TMI Blog2016 (12) TMI 1880X X X X Extracts X X X X X X X X Extracts X X X X ..... egislative 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya Jadhav i/b Sachindra B. Shetye JUDGMENT M.S. Sonak, J. 1. This reference concerns interpretation of Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (Section 9A). The main provision of Section 9A provides that any person desirous of contesting election to a reserved seat must submit along with his nomination papers, a caste certificate issued by the Competent Authority and a Caste Validity Certificate (Validity Certificate) issued by the Scrutiny Committee in accordance with the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Caste Act 2000). The first proviso to Section 9A, however, subject to certain conditions, permits a person to so contest even without submitting the Validity Certificate, provided, he files an undertaking that he shall submit the Validity Certificate within a period of six months from the date on which he is elected. The second proviso to Section 9A provides that, if such person fails to produce Validity Certifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of factual setting in which the issues referred for determination arise. 5. Manisha (respondent No. 4), relying upon the first proviso to Section 9A filed her nomination papers on 29 May 2013 for election as a Councillor from Ward No. 2, Bhor Municipal Council (BMC), a position reserved for women belonging to Other Backward Classes (OBC). Along with her nomination papers, she submitted the prescribed statutory undertaking that she will submit Validity Certificate within a period of six months from the date of her election. Manisha was declared elected on 23 June 2013 defeating inter alia, the petitioner No. 2 (Sneha). The six months period expired on 22 December 2013, within which period Manisha failed to produce Validity Certificate from the Scrutiny Committee. Sneha and her husband petitioned the authorities by invoking the second proviso to Section 9A and urging that Manisha's election stands terminated retrospectively and she stands disqualified from being a Councillor. During the pendency of such proceedings, Manisha produced the Validity Certificate dated 29 January 2014 before the authorities on 12 February 2014. 6. The authorities have neither accepted nor rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tra ors. 2010(3) All. M.R.904 and Banwari Dass v. Sumer Chand (1974) 4 SCC 817, Bipinchandra S. Thombre and ors. v. State of Maharashtra and ors. 2010(2) Bom. C.R. 656 9. Mr. L.M. Acharya, learned counsel for Manisha, submits that the present reference is itself incompetent or in any case, should be returned unanswered. He submits that the pre-condition for making reference to the Full Bench is the existence of conflict between the decisions of two coordinate Benches. He submits that in this case, there is no conflict between Gulve and Shrote, since, Shrote, according to him, was decided per incuriam. He submits that Shrote, which was decided on 10 June 2009 had failed to notice that the two provisos, which contain the stipulation as to time, were not even on the statute book on the said date. Further, he submits that Shrote had failed to take notice of the binding precedent in Gulve decided on 20 December 2007. Further, he points out that the Special Leave Petition (SLP) against Gulve was dismissed by the Supreme Court on 18 February 2008. This means that the view in Gulve was affirmed by the Supreme Court and constituted a binding precedent upon the Bench which decided Shrot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terpretation which saves the provisions for the charge of unconstitutionality must be preferred. 12. Finally, Mr. Acharya, by reference to the provisions contained in Sections 4 and 10 of Caste Act 2000 submits that Section 10(4) of the Caste Act 2000 has been construed as an additional disqualification in all acts dealing with election to various local authorities in the decision of Division Bench of this Court in Dattatraya R. Thorat v. State of Maharashtra 2003 (5) Mh.L.J. 539. He submits that the view taken in this decision has been upheld by the two Full Benches in Sujit Vasant Patil v. State of Maharashtra 2004 (3) Mh.L.J. 1109 and Ramesh Suresh Kamble v. State of Maharashtra and ors. 2007(1) Mh.L.J. 423. In view of this position, the learned counsel submits that the provision in Section 10(4) of the Caste Act 2000, which even otherwise, commences with a non-obstante clause, will override the provisions in Section 9A of the said Act. Thus construed, election of a candidate elected to a reserved seat could stand automatically terminated if and only if his Caste Certificate is found to be false, bogus or is cancelled by the Scrutiny Committee in accordance with the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that effect to the Chief Justice who shall make such order thereon as he shall think fit. The circumstance that the Division Bench, in its order dated 11 August 2015 has noted that the petition raises the stated important questions of law is sufficient to infer that the Division Bench was indeed of the opinion that this is the matter which can be more advantageously heard by a Bench of more than two Judges. The Chief Justice, upon consideration of the order dated 11 August 2015 and even otherwise, was therefore competent to make the present reference and it will not be appropriate to return such reference unanswered. 