Bombay High Court
Anant Hanumant Ulahalkar And Anr vs State Of Maharashtra And Ors on 9 December, 2016
Bench: A.S. Oka
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 10478 OF 2014
Anant H. Ulahalkar & anr. .. Petitioners.
Vs.
Chief Election Commissioner and ors. .. Respondents.
Mr. P.D. Dalvi i/b Mr. Balasaheb R. Deshmukh for the Petitioners.
Ms Shriya Jadhav i/b Mr. Sachindra B. Shetye for Respondent No.1.
Mr. A.B. Vagyani, Government Pleader a/w. Mr. V.B. Thadhani, AGP,
Mr. P.G. Sawant, AGP and Ms Tintina Hazarika for Respondent No.2,
Mr. L.M. Acharya i/b Mr. Anish Khandekar for Respondent No.4.
Mr. Murtaza Nazmi and Mr. Vaibhav Gaikwad, for Intervener.
CORAM:
A.S. OKA, M.S. SONAK &
A.S.GADKARI, JJ.
Date of Reserving the Judgment : 23 SEPTEMBER 2016.
Date of Pronouncing the Judgment: 09 DECEMBER 2016.
JUDGMENT :- (Per : M.S. SONAK, J.)
1] This reference concerns interpretation of Section 9A of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 ( Section 9A). The main provision of Section 9A
provides that any person desirous of contesting election to a reserved
seat must submit along with his nomination papers, a caste certificate
issued by the Competent Authority and a Caste Validity Certificate
(Validity Certificate) issued by the Scrutiny Committee in accordance
with the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified
Tribes (Vimukta Jatis ), Nomadic Tribes, Other Backward Classes and
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Special Backward Category (Regulation of Issuance and Verification of)
Caste Certificate Act, 2000 (Caste Act 2000). The first proviso to
Section 9A, however, subject to certain conditions, permits a person to
so contest even without submitting the Validity Certificate, provided,
he files an undertaking that he shall submit the Validity Certificate
within a period of six months from the date on which he is elected.
The second proviso to Section 9A provides that, if such person fails to
produce Validity Certificate within a period of six months from the date
on which he is declared elected, his election shall be deemed to have
been terminated retrospectively and he shall be disqualified for being a
Councillor.
The main issue involved in this reference is whether the
aforesaid stipulation of six months for production of Validity Certificate
is only directory as held by the Division Bench (Coram S. B. Mhase and
D. G. Karnik, JJ) in the case of Dadasaheb A. Gulve Vs. State of
Maharashtra and Ors.1 (Gulve) or whether the same is mandatory, as
held by the Division Bench (Coram : D. D. Sinha and A. P. Bhangale,
JJ.) in Sadashiv J. Shrote Vs. State of Maharashtra and Ors. 2
(Shrote).
1 2008(2) Bom.C.R.712
2 2010(1) Mh.L.J. 203
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2] The genesis of this reference is the order dated 11 August
2015 made in the present Writ Petition by the Division Bench ( Coram:
Naresh H. Patil & V. L. Achliya, JJ). This order takes cognizance of the
aforesaid conflict and opines that the matter be placed before the
Hon'ble Chief Justice to consider whether reference needs to be made
to a Larger Bench. The order also notes that the following questions of
law arise :
(i) Whether the time limit prescribed u/s 9A of the
Maharashtra Municipal Councils, Nagar Panchayats and
Industrial Townships Act, 1965, for submission of caste
validity certificate by elected Councilor is mandatory in
nature?
(ii) Whether the failure on the part of person elected as
Councilor to produce the caste validity certificate within the
period of six months from the date on which he was declared
elected, irrespective of facts and circumstances and
eventuality beyond the control of such person to produce
validity certificate would automatically result into
termination of his election with retrospective effect?
(iii) Whether the validation of caste claim of elected
Councilor by the Scrutiny Committee beyond the prescribed
period would automatically result into termination of such
Councilor with retrospective operation?
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3] The Hon'ble Acting Chief Justice, by administrative order
dated 20 November 2015 constituted the Full Bench and made the
present reference. Later on, by an order dated 28 June 2016, the
constitution of the Full Bench was changed to its present Coram.
4] Although, we are not required to go into the factual
controversy in the petition, a brief reference to the facts will assist in
the appreciation of factual setting in which the issues referred for
determination arise.
5] Manisha (respondent No.4), relying upon the first proviso
to Section 9A filed her nomination papers on 29 May 2013 for
election as a Councillor from Ward No.2, Bhor Municipal Council
(BMC), a position reserved for women belonging to Other Backward
Classes (OBC). Along with her nomination papers, she submitted the
prescribed statutory undertaking that she will submit Validity
Certificate within a period of six months from the date of her election.
Manisha was declared elected on 23 June 2013 defeating inter alia, the
petitioner no.2 (Sneha). The six months period expired on 22
December 2013, within which period Manisha failed to produce
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Validity Certificate from the Scrutiny Committee. Sneha and her
husband petitioned the authorities by invoking the second proviso to
Section 9A and urging that Manisha's election stands terminated
retrospectively and she stands disqualified from being a Councillor.
During the pendency of such proceedings, Manisha produced the
Validity Certificate dated 29 January 2014 before the authorities on 12
February 2014.
6]
The authorities have neither accepted nor rejected the
contentions of either parties, but merely refrained from taking any
decision in the matter. Sneha and her husband have therefore
instituted the present petition seeking a declaration that Manisha's
election stands terminated retrospectively and that she is disqualified
for being a Councillor. Consequent directions for bye-elections from
Ward No.2, BMC have also been applied for.
7] Mr. P. D. Dalvi, leaned Counsel for the petitioners and Mr.
A. B. Vagyani, learned Government Pleader for the State, submit that
the stipulation as to time in Section 9A is mandatory and must be
construed accordingly. They submit that the right to contest election
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to a Municipal Council is only a statutory right and therefore,
restrictions imposed upon such right by the Statute have to be strictly
construed and enforced. They submit that the legal provisions of
Section 9A are plain, clear and unambiguous. Therefore, they submit
that compliance with such provisions cannot be avoided having regard
to any alleged harsh or absurd consequences.
8] Mr. Dalvi and Mr. Vagyani submit that legislature has
consciously used the term "shall", not merely with regard to the
production of Validity Certificate, but, also with regard to the
production of Validity Certificate within a stipulated period of six
months. They submit that legislature has also provided consequences,
in case of non compliance with the condition of producing the Validity
Certificate within a stipulated period. These, according to the learned
counsel, are sufficient indications to construe Section 9A as mandatory.
They submit that in case the provisions are construed as directory,
then, significant portions of Section 9A, including the entire second
proviso to Section 9A will be rendered redundant. They submit that
any interpretation which renders the provisions of a Statute
redundant, otiose or surplusage has to be avoided. They rely upon the
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decisions in Padubidri D. Shenoy v. Indian Airlines Ltd. and anr. 3,
Gurudevdatta VKSSS Maryadit and anr. v. State of Maharashtra 4,
State of Jharkhand v. Govind Singh5, MRF Ltd., v. Manohar
Parrikar6, Union of India and ors. v. A. K. Pandey 7, Jaswantsingh
Mathurasingh and anr. v. Ahmedabad Municipal Corporation and
ors.8, Ku. Nirmala G. Parate v. State of Maharashtra & ors. 9 and
Banwari Dass v. Sumer Chand10, Bipinchandra S. Thombre and ors.
vs. State of Maharashtra and ors.11ig
9] Mr. L. M. Acharya, learned counsel for Manisha, submits
that the present reference is itself incompetent or in any case, should
be returned unanswered. He submits that the pre-condition for
making reference to the Full Bench is the existence of conflict between
the decisions of two coordinate Benches. He submits that in this case,
there is no conflict between Gulve and Shrote, since, Shrote, according
to him, was decided per incuriam. He submits that Shrote, which was
decided on 10 June 2009 had failed to notice that the two provisos,
3 AIR 2009 SC (SUPP ) 1921
4 AIR 2001 SC 1980
5 AIR 2005 SC 294
6 (2010) 11 SCC 374
7 (2009) 10 SCC 552
8 1992 Supp (1) SCC 5
9 2010(3) All. M.R.904
10 (1974) 4 SCC 817
11 2010(2) Bom. C.R. 656
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which contain the stipulation as to time, were not even on the statute
book on the said date. Further, he submits that Shrote had failed to
take notice of the binding precedent in Gulve decided on 20 December
2007. Further, he points out that the Special Leave Petition (SLP)
against Gulve was dismissed by the Supreme Court on 18 February
2008. This means that the view in Gulve was affirmed by the Supreme
Court and constituted a binding precedent upon the Bench which
decided Shrote at a later date. For these reasons, the learned counsel
contends that Shrote is clearly per incuriam and therefore, the present
reference is either incompetent or in any case, must be returned
unanswered. He relies upon Sundeep Kumar Bafna vs. State of
Maharashtra12, and Union of India vs. R. P. Singh 13 to explain the
concept of per incuriam.
10] Mr. Acharya, without prejudice to above, submits that
Gulve represents the correct position in law. He submits that an
elected Councillor, by applying to the Scrutiny Committee for issue of
Validity Certificate even before filing his nomination papers has done
everything within his power and means and such elected Councillor
12 2014(16) SCC 623
13 2014(7) SCC 340
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cannot be prejudiced for failure of the Scrutiny Committee to
expeditiously dispose of his application for issue of Validity Certificate.
Having regard to harsh, inequitable and even absurd consequences, he
they submits that whilst production of Validity Certificate may be
mandatory, the stipulation as to time within which the same has to be
produced, is only directory. The learned counsel cites the case of
Manisha as a classic instance, in which, the hardship, inequity and the
absurdity would be writ large, if the provision as interpreted as
mandatory.
11] Mr. Acharya submits that use of expression like 'shall' or
provision of consequence in case of breach are not, by themselves,
determinative in the construction of the provisions as mandatory or
directory. He submits that object of the legislation and the intent of the
legislature are equally important factors. Relying upon Dattatraya
Moreshwar Pangarkar v. State of Bombay14, he submits that since the
provision relates to performance of public duty and disregard causes
serious prejudice to those for whose benefit such provision is enacted
and at the same time, such persons have no control over the
14 AIR 1952 SC 181
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performance of that duty, such provision has to be construed as
directory and not mandatory. He submits that construing such
provision as mandatory will possibly render the provision ultra vires
and unconstitutional being arbitrary and unreasonable. He submits
that such a construction will defeat the mandate of Article 243T of the
Constitution of India which provides for reservations at municipal
election. The learned counsel submits that where two interpretations
are reasonably possible, the interpretation which saves the provisions
for the charge of unconstitutionality must be preferred.
12] Finally, Mr. Acharya, by reference to the provisions
contained in Sections 4 and 10 of Caste Act 2000 submits that Section
10(4) of the Caste Act 2000 has been construed as an additional
disqualification in all acts dealing with election to various local
authorities in the decision of Division Bench of this Court in
Dattatraya R. Thorat Vs. State of Maharashtra15. He submits that
the view taken in this decision has been upheld by the two Full
Benches in Sujit Vasant Patil Vs. State of Maharashtra 16 and Ramesh
Suresh Kamble Vs. State of Maharashtra and ors.17. In view of this
15 2003 (5) Mh.L.J. 539
16 2004 (3) Mh.L.J. 1109
17 2007(1) Mh.L.J. 423
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position, the learned counsel submits that the provision in Section
10(4) of the Caste Act 2000, which even otherwise, commences with a
non-obstante clause, will override the provisions in Section 9A of the
said Act. Thus construed, election of a candidate elected to a reserved
seat could stand automatically terminated if and only if his Caste
Certificate is found to be false, bogus or is cancelled by the Scrutiny
Committee in accordance with the procedure laid down under the
Caste Act and the Rules made thereunder and not otherwise.
13] Mr. Murtaza Nazmi, learned counsel and others whilst
adopting the submissions made by Mr. Acharya, submitted that severe
hardships would result elected Councilors, if the provisions are
construed as mandatory. They submit that delay in issuance of Validity
Certificate can never be for reasons attributable to the elected
Councilors and therefore, it is unfair that such elected Councilors
suffer for no fault on their part. Having regard to the drastic
consequences prescribed, they submit that the provisions must be
construed as directory so that the provisions can be sustained and at
the same time its harsh consequences, neutralised.
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14] The rival contentions now fall for our consideration.
15] The submissions as to incompetency of the reference
proceed upon the premise that the power of the Chief Justice to make
such reference is confined only to cases where a conflict is noticed
between decisions of two or more coordinate Benches. Such a premise,
is neither supported by any legal provisions nor by precedents.
16]
In Central Board of Dawoodi Bohra Community and anr.
v. State of Maharashtra and anr.18 and Vinayak H. Kulkarni v. State
of Maharashtra and ors.19, the Supreme Court and the Full Bench of
this Court have traced the power of the Chief Justice to make reference
to the Full Bench to the very position of the Chief Justice being 'Master
of the Roster' as also to Clause 36 of the Letters Patent. The Full Bench
also makes reference to Rule 7 of Chapter -I of the Bombay High Court
Appellate Side Rules, 1960. No provision was pointed out in support of
the submission that the power of the Chief Justice to make a reference
to the Full Bench can be exercised only when a conflict is noticed
between the decisions of two or more coordinate Benches. Rather, the
18 (2005) 2 SCC 673
19 2010(4) Mh.L.J. 868
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provision in Rule 7 Chapter - I, suggests the absence of any such
fetter.
17] Rule 7 Chapter-I which came up for consideration in
Shaikh Babbu s/o. SK. Khutbuddin v. Sayeda Masarat Begum w/o.
Shaikh Babbu and anr.20 and Vinayak Kulkarni (supra), provides
that if it shall appear to any Judge, either on the application of a party
or otherwise, that an appeal or other matter can be more
advantageously heard by a Bench of two or more Judges, he may report
to that effect to the Chief Justice who shall make such order thereon as
he shall think fit. The circumstance that the Division Bench, in its
order dated 11 August 2015 has noted that the petition raises the
stated important questions of law is sufficient to infer that the Division
Bench was indeed of the opinion that this is the matter which can be
more advantageously heard by a Bench of more than two Judges. The
Chief Justice, upon consideration of the order dated 11 August 2015
and even otherwise, was therefore competent to make the present
reference and it will not be appropriate to return such reference
unanswered.
