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TMI Blog2016 (12) TMI 1880X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, 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 present Writ Petition by the Division Bench ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond 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 Statute have to be strictly construed and enforced. They submit that the legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expeditiously dispose of his application for issue of Validity Certificate. Having regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mences 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 consideration. 15. The submissions as to incompetency of the reference proceed upon the prem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed, 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. Similarly, the summary dismissal of SLP against Gulve does not attract doctrine of merger and therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation 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". 23. The statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 May 2008, both the aforesaid provisos to Section 9A, 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 conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes, 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, 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 el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing 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 seats, having applied for issue of Validity Certificate befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 of caste validit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tory 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 election, i.e., 8th 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 peri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 neither exhaustive nor universal. In fact, the universal rule is that there is no universal rule in such matters. In Liverpool Borough Bank v. Turner (1860) 30 LJ Ch. 379, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 period and when it comes to providing consequences for breach; Secondly, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage 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 cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onclusive 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 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 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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) 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. Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " (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 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 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 v. Bharti Teletech Ltd. (2014) 3 SCC 556). If a person is desirou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 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 dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 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 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. v. Appellate A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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. 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 fixat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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(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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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) 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. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (2011) 4 SCC 266, 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 prevail. It was held that if the provision is unambiguous and if from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 9A even on the ground that it is ultra vires Article 14 of the Constitution of India is devoi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ogramme 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 accompanie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 surplusage. In essence, this Court would be re-writing the statute on the basis of its own value judgments or notions of equity and inequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the same time, would suffer serious inconvenience, as a matter of practice, such a provision should be regarded as direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch 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 pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gislations dealing with elections to local authorities. Mr. Acharya 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 undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 95. In Bhaskar Timappa Shetty v. Caste Scrutiny Committee and ors. 2007(2) Mh. L.J. 222, 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 cancelling 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 inva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision 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, but we were informed that the petitioner's attempt in the High Court was unsuccessful. ....... ....... 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 counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stipulated period of six months from the date of his election. 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 ret ..... X X X X Extracts X X X X X X X X Extracts X X X X
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