Jat Higcourt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.

5691 OF 2007

Dadasaheb Arjun Gulve

.. Petitioner

V/s The State of Maharashtra & Ors.

.. Respondents

WITH WRIT PETITION NOS. 3793/07, 4165/07 (with CA 2251/07), 4250/07 (with CA 2257/07), 4312/07 (with CA 2265/07), 4313/07 (with CA 2258/07), 4335/07 (with CA 2263/07), 4336/07 (with CA 2264/07), 4416/07, 4417/07, 4422/07, 4429/07, 5074/07, 5144/07, 5529/07, 5692/07, 5696/07, 5705/07, 5730/07, 5766/07, 5777/07, 5830/07, 5865/07, 5867/07, 5872/07, 5874/07, 5875/07, 5878/07, 5880/07, 5882/07, 5950/07, 6077/07, 6187/07, 6188/07, 6189/07, 6191/07, 6192/07, 6377/07, 6568/07, 6587/07, 6596/07, 6768/07. ---------

Mr.Y.S. Jahagirdar, Senior Advocate with Mr.G.S. Godbole for the petitioners in Writ Petition Nos.5691/07, 4416/07, 4417/07, 4422/07, 4429/07, 5692/07, 5696/07, 5705/07, 5766/07, 5777/07, 5830/07, 6077/07 and 6768/08. Mr.R.K. Mendadkar for the petitioners in Writ Petition Nos. 3793/07, 5144/07, 5730/07, 6187/07, 6188/07, 6189/07, 6191/07 and 6192/07. Mr.L.M. Acharya for the petitioners in Writ No.4165/07 with C.A. No.2251/07, Writ No.4250/07 with C.A. No.2257/07, Writ No.4312/07 with C.A. No.2265/07, Writ NO.4313/07 with C.A. No.2258/07, Writ No.4335/07 with C.A. No.2263/07 and Writ No.4336/07 with C.A. No.2264/07.

Petition Petition Petition Petition Petition Petition

Mr.Avinash Avhad No.5074/07.

Writ

Petition

for the petitioner in

Mr.P.D. Dalvi No.5529/07.

for

the petitioner

in

Writ

Petition

Mr.Vijay Patil No.5865/07.

for

the petitioner

in

Writ

Petition

- 2 -

Mr.N.V. Walawalkar, Senior Advocate, with Walvekar for the petitioner in Writ Nos.5867/07, 5872/07, 5880/07 and 5950/07.

Mr.Rahul Petition

Mr.H.S. Venegavkar for the petitioner in Writ Petition Nos.5874/07 and 5875/07. Mr.Pratap Patil No.5878/07.

for

the petitioner in

Writ

Petition

Mr.S.S. Patwardhan for the petitioner in Writ Petition Nos.5882/07, 6587/07 and 6596/07. Mr.A.V. Anturkar i/b Mr.S.B. Deshmukh petitioner in Writ Petition No.6377/07.

for

the

Mr.Harshad Bhadbhade for the petitioner in Writ Petition No.6568/07. Mr.A.A. Mr.C.R.

Kumbhakoni, Associate Advocate Sonawane, A.G.P. for the State.

Ms.Anjali Iyer No.4165/07.

for

respondent no.4 in

General

with

Writ

Petition

Mr.G.S. Godbole for respondent no.3 in Writ No.4250/07 with C.A. No.2257/07.

Petition

Mr.A.J. Bhor for respondent no.3 No.4313/07 with C.A. No.2258/07.

in

Writ

Petition

Mr.Kirit Hakani for respondent no.6 in Nos.4335/07 and 4336/07.

Writ

Petition

Mr.R.K. Mendadkar for respondent no.9 in Writ Petition No.4416/07 and for respondent no.3 in Writ Petition No.6377/07. Mr.S.B. Shetye for respondent no.10 in Writ Petition No.4416/07, for respondent no.12 in Writ Petition No.4417/07, for respondent no.9 in Writ Petition Nos.4422/07, 5730/07 & 5777/07, for respondent no.11 in Writ Petition Nos.4429/07 & 5766/07, for respondent no.5 in Writ Petition Nos.5144/07, 6187/07, 6188/07, 6189/07 & 6191/07, for respondent no.4 in Writ Petition No.5529/07, for respondent no.6 in Writ Petition Nos.5692/07, 5696/07 & 6077/07, and for respondent no.3 in Writ Petition Nos.5882/07 & 6587/07. Mr.R.G. Ketkar for respondent no.5 in Nos.4417/07 and 4422/07. Mr.M.V.

Bhutekar

Writ

for respondent nos.9 to 11

Petition in

writ

- 3 -

Petition No.4417/07 and for respondents no.9 & Writ Petition No.4429/07. Mr.P.D. Dalvi No.5144/07.

for

respondent no.3 in

Writ

10

in

Petition

Mr.S.S. Patwardhan for respondent no.2 in Writ Petition No.5529/07. Mr.Anilkumar No.5529/07.

Patil for respondent no.1 in Writ Petition

Mr.Amit Borkar No.5830/07.

for respondent no.10 in

Writ

Petition

Mr.J. Shekhar for respondent no.3 in Nos.5865/07 and 5878/07.

Writ

Petition

Mr.M.S. Lagu No.5872/07.

Writ

Petition

for

respondent no.4

in

Mr.V.D. Borwankar for respondent no.6 in Writ Petition No.6188/07. Mr.U.B. Nighot No.6189/07.

for respondent no.6 in

Writ

Petition

Mr.O.A. Siddiqui for respondent no.6 in Writ No.6192/07.