18. Even otherwise, the submission that Shrote, which was decided on 10 June 2009 failed to notice the correct text of the provisions as on that date and is therefore per incuriam, cannot be accepted. If the facts in Shrote are minutely examined, it is clear that Shrote was elected as a Councillor on 8 October 2007. On that date, as also on the date of expiry of period of three months from the date of such election, the two provisos to Section 9A of the said Act were very much a part of the statute. The question which Shrote decides is in the context of the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... constitutional mandate of Article 243-T, the State of Maharashtra, by Maharashtra Act No. XXXV of 2006 (which came into force from 19 August 2006) amended several municipal legislations dealing with local bodies, including, by way of introducing Section 9A. Incidentally, Section 9A in its original form had no provisos and reads thus : 9A. Every person desirous of contesting election to a seat reserved for the Scheduled Castes, Scheduled Tribes, or, as the case may be, Backward Class of Citizens, shall be required to submit, along with the nomination paper, Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), 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 wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e aforesaid Acts with a view enable the person who has applied for issuance of validity certificate to the Scrutiny Committee but who has not received the validity certificate to contest the election to the reserved seat on the condition that he will submit, at the time of filing the nomination paper, true copy of the application made by him to the Scrutiny Committee and give an undertaking that he will produce the validity certificate within a period of three months from the date of his election. Provision is also proposed to be made that if he fails to produce the validity certificate within a period of three months as per the undertaking given by him, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Councilor. 3. As both Houses of the State Legislature are not in session and the Governor of Maharashtra is satisfied that circumstances exist which render it necessary for him to take immediate action further to amend the Mumbai Municipal Corporation Act, the Bombay Provincial Municipal Corporations Act, 1949, the City of Nagpur Corporation Act, 1948 and the Maharashtra Municipal Councils, Nagar Panchayats and Industria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of six months from the date on which he is declared elected, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Councillor. 27. The Ordinance of 2012 was replaced by Maharashtra Act No. XXXI of 2012 published in Official Gazette on 24 December 2012, thereby, formally introducing the aforesaid two provisos to Section 9A, then, with effect from 8 October 2012 in order to ensure continuity. The statement of objects and reasons issued at that stage read thus : STATEMENT OF OBJECTS AND REASONS Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (Mah. XL of 1965) provided that a person who desires to contest election to a reserved seat shall submit, alongwith the nomination papers, the Caste Certificate issued to him by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-Notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, we are concerned with the provisions of Section 9A as they stood on the date when Manisha filed her nomination papers i.e., on 29 May 2013; or on the date of election i.e., 23 June 2013; or on 23 December 2013 i.e., expiry of six months from the date of elections. On all these dates, Section 9A with which we are concerned, read thus : 9A. Person contesting election for reserved seats to submit Caste Certificate and Validity Certificate: Every person desirous of contesting election to a seat reserved for the Scheduled Castes, Scheduled Tribes, or, as the case may be, Backward Class of Citizens, shall be required to submit, along with the nomination paper, Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the Scrutiny Committee in accordance with the provisions of the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000. Provided that, for the General or bye-elections for which the last date of filing of nomination falls on or (before the 31st December 2013), i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he first proviso enables such person to contest the election. The second proviso provides for consequences where the beneficiary of exception or the concession fails to comply with the conditions subject to which the exception or the concession was availed. It provides that where such person fails to produce Validity Certificate within period of six months, as statutorily provided and as undertaken by him from the date of his election, then, the election of such person shall be deemed to have been terminated retrospectively and he shall be disqualified from being a Councillor. 31. In Gulve, the Division Bench has construed the stipulation of six months within which to produce the Validity Certificate as 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 circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should not usurp the benefit of reservation made in favour of backward classes. It is with this object that section 5-B was introduced by an amendment in the MMC Act requiring production of a caste certificate and caste validity certificate at the time of filing of the nomination paper. However, that object was defeated because even the genuine persons belonging to backward classes were sometimes denied the opportunity to contest election merely because though they had obtained the caste certificate had not been able to obtain the caste validity certificate from the Scrutiny Committee before the last date for filling up the nomination paper. Often on account of their backwardness, they were unable to make application for verification of the caste certificate well in advance of the proposed