20 1999 (3) Mh.L.J. 465
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18] Even otherwise, the submission that Shrote, which was
decided on 10 June 2009 failed to notice the correct text of the
provisions as on that date and is therefore per incuriam, cannot be
accepted. If the facts in Shrote are minutely examined, it is clear that
Shrote was elected as a Councillor on 8 October 2007. On that date, as
also on the date of expiry of period of three months from the date of
such election, the two provisos to Section 9A of the said Act were very
much a part of the statute. The question which Shrote decides is in the
context of the provisions as they stood upon the relevant date. For this
purpose, there was no necessity to take cognizance of the deletion of
the two provisions w.e.f. 2 May 2008 or the status of the provisions as
existing on the date of decision, i.e., 10 June 2009. On the ground
urged therefore, it cannot be said that Shorte was decided per
incuriam.
19] Although, it is correct that Shrote, which was decided on
10 June 2009 has failed to take note of Gulve decided by the
coordinate Bench on 20 December 2007, that by itself, will not render
the present reference incompetent. As noted earlier, the power of the
Chief Justice to make reference to the Full Bench is not confined only
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to the situation where a conflict is noticed between the decisions of
two or more coordinate Benches. Similarly, the summary dismissal of
SLP against Gulve does not attract doctrine of merger and therefore, in
that sense, it cannot be said that the ratio of Gulve stands affirmed by
the Supreme Court in its order dated 18 February 2008, summarily
dismissing the SLP. In terms of law laid down by the Supreme Court
itself in Kunhayammed vs. State of Kerala21, V. M. Salgaocar and
Bros. Pvt. Ltd vs. Commissioner of Income Tax22, the dismissal of SLP
without commenting upon the correctness or otherwise of the order
from which leave to appeal came to be applied, only means that the
Supreme Court did not consider the matter to be fit enough for
exercise of jurisdiction under Article 136 of the Constitution of India.
Accordingly, we are unable to either hold that the present reference is
itself incompetent or that we ought to return the present reference,
unanswered.
20] A brief reference to the legislative history will assist in
determination of the scope and import of Section 9A. This section has
its genesis in the constitution (74th Amendment) which introduced
21 (2000) 6 SCC 359
22 (2000)5 SCC 373
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Part - IX A in the Constitution comprising Article 243-P to 243-ZG.
Particular reference is necessary to Article 243-T which mandates
that seats shall be reserved for scheduled caste and scheduled tribes at
election to local bodies. Clause 6 of Article 243-T provides that
nothing in Part-IXA shall prevent the legislature of a State from making
any provision for reservation of seats in any Municipality or offices of
chairpersons in the Municipalities in favour of backward class of
citizens.
21] In order to fulfill the constitutional mandate of Article 243-
T, the State of Maharashtra, by Maharashtra Act No. XXXV of 2006
(which came into force from 19 August 2006 ) amended several
municipal legislations dealing with local bodies, including, by way of
introducing Section 9A. Incidentally, Section 9A in its original form had
no provisos and reads thus :
9A. Every person desirous of contesting election
to a seat reserved for the Scheduled Castes,
Scheduled Tribes, or, as the case may be,
Backward Class of Citizens, shall be required to
submit, along with the nomination paper, Caste
Certificate issued by the Competent Authority and
the Validity Certificate issued by the Scrutiny
Committee in accordance with the provisions of
the Maharashtra Scheduled Castes, Scheduled
Tribes, De-notified Tribes (Vimukta Jatis),
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Nomadic Tribes, Other Backward Classes and
Special Backward Category (Regulation of
Issuance and Verification of) Caste Certificate Act,
2000."
22] The two proviso were added to Section 9A by the
Maharashtra Municipal Corporations and Municipal Councils
(Amendment) Ordinance 2006 which came into force from 27 October,
2006. The two provisos, then, read thus:
Provided that, a person who has applied to the
Scrutiny committee for the verification of his
Caste Certificate before the date of filing the
nomination paper but who has not received the
validity certificate on the date of filing of the
nomination paper,-
i) a true copy of the application preferred by him
to the Scrutiny Committee for issuance of the
validity certificate or any other proof for having
made such application to the Scrutiny
Committee; and
ii) an undertaking that he shall submit, within a
period of three months from the date of his
election, the validity certificate issued by the
Scrutiny Committee;
Provided further that, if the person fails to
produce the validity certificate within a period of
three months from the date of his election, his
election shall be deemed to have been terminated
retrospectively and he shall be disqualified for
being a Councillor".
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23] The statement of objects and reasons appended to the
above Ordinance dated 27 October 2006 read thus :
"STATEMENT
By the Maharashtra Municipal Corporations and
Municipal Councils (Amendment) Act, 2006 (Mah.XXXV of
2006), the Mumbai Municipal Corporation Act, the Bombay
Provincial Municipal Corporations Act, 1949, the City of
Nagpur Corporation Act, 1948 and the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965, have been amended to provide that a
person who desires to contest election to a reserved seat shall
submit, at the time of filing of nomination, the Caste
Certificate issued to him by the competent authority and the
validity certificate issued by the Scrutiny Committee in
accordance with the provisions 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.
2. The Government has received the number of
representations from people's representatives to the effect that
in view of the pendency of large number of applications with
the Scrutiny Committee, number of persons desirous of
contesting the elections to the reserved seats, will not get the
validity certificate issued by the Scrutiny Committee before
the date of filing nominations and, as a result, they would be
deprived of their right to contest the election. The
Government, therefore, considers it expedient to amend the
aforesaid Acts with a view enable the person who has applied
for issuance of validity certificate to the Scrutiny Committee
but who has not received the validity certificate to contest the
election to the reserved seat on the condition that he will
submit, at the time of filing the nomination paper, true copy
of the application made by him to the Scrutiny Committee
and give an undertaking that he will produce the validity
certificate within a period of three months from the date of
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his election. Provision is also proposed to be made that if he
fails to produce the validity certificate within a period of
three months as per the undertaking given by him, his
election shall be deemed to have been terminated
retrospectively and he shall be disqualified for being a
Councilor.
3. As both Houses of the State Legislature are not in
session and the Governor of Maharashtra is satisfied that
circumstances exist which render it necessary for him to take
immediate action further to amend the Mumbai Municipal
Corporation Act, the Bombay Provincial Municipal
Corporations Act, 1949, the City of Nagpur Corporation Act,
1948 and the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965, for the
purposes aforesaid, this Ordinance is promulgated.
Mumbai, S.M. KRISHNA,
th
Dated the 27 October 2006. Governor of Maharashtra.
By order and in the name of the Governor of Maharashtra,
DR.J.M.PHATAK,
Principal Secretary to Government."
24] The Ordinance was replaced by the Maharashtra Municipal
Corporations, Municipal Councils (Second Amendment) Act 2006,
which was again, deemed to have come into force on 27 October 2006
for the sake of continuity. This was by virtue of Maharashtra Act No.
XLIX of 2006 published in the Official Gazette on 29 December 2006.
25] By the Maharashtra Act No. XIII of 2008 which came into
force from 2 May 2008, both the aforesaid provisos to Section 9A,
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came to be deleted. Thus, between 2 May 2008 and 8 October 2012
(the date of reintroduction of two provisos) in terms of Section 9A, a
person desirous of contesting an election to a reserved seat was
required to submit along with his nomination papers, not only a Caste
Certificate issued by the competent authority but also Validity
Certificate issued by the Scrutiny Committee.
26] By the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships, (Second Amendment) Ordinance 2012,
which came into force from 8 October 2012, the two provisos, with
some slight modifications, came to be reintroduced. The two provisos,
then, read thus :
"Provided that, for the General or bye-elections for which the
last date of filing of nomination falls on or before the 31 st
December 2013, in accordance with the election programme
declared by the State Election Commission, a person who has
applied to the Scrutiny Committee for the verification of his
Caste Certificate before the date of filing of the nomination
papers but who has not received the Validity Certificate on
the date of filing of the nomination papers shall submit,
alongwith the nomination paper,-
(i) a true copy of the application preferred by him to
the Scrutiny Committee for issuance of the Validity Certificate
or any other proof of having made such application to the
Scrutiny Committee; and
(ii) an undertaking that, he shall submit, within a
period of six months from the date on which he is declared
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elected, the Validity Certificate issued by the Scrutiny
Committee;
Provided further that, if the person fails to produce the
Validity Certificate within a period of six months from the
date on which he is declared elected, his election shall be
deemed to have been terminated retrospectively and he shall
be disqualified for being a Councillor."
27] The Ordinance of 2012 was replaced by Maharashtra Act
No. XXXI of 2012 published in Official Gazette on 24 December 2012,
thereby, formally introducing the aforesaid two provisos to Section 9A,
then, with effect from 8 October 2012 in order to ensure continuity.
The statement of objects and reasons issued at that stage read thus :
"STATEMENT OF OBJECTS AND REASONS
Section 9A of the Maharashtra Municipal Councils,
Nagar Panchayats and Industrial Townships Act, 1965 (Mah.
XL of 1965) provided that a person who desires to contest
election to a reserved seat shall submit, alongwith the
nomination papers, the Caste Certificate issued to him by the
Competent Authority and the Validity Certificate issued by the
Scrutiny Committee in accordance with the provisions 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
(Mah.XXIII of 2001).
2. The general elections of approximately ten Municipal
Councils were scheduled to be held in October 2012 and
preliminary work for holding those elections had already
commenced. Such elections of other Municipal Councils are
also likely to be held in near future. Taking into consideration
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the pendency of large number of applications with the
Scrutiny Committee, number of persons desirous of contesting
the elections to the reserved seats would not have got the
Validity Certificate issued by the Scrutiny Committee before
the date of filing nomination and as a result, they would have
been deprived of their right to contest the election. The
Government, therefore, considered it expedient to amend the
said Act with a view to allow the persons desirous of
contesting election for reserved seats and who had applied to
the Caste Scrutiny Committee for obtaining Caste Validity
Certificate at the time of filing the nomination, to submit the
Caste Validity Certificate within six months from the date on
which they were declared elected. Similarly, the Government
considered it expedient to amend section 51-1B of the said Act
to allow Presidents of the Councils elected against reserved
post, to submit the Validity Certificate within six months from
the date on which they were declared elected.
As both Houses of the State Legislature were not in
session and the Governor of Maharashtra was satisfied that
circumstances existed which rendered it necessary for him to
take immediate action further to amend the Maharashtra
Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965 (Mah. XL of 1965), for the purposes
aforesaid, the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships (Second Amendment)
Ordinance, 2012 (Mah. Ord. X of 2012), was promulgated
by the Governor of Maharashtra on the 8th October 2012.
4. The Bill is intended to replace the said Ordinance by an
Act of the State Legislature."
28] In order to complete the narration of legislative history, we
refer to Maharashtra Act No. XIII of 2015 which came into force from 7
April 2015, by which, the expression "before 31 December 2013" in the
first proviso to Section 9A was substituted by the expression " before
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31 December 2017". This amendment however has no significant
bearing upon the issues raised in the present reference.
29] In this case, we are concerned with the provisions of
Section 9A as they stood on the date when Manisha filed her
nomination papers i.e., on 29 May 2013; or on the date of election
i.e., 23 June 2013; or on 23 December 2013 i.e., expiry of six months
from the date of elections. On all these dates, Section 9A with which
we are concerned, read thus :
"9A. Person contesting election for reserved seats to submit
Caste Certificate and Validity Certificate:
Every person desirous of contesting election to a seat
reserved for the Scheduled Castes, Scheduled Tribes, or, as the
case may be, Backward Class of Citizens, shall be required to
submit, along with the nomination paper, Caste Certificate
issued by the Competent Authority and the Validity
Certificate issued by the Scrutiny Committee in accordance
with the provisions 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.
Provided that, for the General or bye-elections for
which the last date of filing of nomination falls on or (before
the 31st December 2013), in accordance with the election
programme declared by the State Election Commission, a
person who has applied to the Scrutiny Committee for the
verification of his Caste Certificate before the date of filing of
the nomination papers but who has not received the Validity
Certificate on the date of filing of the nomination papers
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shall submit, alongwith the nomination paper,-
(i) a true copy of the application preferred by him to
the Scrutiny Committee for issuance of the Validity Certificate
or any other proof of having made such application to the
Scrutiny Committee; and
(ii) an undertaking that, he shall submit, within a
period of six months from the date on which he is
declared elected, the Validity Certificate issued by the
Scrutiny Committee;
Provided further that, if the person fails to produce
the Validity Certificate within a period of six months
from the date on which he is declared elected, his
election shall be deemed to have been terminated
retrospectively and he shall be disqualified for being a
Councillor." ig (emphasis supplied)
30] Upon the plain reading of the provisions of Section 9A in
their entirety, we find that the main provision lays down the general
rule that a person desirous of contesting election to a reserved seat
has to submit along with the nomination papers, caste certificate and
Validity Certificate issued in accordance with the Caste Act, 2000. The
first proviso, which was to apply for general or bye-election for which
the last date of filing nomination fell on or before 31 December 2013
however makes an exception or grants a concession from the
application of general rule in the main provision. It provides that a
person who has applied to the Scrutiny Committee for issuance of
Validity Certificate before the date of filing nomination papers, but
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who has not received the Validity Certificate on the date of filing the
nomination papers shall submit alongwith the nomination papers, (i)
a true copy of the application preferred by him to the Scrutiny Committee
for issuance of the Validity Certificate or any other proof of having made
such application to the Scrutiny Committee; and (ii) an undertaking
that, he shall submit, within a period of six months from the date on
which he is declared elected, the Validity Certificate issued by the Scrutiny
Committee. From the context and the legislative intent, it is clear that
the first proviso enables such person to contest the election. The
second proviso provides for consequences where the beneficiary of
exception or the concession fails to comply with the conditions subject
to which the exception or the concession was availed. It provides that
where such person fails to produce Validity Certificate within period of
six months, as statutorily provided and as undertaken by him from the
date of his election, then, the election of such person shall be deemed
to have been terminated retrospectively and he shall be disqualified
from being a Councillor.