Petition

Mr.A.M. Kulkarni for respondent no.5 in Writ No.6587/07.

Petition

CORAM : S.B. MHASE & D.G. KARNIK, JJ. DATE OF RESERVING THE ORDER

: 11TH SEPTEMBER 2007

DATE OF PRONOUNCING THE ORDER: 20TH DECEMBER 2007

ORDER: ORDER (Per D.G. Karnik, J.) 1. have 5-B

In

all

these writ petitions,

the

petitioners

challenged the constitutional validity of

section

of the Mumbai Municipal Corporation Act, 1888

(for

- 4 -

short

"MMC Act"), section 5-B of the Bombay

Provincial

Municipal Corporations Act, 1949 (for short "BPMC Act"), section 9-A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965 (for short "Municipalities

Act"), section 12-A of the

Zilla

Parishads

short

"Zilla

Bombay

for four

Panchayats

Panchayats Act").

the

1961

Parishads act") and section 10-A

Village

Village

and Panchayat Samitis act,

Maharashtra

Act, 1950 (for

In the alternative,

the "the

counsel limit

months prescribed for production of a certificate

in

short

petitioners submitted that the time

validity

(for

of

caste/tribe

by the second proviso to each

of

the aforesaid sections should be held to be directory.

2. of

Since

all the petitions raise common

questions

law and challenge the constitutional validity on the

same

grounds

and

also

put

forward

the

same

interpretation to the second proviso which are identical in

each of the abovementioned sections of the Acts,

we

are passing this common order.

3.

Article

provides

243-D

of

the

Constitution

of

India

that seats shall be reserved for the scheduled

castes

and

scheduled tribes in every

number

of

seats so reserved are required to

nearly

as

may

number

of seats to be filled by direct election in that

be, the same proportion

panchayat.

to

The

bear, the

as

total

- 5 -

panchayat

as the proportion of scheduled castes in that

panchayat

area

or

tribes

in

that

panchayat

area

bears to the total population

of

that

area.

Article

provides

of

the scheduled

that

243-T seats

of

the

Constitution

shall be reserved

of

for

India

scheduled

castes and scheduled tribes in every municipality (which under

Article 243-Q shall include a Nagar Panchayat,

Municipal

Council

and a Municipal

Corporation).

a The

number

of

seats so reserved are required to

nearly

as

may

number

of seats to be filled by direct election in that

municipality in

that

be, the same proportion

to

the

as the population of the scheduled

municipal area or of the scheduled

that

municipal

that

area.

mandate

bear,

order

contained

Constitution

to

fulfil

India,

castes in

population

of

the

constitutional

in Articles 243-D and 243-T

of

total

tribes

area bears to the total

In

as

the Legislature

of

of State

the of

Maharashtra has made provisions for reservation of seats for

persons

tribes

and

belonging to scheduled other

backward

classes

castes, of

scheduled

citizens

in

municipalities, village panchayats and zilla parishads.

4.

In

reservation

order of

to

ensure

seats

in the

that

the

benefits

municipalities,

of

village

panchayats

and zilla parishads conferred on the persons

belonging

to the scheduled castes, scheduled tribes and

other

backward

classes

(hereinafter

collectively

- 6 -

referred away

to

as "the backward classes") are

not

taken

to

and/or grabbed by ineligible persons not belonging the

belong,

backward

MMC

the

Act,

classes but who falsely claim

to

Legislature introduced section 5-B in

so the

section 5-B in the BPMC Act, section 9-AA

in

the City of Nagpur Corporation Act, 1948 and section 9-A in

the

Municipalities

Municipal

Act

Corporations

by

and

enacting

Maharashtra

Municipal

Councillors

(Amendment) Act, 2006 (Maharashtra Act No.XXXV of 2006). Similarly,

the

Legislature

also

introduced

section

10(IA) in the Village Panchayats Act and section 12-A in the

Zilla

Parishads

Act by

enacting

Bombay

Village

Panchayats and Maharashtra Zilla Parishads and Panchayat Samitis (Amendment) Act, 2006 (Maharashtra Act No.XXXVII of the

2006).

Section 5-B of the MMC Act, section 5-B

BPMC Act and section 9-A of the Municipalities

of Act

are identically worded and initially did not contain any proviso Panchayats

thereto.

Section

10-IA

of

the

Act and section 12-A of the Zilla

Village Parishads

Act

are also identically worded with section 5-B of the

MMC

Act and section 5-B of the BPMC Act save and except

that

each

of

them

contain

two

provisos.

The

two

provisos identical to those contained in section 10-A of the Village Panchayats Act and section 12-A of the Zilla Parishads MMC

Act

Act were subsequently added to section 5-B of and

Municipalities

the

BPMC

Act and

section

9-A

Act by Maharashtra Act No.XLIV of

of

the 2006.

- 7 -

Thus, MMC

as

on date of the petitions, section 5-B of

the

Act section 5-B of the BPMC Act, section 9-A of the

Municipalities Panchayats

Act,

section

10(IA)

of

the

Act and section 12-A of the Zilla

Village Parishads

Act, with which we are concerned in these petitions, are all

identically worded with identical provisos thereto.

