities has to be scrutinised at the
earliest and with utmost expedition and promptitude. The Supreme Court in that judgment laid down the procedure for issuance of social status
certificate, their scrutiny and their approval, in the following manner.
For that purpose, it is necessary to streamline the procedure for the issuance of social status certificates, their scrutiny and their approval, which
may be the following :
1. The application for grant of social status certificate shall be made to the Revenue Sub-Divisional Officer and Deputy Collector or Deputy
Commissioner and the certificate shall be issued by such officer rather than at the Officer, Taluk or Mandal level.
2. The parent, guardian or the candidate, as the case may be, shall file an affidavit duly sworn and attested by a competent gazetted officer or non-
gazetted officer with particulars of castes and Sub-castes, tribe, tribal community, parts or groups of tribes or tribal communities, the place from
which he originally hails from and other particulars as may be prescribed by the Directorate concerned.
3. Application for verification of the caste certificate by the Scrutiny Committee shall be filed at least six months in advance before seeking
admission into educational institution or an appointment to a post.
4. All the State Governments shall constitute a committee of three officers, namely (I) an Additional or Joint Secretary or any officer higher in rank
of the Director of the department concerned, (II) the Director, Social Welfare/Tribal Welfare/Backward Class Welfare, as the case may be, and
(III) in the case of Scheduled Castes another officer who has intimate knowledge in the verification and issuance of the social status certificates. In
the case of the Scheduled Tribes, the Research Officer who has intimate knowledge in identifying the tribes, tribal communities, parts of or groups
of tribes or tribal communities.
5. Each Directorate should constitute a vigilance cell consisting of Senior Deputy Superintendent of Police in over-all charge and such number of
Police Inspectors to investigate into the social status claims. The Inspector would go to the local place of residence and original place from which
the candidate hails and usually resides or in case of migration to the town or city, the place from which he originally hailed from. The vigilance
officer should personally verify and collect all the facts of the social status claimed by the candidate or the parent or guardian, as the case may be.
He should also examine the school records, birth registration, if any. He should also examine the parent, guardian or the candidate in relation to
their caste etc. or such other persons who have knowledge of the social status of the candidate and then submit a report to the Directorate together
with all particulars as envisaged in the pro forma, in particular, of the Scheduled Tribes relating to their peculiar anthropological and ethnological
traits, deity, rituals, customs, mode of marriage, death ceremonies, method of burial of dead bodies etc. by the castes or tribes or tribal
communities concerned etc.
6. The Director concerned, on receipt of the report from the vigilance officer if he found the claim for social status to be ""not genuine"" or ''doubtful''
or spurious or falsely or wrongly claimed, the Director concerned should issue show-cause notice supplying a copy of the report of the vigilance
officer to the candidate by a registered post with acknowledgment due or through the head of the educational institution concerned in which the
candidate is studying or employed. The notice should indicate that the representation or reply, if any, would be made within two weeks from the
date of the receipt of the notice and in no case on request not more than 30 days from the date of the receipt of the notice. In case, the candidate
seeks for an opportunity of hearing and claims an inquiry to be made in that behalf, the Director on receipt of such representation/reply shall
convene the committee and the Joint/Additional Secretary as Chairperson who shall give reasonable opportunity to the candidate/parent/guardian
to adduce all evidence in support of their claim. A public notice by beat of drum or any other convenient mode may be published in the village or
locality and if any person or association opposes such a claim, an opportunity to adduce evidence may be given to him/it. After giving such
opportunity either in person or through counsel, the Committee may make such inquiry as it deems expedient and consider the claims vis-a-vis the
objections raised by the candidate or opponent and pass an appropriate order with brief reasons in support thereof.
7. In case the report is in favour of the candidate and found to be genuine and true, no further action need be taken except where the report or the
particulars given are procured or found to be false or fraudulently obtained and in the latter event the same procedure as is envisaged in para 6 be
followed.
8. Notice contemplated in para 6 should be issued to the parents/guardian also in case candidate is minor to appear before the Committee with all
evidence in his or their support of the claim of the social status certificates.
9. The inquiry should be completed as expeditiously as possible preferably by day-to-day proceedings within such period not exceeding two
months. If after inquiry, the Caste Scrutiny Committee finds the claim to be false or spurious, they should pass an order cancelling the certificate
issued and confiscate the same. It should communicate within one month from the date of the conclusion of the proceedings the result of enquiry to
be parent/guardian and the applicant.
10. In case of any delay in finalising the proceedings, and in the meanwhile the last date for admission into an educational institution or appointment
to an officer post, is getting expired, the candidate be admitted by the Principal or such other authority competent in that behalf or appointed on the
basis of the social status certificate already issued or an affidavit duly sworn by the parent/guardian/candidate before the competent officer or non-
official and such admission or appointment should be only provisional, subject to the result of the inquiry by the Scrutiny Committee.
11. The order passed by the committee shall be final and conclusive only subject to the proceedings under Article 226 of the Constitution.
12. No suit or other proceedings before any other authority should lie.
13. The High Court would dispose of these cases as expeditiously as possible within a period of three months. In case, as per its procedure, the
writ petition/miscellaneous petition/matter is disposed of by a Single Judge, then no further appeal would lie against that order to the Division Bench
but subject to special leave under Article 136.
14. In case, the certificate obtained or social status claimed is found to be false, the parent/guardian/the candidate should be prosecuted for making
false claim. If the prosecution ends in a conviction and sentence of the accused, it could be regarded as an offence involving moral turpitude,
disqualification for elective posts or offices under the State or the Union or elections to any local body, legislature or Parliament.
15. As soon as the finding is recorded by the Scrutiny Committee holding that the certificate obtained was false, on its cancellation and confiscation
simultaneously, it should be communicated to the educational institution concerned or the appointing authority by registered post with
acknowledgment due with a request to cancel the admission or the appointment. The Principal etc. of the educational institution responsible for
making the admission or the appointing authority, should cancel the admission/appointment without any further notice to the candidate and debar
the candidate from further study or continue in office in a post.