31] In Gulve, the Division Bench has construed the stipulation
of six months within which to produce the Validity Certificate as
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directory and on such basis held that failure to produce the Validity
Certificate within the stipulated period of six months neither
terminates the election of such Councillor nor does it render him
disqualified for being a Councillor. The reasoning seems to proceed on
the basis that the delay in producing the Validity Certificate is
invariably for reasons attributable to the Scrutiny Committee and, in
any case, for reasons not attributable to the elected Councillor. In such
circumstances, it is reasoned that it would be harsh and inequitable to
penalize the elected Councillor for circumstances over which he has no
control. In construing the provision as directory, the Division Bench
has held the following :-
(i) that the use of the term "shall" and the providing of
consequences for breach, are not always conclusive in
determining the imperative nature of the provision; rather,
the emphasis has to be on the object, which, in the present
case is not to deny "persons genuinely belonging to the
backward classes" their right to contest elections to reserved
seats, but the object is to disable "imposters or fraudsters" from
wrongfully claiming such benefit;
(ii) the requirement of producing Validity Certificate within
six months from the date of election is only a procedural
requirement; the persons desirous of contesting to reserved
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seats, having applied for issue of Validity Certificate before
filing nomination papers, cannot be prejudiced on account of
delay on the part of Scrutiny Committee in issuing the same;
to penalize the elected person for no fault on his part or
rather, on account of the fault on the part of the Scrutiny
Committee in not disposing of his application with
promptitude, would amount to inequity. Having regard to
such consequences, provision is required to be interpreted as
directory;
(iii) since the provision requires a statutory authority to do
the thing within specified period and the citizen has no
control over the statutory authority requiring it to do the thing
within the specified period, applying the principle laid down
by the Supreme Court in the case of Dattatraya Moreshwar
Pangarkar (supra), the provision has to be construed as
directory ; and
(iv) the provisions of Section 10(4) of the Caste Act 2000
and Section 9A have to be interpreted harmoniously and
harmony can be achieved only by interpreting the stipulation
as to time, as directory.
32] The aforesaid reasoning is reflected in paragraphs 10, 16,
17 and 21 of Gulve, transcribed below for convenience of the
reference.
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10. The object of section 5-B of the MMC Act is to ensure that
only the persons belonging to backward classes are only elected
and occupy the post of councillor reserved for backward classes.
The persons, who do not belong to backward classes but who
falsely claim the social status of belonging to backward classes,
should not usurp the benefit of reservation made in favour of
backward classes. It is with this object that section 5-B was
introduced by an amendment in the MMC Act requiring
production of a caste certificate and caste validity certificate at
the time of filing of the nomination paper. However, that object
was defeated because even the genuine persons belonging to
backward classes were some times denied the opportunity to
contest election merely because though they had obtained the
caste certificate had not been able to obtain the caste validity
certificate from the Scrutiny Committee before the last date for
filling up the nomination paper. Often on account of their
backwardness, they were unable to make application for
verification of the caste certificate well in advance of the
proposed elections and some times though they had made
applications for obtaining caste validity certificate well in
advance, the same was not decided by the Scrutiny Committee
for no fault of theirs. To deny such genuine persons belonging to
backward classes an opportunity to contest the election would
amount to travesty of the constitutional mandate of reservations
in favour of the backward classes. It is for this reason that two
provisos to section 5-B were added in the MMC Act enabling the
persons belonging to backward classes to contest the election by
producing at the time of nomination paper the caste certificate
along with a proof of having applied for verification of the caste
certificate and filing an undertaking for production of the caste
validity certificate within the prescribed period. It is worthy to
note that initially the period prescribed by the second proviso to
section 5-B of the MMC Act for production of caste certificate
was three months. The Legislature however was aware that the
Scrutiny Committees were flooded with applications for
validation of the caste certificates, especially in the aftermath of
the elections to the municipalities, and were therefore unable to
decide the applications within three months. The Legislature,
therefore, by an amendment extended the period for production
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of caste validity certificate from three months to four months
(vide Maharashtra Act No.XV of 2007). The penal consequence
provided by the second proviso to section 5-B of the MMC Act is
really not meant to operate against genuine and bonafide
persons belonging to the backward classes, but is intended to
operate against an impostor, a fraudster, a spurious person who,
though not belonging to any of the backward classes, contests
the elections on a false claim of having social status of backward
class. It is in order to see that such impostors and fraudsters do
not continue to reap the benefits as councillors and represent the
constituency reserved for backward classes that a provision of
automatic termination of election has been made. The object of
penal provision is not to punish for the delay genuine persons
whose caste claims have been accepted by the Scrutiny
Committee, but to punish impostors or fraudsters who had
wrongly claimed the social status of belonging to backward
classes.
.........
.............
16. If we hold that period of 4 months for production of caste
validity certificate as mandatory, the consequence would result
in frustration of constitutional mandate of reservation for
backward classes contained in Articles 243-D and 243-T of the
Constitution of India. That is impermissible. We are of the view
that the period of 4 months is directory.
17. It is trite to say that when a statute requires anything to
be done by a statutory authority or a government officer within
a prescribed period and the citizen has no control over the
statutory authority or the government officer requiring him to
do the thing within the specified time, the provision of a statute
or rule requiring the thing to be done within the specified time
must be held to be directory. This is because the citizen has no
control over the statutory authority or the government officer
and he cannot suffer from the negligence of the statutory
authority or the government officer in failure to perform the
duty within the specified time. This principle was enunciated by
the Constitution Bench of the Supreme Court in Dattatraya
Moreshwar v. The State of Bombay, reported in AIR 1952 SC
181, wherein Das J. observed:
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"In my opinion, this contention of the learned Attorney-
General must prevail. It is well settled that generally
speaking the provisions of a statute creating public duties
are directory and those conferring private rights are
imperative. When the provisions of a statute relate to the
performance of a public duty and the case is such that to
hold null and void acts done in neglect of this duty would
work serious general inconvenience or injustice to persons
who have no control over those entrusted with the duty
and at the same time would not promote the practice of
the Courts to hold such provisions to be directory only, the
neglect of them not affecting the validity of the acts done."
..........
...........
21. Aims and object of section 5-B and the provisos thereto is
that while persons belonging to backward classes get the benefit
of reservation of seats, persons who do not belong to a
backward class do not illegally usurp the benefit of reservation
in favour of backward classes. The real intention of the
legislature is to ensure that the candidate elected to a reserved
seat belongs to a backward class. The period of 4 months for
production of caste validity certificate is merely a procedural
requirement. It cannot supplant the constitutional mandate and
even invalidate the election of a person who belongs to a
backward class. We, therefore, hold that the period of 4 months
prescribed for production of caste validity certificate by proviso
to section 5-B of the MMC Act and the BPMC Act, section 9-A of
the Municipalities Act, section 12-A of the Zilla Parishads Act
and section 10-A of the Village Panchayats Act is merely
directory. However, by holding it to be directory we do not mean
to say that the elected candidate can go on seeking
adjournments before the Scrutiny Committee at the time of
hearing and continue to hold the post of a councillor. An
impostor and a fraudster, who does not belong to a backward
class, would always try to seek adjournments before the
Scrutiny Committee so as to continue to reap the benefits of
reservation. In such a case, the appropriate authority would not
be powerless to declare his election to be terminated
retrospectively on his failure to produce caste validity certificate
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within a reasonable time (which in no case can be shorter than
the statutory period of 4 months). If, however, for no fault of his
the Scrutiny Committee is unable to decide on the validity of his
caste certificate and actually decides his claim say after about 5-
6 months instead of 4 months, the period of 4 months cannot be
held to be mandatory. If, however, the Scrutiny Committee
invalidates the caste claim of the elected candidate and/or
cancels the caste certificate obtained from the competent
authority by him, then the election shall stand terminated
forthwith on the decision of the Scrutiny Committee".
33] On the other hand, Shrote has held that the stipulation as
to time within which to produce the Validity Certificate is mandatory.
The Division Bench has reasoned that the provision of Section 9A is
"specific, clear and self explanatory". The legislature has used the
expression "shall" and the proviso to Section 9A not only stipulates that
the Validity Certificate must be produced but further that the Validity
Certificate must be produced within a stipulated time limit of six
months from the date of election. Further, second proviso, in terms,
provides the consequences in case of failure to produce the Validity
Certificate within a stipulated period. The consequences are the
automatic termination of election of such candidate with retrospective
effect and disqualification for being a Councillor. In such a situation,
not even a formal declaration in that regard by any authority is
necessary. The provision is a self contained code which provides not
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only the procedure to be followed by the elected Councillor, but also
the consequences in case of omission to follow the said procedure.
34] The reasoning in Shrote is reflected in paragraphs 6, 7 and
8, and the same is transcribed below for the reference of convenience.
"6. In the instant case, the following facts are not in dispute:
The petitioner contested the election of the Councilor from
the Scheduled Tribe category. The petitioner has submitted his
caste claim to the Scrutiny Committee for verification before
filing the nomination and, as per the proviso to section 9-A the
petitioner was required to submit validity certificate within a
period of three months from the date of election, i.e., 8 th
October, 2007 which the petitioner could not submit since the
caste claim of the petitioner was not decided by the Scrutiny
Committee.
7. Proviso to section 9-A required candidate to give an
undertaking, that he shall submit within a period of three
months from the date of his election the validity certificate
issued by the Scrutiny Committee. It also gave consequences of
failure to submit validity certificate within a period of three
months from the date of election, i.e., election of such candidate
shall be deemed to have been terminated retrospectively and
such candidate shall be disqualified for being a Councillor. It is,
therefore, evident that the proviso to section 9-A which was
inserted by the Maharashtra Municipal Corporations and
Municipal Council (Amendment) Ordinance, 2006 did not leave
any room for doubt about the consequences, on failure to
submit validity certificate within a period of three months from
the date of election by the elected candidate. The provision is
specific, clear and self explanatory (now deleted).
8. It is no doubt true that once the caste claim is submitted
to the Scrutiny Committee for verification. It is for the Scrutiny
Committee to decide the same according to the procedure and
provisions of the Maharashtra Scheduled Castes, Scheduled
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Tribes, De-notified Tribes (VJ) Nomadic Tribes, Other Backward
Classes and Special Backward Category (Regulation of Issuance
and Verification of) Caste Certificate Act, 2000 and the
candidate who has submitted his/her caste claim for verification
has no role to play in this regard. However, the proviso to
section 9-A not only gave time within which validity certificate
was required to be submitted by the elected Councillor but also
provided consequences for failure to submit validity certificate
within a period of three months from the date of election. Thus,
the consequences were automatic cessation/termination of
election of such candidate with retrospective effect and such
candidate shall also be disqualified for being a Councillor. It is
in such situation not even a formal declaration in this regard by
the Authority was necessary. If the elected candidate failed to
submit the validity certificate within three months from the date
of election, the election of such candidate would stand
terminated automatically with retrospective effect and such
candidate also stood disqualified for being a Councillor. The
provision was self contained code which had provided not only
the procedure to be followed by the elected Councilor but also
provided consequences in case of omission to follow the said
procedure. As per the said provision it was not even necessary
for the Collector to declare the election of such candidate was
terminated and he/she has incurred disqualification for being a
Councillor. However, in the case of the petitioner, the Collector,
Nagpur gave such declaration which is impugned in the present
writ petition. It is not in dispute that the petitioner could not
submit validity certificate within three months from the date of
election and, therefore, the election of the petitioner was liable
to be terminated with retrospective effect and petitioner was
disqualified as a Councillor."
35] As noted earlier, the main issue in this Reference is whether
the stipulation as to time in the two provisos to Section 9A, within
which, an elected candidate is required to produce Validity Certificate
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is directory or mandatory. There are several rules to determine
whether a provision is mandatory or directory. However, such rules
are neither exhaustive nor universal. In fact, the universal rule is that
there is no universal rule in such matters. In In Liverpool Borough
Bank v. Turner23 , Lord Campbell, C.J. At p.380 said : (ER p. 718) :
"..... No universal rule can be laid down for the construction of
statutes, as to whether mandatory enactments shall be
considered directory only or obligatory, with an implied
nullification for disobedience. It is the duty of the Courts of
justice to try to get at the real intention of the legislature by
carefully attending to the whole scope of the statute to be
construed".
36] Some of the well known tests to determine whether a
provision is mandatory or directory are as follows:
(i) The use of expressions like "shall" or "may" are not
conclusive and regard must he had to the true intent of the
legislation. However, use of expressions like "shall" or
"should" or "must" by the legislature at least prima facie,
indicates mandatory nature. Similarly, the use of expressions
like "may" or "as nearly as may be" by the legislature, at least
prima facie indicates directory nature. State of UP Vs. B. R.