elections and 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory authority or a government officer within a prescribed period and the citizen has no control over the statutory authority or the government officer requiring him to do the thing within the specified time, the provision of a statute or rule requiring the thing to be done within the specified time must be held to be directory. This is because the citizen has no control over the statutory authority or the government officer and he cannot suffer from the negligence of the statutory authority or the government officer in failure to perform the duty within the specified time. This principle was enunciated by the Constitution Bench of the Supreme Court in Dattatraya Moreshwar v. The State of Bombay, reported in AIR 1952 SC 181, wherein Das J. observed: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision of the Scrutiny Committee . 33. On the other hand, Shrote has held that the stipulation as to time within which to produce the Validity Certificate is mandatory. The Division Bench has reasoned that the provision of Section 9A is specific, clear and self explanatory . The legislature has used the expression shall and the proviso to Section 9A not only stipulates that the Validity Certificate must be produced but further that the Validity Certificate must be produced within a stipulated time limit of six months from the date of election. Further, second proviso, in terms, provides the consequences in case of failure to produce the Validity Certificate within a stipulated period. The consequences are the automatic termination of election of such candidate with retrospective effect and disqualification for being a Councillor. In such a situation, not even a formal declaration in that regard by any authority is necessary. The provision is a self contained code which provides not 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equences were automatic cessation/termination of election of such candidate with retrospective effect and such candidate shall also be disqualified for being a Councillor. It is in such situation not even a formal declaration in this regard by the Authority was necessary. If the elected candidate failed to submit the validity certificate within three months from the date of election, the election of such candidate would stand terminated automatically with retrospective effect and such candidate also stood disqualified for being a Councillor. The provision was self contained code which had provided not only the procedure to be followed by the elected Councilor but also provided consequences in case of omission to follow the said procedure. As per the said provision it was not even necessary for the Collector to declare the election of such candidate was terminated and he/she has incurred disqualification for being a Councillor. However, in the case of the petitioner, the Collector, Nagpur gave such declaration which is impugned in the present writ petition. It is not in dispute that the petitioner could not submit validity certificate within three months from the date of election an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t it is enacted and at the same time, who have no control over the performance of the duty, such provision should be treated as directory; Dattatraya Moreshwar (supra); (v) If a statute confers a concession or privilege and prescribes a mode of acquiring it, the mode so prescribed must be adopted as even affirmative words in such cases are construed imperative; Edward Ramia Ltd. v. African Woods Ltd. 1960 (1) ALL ER 627; (vi) Where a provision prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as mandatory one; (vii) Provisions which impose private duties or obligations 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 na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary meaning, unless of course, such construction leads to absurdity or unless there is something in the context or in the object of the statute to the contrary. Therefore, when the words of a statute are clear, plain and unambiguous, then, the Courts are bound to give effect to that meaning, irrespective of the consequences involved. Normally, the words used by the legislature themselves declare the legislative intent, particularly where the words of the statute are clear, plain and unambiguous. The effort must be to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being redundant or surplus, particularly when such words can have proper application in circumstances conceivable within the contemplation of the statute. Union of India 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 Va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lain, clear and unambiguous, the Courts are bound to give effect to the meaning, irrespective of the consequences. 41. In this case, the legislature has repeatedly used the word shall and further, provided consequences in case of breach. There is nothing, either in the text or in the context which suggests that the provision, expressed so clearly, was intended to be construed as directory or that the consequences so clearly prescribed were intended to only apply in a situation where the elected candidate was found to be responsible for the delay in the proceedings before the Scrutiny Committee. In fact, Section 9A does not even provide for any authority or mechanism to inquire into or determine whether the elected candidate was responsible for the delay in the proceedings before the Scrutiny Committee or not. These are, in our opinion, weighty reasons for construing the provision as mandatory. 42. No doubt, the use of expressions like shall or may are not conclusive in determining whether the provision is mandatory or directory. However, user of expressions like shall , should , must raise a presumption that the provision is imperative or prima facie mandatory. Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... graph 12B is most relevant, it is transcribed below for reference of convenience :- 12B. Thus the scheme is that a person who obtains a caste certificate has to himself apply to the Scrutiny Committee for scrutiny of his caste certificate, so that he can secure a valid certificate from the Scrutiny Committee, and it is only after the Scrutiny Committee issuing a valid certificate that the caste certificate issued in favour of the person by the competent authority becomes final. In our opinion, the scheme of Sub-section (2) of Section 6 is that any candidate who desires to avail of any benefit available to backward class has to get a caste certificate as also the validity certificate before he makes a claim for the benefits. But if a candidate chooses to make claim to the benefits on the basis of a tentative certificate namely a certificate issued by the competent authority, he takes the risk of his losing the benefits that he has claimed and obtained and also being visited with penal consequences on the refusal of the Scrutiny Committee to validate his caste claim. The Act contemplates conscious decision being made by a person at the time of claiming benefits. The Legislature e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sition. The normal function of a proviso is to provide an exception i.e. exception of something that is outside the ambit of the usual intention of the enactment, or to qualify something enacted therein, which, but for the proviso would be within the purview of such enactment. Thus, its purpose is to exclude something which would otherwise normally fall within the general language of the main enactment. Therefore, usually a proviso cannot be interpreted as a general rule that has been provided for. So also, it cannot be interpreted in a manner which would nullify the enactment or take 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking out, as it were, from the main enactment a portion which, but for the proviso, would fall within the main enactment. In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subbash Chandra Yograj Sinha Hidayatullah, J., as he then was, very aptly and succinctly indicated the parameters of a proviso thus: As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. XXX 36. While interpreting a proviso care must be taken that it is used to remove special cases from the general enactment and provide for them separately. 37. In short, generally speaking, a proviso is intended to limit the enacted provision so as to except something which would have otherwise been within it or in some measure to modify the enacting clause. Sometimes a proviso may be embedded in the main provision and becomes an integral part of it so as to amount to a substantive provision itself. (Emphasis supplied) Thus, from a reading of the abovesaid legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of publication in the Official Gazette was mandatory since a levy created by a statute can be lifted, suspended or withdrawn only by a statute or in the manner prescribed by the statute creating the levy. The Supreme Court held that dispensing with the levy and payment of tax is a serious matter. It is done only with a view to promote countervailing public interest. The provision in Section 11 regards the publication in the Official Gazette is of a substantive nature besides being in the nature of an exemption. The principle in the case of Dattatraya Moreshwar Pangarkar (supra) that the provisions which relate to the performance of public duties are to be construed as 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 sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccepted except for compelling reasons such as obvious drafting errors. (See Nathi Devi v. Radha Devi Gupta) (2005) 2 SCC 271. 55. In Mithilesh Singh v. Union of India and ors. (2003) 3 SCC 309, a member of Railway Protection Force had applied for leave and thereafter remained absent. Rule 147(iv) of the Railway Protection Force Rules, 1959 declared the absence by an enrolled member of the force without proper intimation to be a serious misconduct. In this context, the Supreme Court held that the application for leave may at the highest constitute intimation , but the same could not have been 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision, is not reason enough to either deviate from or resist compliance with statutory provisions. 59. In Martin Burn Ltd. v. The Corporation of Calcutta AIR 1966 Supreme Court 529, the Supreme Court has held that a result flowing from a statutory provision is never an evil. A Court has no power to ignore the provision to relieve what it considers a distress resulting from its operation. A statute must of course be given effect to whether a Court likes the result or not. When the High Court found that the relevant Section had been attracted to the case, it had no power to set that provision at nought. 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 Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provision is clear and unambiguous and the legislature has also provided for consequences where the given act is not performed within the prescribed period of limitation, it is not for the Courts of law to relax such provision on a case to case basis, depending upon its notion of hardship and inequity. Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give effect to the provisions of a statute on the very elusive ground that to give them their ordinary meaning leads to consequences which are not in accord with the notions of propriety or justice entertained by the Court. (State of Rajasthan 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 rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot obligatory, there is no time limit at all. Doing an act late is not the equivalent of doing it in time. That is why Grove J said in Barker v. Palmer - provisions with respect to time are always obligatory, unless a power of extending the time is given to the court . This probably cannot be laid down as a universal rule, but in my judgment it must be the normal one. Unless the court is given a power to extend the time, or some other and final mandatory time limit can be spelled out of the statute, a time limit cannot be relaxed without being dispensed with altogether; and it cannot be dispensed with altogether... (emphasis supplied) 66. In Visitor, AMU v. K.S. Misra (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 constr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, in accordance with the law laid down in the above authority, the provisions of Statutes 61(6)(iv)(b) and (c) should be treated as mandatory as it is a private party who has to do a particular act within a specified time. 13. The problem can be looked from another angle. If the view taken by the High Court that the provision is directory is accepted as correct, it would in effect amount to making the provisions of sub-clause (c) of Statute 61(6) (iv) otiose. In such a case the consequences provided therein that if no option is exercised within the prescribed time-limit, the employee shall be deemed to have opted for the retention of the benefits already received by him would never come into play. It is well-settled principle of interpretation of the statute that it is incumbent upon the court to avoid a construction, if reasonably permissible on the language, which will render a part of the statute devoid of any meaning or application. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intent is that every part of the statute should have effect. The legislature is deemed not to waste its words or to say anyth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctorate, which had the right to be represented by a candidate genuinely belonging to a reserved category. Such a situation will also lead to the frustration of the constitutional mandate of Article 243T. 69. In such matters therefore, it is not safe to premise an interpretation based upon any alleged individual hardship or trauma. Rather, the only safe guide to apply would be adherence to the statutory provisions, particularly where the statutory provision is clear, plain and unambiguous. Besides, the significance of requiring the person who seeks to avail the benefit of exemption or concession under the first proviso to Section 9A to submit his undertaking that he shall produce the Validity Certificate within the stipulated period, cannot be lost sight of. This means that the legislature, despite, being aware of the pendency position before the Scrutiny Committees, intended to place the duty upon such private person, since, such private person wished to deviate from the general rule and avail an exemption or concession to contest without producing the Validity Certificate along with his nomination papers. There is reasonable certainty when it comes to election schedules to loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction. 12. As observed by Lord Cranworth in Gundry v. Pinniger: (ER p. 648) ... to adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the legislature has to be gathered from the language used (vide Grasim Industries Ltd. v. Collector of Customs and Union of India v. Hansoli Devi). 21. In Union of India v. Hansoli Devi this Court observed: (SCC p. 281, para 9) 9. ... It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. (emphasis supplied) 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 presump ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fide or intended to defeat the provisions of Section 22, will be void, thereby, saving transfers, which may be bonafide or made any good faith and not to defeat or thwart the purpose of provisions of the Act. The Supreme Court reversed the High Court by observing that Section 22, literally read, leads only to one conclusion, that any transfer, bona fide executed or not, is liable to be declared void by the authorised officer if he finds that the transfer defeats any of the provisions of the Act . The Supreme Court conceded that such an interpretation might cause hardship to some, but explained that every cause claims martyrs. Individual trauma is inevitable while ushering in a new economic order. To allow the sense of the text and to mix alien concepts is to debase the statutory metal. 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 gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the basis of reasoning in Gulve. In fact, from the scheme of Section 9A, it is apparent that the main enactment only reinforces the general rule in such matters that a person desirous of contesting to a reserved seat must produce along with his nomination papers both caste certificate as well as the Validity Certificate. The election schedules to local authorities are fairly certain. Nothing therefore prevents persons desirous of contesting to reserved seats from applying and obtaining Validity Certificate well in advance. As a general rule, this is what is expected in such matters so that there is no suspense with regard to the status of the candidate. 