2016 (12) TMI 1880 - BOMBAY HIGH COURT

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.