2016 (12) TMI 1880 - HC - Indian Laws

Interpretation of Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 - whether the stipulation of six months for production of Validity Certificate is only directory? - HELD THAT - In Central Board of Dawoodi Bohra Community and anr. v. State of Maharashtra and anr. 2004 (12) TMI 350 - SUPREME COURT , 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 provision in Rule 7 Chapter - I, suggests the absence of any such fetter. 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 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. 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. 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 - 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. 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 - 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 - 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.

Summary

List of Issues:
1. Whether the time limit prescribed under Section 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.
2. Whether the failure on the part of the 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 in the termination of his election with retrospective effect.
3. Whether the validation of caste claim of elected Councilor by the Scrutiny Committee beyond the prescribed period would automatically result in the termination of such Councilor with retrospective operation.

Detailed Analysis:

1. Mandatory Nature of the Time Limit in Section 9A:
The court concluded that the time limit of six months prescribed under Section 9A is mandatory. The main provision of Section 9A requires that a person contesting an election to a reserved seat must submit a caste certificate and a Validity Certificate along with the nomination papers. The first proviso grants an exemption, allowing the submission of an undertaking to produce the Validity Certificate within six months from the date of election. The second proviso stipulates that failure to produce the Validity Certificate within this period results in the retrospective termination of the election and disqualification as a Councillor.

The court emphasized that the legislative language is clear, plain, and unambiguous. The use of "shall" indicates a mandatory requirement, and the legislature has provided specific consequences for non-compliance. The court noted that interpreting the time limit as directory would render significant portions of Section 9A redundant and unworkable, which is against the principles of statutory interpretation.

2. Automatic Termination of Election for Failure to Produce Validity Certificate:
The court held that failure to produce the Validity Certificate within the stipulated six-month period results in the automatic termination of the election with retrospective effect. The second proviso to Section 9A clearly states that if the Validity Certificate is not produced within six months, the election shall be deemed to have been terminated retrospectively, and the person shall be disqualified for being a Councillor. The court found no provision or mechanism in the statute for determining whether the delay in producing the Validity Certificate was attributable to the elected candidate or other factors. Therefore, the statutory consequence of automatic termination applies irrespective of the reasons for the delay.

3. Effect of Validation of Caste Claim Beyond Prescribed Period:
The court determined that validation of the caste claim by the Scrutiny Committee beyond the prescribed period does not affect the statutory consequence of termination of the election. Even if the Validity Certificate is issued after the six-month period, the election remains retrospectively terminated, and the Councillor remains disqualified. The subsequent validation only entitles the individual to contest future elections but does not restore the terminated election.

Conclusion:
The court answered the questions raised by affirming that the six-month time limit for producing the Validity Certificate under Section 9A is mandatory. Failure to comply with this requirement results in the automatic and retrospective termination of the election and disqualification of the Councillor. Validation of the caste claim after the stipulated period does not restore the election. The matter was directed to be placed before the appropriate Bench for further proceedings.