It is clear that above procedure laid down by the Supreme Court is to be followed for the purpose of scrutiny of social status certificate. Once, the
social status certificate is issued, it can be used by a person in whose favour the certificate has been issued either for getting employment under the
State or for getting admission in educational institution or even for contesting elections. The procedure laid down by the Supreme Court in Madhuri
Patil''s case is for scrutiny of the caste certificate/social status certificate issued by the authorities.
3. The Division Bench has referred to the Government Resolution dated 1-1-1998 in its order. Perusal of the Government Resolution dated 1-1-
1998 shows that the State Government in that Resolution first noted that committees have been constituted in various regions of the State for the
purpose of scrutinising the social status certificate issued in relation to the persons claiming to be the members of Scheduled Castes, Nomadic
Tribes, Other Backward Classes etc. It is noted that those Committees so far have been scrutinising the caste certificates which have been used
either for getting employment under the State or for getting admission in educational institution. It is further stated that in the Local Self Government
seats have been reserved for candidates belonging to the Scheduled Caste, Scheduled Tribes, Nomadic Tribes etc. and against these seats
persons get elected on the basis of false social status certificate and therefore it becomes necessary that the social status certificates which are used
by persons for contesting the elections to seats under the Local Self-Government should also be scrutinised by the scrutiny committee. Therefore, it
was provided that after completion of the process of election, the Collector of each district within a period of 15 days shall send social status
certificate used by the elected candidate from the reserved constituency to the scrutiny committee for verification and that the scrutiny committee
shall complete the process of verification within a period of 45 days and communicate its decision to the Collector.
4. The second Government Resolution that has been referred to by the Division Bench is the Government Resolution dated 19th April, 1999. The
Government Resolution dated 19th April, 1999 is to the same effect as the Government Resolution dated 1-1-1998, except that the Government
Resolution dated 19th April, 1999 relates to social status certificate issued to a person who claims to belong to Scheduled Tribes.
5. The third Government Resolution referred to by the Division Bench is the Government Resolution dated 25-1-2000. We do not find that
Resolution on the record of the Writ Petition, none of the parties produced that Resolution before us. However, we find that in the order dated 26-
9-2002 passed in Writ Petition No. 1373 of 2002, Ayub Khan s/o Sardar Khan v. State of Maharashtra and other connected petitions, the
Division Bench has referred to that Resolution in following terms :
By the Government Resolution dated 25th January, 2000 bearing No. CBC/12/2000/252/Pra.Kra/l/OBC/5, after considering all the instructions
issued by it from 6th May, 1980 onwards upto 20-12-1999 the Government has consolidated the procedure, constitution of the Committees and
issued a composite Government Resolution.
6. The question that is raised by the Division Bench, to our mind, appears to be that whether the Collector could have, as per the Government
Resolutions referred to above, referred social status certificates issued to the candidates elected from the reserved constituencies on various
authorities under the Local Self-Government to the scrutiny committee constituted pursuant to the judgment of the Supreme Court in Madhuri
Patil''s case, because in each Local Self-Government Act there is a machinery provided for challenging the election of a returned candidate
including the candidate elected from the reserved constituency. However, apart from their being a provision for challenging the election of the
returned candidate including the candidate elected from the reserved seat, there are also provisions made empowering the authorities to remove the
elected candidate from the seat, in case he incurs disqualification.
7. The Government Resolutions which we have referred to above do not provide as to what the Collector has to do after receiving the decision
from the scrutiny committee. However, it is clear to our mind that in case the decision of the scrutiny committee is that the social status certificate of
a particular returned candidate is invalid, the Collector would either exercise his own power under the relevant law to remove that candidate or he
may forward the decision to other authorities which may be competent to do so in accordance with the provisions of the relevant law. As the
Government Resolutions referred to above do not provide that the Collector shall on the basis of the report of the scrutiny committee remove the
returned candidate, there is no scope of there being any conflict between the scheme of the Government Resolutions referred to above and the
scheme of the various Local Self-Government Acts. The Division Bench has also made reference to the provisions of Articles 243-O and 243-ZG
of the Constitution. Article 243-O lays down that election of a candidate as a member of Panchayat can be called in question only by an Election
Petition presented to the authority designated by the State Legislature. Article 243-ZG contain identical provisions in relation to candidate elected
to a seat in a Municipal Council. We do pot see any conflict between the provisions of Article 243-O and Article 243-ZG and the Government
Resolutions. To our mind it appears that as the Government Resolutions do not provide for removal of the elected candidate whose caste
certificate has been found to be invalid by the scrutiny committee there is no question of there being any conflict between the provisions contained
in various legislations relating to the Local Self-Government and Articles 243-O and 243-ZG of the Constitution. The whole purpose of the
Government Resolutions appears to be to get the social status certificate used to the candidates who have been elected to the reserved seat
scrutinised by the scrutiny committee and in case the scrutiny committee finds that the certificate is invalid then use that material for initiating action
against the concerned candidate in accordance with the provisions of the various Local Self-Government Legislations. It is to be noted here that as
observed above, in all local self-government legislations there are two types of procedure provided for removal of an elected candidate. First type
of procedure that is provided is that either the rival candidate or voter files an election petition in accordance with the Act before the competent
Court or authority and in that election petition the elected candidate''s election can be set aside, either because he was not holding requisite
qualification or because he was disqualified or because he was guilty of any corrupt practice.
