Ranjan Gogoi JUDGMENT
1. Leave granted.
2. This is an appeal against the judgment dated 9th April, 2013 of the Bombay High Court in Writ Petition No. 3315 of 2013 by way of special leave petition under Article 136 of the Constitution.
3. The facts very briefly are that the Appellant contested election to the Pune Municipal Corporation held in December, 2011 to a seat reserved for Other Backward Classes and filed as proof of his caste a caste certificate dated 3-7-2008 issued by the competent authority and caste validity certificate dated 26-8-2010 purportedly issued by the Caste Scrutiny Committee under the Maharashtra Schedule 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 2000 Act'). She was declared elected as a Corporator for Ward No. 40-A on 17-02-2012. Mrs. Laxmi Balasaheb Ghodake, who also contested the election as a member of Other Backward Class filed Election Petition No. 26 of 2012 before the Court of the Principal Judge of Small Causes, Pune challenging the election of the Appellant. Though the election petition is pending and has not been decided, the Commissioner of Municipal Corporation on receiving information that the Caste Certificate, on the basis of which the Appellant contested the election, was never actually issued by the concerned Caste Scrutiny Committee, passed an order dated 26th March, 2013 holding that the Appellant has not submitted genuine caste certificate and because of that her election is ab-initio null and void and declaring that the seat of Pune Municipal Corporator from Ward No. 40-A has become vacant retrospectively from the date of election of the Appellant. Aggrieved, the Appellant filed Writ Petition No. 3315 of 2013, but by the impugned judgment and order, the High Court has refused to entertain the writ petition on the ground that the Appellant did not approach the High Court under Article 226 with clean hands. Hence, the Appellant has preferred the present appeal before this Court.
4. Mr. V.A. Mohta, learned senior Counsel appearing for the Appellant submitted that the main contention urged before the High Court by the Appellant was that Article 243ZG of the Constitution provides that no election to any municipality shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a State notwithstanding anything in the Constitution. He submitted that since the Appellant had been elected to the Municipality, her election could be called in question only by an Election Petition filed Under Section 16 of the Bombay Provincial Municipal Corporations Act, 1949 (for short 'the 1949 Act'). He submitted that the High Court has not gone into this question and has dismissed the writ petition of the Appellant on irrelevant grounds.
5. Mr. Shekhar Naphade, learned senior Counsel a........