Since the

we are concerned with the identical provisions in different

this

stage

whatever

us

to refer to section 5-B of the MMC Act

at and

is said about section 5-B of the MMC Act would

apply

with

pari

materia

above.

statutes, it would be enough for

equal force to the interpretation of sections

in the other Acts

other

referred

to

Section 5-B of the MMC Act reads as under:-

"5B.

Person

contesting election for

reserved

seats

to submit Caste Certificate and

Validity

Certificate.Certificate contesting Scheduled case be

Every

desirous

of

election to a seat reserved for

the

Castes,

person

Scheduled tribes or, as

may be, Backward Class of Citizens,

the shall

required to submit along with the nomination

paper, Caste Certificate issued by the Competent Authority and the Validity Certificate issued by the

Scrutiny

provisions Scheduled Jatis),

Committee in accordance with

the

of the Maharashtra Scheduled Castes, Tribes,

De-notified Tribes

Nomadic Tribes, Other Backward

(Vimukta Classes

- 8 -

and

Special

Issuance

Backward Category

(Regulation

of

and Verification of) Caste Certificate

Act, 2000.

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 validity

paper

the

but who has not received

certificate

nomination

the

on the date of filing

paper shall submit, along

of with

the nomination paper.-

(i)

a true copy of the application preferred by

him

to

the

validity certificate or any other proof for

having

the Scrutiny Committee for issuance

made

Committee;

such application to

the

of

Scrutiny

and

(ii) an undertaking that he shall submit, within a

period

of four 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 his

four

months from the date of his

election

shall

be

deemed

to

election, have

been

- 9 -

terminated

retrospectively

and

he

shall

be

disqualified for being a Councillor."

5.

At the hearing of the petitions, learned counsel

appearing of

for the petitioners submitted that the period

four

months prescribed for production of the

validity to

certificate by elected councillor must be held

be directory.

person of

caste

They submitted that a backward

class

who gets elected as a corporator or a councillor

a

municipal corporation or a municipality or

member

of

a

(hereinafter

village

reserved

panchayat or

a

zilla

as

a

parishad

referred to as "the councillor") on a seat

for backward classes, though having applied in

time for the caste validity certificate, is often unable to

obtain

Scrutiny

the caste validity certificate from a Committee

for

no fault of his.

Caste

Because

of

inaction of the Caste Scrutiny Committee in deciding his caste

claim within statutory period of four months,

should

not

merely

by

validity four the

be

disqualified from

reason

a

of his failure to obtain

certificate

the

caste of

If the period of 4 months prescribed

by

is

within the prescribed

councillor

period

months. proviso

being

he

held to be mandatory,

the

councillor

whose caste certificate of belonging to a backward class is upheld by the Caste Scrutiny Committee, but after the expiry of

the

of the period of four months of the

declaration

election results would be disqualified to be

a

- 10 -

councillor

and

his

retrospectively. would

be

This

illegal

mandate

months

India.

required must

be

produces

immediately

after

Scrutiny

disqualified terminated

not only be the

terminated unjust

but

constitutional of

the

Therefore, the period of

for production of the

councillor

Caste

be

in Articles 243-D and 243-T

of

certificate

would

would

and contrary to

contained

Constitution

election

caste

validity

held to be directory and the

caste

validity

four

if

the

certificate

his caste claim is validated by

the

Committee, he should not be held to

nor for

his

councillorship be deemed

non-production

of the

caste

to

be be

validity

certificate before the expiry of the statutory period of four

months.

submitted

Counsel

for

the

petitioners

further

that if this interpretation is accepted, then

the

petitioners do not wish to pursue their claim

the

aforementioned

unconstitutional.

sections In

view

or any

part

of this,

we

that

thereof would

is

first

consider whether the period of four months prescribed by second

proviso to section 5-B of the MMC Act should

be

construed as directory or mandatory.

6.

At

this

stage, it would be useful to refer

to

the

state of affairs prevailing prior to the year

and

prior to enactment of Maharashtra Scheduled Castes,

Scheduled Nomadic

Tribes, Tribes,

De-notified Tribes (Vimukta Other

Backward

Classes

and

1995

Jatis), Special

- 11 -

Backward

Category

Verification

(Regulation

of)

Caste

of

Issuance

Certificate

and

Act,

2000

(Maharashtra Act No.XXIII of 2001) (hereinafter referred to

as "the Caste Certificates Validation Act").

certificates

were

then issued by Tahsildars

scrutinised

and

verified

certification Patil

&

by

Development,

v.

Additional

reported

and

were

non-statutory

validation committees.

anr.

Caste

caste

In Kumari Madhuri

Commissioner,

in AIR 1995 SC 94, 94

the

Tribal Supreme

Court noted that the procedure which was followed by the various

scrutiny

certificates

committees

for validation

of

caste

was neither uniform nor appropriate.

Many

times persons not belonging to a backward class obtained certificates

of

belonging

to

a

backward

class

and

wrongly gained admissions to educational institutions or secured

employment

Supreme

Court held that an admission wrongfully

or

to

reserved seats or

posts.

The gained

an appointment wrongfully obtained on the basis of a

false

social

depriving tribes

status

or

the

genuine

certificate

other

had

the

scheduled castes

backward

class

effect

or

of

scheduled

candidates

of

the

benefits conferred on them by the Constitution of India. The were

court also noted that some times genuine candidates

or

also denied admission to educational

want

appointments of

spurious

to office or posts under a

institutions State

social status certificate while ineligible persons falsely gained entry thereto.

for or

For the

- 12 -

purpose

of

streamlining the procedure for issuance

of

social status certificates, their scrutiny and approval, the Supreme Court laid down the procedure that should be followed.