Second type of procedure provided is that if the competent authority finds that an elected candidate is disqualified either for being a member of the
Council or a panchayat or for continuing to be a member of such Council or Panchayat, the authority issues a show cause to the concerned
candidate and on being satisfied that he is so disqualified, removes him from the office. To our mind it appears that the Government Resolutions
referred to above were issued by the State Government so that the Collector after receiving decision from the scrutiny committee takes action to
trigger mechanism provided in Local Self-Government Act for removal of the elected candidate whose social status certificate has been found to
be invalid by the scrutiny committee, and in this view of the matter, we do not find that there is any scope of there being any possibility of any
conflict between the Government Resolutions, various Local Self-Government Act as also the provisions of Article 243-O and Article 243-ZG of
the Constitution of India. This was the position before Maharashtra Act No. XXIII of 2001 was enacted. Now, because of Section 10 of the
Maharashtra Act No. XXIII of 2001 the position has changed. Section 10 reads as under :--
10. (1) Whoever not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic
Tribes, Other Backward Classes or Special Backward Category secures admission in any educational institution against a seat reserved for such
Castes, Tribes or Classes, or secures any appointment in the Government, local authority or in any other Company or Corporation, owned or
controlled by the Government or in any Government aided institution or co-operative Society against a post reserved for such Castes, Tribes, or
Classes by producing a false Caste Certificate shall, on cancellation of the Caste Certificate by the Scrutiny Committee, be liable to be debarred
from the concerned educational institution, or as the case may be, discharged from the said employment forthwith and any other benefits enjoyed
or derived by virtue of such admission or appointment by such person as aforesaid shall be withdrawn forthwith.
(2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall
be recovered from such person as an arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired
by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false
shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Committee.
(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory
body if he has contested the election for local authority, co-operative society or any statutory body on the seat reserved for any of Scheduled
Castes, Scheduled tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward classes or Special Backward Category by
procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny
Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be
deemed to have been terminated retrospectively.
Now consequence of cancellation of a social status certificate by the Scrutiny committee is that the elected candidate automatically loses his seat.
8. It may be pointed out here that we have expressed our opinion on the first question because it has been referred by the Division Bench, though
no arguments were advanced before us on this question.
9. So far as second question referred by the Division Bench is concerned, before us submissions were not advanced even on this point. Perusal of
Maharashtra Act No. XXIII of 2001 shows that it incorporates the provisions for cancellation of the election of a person who has been elected
against a reserved seat either on municipal council or on panchayat on his caste certificate being found invalid by the scrutiny committee. So far as
Maharashtra Act No. XXIII of 2001 is concerned, it incorporates in various Local Self-Government Act a ""disqualification"". It provides that if a
person is elected to a reserved seat and his caste claim is found to be invalid by the scrutiny committee then he will be disqualified. It also provides
for removal of that person from the seat that he holds on a finding being recorded by the competent authority that the caste certificate on the basis
of which he filed his nomination paper is invalid. Both these legislations have been enacted by the same Legislature, namely the Legislature of the
State of Maharashtra. It is nobody''s case that there is likelihood of lack of legislative competence to enact both these legislations. Perusal of the
legislations shows that first Maharashtra Act No. XXIII of 2001 was enacted and thereafter in order to give effect to the provisions of that Act
amendments were thought necessary in various Local Self-Government Acts and therefore Act No. XXIII of 2001 was enacted. We do not see
any repugnancy in the provisions of two Acts. In any case at the hearing, as observed above, this question was not argued by the learned Counsel
appearing for the Petitioner. No repugnancy was pointed out to us.
10. All the arguments that were advanced before us were advanced on the third question referred to by the Division Bench. The principal
contention which was urged before us was that the provisions of the Act No. XXIII of 2001 are ultra-vires the Constitution of India. Attack was
mainly based on the provisions contained in Chapter IXA of the Constitution and the provisions of Articles 14, 21, 223 and 234 of the
Constitution. It is submitted that Section 10(4) of the Maharashtra Act No. XXIII of 2001 empowers the security (sic : scrutiny) committee
appointed under the Act to set aside the election of candidate who has been elected against the reserved seat on a local self-Government authority
on the ground that the caste certificate on the basis of which he contested the election from a reserved constituency is invalid. It is pointed out that
Article 243-ZG contained in Part IX of the Constitution of India lays down that no election to any municipality shall be called in question except by
election petition presented to such authority and in such manner as it provided for by or under any law made by the Legislature of the State. It is
submitted that the mandate of Article 243-ZG is clear. It provides for an election petition to an authority established under the relevant statute. It is
submitted that under the Bombay Provincial Municipal Corporation Act as also under other relevant laws the election petition is provided to a
Court and the question whether the returned candidate was qualified to contest the reserved seat can be decided in the election petition by the
Court. It is submitted that Section 16(2)(a) in the BPMC Act provides that an election of the elected candidate can be challenged only by election
petition. That provision has been made, according to the Petitioner to give effect to the Article 243-ZG. It is, therefore, submitted that the mandate
of the Constitution is that the dispute relating to elections, even if it relates to caste claim, must be decided by the Election Petition and not
otherwise, and therefore, Section 10(4) of the Act No. XXIII of 2001 which empowers the scrutiny committee to cancel the election of the
returned candidate is repugnant to provisions of Article 243-ZG of the Constitution. It is further submitted that the State Legislature could not have
enacted Section 10(4) of the Maharashtra Act No. XXIII of 2001 even in exercise of its power under Article 243-T(6) because of specific
provisions of Article 243-ZG that an election of the return candidate can be challenged only in an election petition. It is submitted that the
provisions of Section 10(4) cannot be sustained by referring to Article 243-V(2). Article 243-V(2) permits a law being made by the State
legislature for referring the question of disqualification of any candidate to such authority as the legislature of the State may by law provide. It is
submitted that therefore the provisions can be made by the State Legislature for referring the question of disqualification to an authority. It is
submitted that Maharashtra Act No. XXIII of 2001 does not deal with disqualification, but it deals with qualification or its absence and therefore
the provisions made by the State Legislature in Maharashtra Act No. 23 of 2001 are not saved even by provisions of Article 243-V(2). It is
submitted that the question whether the returned candidate holds the requisite qualification or not is required to be decided in an election petition as
