Case Note & Summary
The reference arose out of a writ petition challenging the election of a councillor from a reserved ward for Other Backward Classes (OBC) women in Bhor Municipal Council. The respondent no.4, Manisha, had filed her nomination papers on 29 May 2013 and submitted an undertaking under the first proviso to Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, promising to produce a caste validity certificate within six months of her election. She was elected on 23 June 2013. The six-month period expired on 22 December 2013, but Manisha failed to submit the validity certificate within that time. The petitioners, who were the defeated candidates, sought a declaration that her election stood terminated retrospectively and that she was disqualified under the second proviso to Section 9A. During the pendency of the proceedings, Manisha produced the validity certificate dated 29 January 2014 to the authorities on 12 February 2014. The authorities, however, did not take any decision on the matter, prompting the petitioners to approach the High Court. A Division Bench of the High Court, by its order dated 11 August 2015, noticed a conflict between two earlier Division Bench decisions on the interpretation of Section 9A: Dadasaheb A. Gulve v. State of Maharashtra, which held the time limit to be directory, and Sadashiv J. Shrote v. State of Maharashtra, which held it to be mandatory. The Division Bench framed three questions of law: (i) whether the time limit is mandatory; (ii) whether the failure to produce the certificate within six months automatically results in termination irrespective of circumstances beyond the candidate's control; and (iii) whether validation of the caste claim beyond the prescribed period automatically results in retrospective termination. The matter was then referred to a Full Bench. Before the Full Bench, the petitioners and the State argued that the plain language of Section 9A, the use of the word 'shall', and the provision for consequences indicated a mandatory time limit, and that any other interpretation would render the second proviso redundant. They relied on several precedents. The respondent Manisha contended that the reference was incompetent because Shrote was decided per incuriam, failing to notice that the provisos containing the time stipulation were not even in force when the decision was rendered, and that it overlooked the binding precedent in Gulve, which had been affirmed by the Supreme Court via dismissal of a special leave petition. Alternatively, she argued that Gulve correctly held the time limit to be directory, as an elected councillor who had applied for a validity certificate before filing nomination had done all in her power, and delays by the Scrutiny Committee should not prejudice her. She submitted that deeming the provision mandatory would lead to harsh, inequitable, and absurd results, and possibly render it unconstitutional. She further argued that Section 10(4) 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, which provides for automatic termination only when a caste certificate is found to be false or bogus, would override Section 9A. The Full Bench reserved judgment on 23 September 2016 and pronounced it on 9 December 2016. (The provided text does not include the court's analysis or final decision.)
Issue of Consideration
Whether the stipulation of six months for production of Caste Validity Certificate under Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 is directory or mandatory.
Law Points
- interpretation of 'shall' as mandatory or directory
- stipulation as to time for production of validity certificate
- effect of non-compliance
- object of legislation
- proviso interpretation
- consequences of automatic termination
- role of Scrutiny Committee delays
- hardship and absurdity
- constitutional validity
- rule of harmonious construction
- per incuriam
- binding precedent
Case Details
2016 LawText (BOM) (12) 8
WRIT PETITION NO. 10478 OF 2014
A.S. Oka, M.S. Sonak, A.S. Gadkari
Mr. P.D. Dalvi i/b Mr. Balasaheb R. Deshmukh (Petitioners), Ms Shriya Jadhav i/b Mr. Sachindra B. Shetye (Respondent No.1), Mr. A.B. Vagyani, Government Pleader a/w. Mr. V.B. Thadhani, AGP, Mr. P.G. Sawant, AGP and Ms Tintina Hazarika (Respondent No.2), Mr. L.M. Acharya i/b Mr. Anish Khandekar (Respondent No.4), Mr. Murtaza Nazmi and Mr. Vaibhav Gaikwad (Intervener)
Anant H. Ulahalkar & anr.
Chief Election Commissioner and ors.
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Nature of Litigation
Writ Petition seeking declaration that election of a Councillor stands terminated and she is disqualified for non-production of Caste Validity Certificate within six months as per Section 9A of the Maharashtra Municipal Councils Act, 1965.
Remedy Sought
Petitioners (Anant H. Ulahalkar & anr.) seek declaration that Manisha's election stands terminated retrospectively and she is disqualified, and directions for by-elections.
Filing Reason
Manisha, elected from reserved OBC ward, failed to submit Validity Certificate within six months of election; authorities did not act on complaint; petitioners filed petition for declaration.
Previous Decisions
Division Bench in the same petition referred conflicting interpretations of Section 9A to Full Bench; earlier Division Bench decisions Gulve and Shrote held opposing views on whether time limit is directory or mandatory.
Issues
Whether the time limit prescribed under Section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965, for submission of caste validity certificate by elected Councilor is mandatory in nature?
Whether the failure on the part of person elected as Councilor to produce the caste validity certificate within the period of six months from the date on which he was declared elected, irrespective of facts and circumstances and eventuality beyond the control of such person to produce validity certificate would automatically result into termination of his election with retrospective effect?
Whether the validation of caste claim of elected Councilor by the Scrutiny Committee beyond the prescribed period would automatically result into termination of such Councilor with retrospective operation?
Submissions/Arguments
Petitioners and State: Time limit mandatory; plain language; use of 'shall'; consequences provided; otherwise second proviso rendered redundant. Relied on various precedents.
Respondent Manisha: Reference incompetent as Shrote per incuriam, Gulve binding; Gulve correct; delay by Scrutiny Committee should not prejudice candidate; stipulation as to time is directory; object and hardship to be considered; Section 10(4) Caste Act overrides and election terminated only if certificate found false.
Judgment Excerpts
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 Vs. State of Maharashtra and Ors. (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 Vs. State of Maharashtra and Ors. (Shrote).
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.
The authorities have neither accepted nor rejected the contentions of either parties, but merely refrained from taking any decision in the matter.
Procedural History
Division Bench in present writ petition, by order dated 11 August 2015, identified conflict between Gulve and Shrote and referred matter to larger bench. Full Bench constituted by administrative order dated 20 November 2015 and changed on 28 June 2016.
Acts & Sections
- Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965: 9A
- 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: 4, 10(4)
- Constitution of India: Article 243T