Since

Maharashtra,

that

followed.

the

decision

in

the

State

of

The

procedure laid down therein has Legislature of

Maharashtra

been

thereafter

stepped in and enacted the Caste Certificates Validation Act

(Act

No.

regulation

XXXIII of 2001) which provides

of

certificates

issuance and verification of

scheduled

jatis),

nomadic

special

backward

is

backward the

category.

Under section 2-B

the

competent

by the State Government

official

Any

and

of

Validation Act, 2000 the

in

certificates.

(vimukta

tribes and other backward classes

appointed

notification

caste

scheduled

tribes, de-notified tribes

Certificates

authority

the

the

to the persons belonging to the

castes,

Caste

for

gazette

to

by

issue

a

caste

person, who belongs to any

of

the

classes, is required to make an application to

competent

prescribed

authority for caste certificate

manner.

The

competent

in

authority,

the after

satisfying itself about the genuineness of the claim and following

the

certificate.

procedure Under

prescribed

issues

section 5 of the Act,

a

any

caste person

aggrieved by an order of rejection of the application by the

competent

authority can file an appeal

days before the appellate authority. the

government

to

constitute

by

within

30

Section 6 requires a

notification

in

- 13 -

official

gazette,

verification competent that

of

one or more Scrutiny Committees the

authority.

caste certificate issued

for

by

the

Sub-section (4) of section 6 says

the Scrutiny Committee shall follow such procedure

for

verification of caste certificate and complete

verification time

as

of caste validity certificate within

prescribed.

sub-section

(4)

no

limit

order

an

Section 7 of the Act says that if

be, a

validation certificate was obtained by any person the

confiscate

certificate

procedure.

Act

says

committee before

Scrutiny Committee shall cancel

the

prescribed

the

caste

or invalidating, as the case may

claim.

fraudulently,

the

the

committee to complete the enquiry and pass

caste

caste

caste

prescribed,

has yet been prescribed for

validating

the

though

of section 6 speaks of grant of

certificate within the time to be

scrutiny

such

It may be noted here that

validity time

the

after

Sub-section (2) of section 7

that the order passed

shall

following

by

be final and shall not

the

and the of

be

scrutiny challenged

any court except High Court under Article 226 of

Constitution

enquiry

of India.

Section 8 says that in

before the competent authority or the

an

scrutiny

committee, the burden of proving that the person belongs to 9

a backward class shall be on the applicant. confers

authority, committee

powers the in

of a civil court

appellate

on

authority and

the the

respect of matters relating to

Section competent scrutiny summoning

- 14 -

and enforcing attendance of any person, examining him on oath,

requiring

document,

the

discovery and production

receiving

evidence

on

any

any

office and issuing commissions

or

examination the

Act

witnesses or documents.

class

backward

for

the of

class

debarred

government,

against a post reserved

shall

by

the

or government aided institutions or

society

certificate

the

from

Section 10

secures appointment to the

authority

cooperative

as

public record or copy thereof

says that whoever not belonging to any of

backward local

of

any

affidavits,

requisitioning court

of

on

cancellation

of

for the

a

such caste

the Scrutiny Committee be liable to

be

from the concerned educational institution or, case

forthwith.

may be, discharged

material

from

the

employment

Sub-section (4) of section 10 of the Act is for

the purposes of this petition

and

reads

of

false

thus:

"10.

Benefits

secured on the basis

Caste Certificate to be withdrawn:

(1)

....

(2)

....

(3)

....

(4)

Notwithstanding

law

for the time being in force, a person shall

be

disqualified

from

anything contained in

being a member

of

any

any

- 15 -

statutory

body if he had contested the election

for local authority, co-operative society or any statutory

body on the seat reserved for any

Scheduled

Castes, Scheduled Tribes, De-Notified

Tribes

(Vimukta

Backward by

Classes and Special Backward

procuring

belonging false

Jatis), Nomadic Tribes,

a

false

Caste

of

other

Category

Certificate

to such Caste Tribe or Class on

as such

Caste Certificate being cancelled by

Scrutiny such

the

Committee and any benefits obtained by

person

person

as

election

shall

be

recoverable

from

in arrears of land revenue

such

and

the

of such person shall be deemed to have

been terminated retrospectively."

Sections

11

to 17 of the Act are not material for

the

decision

on

these

Act

petitions.

Section 18 of

the

empowers the State Government to make rules to carry out the

purposes

Government make

of

such

by

the Act and section 19

empowers

the

notification in the official gazette

provisions

not

inconsistent

with

to the

provisions of the Act as may be necessary for removal of any

difficulty

which

arises in giving effect

to

the

provisions of the Act.

7.

Sub-section

Certificates

(4)

Validation

of Act,

section 10

of

2000 provides

the that

Caste the

- 16 -

person,

who

authority,

had

on

a

any

local

cooperative society or other statutory

body

seat reserved for any of the backward classes

procuring

false

backward the

contested an election for

caste

certificate as belonging

by

to

a

class, on false certificate being cancelled by

Scrutiny

Committee, be disqualified from

being

a

member of such body, and his election shall be deemed to be

terminated retrospectively.