laid down by Article 243-ZG. It is further submitted that the reference to the term authority in Article 243-V(2) necessarily means a judicial
authority because when Article 243-V(2) was framed by the Parliament invariably in laws relating to Local Self-Government an election petition
was provided before the Court. The scrutiny committee to whom now the power has been given to decide the question of qualification is not a
judicial authority, but is a administrative authority and the law does not provide any qualification for appointment of member of the committee. It is
submitted that judicial power of the State is conferred on the scrutiny committee without prescribing qualifications that are necessary for being
appointed as a member of the scrutiny committee and it is violative of guarantee of Article 14 of the Constitution. It is submitted that as the law
does not lay down any qualification for the members of the scrutiny committee it amounts to vesting arbitrary powers in the State to appoint any
person on that committee. It is further submitted that the Act also does not prescribe any procedure that is to be followed by this committee. The
power that is conferred on the scrutiny committee is the drastic power and for exercise of this drastic power no safeguards have been provided
and therefore it is violative of the guarantee of Article 14 of the Constitution. It is further submitted that the Maharashtra Act No. XXIII of 2001
also does not provide for any guidelines for the scrutiny committee to exercise its power and therefore the power vested in the scrutiny committee
is a drastic and arbitrary in nature and conferal of such powers on the administrative authority violates the guarantee of the Article 14 of the
Constitution. It is also submitted that the provisions of the Act cannot be read in the context what is provided in Madhuri Patil''s case. The
judgment of the Supreme Court in Madhuri Patil''s case does not form part of the statute. It is submitted that the consequences that ensue from the
order of the scrutiny committee holding a caste certificate to be invalid are drastic. Apart from the person concerned losing his seat, the benefits
derived by him for holding his office can be recovered from him as arrears of land revenue. The rejection of his caste claim operates in rem. His
children are also precluded from claiming benefits under the similar caste claim in future. He is also liable to be prosecuted and punished. It is
submitted that as such drastic consequences flow from the order of the scrutiny committee, there have to be procedure and guidelines provided so
that the scrutiny committee exercises its power in accordance with law. It is further submitted that the Act does not provide for any appeal or
revision against the decision of the scrutiny committee and therefore, according to the petitioner it is necessary for the legislature to prescribe
qualifications for being appointed as a member of the scrutiny committee as also to streamline the procedure to be followed by the scrutiny
committee.
11. Now to appreciate these contentions it is necessary to refer to the provisions of Maharashtra Act No. XXIII of 2001. The preamble of the
Act states that it is an Act to provide for the regulation of the issuance and verification of caste certificates to the persons belonging to the
scheduled castes, scheduled tribes, Denotified tribes (Vimukta Jatis), nomadic tribes, other backward classes and special backward category and
for matters connected therewith or incidental thereto. The said Act was published after having received the assent of the President in the
Maharashtra Government Gazette on 23rd May, 2001, the State Government issued a notification which was published in the Gazette on 17th
October, 2001 and the Act came into force from 18th of October, 2001 as appointed u/s 1(2) therein. Section 2 deals with the definitions of
various terms. Section 5 provides with an appeal against an order rejecting an application submitted for caste certificate. Section 6 provides for
verification of caste certificate by a scrutiny committee. Section 7 provides for confiscation and cancellation of false caste certificates by the
scrutiny committee if the caste certificate was found to be false and the order passed by the scrutiny committee under the Act shall be final and
shall not be challenged before any authority or Court except the High Court under Article 226 of the Constitution. Section 8 states that where an
inquiry is required to be conducted in the caste claim by the scrutiny committee the burden to prove that a person belongs to a caste, tribe or class
shall be on such claimant/applicant. Section 9 bestows powers of Civil Court to the Competent Authority, Appellate Authority and Scrutiny
Committee while holding an inquiry into the caste/tribes claim. Section 10 provides for withdrawal of the benefits secured on the basis of the false
caste certificate and Section 11 deals with offences and penalties. Section 12 states that offences punishable u/s 11 shall be cognizable and non-
bailable and every offence punishable under the Act shall be tried by any Magistrate of First Class in a summary way and provisions of Section
262 except Sub-section (2) to 265, both inclusive, of the Code of Criminal Procedure, shall as far as possible may be applied to such trial. Section
13 provides for penalty for issuing false caste certificate and states that no Court shall take cognizance of an offence punishable under this section
except with the previous sanction of the Government. Section 15 provides a bar of jurisdiction of Civil Courts. It would be advantageous to
reproduce some of the relevant provisions of the Act.
2. Definitions.-- In this Act, unless the context otherwise requires, --
(f) ""Local Authority"" means in relation to local areas comprised within the jurisdiction of a Municipal Corporation, the concerned Municipal
Corporation and in relation to any other local area in the State, the concerned Municipal Council, Zilla Parishad, Panchayat Samiti, Industrial
Township, Nagar Panchayat or Village Panchayat having the jurisdiction over such local area;
(h) ""Other Backward Classes"" means any Socially and Educationally Backward Classes of citizens as declared by the Government and includes
other Backward Classes declared by Government of India in relation to the State of Maharashtra;
(k) ""Scrutiny Committee"" means the Committee or committees constituted under Sub-section (1) of Section 6 for the Scheduled Castes;
Scheduled Tribes, Denotified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category for verification of
the Caste Certificate and to perform the function of Scrutiny Committee under this Act;
6. Verification of Caste Certificate by Scrutiny Committee.-- (1) The Government shall constitute by notification in the Official Gazette, one or
more Scrutiny Committee(s) for verification of Caste Certificates issued by the Competent Authorities under Sub-section (1) of Section 4
specifying in the said notification the functions and the area of jurisdiction of each of such Scrutiny Committee or Committees.
(2) After obtaining the Caste Certificate from the Competent Authority, any person desirous of availing of the benefits or concessions provided to
the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward
Category for the purposes mentioned in Section 3 may make an application, well in time, in such form and in such manner as may be prescribed, to
the concerned Scrutiny Committee for the verification of such Caste Certificate and issue of a validity certificate.
(3) The appointing authority of the Central or State Government, local authority, public sector undertakings, educational institutions. Cooperative
Societies or any other Government aided institutions shall, make an application in such form and in such manner as may be prescribed by the
Scrutiny Committees for the verification of the Caste Certificate and issue of a validity certificate, in case a person selected for an appointment with
the Government, local authority, public sector undertakings, educational institutions, Co-operative Societies or any other Government aided
institutions who has not obtained such certificate.