Upadhya 24;
(ii) The circumstance that the statute itself provides
consequences of breach or non-compliance, normally suggests
23 (1860) 30 LJ Ch. 379
24 AIR 1961 SC 751
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a mandatory nature; Maqbool Ahmad vs. Onkar Pratap
Narain Singh 25 Manilal Shah vs. Sardar Mahmad 26;
(iii) A provision couched in negative form, generally
suggests mandatory nature; Affirmative words, simplicitor,
generally suggest directory nature; M. Pentiah vs. Muddla 27;
Dharamdeo Rai vs. Ramnagina Rai, 28;
(iv) A procedural rule, should ordinarily, not be construed as
mandatory; If a provision relates to performance of any public
duty and the invalidation of any act done in disregard of that
provision causes serious prejudice to those for whose benefit
it is enacted and at the same time, who have no control over
the performance of the duty, such provision should be treated
as directory; Dattatraya Moreshwar (supra);
(v) If a statute confers a concession or privilege and
prescribes a mode of acquiring it, the mode so prescribed
must be adopted as even affirmative words in such cases are
construed imperative; Edward Ramia Ltd. vs. African Woods
Ltd. 29;
(vi) Where a provision prescribes that a certain act has to be
done in a particular manner by a person in order to acquire a
right and it is coupled with another provision which confers
an immunity on another when such act is not done in that
manner, the former has to be regarded as mandatory one;
(vii) Provisions which impose private duties or obligations
25 AIR 1935 PC 85, p.88
26 AIR 1954 SC 349
27 AIR 1961 SC 1107
28 1972(1) SCC 460
29 1960 (1) ALL ER 627
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upon private parties are ordinarily to be regarded as
mandatory; - Kedarnath Jute Mfg, Co. Ltd. Vs. Commercial
Tax Officer,30 ;
(viii) If exceptions, exemptions or concessions are granted by
a statute subject to fulfillment of certain conditions, then such
conditions must be mandatorily fulfilled. Subject to
fulfillment of conditions, the provision may be liberally
construed;
(ix) The nature, design and consequences which would
follow from construing the provision as "mandatory" or
"directory". Where construction of a provision as directory will
render the provision or significant parts otiose, redundant or
a surplusage. The principle is that the legislature does not use
words in vain; and
(x) Where the construction of a provision as mandatory would
result in absurdity, which could never have been intended by
the legislature, the provision can be construed as directory.
37] Applying the aforesaid tests and having due regard to the
terms of the provisions, in our considered opinion, the stipulation as
to time in the two provisos to Section 9A, is required to be construed
as mandatory for several reasons. Firstly, the legislature has
repeatedly used the expression "shall" when it comes to the
requirement of producing Validity Certificate within the stipulated
30 AIR 1966 SC 12
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period and when it comes to providing consequences for breach;
Secondly, the legislature in the form of second proviso to Section 9A
has provided in no uncertain terms the consequences for failure to
produce the Validity Certificate within the stipulated period; Thirdly,
the provision which permits a person to contest without producing
Validity Certificate along with nomination papers, is in the nature of
exemption or concession. Such exemption or concession is conditional.
One of the conditions prescribed is production of Validity Certificate
within the stipulated period. Such a condition will have to be strictly
construed, otherwise, the conditional exemption will be availed, but
the condition will be breached. Fourthly, a directory construction
would render significant portions of Section 9A redundant and
unworkable. Fifthly, the individual hardship or trauma is quite
irrelevant when the statutory provision is plain, clear and
unambiguous. Such individual hardship or trauma is in fact inevitable
even when the provision is construed as directory. Sixthly, the
principle in Dattatraya Moreshwar Pangarkar (supra) is inapplicable
where consequences of breach are statutorily provided. Seventhly, the
reasoning in Gulve not only renders significant portions of the
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provision redundant, but results in rewriting the provision itself, which
is impermissible.
38] One of the cardinal principles of interpretation of statutes
is that the words of a statute must prima facie be given their ordinary
meaning, unless of course, such construction leads to absurdity or
unless there is something in the context or in the object of the statute
to the contrary. Therefore, when the words of a statute are clear, plain
and unambiguous, then, the Courts are bound to give effect to that
meaning, irrespective of the consequences involved. Normally, the
words used by the legislature themselves declare the legislative intent,
particularly where the words of the statute are clear, plain and
unambiguous. The effort must be to give meaning to each and every
word used by the legislature and it is not a sound principle of
construction to brush aside words in a statute as being redundant or
surplus, particularly when such words can have proper application in
circumstances conceivable within the contemplation of the statute.
Union of India vs. Tata Chemicals Ltd.,31
31 2014 (6) SCC 335
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39] In every case involving the construction of a statute, the
starting point must be the language used by the legislation. In
enacting Section 9A, the legislature has not minced words. The main
provision employs the expression "shall be required to submit....", when
it comes to submission caste certificate and Validity Certificate along
with the nomination papers. The main provision embodies the general
rule that a valid nomination be accompanied by not only the caste
certificate, but also the Validity Certificate. In fact, in case of Thombre
(supra) the Division Bench of this Court has already construed this
requirement as mandatory. The first proviso, which is in the nature of
an exemption or concession, enables acceptance of nomination papers
though unaccompanied by Validity Certificate, subject to fulfillment of
the specified conditions. One of the conditions prescribed is that "he
shall submit, within a period of six months from the date on which he is
declared elected, the validity certificate issued by the Scrutiny
Committee". The second proviso, again in clear, plain and
unambiguous terms provides for the consequences where such person
fails to produce the Validity Certificate within a period of six months
from date of his election, as undertaken by him. The consequence is
that "his election shall be deemed to have been terminated
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retrospectively" and "he shall be disqualified for being a Councillor".
40] The words and expressions employed by the legislature in
enacting Section 9A are plain, clear and unambiguous. In such a
situation, the words and expressions employed, themselves, declare
the intention of the legislature. There is no necessity to apply any
other aids or interpretation. The marginal notes, the legislative history
and even the statement of objects and reasons suggest that the general
rule in such matters is that the person desirous of contesting to a
reserved seat must submit along with his nomination papers, both, the
caste certificate and the Validity Certificate. Only in certain specified
cases, exemption or concession is granted from the production of
Validity Certificate along with nomination papers, provided such
person furnishes an undertaking that he shall produce the Validity
Certificate within six months from the date of election. Perhaps, in
order that there remains no ambiguity as to the consequence of failure
to produce such Validity Certificate within the stipulated period, the
legislature, by means of the second proviso to Section 9A has made it
clear that the failure will entail retrospective termination of the
election and disqualification for being a Councillor. When words and
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expressions employed by the legislature are plain, clear and
unambiguous, the Courts are bound to give effect to the meaning,
irrespective of the consequences.
41] In this case, the legislature has repeatedly used the word
"shall" and further, provided consequences in case of breach. There is
nothing, either in the text or in the context which suggests that the
provision, expressed so clearly, was intended to be construed as
directory or that the consequences so clearly prescribed were intended
to only apply in a situation where the elected candidate was found to
be responsible for the delay in the proceedings before the Scrutiny
Committee. In fact, Section 9A does not even provide for any
authority or mechanism to inquire into or determine whether the
elected candidate was responsible for the delay in the proceedings
before the Scrutiny Committee or not. These are, in our opinion,
weighty reasons for construing the provision as mandatory.
42] No doubt, the use of expressions like "shall" or "may" are
not conclusive in determining whether the provision is mandatory or
directory. However, user of expressions like "shall", "should", "must"
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raise a presumption that the provision is imperative or prima facie
mandatory. Further, when consequence of nullification on failure to
comply with a prescribed requirement is provided by the statute itself,
there is greater reason to construe such statutory requirement as
mandatory.
43] In Maqbool Ahmad vs. Onkar Pratap Narain Singh,
(supra) it is held that the period prescribed in the Schedule to Indian
Limitation Act, 1908 for bringing a legal proceeding are mandatory
since the consequence of expiry of period of limitation is provided by
Section 3 of the Act in that the Court is enjoined to dismiss a legal
proceeding instituted after the expiry of the prescribed period. In this
case, the second proviso to Section 9A, prescribes in precise terms the
consequences, where, there is failure to produce the Validity Certificate
within the stipulated period. To disregard such consequence would
virtually amount to grant of conditional exemption or concession
without insistence upon compliance with the statutorily prescribed
condition. The conditional concession or exception would then be
availed but the condition would remain unfulfilled. Such an
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interpretation will not be consistent either with the text or the context
of the provisions.
44] As mentioned earlier, the general rule in such matters is
that the person desirous of contesting election to a reserved seat must
produce along with his nomination papers both, the caste certificate as
well as the Validity Certificate. The first proviso, subject to the
fulfillment of the prescribed conditions, dilutes the rigour of this
general rule. Therefore, the conditions subject to which such
exemption or concession is granted are required to be strictly
construed. Otherwise, the conditional concession or exemption would
be availed but the condition, statutorily undertaken by such person to
be fulfilled would be breached.
45] In case of Sujit Vasant Patil (supra), the Full Bench of this
Court, in the context of inter play between similar Municipal
Legislations and the Caste Act 2000, has held that the legislature
expects a person to claim benefit of contesting to a reserved post only
after obtaining Validity Certificate from the Scrutiny Committee,
though it also permits a person to claim such benefit on the basis of a
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tentative caste certificate issued by the competent authority, if such a
person is willing to take the risk. Such reasoning is reflected in
paragraphs 12A, 12B and 12C. Since paragraph 12B is most relevant,
it is transcribed below for reference of convenience :-
"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...."
(emphasis supplied)
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46] According to Sujit Vasant Patil (supra), therefore, a person
who seeks to contest election to reserved posts without compliance
with the general rule of producing Validity Certificate alongwith
nomination papers, 'takes a risk' . The first proviso to Section 9A, in
such a case, makes this position quite clear by requiring such person to
furnish a statutory undertaking to produce Validity Certificate within
six months from the date of election. The second proviso, in terms,
provides for consequence in case of breach. Such person, having taken
the risk, cannot, in the absence of any ambiguity in the provision, be
permitted to wriggle out from the consequences of breach so clearly
and statutorily provided in the provision itself. Otherwise, such person,
will avail of a conditional concession, without, fulfilling the condition
subject to which such concession came to be granted in the first place
by the provision.
47] The concession or exemption in the matter of contesting to
a reserved post without compliance with the general rule of producing
Validity Certificate alongwith the nomination papers is provided by
enacting a 'proviso' to Section 9A. This proviso is further qualified by
yet another proviso specifying consequences of the breach of the
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condition, subject to which the concession or exemption is to be
granted in terms of the first proviso. The rules with regard to
interpretation of a 'proviso' are quite well settled. If any exception is
made or any exemption or concession granted by enacting a proviso to
the main provision and the same is subject to fulfillment of certain
prescribed conditions, then, ordinarily, the fulfillment of the
prescribed conditions is imperative. The question of liberal
construction in such matters arises only upon proof of fulfillment of
the conditions prescribed.
48] The rules with regard to interpretation of a 'proviso' support
such position. The normal function of a proviso is to provide an
exception i.e. exception of something that is outside the ambit of the
usual intention of the enactment, or to qualify something enacted
therein, which, but for the proviso would be within the purview of
such enactment. Thus, its purpose is to exclude something which
would otherwise normally fall within the general language of the main
enactment. Therefore, usually a proviso cannot be interpreted as a
general rule that has been provided for. So also, it cannot be
interpreted in a manner which would nullify the enactment or take
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away in entirely, a right conferred by the statute. When exception is
made or exemption is granted subject to fulfillment of certain
conditions, then, normally the provisions which relate to such
conditions are required to be construed as mandatory. (Rohitash
Kumar vs. Om Prakash Sharma32).
49] The rules with regard to interpretation of a "proviso" are
succinctly set out by the Supreme Court in Satya Pal Singh vs. State
of Madhya Pradesh,33 at paragraphs 11 to 13. In paragraph 12, by
reference to Sunderam Pillai vs. V.R. Pattabiraman, 34, the Supreme
Court has observed as follows :
"12. Further, a three Judge Bench of this Court by
majority of 2:1 in the case of Sunderam Pillai vs. V.R.
Pattabirama (1985) 1 SCC 591 has elaborately
examined the scope of proviso to the substantive
provision of the Section and rules of its interpretation.
The relevant paras are reproduced hereunder:
"30. Sarathi in Interpretation of Statutes at pages 294-
295 has collected the following principles in regard to a
proviso:
(a) When one finds a proviso to a section the natural
presumption is that, but for the proviso, the enacting part
of the section would have included the subject-matter of the
proviso.
(b) A proviso must be construed with reference to the
32 AIR 2013 SC 30
33 2015 Cr.L.J. 4929
34 1985(1) SCC 591
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preceding parts of the clause to which it is appended.
(c) Where the proviso is directly repugnant to a section,
the proviso shall stand and be held a repeal of the section as
the proviso speaks the latter intention of the makers.
(d) Where the section is doubtful, a proviso may be used
as a guide to its interpretation: but when it is clear, a
proviso cannot imply the existence of words of which there
is no trace in the section.
(e) The proviso is subordinate to the main section.
(f) A proviso does not enlarge an enactment except for
compelling reasons.
(g) Sometimes an unnecessary proviso is inserted by way
of abundant caution.ig
(h) A construction placed upon a proviso which brings it
into general harmony with the terms of section should
prevail.
(i) When a proviso is repugnant to the enacting part, the
proviso will not prevail over the absolute terms of a later
Act directed to be read as supplemental to the earlier one.
(j) A proviso may sometimes contain a substantive
provision.
XXX
32. In Ishverlal Thakorelal Almaula v. Motibhai
Nagjibhai it was held that the main object of a proviso is
merely to qualify the main enactment. In Madras and
Southern Mahrata Railway Co. Ltd. v. Bezwada
Municipality Lord Macmillan observed thus:
"The proper function of a proviso is to except and deal
with a case which would otherwise fall within the general
language of the main enactment, and its effect is confined to
that case."
33. The above case was approved by this Court in CIT v.
Indo Mercantile Bank Ltd. where Kapur, J. held that the
proper function of a proviso was merely to qualify the
generality of the main enactment by providing an exception
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and taking out, as it were, from the main enactment a
portion which, but for the proviso, would fall within the
main enactment. In Shah Bhojraj Kuverji Oil Mills and
Ginning Factory v. Subbash Chandra Yograj Sinha
Hidayatullah, J., as he then was, very aptly and succinctly
indicated the parameters of a proviso thus:
"As a general rule, a proviso is added to an enactment
to qualify or create an exception to what is in the
enactment, and ordinarily, a proviso is not interpreted as
stating a general rule.
XXX
36. While interpreting a proviso care must be taken that
it is used to remove special cases from the general
enactment and provide for them separately.
37. In short, generally speaking, a proviso is intended to
limit the enacted provision so as to except something which
would have otherwise been within it or in some measure to
modify the enacting clause. Sometimes a proviso may be
embedded in the main provision and becomes an integral
part of it so as to amount to a substantive provision itself."