(4)

Perusal of

sub-section

of section 10 of the Caste Certificates

Validation

Act would show that sub-section (4) of section 10 of the Caste Certificate Validation Act applies to a case where a

person

had already obtained a caste

belonging

to

election

a

to

certificate

backward class and had

contested

as the

a local authority, cooperative society

or

any other statutory body on a seat reserved for backward classes

and

cancelled

the by

caste the

Scrutiny false

is

subsequenly

Committee.

of

election

such person shall be deemed to

terminated retrospectively. body of

a

caste

be

have

the been

When an election to a local

elections.

certificate

produced

by

a

successful

found to be false, fresh election is required

held

obviously

5-B

certificate,

such

is held to be terminated retrospectively by reason

candidate to

caste

On

cancellation of

the

certificate

on the seat becoming vacant.

This

would

entail substantial expenditure for the

fresh

In order to avoid such expenditure, section

(without any provisos thereto) was initially

added

- 17 -

to

the MMC Act by Maharashtra Act NO.XXXV of 2006.

substantive person

provision

desirous

of

section 5-B

requires

The every

of contesting election to a seat of

a

councillor reserved for backward classes to submit along with nomination paper, a caste certificate issued by the competent issued

authority and the caste validity

certificate

by the Scrutiny Committee in accordance with the

provisions 2000.

of

the Caste Certificates

Validation

Act,

Though sub-section (4) of section 6 of the Caste

Certificates Validation Act, 2000 enables the government to

prescribe the time limit for the Scrutiny

to

decide

upon the validity of the

caste

Committee certificate

issued by the competent authority, no time limit has yet been

prescribed.

May

be that on account

of

several

cases relating to the caste validity certificate pending before the Caste Scrutiny Committee and/or on account of sudden rush of cases that may come before it just before an

election, the Scrutiny Committee may not be able

decide

about

issued

by

perhaps not

the

certificate

is for this reason that the government

has

Scrutiny

Committee

validity

of

the

is

certificate

caste

and

prescribed

Committee

the

the competent authority in a fixed time

it

yet

validity of

to

not

the time limit is

required

to

caste certificate. able

to

decide

within

which

the

upon

the

decide If upon

the the

Scrutiny

issued to a person who proposes to

caste contest

the election to a local body, the candidate would not be

- 18 -

entitled

to

contest

the

substantive

provision

This

effectively

may

constitutional Articles The

election

by

reason

of section 5-B of the

mandate

be of

a

Act.

to

the

contained

243-D and 243-T of the Constitution of

Legislature

provisos 2006.

to

of Maharashtra, therefore,

in

India.

added

section 5-B by Maharashtra Act

two

No.IXL

of

The first proviso to section 5-B of the MMC

provides

that a person who has applied to the

Committee before has

date

of

along

Scrutiny

for the verification of his caste certificate

not received the validity certificate filing

with

the

application for

Act

the date of filing of the nomination paper,

who

but

on

of the nomination paper

shall

nomination paper a true

copy

the

submit of

preferred by him to the Scrutiny

issuance

proof

a

MMC

hindrance

reservation

of

the

Committee

of the validity certificate or any

for having made such application to the

other

Scrutiny

Committee and an undertaking that he shall submit within four

months from the date of his election the

certificate second that

issued

proviso

by

Scrutiny

Committee.

The

to section 5-B of the MMC Act

provides

if the person fails to produce the caste

validity

certificate election, terminated

within his

four

election

months from the date shall be deemed to

of

have

his been

retrospectively and he shall be disqualified

for being a councillor. to

the

validity

The object of the first proviso

section 5-B of the MMC Act, it appears to us, is

to

- 19 -

enable

a

backward class person who possesses

certificate

issued

applied

the

to

a

caste

by the competent authority and

Scrutiny Committee for issuance

has of

a

caste validity certificate, but the validity thereof has not of

been decided by the Scrutiny Committee for no fault his,

243-T of

to contest the election.

243-D

of the Constitution of India mandate

seats

frustrated the

to

scheduled

That mandate should not be

merely by reason of the inaction on the part

Caste

position caste

and

reservation

in favour of persons belonging

castes and scheduled tribes.

of

Articles

to

Scrutiny Committee, of not investigate

class

in

a

issue

a

the caste claim and

validity certificate.

backward

being

If a person belonging to a

possessing a caste certificate but

not

possessing the a caste validity certificate is prevented from

even

contesting

constitutional therefore, section belonging

caste

mandate

will

be

the

threshold,

frustrated

and,

first proviso appears to have been added

5-B

contest

the election at

of

to the

the MMC Act providing

backward election

classes would

that be

though he does not

a

to

person

entitled possess

to the

validity certificate provided that on the date of

filing

of

Scrutiny

the nomination paper he has applied Committee

for

verification

of

to

his

the caste

certificate and produces a proof that he has so applied. Initially,

the

period

three

of

second provisos to section 5-B months

for

production

of

gave a

a

caste

- 20 -

validity

certificate.

Legislature either

that

It was however noticed

the caste claims were not

by

the

determined

said

way by the Caste Scrutiny Committees within period of three months of the date of

the

declaration

of the election results and, therefore, by a legislative amendment

the

period

was extended by one

requiring

the

person

to produce

certificate pointed

within

a

the

more

caste

month

validity

period of four months.

It

was

out to us that in many cases the Caste Scrutiny

Committees have not decided the caste claims even within four

months of the election.

that

in

some

decided that

Caste

Scrutiny

Committees

the caste claims in favour of the

is

to

say

certificates were

cases

It was pointed out to

not

that they have

of

have

petitioners,

validated

the petitioners, but

us

the

the

actually informed of the said

caste

petitioners

decisions

nor

were they issued caste validity certificates within four months

of the elections.

