TaxTMI 
TaxTMI 
2016 (12) TMI 1880
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....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 v. State of Maharashtra and Ors. 2008(2) Bom.C.R.712 (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 v. State of Maharashtra and Ors. 2010(1) Mh.L.J. 203 (Shrote). 2. The genesis of this reference is the order dated 11 August 2015 made in the....
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....tee. 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 to a Municipal Council is only a statutory right and therefore, restrictions imposed upon such right by the S....
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....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 v. State of Maharashtra 2014(16) SCC 623, and Union of India v. R.P. Singh 2014(7) SCC 340 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 cannot be prejudiced for failure of the Scrutiny Committee to expedi....
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....ts 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. 14. The rival contentions now fall for our co....
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.... 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 to the situation where a conflict is noticed between the decisions of two or more coordinate Benches. ....
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...., De-notified Tribes (Vimukta Jatis), 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,....
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....nd 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, Dated the 27th October 2006. S.M. KRISHNA, 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....
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....wnships 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 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 ....
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....red 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 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....
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....the Division Bench has construed the stipulation of six months within which to produce the Validity Certificate as 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....
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....e 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 sometimes 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 ....
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....he 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: "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....
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.... 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 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 electi....
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.... 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 is directory or mandatory. There are several rules to determine whether a provision is mandatory or directory. However, such rules are neith....
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....scribes 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 upon private parties are ordinarily to be regarded as mandatory; - Kedarnath Jute Mfg, Co. Ltd. v. Commercial Tax Officer, AIR 1966 SC 12; (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....
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....larly 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 v. Tata Chemicals Ltd., 2014 (6) SCC 335 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 nominatio....
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....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" 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 v. 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 per....
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....our 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....
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.... 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 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 v. Om Prakash Sharma AIR 2013 SC 30). 49. The rules with regard to interpretation of a "proviso" are succinctly set out by the Supreme Court in Satya Pal Singh v. State of Madhya Pradesh, 2015 Cr.L.J. 4929 at paragraphs 11 to 13. In paragraph 12, by reference to Sunderam Pillai v. V.R. Pattabiraman, 1985(1) SCC 591, 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 v. 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 follo....
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....neral 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 Subsection (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....
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.... 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 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 candidat....
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....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 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 el....
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....o 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. 60. In Hyder Consulting (UK) Limited v. Governor, State of Orissa (2015) 2 SCC 189, 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 1995 (Suppl.) (1) SCC 192, 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 Sarma AIR 1945 PC 48 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 ....
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....uity. 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 v. Mrs. Leela Jain, AIR 1965 SC 1296) 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. (1998) 3 SCC 23, 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 unam....
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....obably 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 (2007) 8 SCC 593, 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 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(....
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.... 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, i....
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....e, 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 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 B....
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....th 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 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 re....
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....ndia 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) 71. In Prakash Nath Khanna v. CIT (2004) 9 SCC 686, 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....
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....r 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. 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 co....
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....inforces 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 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 ....
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....mination 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 9A 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 31st 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. ... ... 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 differ....
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....e 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 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 p....
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....016(2) SCC 445). 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 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....
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....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 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 ce....
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....hority 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 authorit....
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.... Division Benches in the cases of Nirmala Parate v. State of Maharashtra and ors., (2010)3 AllMR 904 Gita Rupchand Dekate v. State of Maharashtra and ors., 2010(1) Mh. L.J. 497 Raju Bawane and ors. v. State of Maharashtra and ors. (2008) 6 Mh.L.J. 76, 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 prod....
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....ted 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 Cast....
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....lip Bahirat v. Pune Municipal Corporation and others (2014) 15 SCC 654, 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 p....