(Emphasis supplied)
Thus, from a reading of the abovesaid legal position
laid down by this Court in the cases referred to supra, it is
abundantly clear that the proviso to Section 372 of Code of
Criminal Procedure must be read along with its main
enactment i.e., Section 372 itself and together with Sub-
section (3) to Section 378 of Code of Criminal Procedure
otherwise the substantive provision of Section 372 of Code
of Criminal Procedure will be rendered nugatory, as it
clearly states that no appeal shall lie from any judgment or
order of a Criminal Court except as provided by Cr.P.C."
50] Applying the aforesaid principles, it is quite clear that the
first proviso is in the nature of an exception to the general rule
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provided in the main provision of Section 9A. The first proviso grants
exemption or concession in the matter of compliance with the general
rule in the main provision of Section 9A. The provision of a statute
which makes an exception or grants an exemption or concession has to
be tested on a different anvil since it grants freedom from liabilities,
which would otherwise be attracted (State of Haryana vs. Bharti
Teletech Ltd. 35). If a person is desirous of availing exemption or
concession in terms of the provision to Section 9A, then, such person
has to comply with the conditions subject to which such exemption or
concession is granted. There can be no question of any laxity in the
matter of such compliance, particularly when the provision in
unambiguous terms provides for the consequences of breach. This is
yet another reason to construe the provision as mandatory and not
directory.
51] I.T.C. Bhadrachalam Paperboards and anr v. Mandal
Revenue Officer, A.P. & Ors.36 is an authority for the proposition that
the condition subject to which any exemption is granted by the statute,
is normally to be construed as mandatory. In the said case, the
35 (2014) 3 SCC 556
36 (1996) 6 SCC 634
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Supreme Court was interpreting Section 11 of the Andhra Pradesh Non
Agricultural Lands Assessment Act, 1963 (NALA), which had conferred
upon the Government the power to exempt any class of non-
agricultural lands from levy, inter alia "by order, published in the
Andhra Pradesh Gazette". The Government had made an order of
exemption, which might have covered the appellants land, however,
such order had not been published in the A.P. Gazette and therefore,
the question arose as to whether the publication in the Gazette was a
mandatory requirement for claiming exemption or whether the same
was only directory. The Supreme Court ruled that the requirement of
publication in the Official Gazette was mandatory since a levy created
by a statute can be lifted, suspended or withdrawn only by a statute or
in the manner prescribed by the statute creating the levy. The
Supreme Court held that dispensing with the levy and payment of tax
is a serious matter. It is done only with a view to promote
countervailing public interest. The provision in Section 11 regards the
publication in the Official Gazette is of a substantive nature besides
being in the nature of an exemption. The principle in the case of
Dattatraya Moreshwar Pangarkar (supra) that the provisions which
relate to the performance of public duties are to be construed as
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directory since construing such provisions as mandatory would work
out serious general inconvenience or injustice to persons who have no
control over those entrusted with such duties, was held as inapplicable
in a situation where conditions subject to which an exemption could be
availed of were set out in the statute itself.
52] If the stipulation as to time in the two provisos to Section
9A is held as directory, then, the significant portions of the two
provisos will be rendered otiose, redundant or a mere surplusage.
Several questions then arise for which, at least Section 9A as it stands,
has no answers to offer. Is there any presumption that the delay in
issuance of Validity Certificate is for reasons always attributable to the
Scrutiny Committee only ? Or is it not conceivable that an elected
candidate, perhaps conscious that the tentative caste certificate
produced by him might not stand, may delay the proceedings before
the Scrutiny Committee, if, in the meanwhile he can continue as a
Councillor ? Do the provisions of Section 9A, as they stand,
contemplate any adjudication or determination as to who is
responsible for the delay in the proceedings before the Scrutiny
Committee ? If so, which is the authority prescribed by law for purpose
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of such adjudication or determination ? If the Validity Certificate need
not be submitted within six months from the date of election, then
within how much time is the elected Councillor required to produce
the Validity Certificate ? If the time limit of six months is held as
directory, then under what circumstances will the second proviso to
Section 9A operate ?
53] If the stipulation as to time limit is construed as directory
and consequentially left in a state of limbo, then, the very requirement
of furnishing a statutory undertaking that such Validity Certificate shall
be produced within a period of six months from the date of election
will be rendered otiose. Similarly, the entire second proviso, which in
plain, clear and unambiguous terms provides for consequences for
failure to produce the Validity Certificate within six months will be
rendered otiose, redundant and surplusage. In fact, such construction
will virtually render the entire second proviso unworkable. An
interpretation which renders the significant portions of the provision
otiose, redundant or surplusage cannot be preferred over an
interpretation which assigns and ascribes meaning to every portion, to
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every word used by the legislature in enacting the provisions in
question.
54] In interpreting a statute, effort should be made to give
effect to each and every word used by legislature. The Courts always
presume that the legislature inserted every part, or every word for a
purpose and the legislative intention is that every part or every word
of the statute should have effect. A construction which attributes
redundancy to the legislature will not be accepted except for
compelling reasons such as obvious drafting errors. (See Nathi Devi v.
Radha Devi Gupta ) 37 .
55] In Mithilesh Singh v. Union of India and ors. 38, a member
of Railway Protection Force had applied for leave and thereafter
remained absent. Rule 147(iv) of the Railway Protection Force Rules,
1959 declared the absence by an enrolled member of the force
"without proper intimation" to be a serious misconduct. In this context,
the Supreme Court held that the application for leave may at the
highest constitute "intimation", but the same could not have been
37 (2005) 2 SCC 271
38 (2003) 3 SCC 309
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construed as "proper intimation" for diluting the requirement of
obtaining permission before absenting from duty. The Supreme Court
held that the use of expression "proper" cannot be regarded as
surplusage and rejection of the words as meaningless has to be
avoided. It is not a sound principle of construction to brush aside the
word(s) in a statute as being inapposite, if they can have appropriate
application in circumstances conceivably within the contemplation of
the statute. In interpretation of a statute, the Courts always presume
that the legislature inserted every part thereof for a purpose and the
legislative intent is that every part of a statute should have effect. The
legislature is deemed not to waste its words or to say anything in vain.
56] The major premise discernible from the reasoning in Gulve
is the alleged hardship or inequity arising in a situation where the
elected candidate, for no fault on his part, is required to suffer
retrospective termination of his election or a disqualification, if he is
unable to produce the Validity Certificate within six months from the
date of his election from the Scrutiny Committee. Gulve reasons that
the object of the statute is not to penalize 'persons genuinely belonging
to the backward classes' but the object is to disable 'imposters of
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fraudsters' from wrongfully claiming the benefit of reservation. Gulve
reasons that penalizing such persons genuinely belonging to the
backward classes might frustrate the constitutional mandate of Article
243T.
57] With great respect, we are unable to share the aforesaid
reasoning. Gulve, in our opinion, gives no credence to the language
used by the legislature, which, in our view, is quite plain, clear and
unambiguous. The legislature has not only repeatedly used the
expression "shall" but further, in clear and unambiguous terms
provided for consequences in case of failure to submit the Validity
Certificate within the stipulated period of six months. In terms of the
main provision of Section 9A, the general rule prescribed is the
submission of both, caste certificate and Validity Certificate, along with
the nomination papers. The provisos are in the nature of exception.
The provisos merely grant an exemption or concession, subject to
fulfillment of certain conditions. Gulve fails to notice that such
conditions are required to be strictly construed. There is no question
of availing an exemption or concession which is conditional and
thereafter failing to comply with the condition. Gulve fails to notice
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that construing the stipulation as to time as directory will render
significant portions of the two provisos redundant, otiose and the
surplusage.
58] The question of alleged hardships or inequity ought not to
enter into the realm of statutory interpretation where the statutory
provision is plain, clear and unambiguous. The nebulous concept of
hardship or alleged inequity, in the face of clear, plain and
unambiguous statutory provision, is not reason enough to either
deviate from or resist compliance with statutory provisions.
59] In Martin Burn Ltd. v. The Corporation of Calcutta 39, the
Supreme Court has held that a result flowing from a statutory
provision is never an evil. A Court has no power to ignore the
provision to relieve what it considers a distress resulting from its
operation. A statute must of course be given effect to whether a Court
likes the result or not. When the High Court found that the relevant
Section had been attracted to the case, it had no power to set that
provision at nought.
39 AIR 1966 Supreme Court 529
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60] In Hyder Consulting (UK) Limited v. Governor, State of
Orissa40, the Supreme Court has warned against tinkering with plain
and unambiguous words in the statute, on the basis of regard to
ensuing consequences.
61] In Ganga Prasad v. State of Bihar 41, the Supreme Court
has held that where the language of the Act is clear and explicit, the
Court must give effect to it, whatever may be the consequences, for in
that case the words of the statute speak the intention of the legislature.
The Supreme Court, approving the decision of Privy Council in King
Emperor v. Benoari Lal Sarma42 has held that the settled law admit
results of construction even if they be strange or surprising, unreasonable
or unjust or oppressive. By reference to Maxwell on Interpretation of
Statutes, the Supreme Court has held that the desirability or the
undesirability of one conclusion as compared with another cannot furnish
a guide in reaching a decision. Where, by the use of clear and
unequivocal language capable of only one meaning, anything is
enacted by the legislature, it must be enforced however harsh or absurd
or contrary to common sense the result may be. The interpretation of a
40 (2015) 2 SCC 189
41 1995(Suppl. (1) SCC 192
42 AIR 1945 PC 48
WP 10478 -14
statute is not to be collected from any notions which may be entertained
by the Court as to what is just and expedient: words are not to be
construed, contrary to their meaning, as embracing or excluding cases
merely because no good reason appears why they should not be embraced
or excluded.
62] Even in case of social welfare legislation, the Supreme
Court in Jeewanlal Ltd. and ors. vs. Appellate Authority under the
Payment of Gratuity Act and ors.43 , has held that in construing a
social welfare legislation, the Court should adopt a beneficent rule of
construction; and if a section is capable of two constructions, that
construction should be preferred which fulfills the policy of the Act,
and is more beneficial to the persons in whose interest the Act has
been passed. When, however, the language is plain and unambiguous,
the Court must give effect to it whatever may be the consequence, for, in
that case, the words of the statute speak the intention of the Legislature.
When the language is explicit, its consequences are for the Legislature and
not for the Courts to consider. The argument of inconvenience and
hardship is a dangerous one and is only admissible in construction where
43 (1984) 4 SCC 356
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the meaning of the statute is obscure and there are two methods of
construction. In their anxiety to advance beneficent purpose of legislation,
the Courts must not yield to the temptation of seeking ambiguity when
there is none.
63] In this case, we are concerned with a provision of
limitation or stipulation as to time. Such provisions, by their very
nature, frequently result in hardship or in some cases even inequity.
By their very nature, some amount of arbitrariness (so to say) is
inevitable in such provisions. However, where the provision is clear
and unambiguous and the legislature has also provided for
consequences where the given act is not performed within the
prescribed period of limitation, it is not for the Courts of law to relax
such provision on a case to case basis, depending upon its notion of
hardship and inequity. Unless the words are unmeaning or absurd, it
would not be in accord with any sound principle of construction to
refuse to give effect to the provisions of a statute on the very elusive
ground that to give them their ordinary meaning leads to
consequences which are not in accord with the notions of propriety or
justice entertained by the Court. (State of Rajasthan vs. Mrs. Leela
WP 10478 -14
Jain,44) In such a situation, the provision as to limitation or stipulation
of time has to be construed as mandatory and such construction
cannot be avoided on the touch stone of perceived hardship or
inequity.
64] In R. Rudraiah and anr. v. State of Karnataka and ors. 45,
the Supreme Court was called upon to consider whether provisions of
Sections 45, 48A of the Karnataka Land Reforms Act, 1961 dealing
with period of limitation for filing application for grant of occupancy
right (namely six months from the date of commencement of Section 1
of Act 1 of 1979, i.e., 30-6-1979) are clear and unambiguous and not
capable of extension on the ground that there is ambiguity or on the
ground that they lead to grave injustice ? Upon concluding that the
provisions were clear and unambiguous, the Supreme Court rejected
the contention based upon absurdity or grave injustice by observing at
paragraph 17, thus:
17. It is true there is a principle of interpretation of statutes
that the plain or grammatical construction which leads to
injustice or absurdity is to be avoided (see Venkatarama Iyer, J.
in Tirath Singh v. Bachittar Singh (AIR at 855). But that
principle can be applied only if "the language admits of an
interpretation which would avoid it". Shamrao V.
44 AIR 1965 SC 1296
45 (1998) 3 SCC 23
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Parulekar v. District Magistrate (AIR at 327). In our view
Section 48-A, as amended, has fixed a specific date for the
making of an application by a simple rule of arithmetic,
and there is therefore no scope for implying any
"ambiguity" at all. Further
"the fixation of periods of limitation must always be
to some extent arbitrary, and may frequently result
in hardship. But in construing such provisions,
equitable considerations are out of place, and the
strict grammatical meaning of the words is the only
safe guide".
(Sir Dinshaw Mulla in Nagendranath De v. Sureshchandra De.)
(emphasis supplied)
65] In R. V. Weir46, the House of Lords speaking through Lord
Bingham of Cornhill was construing Section 2 of the Administration of
Justice Act, 1960 which had provided that an application to the Court
below for leave to appeal (to the House of Lords) shall be made within
a period of 14 days beginning with the date of the decision of that
Court; and an application to the House of Lords for such leave shall be
made within the period of 14 days beginning with the date on which
the application is refused by the Court below. On the issue as to
whether the period of 14 days stipulated in the provision was to be
construed as mandatory or directory, it was held that where time limit
is laid down and no power is given to extend it, the ordinary rule is
that the time limit must be strictly observed. The House of Lords
46 (2001) 2 ALL ER 216
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quoted with approval, the following passage from Petch v. Gurney
( Inspector of Taxes )47 :
"If the only time limit which is prescribed is not obligatory,
there is no time limit at all. Doing an act late is not the
equivalent of doing it in time. That is why Grove J said in
Barker v. Palmer -"provisions with respect to time are
always obligatory, unless a power of extending the time is
given to the court". This probably cannot be laid down as
a universal rule, but in my judgment it must be the
normal one. Unless the court is given a power to extend
the time, or some other and final mandatory time limit
can be spelled out of the statute, a time limit cannot be
relaxed without being dispensed with altogether; and it
cannot be dispensed with altogether..."