Consequently, the petitioners

could not produce the caste validity certificates within a

period

election

of

passed

four

results to

the

months of the and

consequently

declaration

of

the

orders

have

been

effect that their elections

have

been

terminated retrospectively and they are disqualified for being

councillors

as they have failed to

produce

the

caste

validity certificates within the statutory period

of four months prescribed by section 5-B of the MMC Act. It

is in these circumstances that we are called upon to

- 21 -

consider whether the period of four months prescribed by proviso caste

to section 5-B of the MMC Act for production of validity certificate be regarded as directory

or

mandatory.

8.

Mr.Kumbhakoni,

General

appearing

submitted neither is

that

learned

for

the

the

Associate State

right to contest

of

Advocate

Maharashtra,

an

election

is

a fundamental right nor a common law right.

It

a right conferred by a statute and must,

therefore,

be subject to the conditions which are prescribed by the statute.

Section

5-B of the MMC Act clearly

provides

that every person desirous of contesting an election for a

seat reserved for backward classes must produce along

with by

the nomination paper the caste certificate

issued

the competent authority and the validity certificate

issued Caste

by the Scrutiny Committee in accordance with the Certificate Validation Act.

section

5-B

of

the

MMC

Act

The first proviso to was

added

thereto

subsequently with a view to craft an exception in favour of a person wanting to contest election who had obtained the

caste certificate and submitted the same before the

Scrutiny

Committee

for verification, but the

Scrutiny

Committee had not decided the application on the date on which proviso

the

nominations were to be filed.

By the

to section 5-B of the MMC Act, such person

first who

having obtained a caste certificate and having submitted

- 22 -

the

same to the Scrutiny Committee for verification was

allowed

to

contest

conditions, paper, to

namely

the

election

subject

that (i) along with the

to

nomination

he produced a copy of the application

the

Scrutiny

Committee for

issuance

preferred

of

or

application

to the Scrutiny Committee and (ii) filed an

undertaking

that

months

months)

such

period

of

to

the

validity

date of his election,

issued

submission

by the Scrutiny

the

four

Committee.

Thus,

of an undertaking that he would produce

the

validity certificate within four months from

the

caste date

he would submit, within a

made

(which was subsequently amended

from

certificate

other proof for having

validity

certificate

three

any

two

of his election is a statutory condition governing

the right to contest an election. section

The second proviso to

5-B of the MMC Act provides that if the elected

councillor

failed

to

produce

the

caste

validity

certificate within a period of four months from the date of

his

election,

terminated

his election shall be deemed

be

retrospectively and he shall be disqualified

for being a councillor. the

to

purpose

of

retrospectively Legislature

deemed

termination

of

the

election

was indicative of the intention of

that

Mr.Kumbhakoni

The use of the word "shall" for

the

further

provision submitted

was that

the

mandatory. the

statute

provides not only the requirement of production of caste validity

certificate

within

four

months

of

the

- 23 -

declaration further

of

the results of an election but makes

provision,

non-production four

is

penal

in

nature,

that

of the caste validity certificate within

months would result in termination of the election

retrospectively. breach

As penal consequences are provided for

of the provision, that was surest indication for

holding

that

directory. the

which

a

the

was

mandatory

and

not

this regard, Mr.Kumbhakoni referred

to

decisions of the Supreme Court in Sharif-ud-din

v.

Abdul

Gani

In

provision

Lone, reported in (1980) 1 SCC 403 and

the

observations made in paragraph 34 of the decision of the Supreme

Court in Kailash v.

Nanhku, reported in (2005)

4 SCC 480. 480

9.

In

Sharif-ud-din

v.

Abdul Gani Lone

(supra),

the Supreme Court observed:-

"9. and

The a

difference between a mandatory rule

must

directory rule is that while the be

former

latter

strictly observed, in the case of

substantial compliance may be sufficient

to

achieve the object regarding which the

is

enacted.

can

of

Certain broad propositions

rule which

be deduced from several decisions of courts

regarding be

the

the rules of construction that should

followed in determining whether a law

is

directory

or

mandatory

provision may

be

- 24 -

summarised thus:

the fact that the statute uses

the word "shall" while laying down a duty is not conclusive

on

mandatory find the

the

question

whether

or directory provision.

it

is

In order

to

out the true character of the legislation, court has to ascertain the object which the

provision of law in question has to subserve and its

design

enacted.

and If

the

the

context in

object

which

of a law

is

it

is

to

be

defeated by non-compliance with it, it has to be regarded law

as mandatory.

relates

duty

and

But when a provision of

to the performance of

any

the invalidation of any act

public done

disregard

of

that

provision

causes

prejudice

to

those

for whose

benefit

in

serious it

is

enacted and at the same time who have no control over the performance of the duty, such provision should

be

treated as a directory one.

however,

a

certain

act

manner and

provision of law prescribes that has

to be done

in

a

a

particular

by a person in order to acquire a

right

it is coupled with another provision

which

confers not

Where,

an immunity on another when such act is

done

regarded

in that manner, the former has to as a mandatory one.

ordinarily mandatory

should if

the

not

be

be

A procedural rule construed

defect in the act

as

done

a in

- 25 -

pursuance

of

it

can be

cured

by

permitting

appropriate rectification to be carried out at a subsequent

stage

permission another

to

unless

rectify

rule

is

by

the

to be done

according

such

error

later

in

particular

a

on,

manner and also lays down that failure to comply with

the

said requirement leads to a

consequence, the

specific

it would be difficult to hold that

requirement

is

not

mandatory

and

the

specified consequence should not follow."