(4) The Scrutiny Committee shall follow such procedure for verification of the Caste Certificate and adhere to the time limit for verification and
grant of validity certificate, as prescribed.
7. Confiscation and cancellation of false Caste Certificate.-- (1) Where, before or after the commencement of this Act, a person not belonging to
any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special
Backward Category has obtained a false Caste Certificate to the effect that either himself or his children belong to such Castes, Tribes or Classes,
the scrutiny Committee may, suo motu, or otherwise call for the record and enquire into the correctness of such certificate and if it is of the opinion
that the certificate was obtained fraudulently, it shall, by an order cancel and confiscate the certificate by following such procedure as prescribed,
after giving the person concerned an opportunity of being heard, and communicate the same to the concerned person and the concerned authority,
if any.
(2) The order passed by the Scrutiny Committee under this Act shall be final and shall not be challenged before any authority or Court except the
High Court under Article 226 of the Constitution of India.
9. Civil Court powers to Competent Authority, Appellate Authority, and Scrutiny Committee.-- The Competent Authority, the Appellate Authority
and the Scrutiny Committee shall, while holding an enquiry under this Act, have all the powers of a Civil Court while trying a suit under the Code of
Civil Procedure, 1908 and in particular in respect of the following matters, namely :--
(a) summoning and enforcing the attendance of any person and examining him on oath;
(b) requiring the discovery and production of any document;
(c) receiving evidence on affidavits;
(d) requisitioning any public record or copy thereof from any Court or office; and
(e) issuing Commissions for the examination of witnesses or documents.
10. Benefits secured on the basis of false Caste Certificate to be withdrawn. -- (1) Whoever not being a person belonging to any of the Scheduled
Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category secures
admission in any educational institution against a seat reserved for such Castes, Tribes or Classes, or secures any appointment in the Government,
local authority or in any other Company or Corporation, owned or controlled by the Government or in any Government aided institution or Co-
operative Society against a post reserved for such Castes, Tribes or Classes by producing a false Caste Certificate shall, on cancellation of the
Caste Certificate by the Scrutiny Committee, be liable to be debarred from the concerned educational institution, or as the case may be,
discharged from the said employment forthwith and any other benefits enjoyed or derived by virtue of such admission or appointment by such
person as aforesaid shall be withdrawn forthwith.
(2) Any amount paid to such person by the Government or any other agency by way of scholarship, grant, allowance or other financial benefit shall
be recovered from such person as an arrears of land revenue.
(3) Notwithstanding anything contained in any Act for the time being in force, any Degree, Diploma or any other educational qualification acquired
by such person after securing admission in any educational institution on the basis of a Caste Certificate which is subsequently proved to be false
shall also stand cancelled, on cancellation of such Caste Certificate, by the Scrutiny Committee.
(4) Notwithstanding anything contained in any law for the time being in force, a person shall be disqualified for being a member of any statutory
body if he has contested the election for local authority, Co-operative Society or any statutory body on the seat reserved for any of Scheduled
Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other Backward Classes or Special Backward Category by
procuring a false Caste Certificate as belonging to such Caste, Tribe or Class on such false Caste Certificate being cancelled by the Scrutiny
Committee, and any benefits obtained by such person shall be recoverable as arrears of land revenue and the election of such person shall be
deemed to have been terminated retrospectively.
11. Offences and penalties.-- (1) Whoever --
(a) obtains a false Caste Certificate by furnishing false information or filing false statement or documents or by any other fraudulent means; or
(b) not being a person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes, (Vimukta Jatis), Nomadic Tribes, Other
Backward Classes or Special Backward Category secures any benefits or appointments exclusively reserved for such Castes, Tribes, or Classes
in the Government, local authority or any other company or Corporation owned or controlled by the Government or in any Government aided
institution, or secures admission in any educational institution against a seat exclusively reserved for such Castes, Tribes or Classes or is elected to
any of the elective offices of any local authority or Co-operative Society against the office, reserved for such Castes, Tribes or Classes by
producing a false Caste Certificate;
shall, on conviction, be punished, with rigorous imprisonment for a term which shall not be less than six months but which may extend upto two
years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty thousand rupees or both.
(2) No Court shall take cognizance of an offence punishable under this section except upon a complaint, in writing, made by the Scrutiny
Committee or by any other officer duly authorised by the Scrutiny Committee for this purpose.
13. Penalty for issuing false Caste Certificate.-- (1) Any person or authority performing the functions of Competent Authority under this Act, who
intentionally issues a false Caste Certificate, shall on conviction, be punished with rigorous imprisonment for a term which shall not be less than six
months but which may extend upto two years or with fine which shall not be less than two thousand rupees, but which may extend upto twenty
thousand rupees or both.
(2) No Court shall take cognizance of an offence punishable under this section except with the previous sanction of the Government.
15. Bar of jurisdiction of Civil Courts.-- No Civil Court shall have jurisdiction to entertain, to continue or to decide any suit or proceeding or shall
pass any decree or order or execute wholly or partially any decree or order, if the claim involved in such suit or proceedings, or if the passing of
such decree or order or if such execution would in any way be contrary to the provisions of this Act.
17. Provisions of this Act to be in addition to any other law time being in force.-- The provisions of this Act shall be in addition to the provisions of
any other law for the time being in force.
18. Power to make rules.-- (1) The Government may, subject to the previous publication, by notification in the Official Gazette, make rules to
carry out all or any of the purposes of this Act.
(2) Every rule made under this Act shall be laid, as soon as may be, after it is made before each House of the State Legislature, while it is in
session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if before the expiry of
the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses
agree that the rule should not be made, and notify their decision to that effect in the Official Gazette, the rule shall, from the date of publication of
such decision in the Official Gazette, have effect only in such modified form or be of no effect, as the case may be; so however, that any such
modification or annulment shall be without prejudice to the validity of anything previously done or omitted to be done under that rule.
19. Power to remove difficulties.-- (1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, by order, published
in the Official Gazette, make such provisions not inconsistent with the provisions of this Act, as may appear to be necessary for removing the
difficulty :
Provided that no such order shall be made under this section after the expiry of a period of two years from the date of commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of State Legislature.