(emphasis supplied )
66] In Visitor, AMU v. K. S. Misra 48 , the Statute 61(6)(iv) of
the Aligarh Muslim University provided that an employee must
exercise an option within prescribed time limit failing which the
employee was deemed to have opted for retention of the benefits
already received by him. The Supreme Court, construed the provision
as to time limit as mandatory emphasizing that the statute had not
only provided time limit but also the consequences in case of failure to
adhere to the time limit. The Supreme Court also went on to add the
construction of such provision as directory might result in the provision
being rendered unworkable, redundant or otiose. The reasoning is in
47 1994(3) ALL ER 731
48 (2007) 8 SCC 593
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paragraphs 11 to 14 which read thus :
11. The High Court in the impugned order has held that the
time-limit provided in Statute 61(6)(iv) is merely directory in
nature and not mandatory and after holding so has granted
relief to the respondent. In our opinion the view taken by the
High Court is clearly erroneous in law. Sub-clause (c) of
Statute 61(6)(iv) lays down that the option under this
clause shall be exercised within a period of one year and if
no option is exercised within the prescribed limit, the
employee shall be deemed to have opted for retention of
the benefits already received by him. This clause provides
for the consequences which will ensue in the event of non-
exercise of option within the prescribed period of one year.
12. A three-Judge Bench in Balwant Singh v. Anand Kumar
Sharma has explained in what circumstances the duty cast upon
a private party can be said to be mandatory and para 7 of the
Report reads as under: (SCC p. 436, para 7)
"7. Yet there is another aspect of the matter which cannot be lost
sight of. It is a well-settled principle that if a thing is
required to be done by a private person within a specified
time, the same would ordinarily be mandatory but when a
public functionary is required to perform a public function
within a time-frame, the same will be held to be directory
unless the consequences therefor are specified. In
Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p. 107,
it is pointed out that a statutory direction to private individuals
should generally be considered as mandatory and that the rule
is just the opposite to that which obtains with respect to public
officers. Again, at p. 109, it is pointed out that often the
question as to whether a mandatory or directory construction
should be given to a statutory provision may be determined by
an expression in the statute itself of the result that shall follow
non-compliance with the provision. At p. 111 it is stated as
follows:
'As a corollary of the rule outlined above, the fact that no
consequences of non-compliance are stated in the statute, has
been considered as a factor tending towards a directory
construction. But this is only an element to be considered, and is
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by no means conclusive.' "
Therefore, in accordance with the law laid down in the above
authority, the provisions of Statutes 61(6)(iv)(b) and (c)
should be treated as mandatory as it is a private party who has
to do a particular act within a specified time.
13. The problem can be looked from another angle. If the
view taken by the High Court that the provision is
directory is accepted as correct, it would in effect amount
to making the provisions of sub-clause (c) of Statute 61(6)
(iv) otiose. In such a case the consequences provided
therein that if no option is exercised within the prescribed
time-limit, the employee shall be deemed to have opted for
the retention of the benefits already received by him would
never come into play. It is well-settled principle of
interpretation of the statute that it is incumbent upon the
court to avoid a construction, if reasonably permissible on
the language, which will render a part of the statute
devoid of any meaning or application. The courts always
presume that the legislature inserted every part thereof for
a purpose and the legislative intent is that every part of the
statute should have effect. The legislature is deemed not to
waste its words or to say anything in vain and a
construction which attributes redundancy to the legislature
will not be accepted except for compelling reasons. It is not
a sound principle of construction to brush aside words in a
statute as being inapposite surplusage, if they can have
appropriate application in circumstances conceivably
within the contemplation of the statute. (See Principles of
Statutory Interpretation by Justice G.P. Singh, 9th Edn., p. 68.)
14. The provisions of sub-clause (c) of Statute 61(6)(iv)
should be interpreted in a manner which makes the provision
workable and not redundant or otiose. It is, therefore, not
possible to accept the view taken by the High Court that
the provision is directory as in such a case this clause will
never come into operation if the employee exercises his
option at any point of time before his retirement.
(emphasis supplied)
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67] The three instances of hardship referred to in Gulve or
for that matter the instance in the present petition may, to a certain
extent, involve hardship or even inequity qua the elected candidates.
However, as noted earlier, such individual instances or hardship or
trauma are inevitable, but, not reasons good enough for bypassing
statutory compliances, particularly where the statutory provisions are
plain, clear and unambiguous.
68]
This is not a case of some obvious causus omissus or some
obvious drafting error. Rather, it is legitimate to proceed on the basis
that the legislature, in enacting Section 9A, was quite conscious of the
consequences arising out of stipulating that the Validity Certificate
must be produced within six months from the date of the election. The
statement of reasons and objects bears out that the legislature was
conscious of the position of matters before the Scrutiny Committees.
The legislature, in such a situation, is presumed to be conscious of the
hardships, inequities and trauma, resulting from a situation where the
Scrutiny Committee, after several years concludes that the elected
candidate does not belong to the reserved category and, therefore, is
disentitled to the Validity Certificate. In such a situation, the elected
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candidate, who was in the first place, ineligible even to contest the
election to a reserved seat would have continued in Office for several
months or on occasions, for several years to the detriment of not only
the defeated candidate, but also the electorate, which had the right to
be represented by a candidate genuinely belonging to a reserved
category. Such a situation will also lead to the frustration of the
constitutional mandate of Article 243T.
69]
In such matters therefore, it is not safe to premise an
interpretation based upon any alleged individual hardship or trauma.
Rather, the only safe guide to apply would be adherence to the
statutory provisions, particularly where the statutory provision is clear,
plain and unambiguous. Besides, the significance of requiring the
person who seeks to avail the benefit of exemption or concession under
the first proviso to Section 9A to submit his undertaking that he shall
produce the Validity Certificate within the stipulated period, cannot be
lost sight of. This means that the legislature, despite, being aware of
the pendency position before the Scrutiny Committees, intended to
place the duty upon such private person, since, such private person
wished to deviate from the general rule and avail an exemption or
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concession to contest without producing the Validity Certificate along
with his nomination papers. There is reasonable certainty when it
comes to election schedules to local authorities. Therefore, nothing
really prevents a person desirous of contesting for elections to a
reserved seat to apply well in advance of the election schedule for issue
of the Validity Certificate. In fact, as noted by the Full Bench in case of
Sujit Vasant Patil (supra), the legislature expects a person to claim
benefits of reservation only after obtaining the Validity Certificate.
Thus construed, this is not really a case of either impossibility in the
compliance with the condition prescribed or a case of some
insurmountable hardship as projected by the learned Counsel for
Manisha.
70] In B. Premanand and ors v. Mohan Koikal & ors. 49, the
Supreme Court after opining that Rule 27(c) of the Seniority Rules was
plain and clear, held that the same will have to be construed as
mandatory and implemented, even though, equity may be in favour of
the respondents who were selected earlier. The court observed that in
case of conflict between equity and law, it is the law which must
49 (2011) 4 SCC 266
WP 10478 -14
prevail. It was held that if the provision is unambiguous and if from
the provision the legislative intent is clear, the court need not call into
aid the other rules of construction of statutes. In paragraphs 11 to 21,
the Supreme Court has digested various decisions which state that the
mandatory nature of a statute, which is clear, plain and unambiguous,
must not be diluted having regard to what the court regards as
inequitable consequences:
11. As stated by Justice Frankfurter of the US Supreme Court
(see Of Law & Men : Papers and Addresses of Felix Frankfurter):
"Even within their area of choice the courts are not at
large. They are confined by the nature and scope of the
judicial function in its particular exercise in the field of
interpretation. They are under the constraints imposed by
the judicial function in our democratic society. As a
matter of verbal recognition certainly, no one will gainsay
that the function in construing a statute is to ascertain
the meaning of words used by the legislature. To go
beyond it is to usurp a power which our democracy has
lodged in its elected legislature. The great Judges have
constantly admonished their brethren of the need for
discipline in observing the limitations. A Judge must not
rewrite a statute, neither to enlarge nor to contract
it. Whatever temptations the statesmanship of policy-
making might wisely suggest, construction must
eschew interpolation and evisceration. He must not
read in by way of creation. He must not read out
except to avoid patent nonsense or internal
contradiction."
12. As observed by Lord Cranworth in Gundry v. Pinniger:
(ER p. 648)
"... to adhere as closely as possible to the literal
meaning of the words used, is a cardinal rule from
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which if we depart we launch into a sea of difficulties
which it is not easy to fathom."
13. In other words, once we depart from the literal rule, then
any number of interpretations can be put to a statutory
provision, each Judge having a free play to put his own
interpretation as he likes. This would be destructive of judicial
discipline, and also the basic principle in a democracy that it is
not for the Judge to legislate as that is the task of the elected
representatives of the people. Even if the literal interpretation
results in hardship or inconvenience, it has to be followed
(see G.P. Singh's Principles of Statutory Interpretation, 9th
Edn., pp. 45-49). Hence departure from the literal rule
should only be done in very rare cases, and ordinarily
there should be judicial restraint in this connection.
14. As the Privy Council observed (per Viscount Simon, L.C.):
"... Again and again, this Board has insisted that in
construing enacted words we are not concerned with the
policy involved or with the results, injurious or otherwise,
which may follow from giving effect to the language used."
(See King Emperor v. Benoari Lal Sarma, IA p. 71 : AIR p.
53.)
15. As observed by this Court in CIT (Ag) v. Keshab Chandra
Mandal: (AIR p. 270, para 20)
"20. ... Hardship or inconvenience cannot alter the
meaning of the language employed by the legislature
if such meaning is clear on the face of the statute...."
(emphasis supplied)
16. Where the words are unequivocal, there is no scope for
importing any rule of interpretation (vide Pandian Chemicals
Ltd. v. CIT). It is only where the provisions of a statute are
ambiguous that the court can depart from a literal or strict
construction (vide Nasiruddin v. Sita Ram Agarwal). Where the
words of a statute are plain and unambiguous effect must be
given to them (vide Bhaiji v. SDO).
17. No doubt in some exceptional cases departure can be
made from the literal rule of the interpretation, e.g. by adopting
a purposive construction, Heydon mischief rule, etc. but that
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should only be done in very exceptional cases. Ordinarily, it is
not proper for the court to depart from the literal rule as that
would really be amending the law in the garb of interpretation,
which is not permissible (vide J.P. Bansal v. State of Rajasthan
and State of Jharkhand v. Govind Singh). It is for the legislature
to amend the law and not the court (vide State of Jharkhand v.
Govind Singh).
18. In Jinia Keotin v. Kumar Sitaram Manjhi (SCC p. 733,
para 5) this Court observed:
"48. ... The court cannot legislate under the garb of
interpretation."
Hence, there should be judicial restraint in this connection, and
the temptation to do judicial legislation should be eschewed by
the Courts. In fact, judicial legislation is an oxymoron.
19. In Shiv Shakti Coop. Housing Society v. Swaraj Developers
this Court observed: (SCC p. 669, para 19)
"19. It is a well-settled principle in law that the court
cannot read anything into a statutory provision which is
plain and unambiguous. A statute is an edict of the
legislature. The language employed in a statute is the
determinative factor of legislative intent."
20. Where the language is clear, the intention of the
legislature has to be gathered from the language used (vide
Grasim Industries Ltd. v. Collector of Customs and Union of
India v. Hansoli Devi).
21. In Union of India v. Hansoli Devi this Court observed:
(SCC p. 281, para 9)
"9. ... It is a cardinal principle of construction of a
statute that when the language of the statute is plain
and unambiguous, then the court must give effect to
the words used in the statute and it would not be open
to the courts to adopt a hypothetical construction on
the ground that such construction is more consistent
with the alleged object and policy of the Act."
(emphasis supplied)
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71] In Prakash Nath Khanna v. CIT50, the Supreme Court has
held that the language employed in a statute is the determinative
factor of the legislative intent. The legislature is presumed to have
made no mistake. The presumption is that it intended to say what it
has said. Assuming that there is defect or an omission in the words
used by the legislature, the Court cannot correct or make up the
deficiency and the Court should not seek to amend the law in the garb
of interpretation.
72] In matters of this nature, there are certain presumptions
which go with legislations enacted by competent legislatures. There
are presumptions that the legislature knows the needs of its people.
There are presumptions that the legislature is conscious, not merely of
existing position in law, but also, the nature of the mischief which it
seeks to remedy by enacting the law. There are presumptions that the
legislature is conscious of the degrees of harm that need to be
addressed or redressed. In addressing problems which are of complex
nature, it is not always possible to have any perfect solutions. There
are presumptions that the legislature is aware of the complexities of
50 (2004) 9 SCC 686
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the problem and has consciously adopted a solution, which, in its
wisdom, may be least harmful, though, not foolproof. These are all
matters of value judgments. Out of a range of options available to the
legislature, if, the legislature has consciously and by employing clear,
plain and unambiguous terms, chosen one such option, it is not for the
Courts, in the guise of interpretation, to deviate from the text of the
statute or judicially relax the consequence prescribed by the statute.