78. There is no absurdity involved in the expectation, as a general rule, that a person desirous of contesting election to a reserved seat produces a Validity Certificate alongwith his nomination papers. This will ensure that there is no doubt with regard to the caste status of such person. In fact, the constitutional validity of Section 9A (sans 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 tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpetent authority and the validity certificate issued by the Scrutiny Committee along with the nomination paper. Only then the nomination paper can be said to be validly presented. The fact that the Petitioners were unable to obtain validity certificate before the date of filing of nomination paper, cannot be the basis to hold that Section 9-A is unreasonable. The purport of Section 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 Munici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a provision cannot be avoided or diluted on the ground that it would be harsh or inequitable to do so. The Division Bench, in Thombre, has specifically upheld the constitutional validity of Section 9A, while, the two provisos to it were not on the statute book. The provision then rendered only such persons who were able to submit caste certificate and Validity Certificate alongwith their nomination papers as eligible to contest election to the reserved seats. If the legislature, for a limited period of time, taking into consideration pendency of applications for issuance of Validity Certificate before the Scrutiny Committee grants some exemptions or concession to persons who have applied for issue of Validity Certificate before the date of filing nomination papers, but who have not received such Validity Certificate on the date of filing of nomination papers, subject to such 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal right (Rajbala ors. v. State of Haryana, 2016(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 ov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which an executive act is to be discharged, its mandate cannot be diluted by resort to Dattatraya Moreshwar (supra) principle. 87. The contention premised upon Sections 4 and 10 of the Caste Act 2000 does not commend to us. None of the provisions of the Caste Act 2000, by themselves, create any vested right in a person to contest elections to a reserved post merely on the basis of a Caste Certificate, which is only tentative in nature. Section 3 of the Caste Act 2000 only provides that where any person belonging to the reserved category is required to produce a caste certificate in order to contest for any elective post in a local authority, he shall apply in such form and in such manner as may be prescribed to the competent authority for the issue of caste certificate. Section 4 then provides that a caste certificate is to be issued by the Competent Authority and the same shall be valid only subject to verification and grant of Validity Certificate by the Scrutiny Committee. Section 6(2) provides that after obtaining caste certificate from Competent Authority, such person may make an application well in time, in such form and in such manner as may be prescribed to the concerne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Competent Authority ceases to exist. With the result, there is no caste certificate filed at the scrutiny of nomination paper and, therefore, the nomination papers itself become infirm and incomplete, and the returned candidate looses the qualification to contest the seat and therefore, he has to vacate his seat. In view of such scheme, even in the absence of Section 10(4) of the Caste Act 2000, the consequences in law of the Scrutiny Committee refusing to issue valid caste certificate would be vacation of seat by the elected candidate. Even if it is assumed that section 10(4) deals with qualification or disqualification for continuing as elected member of local authorities, the Full Bench has held that the State legislature is competent to enact such a provision in view of Article 243(v) of the Constitution of India. 91. Mr. Acharya has however contended that the aforesaid decisions hold that the provision in Section 10(4) of the Caste Act 2000 constitutes an additional disqualification for being a Councillor and since, Section 10(4) of the Caste Act 2000 opens with a non-obstante clause, the same overrides similar disqualifications in legislations dealing with election ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the subsequent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated his office on and from the date of declaration of such Certificate to be invalid and cancellation of the same by the said Committee. This part of the provisions of Section 10(1C)(a) clearly states that as soon as the Caste Certificate is invalid and cancelled, the seat becomes vacant. 16. The Legislature has not made any provision to defer the decision of Caste Scrutiny Committee. The Legislature has regarded the decision of Caste Scrutiny Committee as final in this regard and, as soon as it decides the question against elected candidates, he becomes disqualified and the seat becomes vacant. The Legislature does not say that any other authority is required to make a declaration in that regard. Falling of seat vacant is a natural consequence to be immediately followed or which immediately follows by cancellation of Caste Certificate. It is true that a person has right to challenge the decision of Caste Scrutiny Committee before the High Court. But nothing was pointed out before us by learned counsel Mr. Sakhare that from the date of letter dated 2.1.2003, referred by the Commissioner in his letter dated 7.1.2003 (Exhibit-A), any petition challenging the decision of Caste Scr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 produce the Validity Certificate within a stipul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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