In

Kailash v.

Nanhku (supra), the Supreme Court

with approval the observations by Justice G.P. his

cited

Singh in

book "Principles of a Statutory Interpretation (9th

Edn., 2004)" which are as follows:-

" The study of numerous cases on this topic does not

lead

except not

to formulation of any universal

this

that language alone most often

rule

decisive,

and

regard must be had

the

of

the

subject-matter

statutory

provision in question, in determining

an

object

to

context,

whether

and

is

the same is mandatory or directory,

oft-quoted passage Lord Campbell said:

universal mandatory directory

rule

can be laid down as to

enactments only

shall

be

or obligatory with

in "No

whether

considered an

implied

- 26 -

nullification of

for disobedience.

It is the duty

courts of justice to try to get at the

intention

of

attending

the

legislature

by

real

carefully

to the whole scope of the statute

to

be considered." (p.338)

"

For

ascertaining the real intention

legislature, points out Subbarao, J. may

of

the

‘the court

consider inter alia, the nature and

design

of the statute, and the consequences which would follow

from

construing it the one way

other,

the

impact of other provisions

the in

necessity of complying with the question

namely,

is

that

contingency

avoided; the

of

provisions;

the

statute

the

the

or

the

whereby

provisions

circumstances,

provides

non-compliance

for

fact that the

with

a the

non-compliance

with the provisions is or is not visited by some penalty;

the

consequences,

serious

all,

that

or

the

flow therefrom;

trivial and

above

whether the object of legislation will

defeated

or

enactment

If

object

of

will be defeated by holding the

directory, whereas

furthered’.

it

if

will be construed as

by

holding

general

inconvenience

innocent

persons

it will

be the same

mandatory,

mandatory be

serious

without very much

created

to

furthering

- 27 -

the

object

of

enactment,

the

same

will

be

construed as directory." (pp.339-340)

Respectfully of

rule is directory or mandatory. is

not

context,

matter

and object of

the

to

the

statutory

in question, in determining whether the

mandatory or directory.

consider

the

The court may, inter

same alia,

nature and design of the statute and

the

which would follow from construing it

the

consequences one

Language alone most

decisive and regard must be had

subject

provision

of

to

to a conclusion whether any provision of a statute

often

is

are

the view that no universal rule can be laid down

come or

following the aforesaid decisions, we

way or the other.

The fact that the non-compliance

the provision is or is not vested by some penalty is

relevant,

but

that alone is not necessarily

decisive.

The serious or the trivial consequences that follow from the

breach

Legislature

and

above all whether the

object

of

the

will be defeated or furthered by construing

the statute directory or mandatory is material.

10.

The

ensure

that

only

the persons

classes

are

only

elected

councillor who claim

do

object of section 5-B of the MMC Act is

and

belonging occupy

reserved for backward classes.

to the

social

status

of

belonging

backward post

of

The persons,

not belong to backward classes but who the

to

to

falsely backward

- 28 -

classes,

should

made

favour of backward classes.

in

object in

not usurp the benefit

of

reservation

It is

with

that section 5-B was introduced by an

the

MMC

Act

certificate

requiring

production

this

amendment

of

a

caste

and caste validity certificate at the

of filing of the nomination paper.

time

However, that object

was

defeated because even the genuine persons belonging

to

backward

opportunity

classes to

were

some

times

denied

contest election merely because

the

they

had

able

to obtain the caste validity certificate from

Scrutiny

obtained the caste certificate had

though

the

not

been the

Committee before the last date for filling

nomination

backwardness,

paper.

Often

on

account

of

up

their

they were unable to make application

for

verification of the caste certificate well in advance of the

proposed

made

elections and some times though they

applications

for

obtaining

caste

had

validity

certificate well in advance, the same was not decided by the

Scrutiny Committee for no fault of theirs.

such

genuine

opportunity travesty in

reason the

persons belonging to backward classes to

contest

the election would

of the constitutional mandate of

favour

of

that

To deny

the backward classes.

It

an

amount

to

reservations is

for

this

two provisos to section 5-B were added

MMC Act enabling the persons belonging to

in

backward

classes to contest the election by producing at the time of

nomination paper the caste certificate along with

a

- 29 -

proof

of

having applied for verification of the

certificate the

and filing an undertaking for production of

caste

validity certificate within

period.

the

prescribed

It is worthy to note that initially the period

prescribed MMC

caste

Act

by the second proviso to section 5-B of for production of caste certificate was

the

months.

The

that

the

Scrutiny

Committees were flooded with applications

for

validation

of

the elections to the municipalities,

and

therefore unable to decide the applications within

three

months.

The

Legislature,

amendment

extended

validity

certificate

(vide

Maharashtra

consequence 5-B

however was aware

of the caste certificates, especially in the

aftermath were

Legislature

three

of

against

MMC

backward

genuine

by

an

the period for production of

caste

from three months to four

Act

No.XV

provided

the

therefore,

of

2007).