73]
The reasoning similar to the one adopted by Gulve of
reading into the statute legislative intent of checking 'imposters or
fraudsters' but not depriving 'genuine persons belonging to backward
classes' their right to contest elections to reserved seats was tacitly
disapproved by the Supreme Court in the case of Authorised Officer,
Thanjavur and anr. Vs. S. Naganatha Ayyar and ors.51
74] In the aforesaid case, the Supreme Court was concerned
with Section 22 of Tamil Nadu Reforms (Fixation of Ceiling on Land)
Act, 1961, which provided that where on or after the date of
commencement of this Act, but before the notified date, any person
51 (1979) 3 SCC 466
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has transferred any land held by him or, has effected a partition of his
holding or part thereof, the Authorised Officer may, after notice to
such person and other persons affected by such transfer or partition
and after such enquiry as he thinks fit to make declare the transfer or
partition to be void "if he finds that the transfer or the partition as the
case may be, defeats any of the provisions of this Act." The High Court, in
the order appealed, had held that the transfers between the dates, i.e.,
the date of commencement of act and the notified date, if only
established to be sham, mala fide or intended to defeat the provisions
of Section 22, will be void, thereby, saving transfers, which may be
bonafide or made any good faith and not to defeat or thwart the
purpose of provisions of the Act. The Supreme Court reversed the High
Court by observing that Section 22, literally read, leads only to one
conclusion, that any transfer, bona fide executed or not, is liable to be
declared void by the authorised officer "if he finds that the transfer
defeats any of the provisions of the Act". The Supreme Court conceded
that such an interpretation might cause hardship to some, but
explained that every cause claims martyrs. Individual trauma is
inevitable while ushering in a new economic order. To allow the sense
of the text and to mix alien concepts is to debase the statutory metal.
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Likewise, laws are not value-free and so he reads the symbols of words
best who projects in the process the values of the legislation as
distinguished from his own. Reading other values into the legislators'
words may judicially demonetize the statute and break the comity
between constitutional instrumentalities. The current and correct view
of the interpretative process is that words must be given their 'literal' or
'ordinary' meaning unless there are compelling reasons, recognized by
canons of construction, to the contrary. By importing the element of
malafides or lack of good faith the Courts cannot amend sections or
dilute its imperative, scared by consequences or moved by extraneous
sympathies. Subconscious forces and individual prepossessions have a
subtle way of entering the interpretative verdict of the Judge. The
Courts have to be constantly careful to exclude such intrusions.
75] The above decision in case of Authorised Officer, Thanjavur
(supra), is significant because the Supreme Court reversed the High
Court which had imported the element of malafides or lack of good
faith in matter of transfer of property within the prescribed period,
when in fact, the legislature had voided all transfers within the
prescribed period, irrespective of whether they were malafide or
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bona fide. The Supreme Court conceded that such a construction might
cause hardships to some but explained that every cause claims martyrs
and that individual trauma is inevitable. Stressing upon the principle
of literal interpretation when the provisions of the statute are plain,
clear and unambiguous, the Supreme Court cautioned against reading
other values into the legislator's words, which may judicially
demonetize the statute and break the comity between constitutional
instrumentalities. The Supreme Court went on to observe that by
importing the element of malafides or lack of good faith, the Courts
cannot amend sections or dilute its imperatives, scared by
consequences or moved by extraneous sympathies.
76] Construing the provisions of Section 9A as they stand, we
are unable to agree with Gulve, which, in effect holds that the
stipulation as to time may be construed as mandatory when it relates
to preventing 'imposters and fraudsters' from claiming benefit of
reservation but the same stipulation must be construed as directory,
when it comes to 'genuine persons belonging to backward classes'
claiming benefit of reservation.
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77] Again, we are also unable to accept that the construction
of the provision as mandatory will result into "absurdity". There is no
question of any absurdity as such involved in the situation arising out
of compliance with provisions of Section 9A, both, in their letter as
well as spirit. This was also not the basis of reasoning in Gulve. In
fact, from the scheme of Section 9A, it is apparent that the main
enactment only reinforces the general rule in such matters that a
person desirous of contesting to a reserved seat must produce along
with his nomination papers both caste certificate as well as the Validity
Certificate. The election schedules to local authorities are fairly
certain. Nothing therefore prevents persons desirous of contesting to
reserved seats from applying and obtaining Validity Certificate well in
advance. As a general rule, this is what is expected in such matters so
that there is no suspense with regard to the status of the candidate.
78] There is no absurdity involved in the expectation, as a
general rule, that a person desirous of contesting election to a reserved
seat produces a Validity Certificate alongwith his nomination papers.
This will ensure that there is no doubt with regard to the caste status
of such person. In fact, the constitutional validity of Section 9A (sans
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its two provisos) has been specifically upheld in Thombre's case. The
contention that Section 9A (sans the two provisos) was arbitrary or
unreasonable, inasmuch as it failed to take cognizance of right of a
person who had applied to the Scrutiny Committee for issuance of
Validity Certificate but, on account of delay on the part of the Scrutiny
Committee had not been issued the Validity Certificate on or before the
last date of filing the nomination papers was specifically rejected. The
Division Bench (Coram : A.M. Khanwilkar, J., as His Lordship then was
and S.S. Shinde, J.) has held that if such persons were interested in
contesting the election to a reserved seat, they ought to have obtained
the Validity Certificate well in advance and there is no justification on
their part in not doing so. We are in respectful agreement with the
view expressed by the Division Bench in Thombre's case.
79] The reasoning in Thombre's case is reflected in the
following passages which are reproduced for convenience of the
reference:
6] Having given serious consideration to the submissions
made across the Bar from both sides, we have no hesitation in
taking the view that the challenge to Section 9 A even on the
ground that it is ultra vires Article 14 of the Constitution of
India is devoid of merits. In the first place, it is well established
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position that right to participate in election process is not a
fundamental right. It is obviously a statutory right. It is
nobody's case that the State has no legislative competence to
enact provisions such as Section 9-A of the Act. The argument
however, is that in the peculiar facts of the present case, the
operation of the section is unreasonable and prejudicial for no
fault of the prospective candidates.
...
...
9] The argument of the Petitioners is in effect, to follow the
regime prescribed under the proviso which has already been
deleted. The validity of the Amendment Act of 2008 whereby the
proviso was deleted has not been challenged in these Petitions.
What is, however, challenged is the main provision - Section 9-A
of the Act of 1965 - as it exists as of now. The provision of
Section 9-A as it exists, will have to be construed on its own.
Indubitably, it is well established canons of construction
that the statutory provisions of election law are to be
strictly construed and its requirement strictly observed.
(See Banwari Dass v. Sumer Chand (1974) 4 S.C.C. 817).
As aforesaid, going by the plain language of Section 9-A, it
is mandatory to submit caste certificate issued by the
competent authority and the validity certificate issued by
the Scrutiny Committee along with the nomination paper.
Only then the nomination paper can be said to be validly
presented. The fact that the Petitioners were unable to obtain
validity certificate before the date of filing of nomination paper,
cannot be the basis to hold that Section 9-A is unreasonable.
The purport of Section 9 A is that a person aspiring to
contest election to a seat reserved for S.C., S.T. or O.B.C.
category, as the case may be, should prepare himself well
in advance to present the caste certificate and validity
certificate along with his nomination paper. The fact that
the Municipal Council has been constituted only on 31 st
August,2009 and there was not enough time to process the
application of the Petitioner or that the Caste Scrutiny
Committee has wrongly returned the proposal, in our view,
cannot be the basis to hold that Section 9-A is ultra vires Article
14 of the Constitution.
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...
...
11] The argument of the Petitioners that they were unable to
apply six months in advance before the issuance of notification
of election programme deserves to be stated to be rejected. The
fact that the Municipal Council has been constituted only on
31st August, 2009 would make no difference to the requirement
of the Section 9-A of the Act of 1965. Merely because Section
9-A mandates submission of validity certificate along with
the nomination paper, that by no standards be said to be
unreasonable or arbitrary requirement. That requirement
is to ensure free and fair election and to provide
opportunity to participate in election "only to those" who
are eligible to contest the election as per the requirement
of the said provision on the date of presentation of
nomination papers. If the Petitioners were interested in
participating in such election, they ought to have obtained
validity certificate well in advance as the same was
required to be accompanied along with nomination paper.
...
...
16] Assuming that the Scrutiny Committee has committed
some irregularity including of deciding the applications of only
selected few, that, however, cannot be the basis to challenge the
validity of Section 9-A of the Act of 1965. So long as Section 9-
A remains on the Statute Book, only such nomination papers
which are accompanied by caste certificate and validity
certificate can be presented as valid nomination of the candidate
intending to contest election for reserved seat.
17] It was lastly submitted that in any case the provision such
as Section 9-A will have to be construed as directory. We do not
find force in this submission, having regard to the language of
the said Section as it appears in the Statute. The decision in the
case of Dadasaheb Arjun Gulve V/s State of Maharashtra &
others (supra), in our opinion, has no bearing on the
controversy on hand. The observation is in respect of expression
appearing in the proviso, which obviously was an enabling
provision. We cannot over-look the fact that the said proviso has
now been deleted. We cannot give the same meaning to the
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purport of Section 9-A and thereby restore the regime which
operated during the existence of Proviso, which is no more on
the Statute Book.
18] Taking any view of the matter, therefore, there is no
substance in the challenge to validity of section 9-A of the Act of
1965 on the grounds pressed into service."
(emphasis supplied)
80] If, the legislature, as a rule, intended to permit only such
persons, about whose caste status there are no disputes or doubts,
then, the enforcement of such a provision cannot be avoided or diluted
on the ground that it would be harsh or inequitable to do so. The
Division Bench, in Thombre, has specifically upheld the constitutional
validity of Section 9A , while, the two provisos to it were not on the
statute book. The provision then rendered only such persons who were
able to submit caste certificate and Validity Certificate alongwith their
nomination papers as eligible to contest election to the reserved seats.
If the legislature, for a limited period of time, taking into consideration
pendency of applications for issuance of Validity Certificate before the
Scrutiny Committee grants some exemptions or concession to persons
who have applied for issue of Validity Certificate before the date of
filing nomination papers, but who have not received such Validity
Certificate on the date of filing of nomination papers, subject to such
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persons producing the Validity Certificate "within period of six months
from the date of election", there is no reason to treat the stipulation as
to time has merely directory and thereby enlarge or extend the
exemption or the concession granted by the legislature.
81] If, the intention of the legislature was to grant exemption
from the requirement of producing Validity Certificate, until, the
elected candidate's application is disposed of by the Scrutiny
Committee, nothing prevented the legislature from saying so expressly
or at least by necessary implication. Instead, in this case, and perhaps,
for good reason, the legislature has consciously deemed it appropriate
to insist that the person submits an undertaking that he shall produce
the Validity Certificate within six months and further, the legislature, in
clear, unambiguous and express terms has provided that upon the
failure of such person to produce the Validity Certificate within six
months from the date of election, his election shall be deemed to have
been retrospectively terminated and he shall be disqualified for being a
Councillor. If, the stipulation as to time is construed as directory, then,
the legislative intent, so clearly expressed, will be defeated. The
significant portions of the provision will be rendered a mere
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surplusage. In essence, this Court would be re-writing the statute on
the basis of its own value judgments or notions of equity and inequity.
82] As noted earlier, individual instances of hardship and
inequity arise irrespective of the construction of the provision as
mandatory or directory. Just as it might appear harsh to unseat a
person who has failed to produce Validity Certificate within six
months, but produced the same some days or months later, so also,
there is harshness and inequity involved where an elected person
continues in office for years together or even upto the conclusion of
the term and then the Scrutiny Committee finds that such person does
not belong to the reserved category. Therefore, individual instances of
hardship cannot dictate statutory interpretation, particularly where
the provision itself is plain, clear and unambiguous. In such a
situation, this court will have to defer to the wisdom of the legislature,
the choices which the legislature has made and above all, the words
which it has employed, to make its intent clear.
83] Though the right to contest elections may not be
fundamental right, after the coming into force of 74 th amendment to
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the Constitution of India and the insertion of Part IXA, it may not very
accurate to describe such right as "statutory right, pure and simple".
The right to contest, can now, be regarded as a constitutional right
(Rajbala & ors. vs. State of Haryana, 52) . However, there can be no
dispute that such right to contest election can always be subject to
certain qualifications and disqualifications as may be prescribed by the
statute.
84]
In Rajbala (supra), the Supreme Court, upheld the
constitutional validity of the provisions in the Haryana Panchayat Raj
Act, 1994, which rendered persons indebted to cooperative bodies, or
to electricity departments or those not having a functional toilet at
their place of residence as ineligible to contest Panchayat elections. In
this case, the Supreme Court accepted the position that the legislature
best comprehends the needs of the society and the decision to
prescribe such qualification is in the realm of wisdom of the legislature
and the Courts, normally, do not sit in judgments over such wisdom.
The Supreme Court also held that no enactment can be struck down on
the ground that the court thinks it unjustified. Parliament and the
52 2016(2) SCC 445
WP 10478 -14
legislatures, composed as they are of the representatives of the
peoples, are supposed to know and be aware of the needs of the people
and what is good and bad for them. The court cannot sit in judgment
over their wisdom. The Supreme Court, held that the disqualification
based upon lack of prescribed educational qualification or
indebtedness or the lack of functional toilet cannot be struck down
merely on the ground that large number of persons would be deprived
of the right to contest elections by observing that the numerical
dimensions of such classes should make no difference for determining
whether prescription of such disqualification is constitutionally
permissible.
85] Considering the provisions and the scheme of Section 9A,
the principle laid down in the case of Dattatrey Moreshwar (supra)
will not apply to the present case. In the said case, the Supreme Court
was considering a challenge to a detention order on the ground that it
was not expressed or authenticated in the manner prescribed by Article
166 of the Constitution of India. The Supreme Court held that since
the duty was cast upon a public authority and the persons for whose
benefits such duty was cast, had no control over its performance and at
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the same time, would suffer serious inconvenience, as a matter of
practice, such a provision should be regarded as directory and not
mandatory.
86] The Preventive Detention Act, 1950 which fell for
consideration in Dattatrey Moreshwar (supra), had made no specific
provision with regard to expression or authentication of the detention
order. Naturally, therefore, there was no question of prescribing any
consequences, in case of breach. In contrast, there are specific and
clear provisions in Section 9A as to manner in which exemption or
concession is to be availed and the consequences for non-compliance
have also been specified. Besides, the duty under Section 9A has been
cast upon a private party and not a public authority. As noted in
Thombre, nothing prevents a person desirous of contesting election to
a reserved seat from applying for and obtaining a Validity Certificate
well in advance. Therefore, this is not a case of impossibility of
compliance or insisting upon compliance over which the person
concerned, has no control whatsoever. Even Dattatraya Moreshwar
(supra), lays down that generally speaking the provisions of a statute
conferring private rights or requiring a private person to do some act
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are to be regarded as imperative. In ITC Bhadrachalam Paperboards
(supra), the Supreme Court has held that where a statute provides for
a manner in which an executive act is to be discharged, its mandate
cannot be diluted by resort to Dattatraya Moreshwar (supra)
principle.