12. The question before us in relation to the validity of the Maharashtra Act No. XXIII of 2001 was argued with reference to Part IX and Part
IXA of the Constitution. Part X of the Constitution consists of Articles from 243 to 243-O relating to Panchayat and Part IXA contains identical
provisions contained in Article 243-P to Article 243-ZG relating to Municipality. As in the written submission submitted before us, provisions from
Part IXA have been referred to, we will also refer to the provision in Part IXA, though there are identical provisions to be found in relation to
Panchayat in Part IX. Article 243-T lays down that seats shall be reserved for the Scheduled Castes and Scheduled Tribes in every Municipality.
Sub-Article (6) of Article 243-T empowers the State Legislature to make provisions for reservation of seats in any Municipality in favour of
backward class of citizens. The State Legislature has enacted laws providing for reservation of seats in Municipality for Scheduled Castes,
Scheduled Tribes and OBC. Now, in order to be qualified to contest for such reserved seat it is necessary that the candidate must belong to the
category of backward class for which the seat has been reserved. There are provisions contained in laws relating to various Local Self-
Government Authority for filing of nomination papers to all the seats including the reserved seats and the nomination papers, insofar as reserved
seats are concerned, require a declaration from a candidate that he belongs to the particular type of backward class for which the seat has been
reserved. The submissions that were advanced before us related to Section 10(4) of Maharashtra Act No. XXIII of 2001, which relate to election
to the Local Self Government Authority. Municipal Corporations in Maharashtra State are constituted under the Bombay Provincial Municipal
Corporations Act, 1949. Under that Act seats have been reserved for scheduled castes and scheduled tubes and other sections of backward
classes. Rule 9 in Schedule (d) of that Act lays down that the nomination paper for election as a member of the Municipal Corporation is to be
filed in Form-A. Perusal of Form-A shows that in case the candidate wants to file the nomination paper for seats reserved for any section of any
backward class of citizens, then the caste or community to which the candidate belongs is to be mentioned in nomination papers. The Municipal
Councils in the State are constituted under the Maharashtra Municipalities Election Rules, 1966. Election Rules have been framed under that Rules
for holding elections to the office of the members of the Municipal Council. Rule 12(4) of these Rules lays down that where a seat is reserved for
scheduled caste or scheduled tribe, the candidate has to make a declaration that he belongs to scheduled tribe or scheduled caste. Rule 12(4)
reads as under :--
12(4) In a ward where the seat is reserved for Scheduled Castes or Scheduled Tribes, a candidate shall not be deemed to be qualified to be
chosen to fill that seat, unless nomination paper contains a declaration by him specifying the particular Scheduled Caste or Scheduled Tribe of
which he is a member.
The nomination form prescribed by these rules requires the candidate to indicate the particular caste or tribe to whom he belongs, in case he is
contesting the election for a reserved seat. Similar provision is to be found in the rules framed under the Bombay Village Panchayat Act and
Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961. Thus every statute, dealing with constitution of the local authority in the State of
Maharashtra insofar as the elections to the seats reserved for backward classes of citizens are concerned, requires a candidate who desirous to
contest such a seat to make a declaration that he belongs to backward class for which the seat has been reserved. Each of these statutes provides
for scrutiny of the nomination papers. At the scrutiny of the nomination paper, every candidate who has submitted the nomination paper has to
satisfy the returning officer that his claim that he belongs to particular caste or tribe is correct. The enquiry to be held by the returning officer in this
regard is a summary inquiry and the officers of the State Government who are appointed as the returning officers, in case of elections to various
wards of the Municipal Corporation, Municipal Council, Village Panchayat and Zilla Parishads, are mostly drawn from the Revenue Department
and are officers of the rank of Tahsildar and below. Considering the nature of inquiry that is to be conducted by the returning officer and the
situation of the returning officer it cannot be said that the returning officer is in a position to conduct a detailed inquiry to find out the truth or
otherwise of the claim made in the nomination paper by candidate that he belongs to particular caste or tribe. Therefore, these returning officers of
necessity will have to rely on a caste certificate issued by the competent authority, specially because the State Government has already set up a
machinery for issuance of caste certificate. Therefore, perusal of the scheme of the various Local Self Government Authority leads one to the
conclusion that it is a requirement of filing a nomination paper for a seat reserved for backward classes that a caste certificate issued by the
competent authority should either accompany the nomination paper or be filed before the returning officer at the time of scrutiny of the nomination
papers, and therefore, in our opinion, in view of this requirement Section 3 of the Maharashtra Act No. XXIII of 2001 comes into play. It reads as
under :--
3. Any person belonging to any of the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward
Classes or Special Backward Category, required to produce a Caste Certificate in order to claim the benefit of any reservation provided to such
Castes, Tribes or Classes, either in any public employment or for admission into any educational institution, or any other benefit under any special
provisions made under Clause (4) of Article 15 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 any other purposes specified by the Government,
shall apply in such form and in such manner as may be prescribed, to the Competent Authority for the issue of a Caste Certificate.
Perusal of the above section makes it clear that if there is a requirement to produce a caste certificate then the person concerned has no option but
to apply for a caste certificate to the competent authority. Sub-section (2) of Section 4 in terms lays down that no authority other than the
competent authority can issue a caste certificate and if any authority other than the competent authority issues a caste certificate it is invalid. Sub-
section (2) of Section 4 also lays down that a caste certificate issued by the competent authority is valid subject to its scrutiny by the scrutiny
committee and it is thereafter that Sub-Section (2) of Section 6 lays down if a person has secured the caste certificate from the competent authority
and if he wants to avail of any benefits available to the backward class of citizens, which are mentioned in Section 3, then it is for him to make an
application to the scrutiny committee to get a validity certificate. He is under an obligation to make an application well in time. The provisions of
Sub-section (2) of Section 4 of the Act read as under :
4(2) A Caste Certificate issued by any person, officer or authority other than the Competent Authority shall be invalid. The Caste Certificate issued
by the Competent Authority shall be valid only subject to the verification and grant of validity certificate by the Scrutiny Committee.