87] The contention premised upon Sections 4 and 10 of the
Caste Act 2000 does not commend to us. None of the provisions of the
Caste Act 2000, by themselves, create any vested right in a person to
contest elections to a reserved post merely on the basis of a Caste
Certificate, which is only tentative in nature. Section 3 of the Caste
Act 2000 only provides that where any person belonging to the
reserved category is required to produce a caste certificate in order to
contest for any elective post in a local authority, he shall apply in such
form and in such manner as may be prescribed to the competent
authority for the issue of caste certificate. Section 4 then provides that
a caste certificate is to be issued by the Competent Authority and the
same shall be valid only subject to verification and grant of Validity
Certificate by the Scrutiny Committee. Section 6(2) provides that after
obtaining caste certificate from Competent Authority, such person may
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make an application well in time, in such form and in such manner as
may be prescribed to the concerned Scrutiny Committee for
verification of caste certificate and issue of Validity Certificate. Section
7 provides for confiscation and cancellation of false caste certificate.
Section 10 provides that the benefits secured on basis of false caste
certificate are to be withdrawn.
88] Since, great emphasis is laid upon the provision in Section
10(4) of the Caste Act 2000, the same is transcribed for reference of
convenience :
"10. Benefits secured on the basis of false Caste Certificate to be
withdrawn.
(1) ...
(2) ...
(3) ...
(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
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be recoverable as arrears of land revenue and the election
of such person shall be deemed to have been terminated
retrospectively."
(emphasis supplied.)
89] In Dattatraya R. Thorat (supra), Sujit V. Patil (supra),
and Ramesh Suresh Kamble (supra), the main issue involved was
whether the provision in Section 10(4) of the Caste Act 2000
constitutes disqualification for being a Councillor or Member of a local
authority and if so, whether the provision in Section 10(4) of the
Caste Act 2000 is in conflict with the legislations dealing with election
to local authorities and the constitutional scheme prescribed by the
74th Amendment.
90] In Sujit V. Patil (supra) the Full Bench of this Court has
held that there is no repugnancy between the said Act and the Caste
Act 2000. Further, Section 10(4) is not violative of Article 243ZG of the
Constitution of India on the ground that it empowers the Scrutiny
Committee constituted under the Caste Act 2000 to declare an elected
Councillor disqualified or to set aside his election. It was held that the
job of the Scrutiny Committee is either of issuing the Validity
Certificate or refusing to do so. If Validity Certificate is refused, then
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the Caste Certificate issued by the Competent Authority ceases to exist.
With the result, there is no caste certificate filed at the scrutiny of
nomination paper and, therefore, the nomination papers itself become
infirm and incomplete, and the returned candidate looses the
qualification to contest the seat and therefore, he has to vacate his
seat. In view of such scheme, even in the absence of Section 10(4) of
the Caste Act 2000, the consequences in law of the Scrutiny Committee
refusing to issue valid caste certificate would be vacation of seat by the
elected candidate. Even if it is assumed that section 10 (4) deals with
qualification or disqualification for continuing as elected member of
local authorities, the Full Bench has held that the State legislature is
competent to enact such a provision in view of Article 243 (v) of the
Constitution of India.
91] Mr. Acharya has however contended that the aforesaid
decisions hold that the provision in Section 10(4) of the Caste Act
2000 constitutes an "additional disqualification" for being a Councillor
and since, Section 10(4) of the Caste Act 2000 opens with a non-
obstante clause, the same overrides similar disqualifications in
legislations dealing with elections to local authorities. Mr. Acharya
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submits that therefore, unless, the Scrutiny Committee actually cancels
the caste certificate, the election of the Councillor concerned cannot be
deemed to have been terminated with retrospective effect. Again, we
see no force in this submission.
92] If, the provision in Section 10(4) of the Caste Act 2000 is to
be regarded as an "additional disqualification" as contended by Mr.
Acharya, then, such circumstance, by itself, does not render the other
disqualifications prescribed under the law as either redundant or
repugnant. There is in fact, no necessity to advert to the provisions in
Section 10(4) of the Caste Act 2000 if regard must be had to the
scheme of Section 9A which is a special provision and the complete
code. Section 9A lays down the normal rule that only a person who
submits his caste certificate and Validity Certificate along with his
nomination papers is eligible to contest election to a reserved seat.
The first proviso grants an exemption or concession from the
application of this general rule, subject to fulfillment of certain
specified conditions. One of the conditions is the furnish of
undertaking by the person availing the exemption or concession that
he shall produce the Validity Certificate within a period of six months
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from the date of election. The second proviso, in terms, provides that
the failure to produce Validity Certificate within the stipulated period
will result in retrospective termination of the election and
disqualification of the Councillor. The additional disqualification in
Section 10(4) of the Caste Act 2000, in such circumstances, is not at all
attracted and the non obstante clause has no effect upon the
provisions and scheme of Section 9A. The two provisions to that
extent operate in different spheres and there is no question of any
repugnancy.
93] In any case, as noted earlier, the contention based on
repugnancy stands specifically rejected by the Full Bench in Sujit Patil
(supra). In these circumstances, we are unable to accept the
submission that construing the stipulation as to time as mandatory
might result in disharmony between the provisions of Section 9A and
Section 10(4) of the Caste Act 2000.
94] On the issue of automatic termination of election upon the
failure to produce Validity Certificate within the stipulated period, the
reasoning in Shrote, which is followed by the subsequent Division
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Benches in the cases of Nirmala Parate v. State of Maharashtra and
ors.,53 Gita Rupchand Dekate v. State of Maharashtra and ors., 54
Raju Bawane and ors. v. State of Maharashtra and ors, 55
commends to us. A plain reading of the provisions of second proviso
to Section 9A of the said Act lends support to such a construction.
Besides, no provision was pointed out to us with regard to any official
or authority to determine the issue as to whether failure on the part of
the elected candidate to produce the Validity Certificate within a
stipulated period is for any reason attributable to such elected
Councillor or whether such failure is entirely for reason attributable to
either Scrutiny Committee or some other parties who may have unduly
protracted the proceedings before the Scrutiny Committee. In the
absence of any such official or authority vested with the power to
determine the cause for failure to produce the Validity Certificate
within the stipulated period and considering the categorical provisions
of the second proviso to Section 9A, we are of the opinion that the
failure on the part of the elected Councillor to produce the Validity
Certificate within the stipulated period would automatically result in
termination of his election with retrospective effect.
53 (2010)3 AllMR 904
54 2010(1) Mh. L. J. 497
55 (2008) 6 Mh.L.J. 76
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95] In Bhaskar Timappa Shetty v. Caste Scrutiny Committee
and ors.,56 the Division Bench of this Court was called upon to
interpret Section 10(1C)(a) and (b) of the Bombay Provincial
Municipal Corporations Act, 1949, which read thus :
"(a) Notwithstanding anything contained in sub-section (1B), a
Councillor who has been elected to a reserved seat as mentioned
in sub-section (1B), shall be disqualified for being such
Councillor consequent upon the Caste Certificate Verification
Committee or any other Competent Authority specified by the
State Government for the purpose of scrutiny of the Caste
Certificates, declaring the Caste Certificate of such Councillor to
be invalid and canceling the same, on the ground of the same
having been based on a false claim or declaration made by such
person claiming, to be belonging to the reserved category, and
thereupon the Councillor shall be deemed to have vacated his
office on and from the date of declaration of such certificate to
be invalid and cancellation of the same by the said Committee
or the Competent Authority.
(b). On any person having been disqualified for being a
Councilor and consequently, his seat as such Councilor having
become vacant under clause (a), the State Government shall, by
notification in the Official Gazette, disqualify such person for
being elected or being a Councilor for a period of six years from
the date of such Order."
96] The Division Bench, in the aforesaid case, has held that
since a Caste Scrutiny Committee invalidated and cancelled the caste
certificate of the Councillor, such Councillor stands disqualified and
seat held by him becomes vacant. In such a situation, there is no
question of any doubt or dispute as to whether the petitioner has
56 2007(2) Mh. L. J. 222
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ceased to hold the office or not. The reasoning is reflected in
paragraphs 15, 16 and 18 which are transcribed below for reference of
convenience:
"15. This wording of Section 10(1C)(a) of the Act makes it
abundantly clear that as soon as the Caste Scrutiny Committee
invalidates and cancels Caste Certificate of a Councillor, such
Councillor stands disqualified. This Section 10(1C)(a) further
provides that thereupon the Councillor shall be deemed to have
vacated his office on and from the date of declaration of such
Certificate to be invalid and cancellation of the same by the said
Committee. This part of the provisions of Section 10(1C)(a)
clearly states that as soon as the Caste Certificate is invalid and
cancelled, the seat becomes vacant.
16. The Legislature has not made any provision to defer the
decision of Caste Scrutiny Committee. The Legislature has
regarded the decision of Caste Scrutiny Committee as final in
this regard and, as soon as it decides the question against
elected candidates, he becomes disqualified and the seat
becomes vacant. The Legislature does not say that any other
authority is required to make a declaration in that regard.
Falling of seat vacant is a natural consequence to be
immediately followed or which immediately follows by
cancellation of Caste Certificate. It is true that a person has
right to challenge the decision of Caste Scrutiny Committee
before the High Court. But nothing was pointed out before us by
learned counsel Mr. Sakhare that from the date of letter dated
2.1.2003, referred by the Commissioner in his letter dated
7.1.2003 (Exhibit-A), any petition challenging the decision of
Caste Scrutiny Committee was filed by the petitioner and, if
filed, any stay in between was granted by the High Court. No
submissions in this regard were made, bu we were informed
that the petitioner's attempt in the High Court was
unsuccessful.
.......
.......
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18. Mr. Sakhare, the learned counsel appearing for the
petitioner, tried to place reliance upon Section 12 of the Act of
1949. The Section 12 reads thus :-
"(1). If any doubt or dispute arises whether a councillor has
ceased to hold office as such under section 11, such
councillor or any other councillor may, and at the request
of the Corporation, the Commissioner shall, refer the
question to the Judge.
(2). On a reference being made to the Judge under sub-
section (1) such councillor shall not be deemed to be
disqualified until the Judge after holding an inquiry in the
manner provided by or under this Act determines that he
has ceased to hold office."
Mr. Sakhare, therefore, contended that in case of doubt or
dispute of the nature contemplates in Section 12, it was
obligatory upon the Commissioner to refer the question to the
Judge. We are not in agreement with this submission made by
learned counsel Mr.Sakhare. This is not a case where Section 12
is attracted or can be placed in to service at all. When sub-
section (1C)(a) of Section 10 of the Act of 1949 provides that a
Councillor shall be disqualified for being such Councillor
consequent upon the declaration by the Caste Certificate
Verification Committee that his certificate is invalid and,
therefore, cancelled, and when in fact such decision was given
against the petitioner by Respondent No.1, then there is no
question of doubt or dispute whether the petitioner has ceased
to hold office or not. It is altogether different that the petitioner
could have and had challenged the decision of Caste Scrutiny
Committee before the High Court, but the fact that the seat falls
vacant is a natural consequent of the decision of Caste Scrutiny
Committee and no doubt can be there in that regard. This may
not apply to other kind of disqualifications contemplate by
Section 10 of the Act of 1949. However, that is totally different
issue."
97] In the context of the phraseology employed in Section
10(4) of the Caste Act 20o0, including in particular the deeming fiction
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therein, the Supreme Court in Kalpana Dilip Bahirat v. Pune
Municipal Corporation and others,57 has observed thus :
"The consequence is that the election of a person who has
contested on a seat reserved for the aforementioned categories
on false caste certificate as belonging to such caste, tribe or class
"shall be deemed to have been terminated retrospectively". The
deeming provision in sub-section (4) of Section 10 of the 2000
Act is a statutory fiction which has to be given effect to and the
Commissioner of the Municipal Corporation has given effect to
the deeming provision and has thus acted in accordance with
law."
98] In the present case also the legislature in enacting Section
9A has provided for a statutory fiction, which is evident from the use of
expression "his election shall be deemed to have been terminated
retrospectively and he shall be disqualified being a Councilor". The
statutory fiction must be allowed to have its full play. No other
provision or reason has been pointed out to take the view that
consequences prescribed under second proviso to Section 9A are not
automatic or would require any further adjudication once it is
established that the person elected has failed to produce the Validity
Certificate within a stipulated period of six months from the date of his
election.
57 (2014) 15 SCC 654
WP 10478 -14
99] The validation of caste claim of the elected Councillor by
the Scrutiny Committee beyond the prescribed period would have no
effect upon the statutory consequences prescribed under the second
proviso to Section 9A i.e. deemed retrospective termination of the
election of such Councillor and his disqualification for being a
Councillor. The subsequent validation or issue of the Validity
Certificate will therefore be irrelevant for the purpose of restoration of
the Councillor's election but, such validation will obviously entitle him
to contest the election to be held on account of termination of his
election and the consequent vacancy caused thereby.
100] In the result, we hold that the time limit of six months
prescribed in the two provisos to Section 9A of the said Act, within
which an elected person is required to produce the Validity Certificate
from the Scrutiny Committee is mandatory.
Further, in terms of second proviso to Section 9A if a
person fails to produce Validity Certificate within a period of six
months from the date on which he is elected, his election shall be
deemed to have been terminated retrospectively and he shall be
disqualified for being a Councillor.
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Such retrospective termination of his election and
disqualification for being a Councillor would be automatic and
validation of his caste claim after the stipulated period would not
result in restoration of his election.
The questions raised, stand answered accordingly.
101 ] We direct the Registry to place the matter before the Bench
which is assigned to take up Writ Petition No. 10478 of 2014 so as to
enable the Bench to dispose of the petition.
(A.S. OKA, J.)
(M.S. SONAK, J.)
(A.S. GADKARI, J.)