12A. Thus, the scheme of the various Local Self-Government Act in relation to the filing of the nomination papers and their scrutiny and the
scheme of the Maharashtra Act No. XXIII of 2001 appears to be that in case a person desires to contest an election to a reserved seat, it is
obligatory on his part to get a caste certificate from the competent authority and then immediately apply to the Scrutiny Committee to get a validity
certificate. Therefore, normally as the candidate is required to make an application to the scrutiny committee as soon as he receives a caste
certificate from the competent authority, with the result that in many cases his application before the scrutiny committee for validity certificate would
be pending when his nomination paper is accepted on the basis of the caste certificate. If his nomination paper is accepted on the basis of caste
certificate issued by the competent authority and as the caste certificate itself is valid subject to the grant of validity certificate, obviously
acceptance of his nomination paper as valid will also be subject to the grant of validity certificate by the scrutiny committee. Therefore, once the
scrutiny committee refuses to issue a validity certificate the nomination cannot survive and if the nomination cannot survive, election cannot survive.
Therefore, cancellation of the election of such a candidate is a natural consequence of his caste certificate being found invalid.
12B. Thus the scheme is that a person who obtains a caste certificate has to himself apply to the Scrutiny Committee for scrutiny of his caste
certificate, so that he can secure a valid certificate from the Scrutiny Committee, and it is only after the Scrutiny Committee issuing a valid
certificate that the caste certificate issued in favour of the person by the competent authority becomes final. In our opinion, the scheme of Sub-
section (2) of Section 6 is that any candidate who desires to avail of any benefit available to backward class has to get a caste certificate as also
the validity certificate before he makes a claim for the benefits. But if a candidate chooses to make claim to the benefits on the basis of a tentative
certificate namely a certificate issued by the competent authority, he takes the risk of his losing the benefits that he has claimed and obtained and
also being visited with penal consequences on the refusal of the Scrutiny Committee to validate his caste claim. The Act contemplates conscious
decision being made by a person at the time of claiming benefits. The Legislature expects a person to claim the benefits only after obtaining the
validity certificate, but the Legislature also permits a person to claim the benefits on the basis of a tentative certificate issued by the competent
authority, if he is willing to take the risk mentioned above. In our opinion, therefore, the validity certificate is one of the essential ingredient of the
candidate being qualified to contest for the reserved seat. It may be pointed out here that nobody can doubt the necessity of power being vested in
an authority for issuance of caste certificate. If it is necessary to vest the power in an authority to issue a caste certificate, then in view of various
types of claims being made, it is equally necessary to provide for scrutiny of those certificates. The determination of a caste is a job for the expert.
Therefore, definitely there is a need of appointing an authority which is competent to issue caste certificates, which can be accepted by the
returning officer at their face value. In our opinion, therefore, in the face of the provisions of the Act, the nomination papers which have been
accepted on the basis of certificate issued by the competent authority gets rejected on the refusal by the Scrutiny Committee to issue validity
certificate and therefore the candidate loses his title to the seat against which he has been elected. There is no question of the election of that
candidate being set aside by the Scrutiny Committee. The job of the Scrutiny Committee is of either issuing the final caste certificate or refusing to
do so. If the Scrutiny Committee refuses to issue a final caste certificate, then the caste certificate issued by the competent authority ceases to exist.
With the result, there is no caste certificate filed at scrutiny of the nomination papers and therefore the nomination papers itself becomes infirm and
incomplete, and therefore, the returned candidate loses qualification to contest the seat and therefore he has to vacate his seat. In our opinion, in
view of this scheme of the Act, even in the absence of Sub-section (4) of Section 10, the consequences in law of the Scrutiny Committee refusing
to issue valid caste certificate would be vacation of seat by the elected candidate.
12C. In our opinion, therefore, reference to provisions of Article 243-ZG, which lays down that no election to any Municipality shall be called in
question except by election petition presented to such authority and in such manner as is provided by or under the law made by the State
Legislature is not relevant. In the proceedings before the Scrutiny Committee, the election of the candidate is not in question, what is done by the
Scrutiny Committee is that it scrutinises the caste certificate on the basis of which the candidate has contested the election. Nobody calls the
election in question before the Scrutiny Committee. The candidate himself files an application to get a validity certificate. In our opinion, the scheme
of the Act is that the election of a person from a reserved seat who has contested on the basis of tentative certificate issued by the competent
authority is itself provisional. Nomination papers and the election become final on the issuance of validity certificate and it gets cancelled on the
refusal to issue a validity certificate. In our opinion, therefore, there is no question of there being any conflict with the provisions of Article 243-ZG.
So far as the competence of the State Legislature to make such provisions is concerned, in our opinion, the State Legislature gets competence to
make such provisions because it has the competence to make reservation of the seats.
13. It goes without saying that the power to issue or refuse to issue caste certificate as also the power to scrutinise a caste certificate is a drastic
power, and therefore, that power has to be exercised in consonance with and in compliance with the principles of natural justice. The Supreme
Court in its judgment in Madhuri Patil''s case has considered this aspect of the matter and has issued detailed guidelines as to how the competent
authority and the scrutiny committee have to proceed. The Act obliges the scrutiny committee to follow the procedure as may be prescribed by the
Rules. Rules admittedly have not been so far framed. Therefore, it goes without saying that the directions issued by the Supreme Court in Madhuri
Patil''s case which are to be regarded as a law in force, at least till the rules are framed by the Government, will have to be followed by the
competent authority and the scrutiny committee. It is nobody''s case before us that the procedure that has been laid down by the Supreme Court in
Madhuri Patil''s case is not being followed either by the scrutiny committee or by the competent authority.
14. So far as the objection raised on behalf of the Petitioner that the Act does not lay down any qualification for being appointed as a member of
the scrutiny committee is concerned, we find that the Supreme Court itself in its judgment in Madhuri Patil''s case has laid down as to how the
Scrutiny Committee is to be constituted. If one compares the detailed directions that have been framed by the Supreme Court contained in
paragraph 13 of the judgment in Madhuri Patil''s case and the provisions of the Act No. XXIII of 2001, one finds that the Act itself is moulded on
the directions issued by the Supreme Court and therefore, the State will have to constitute the scrutiny committee in accordance with the directions
issued by the Supreme Court.
15. We have referred to above that it was argued before us that to determine the caste claim is a judicial power of the State and that has been
conferred on the administrative authority. In the face of the judgment of the Supreme Court in Madhuri Patil''s case this argument has to be
rejected. The Supreme Court has provided for constitution of the scrutiny committee and it consists of administrative officer and in our opinion, in
the face of the judgment of Supreme Court in Madhuri Patil''s case no such submission can be made.
16. In substance, we find that the provisions that have been made in Maharashtra Act No. XXIII of 2001 are related to the provisions of filing
nomination papers and its scrutiny and the Act provides for the consequences of nomination papers being rejected because the candidate does not
possess requisite qualification and therefore it has nothing to do with challenge to the election of the ""candidate and therefore, in our opinion, there
is no question of there being any conflict between the provisions of the Act and the provisions of Article 243-ZG of the Constitution. So far as the
penal consequence provided by the Act are concerned, they ensue because the person concerned chooses to contest the election on the basis of
tentative certificate without getting that certificate finalised. Perusal of the provisions of Section 10 shows that if a person does not contest the
election on the basis of a tentative caste certificate then he is visited with no penal consequence. Perusal of Section 11 shows that a person can be
prosecuted if he obtains false caste certificate by furnishing false information or by filing a false statement and false documents or adopt any
fraudulent means. This is related to the information, documents or statements submitted before the competent authority and the scrutiny committee
and if a person is prosecuted under this provision, the prosecution will have to establish that the person who is accused has submitted false
information or has filed false statements or documents or has adopted any fraudulent means. So far as Clause (b) of Sub-section (1) of Section 11
is concerned, it comes into operation only after benefits are taken on the basis of a tentative certificate. Therefore, penal consequences
automatically flow from invalidity of caste claim only after the benefits are taken on the basis of tentative certificate.
17. As we find that the scheme of the Act is that normally person who claims benefits available to the backward classes only on the basis of final
caste certificate which has been verified by the scrutiny committee, and therefore, we hope and trust that the State Government will take steps to
see that citizens are able to get orders made by the competent authority and the scrutiny committee under the Act in a expeditious manner and that
because of paucity of machineries to be provided by the State Government, citizens are not forced to claim benefits on the basis of tentative caste
certificate issued by the competent authority.
18. One more aspect that is to be seen is that the Scrutiny Committee will not make an order setting aside the election of the candidate. The order
that the Scrutiny Committee makes is either the caste certificate issued to the candidate is valid or invalid. Consequence of declaration by the
Scrutiny Committee that the caste certificate is not valid is provided by Section 10(4) of the Maharashtra Act No. XXIII of 2001. If the contention
on behalf of the Petitioner is accepted, then the elected candidate whose caste certificate has been held to be invalid by the Scrutiny Committee
will continue to occupy the office to which he has been elected till the election petition filed challenging his election is decided. It is further pertinent
to note here that Sub-Section (2) of Section 7 of the Maharashtra Act No. XXIII of 2001 lays down that the caste certificate issued by the
Scrutiny Committee shall be final and shall not be challenged before any authority or Court except this Court in a petition under Article 226 of the
Constitution of India. Thus, take a case that where the returned candidate''s election is challenged by a voter in a Election Petition on the ground
that the returned candidate does not belong to the caste or tribe for which the seat is reserved, during the pendency of that Election Petition the
Scrutiny Committee passes an order holding caste certificate issued in favour of the candidate on the basis of which his nomination paper was
accepted to be invalid, the order of the Scrutiny Committee cannot be challenged by the returned candidate in any Court except this Court in a
petition filed under Article 226. Therefore, so far as the Court hearing the Election petition is concerned, the order will be binding. We do not
understand as to what useful purpose will be served by allowing the candidate to continue in the seat till the election petition is decided, if the
election petition is bound to be decided on the basis of the decision of the Scrutiny Committee. If Section 10(4) of the Act is not on the statute
book, an elected candidate whose caste certificate has been held to be invalid by the Scrutiny Committee, will continue to occupy the seat, even
though the decision of the Scrutiny Committee is upheld by this Court in case a voter or other contested candidate does not file an election petition.
It is, thus, absolutely clear that the necessity of enacting the provision like Sub-section (4) of Section 10 is implicit in the legislative scheme itself.
19. It is further to be seen here that even if it is assumed that Section 10(4) attaches disqualification for continuing as a member of Local Self
Government, in our opinion, in view of the provisions of Article 243-V of the Constitution, competence of the State Legislature to enact such a law
cannot be disputed. Article 243-V of the Constitution reads as under:--
243V. Disqualifications for membership.-- (1) A person shall be disqualified for being chosen as, and for being a member of a Municipality --
(a) If he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:
Provided that; no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age, of twenty-one
years;
(b) If he is so disqualified by or under any law made by the Legislature of the State.
(2) If any question arises as to whether a member of a Municipality has become subject to any of the disqualifications mentioned in Clause (1), the
question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.
Article 243-V empowers the State Legislature to prescribe disqualification for a person to continue to be a member of the Local Self Government.
Section 10(4) says that in case a person who has been elected to a seat reserved for backward class of citizens shall be disqualified to continue to
occupy that seat if the caste certificate issued by the Competent Authority in his favour is held to be invalid by the Scrutiny Committee. Article
243-V also empowers the State Legislature to constitute an authority to decide this question. We find that the view that has been taken by the
Division Bench of this Court in the case of Dattatraya Ramrao Thorat v. The State of Maharashtra and Ors. 2003(5) Mh.L.J. 539 : 2002 (4) All
807 is correct.
20. The issues that have been referred by the Division Bench arc answered by us. The office is directed to place the petition before the Division
Bench for decision in accordance with law and in the light of the above observations.