The

by the second proviso to

Act is really not

months

meant

penal

to

section operate

and bonafide persons belonging to

the

classes, but is intended to operate against an

impostor, a fraudster, a spurious person who, though not belonging

to any of the backward classes, contests

elections

on

a false claim of having social status

backward

class.

impostors

and

It

is

in order

to

see

as councillors and represent the

reserved

for

backward

termination

classes

that

a

of

that

fraudsters do not continue to

benefits

automatic

the

reap

such the

constituency provision

of election has been made.

of The

- 30 -

object of penal provision is not to punish for the delay genuine persons whose caste claims have been accepted by the

Scrutiny

fraudsters

Committee,

but to

punish

impostors

or

who had wrongly claimed the social status of

belonging to backward classes.

11. by

To

illustrate the injustice likely to be caused

holding

the

period of 4 months as

mandatory,

the

counsel for the petitioners invited our attention to the facts

in

No.7152

Writ Petition No.7142 of 2007, Writ of

Petition

2007 and Writ Petition No.7164 of 2007,

to

which we would refer hereafter.

12. to

In the

Writ Petition No.7142 of 2007, the elections

respondent no.1 Municipality were held

on

7th

January

2007

on

8th

January

2007.

caste 1996

and The

Scrutiny

declared

petitioner, who belongs

to

Sutar

24th December 1996 and had applied Committee

certificate,

to

results were

and who had obtained caste certificate no.448 dated

post

the

filed

for

validation

of

to

of

his

the caste

nomination for the election to

the

of councillor along with proof that he had applied the

caste

Caste Scrutiny Committee for validation of certificate

required

by

the

Municipalities petitioner

and

also

gave

an

undertaking

first proviso to section 9-A

Act.

As

per

the

his

said

as

of

the

proviso,

the

was therefore required to produce the

caste

- 31 -

validation certificate within four months of 8th January 2007,

i.e.

on

petitioner

or before 7th May

2007.

Though

before

the

the

attended

the

hearing

Scrutiny

Committee,

for

no

Scrutiny

Committee did not decide upon the validity

the

fault of

his

Caste

the

Caste of

petitioner’s caste certificate till 23rd July 2007.

Immediately the

same

on before

respondent held

26th July 2007 the petitioner the respondent

no.2.

produced

However,

the

no.2 by his order dated 17th September

2007

that the petitioner was disqualified from being

councillor

and

retrospectively validity

his as

election

stood

a

terminated

he had failed to produce the

caste

certificate within four months of the date

of

declaration of the results of the election.

13. to

In the

respondent no.1 Municipality were held

on

2007

and results were declared on 8th

January

petitioner, who belongs to a Hindu

Dhangar

January 2007.

Writ Petition No.7152 of 2007, the elections

caste

The -

a backward class, and who had

certificate

no.CBS/1096/P-K-48/MKV-V

obtained

7th

dated

caste

6th

March

1996 as belonging to Hindu Dhangar caste and had applied to

the Caste Scrutiny Committee for verification of his

caste

certificate,

election submitted

as

applied

the

a

filled in the nomination

councillor caste

to

a

reserved

certificate and proof

form

for

seat

and

of

having

for validation of the caste certificate to

the

- 32 -

Scrutiny

Committee.

accepted

and he was allowed to contest the election and

was

Thereupon his nomination paper was

declared elected on 8th January 2007.

Committee

validated

the

caste

The Scrutiny

certificate

of

the

petitioner, but the order was received by the petitioner only

on 21st January 2007.

produced

The petitioner

immediately

the same before the respondent no.2.

the

respondent

2007

declared

councillor

no.2 by it order dated

17th

However, September

the petitioner to be disqualified

and also declared his election to

retrospectively validity

for

certificate

failure

to

as

a

produce

terminate the

caste

within the statutory period of

4

months of the elections.

14. to

In the

respondent no.1 Municipality were held

on

2007

January

January 2007. is

Writ Petition No.7164 of 2007, the elections

and results were declared on 8th

7th

The petitioner, who belongs to Mali caste, which

other

backward class, filled in nomination form

by

producing the caste certificate and a proof that she had applied

to the Scrutiny Committee for validation of the

caste

certificate.

caste

certificate

She was elected.

Scrutiny

Committee

by its order dated 5th April 2007.

However,

the

was not informed to the petitioner till

July

2007

validity

and

validated

consequently

she

by

her

the

same

was

Subsequently

could

produce

21st the

certificate before the respondent no.2 only on

- 33 -

23rd

July 2007.

She produced a letter dated 2nd August

2007 written by the Scrutiny Committee to the petitioner informing her that on account of paucity of staff in the office

of

the Scrutiny Committee, the decision of

the

Scrutiny Committee was not informed to the petitioner in time,

for

regret.

which the Scrutiny Committee

has

expressed

dated

Despite this, the respondent no.2 by its order 17th September 2007 held that the election of the

petitioner

stood terminated retrospectively on

account

of her failure to produce the caste validity certificate within the statutory period of 4 months.

15.

The

respective

aforesaid three cases clearly show that the petitioners who were elected as

do belong to backward classes.

councillors

Each of them did possess

caste certificate of belonging to abackward class. of

them

had

issuance

of

caste

applications up the

proof

them

Scrutiny

validity

Committee

certificate

for

and

their

were made well before the date of

filling

Each of them had produced

before the Returning Officer that

they

for validation of the caste certificate. subsequently

certificate the

to the

of the nomination papers.

applied of

applied

Each

produced

the

caste

had Each

validity

before the appropriate authority.

However,

certificate was not produced within 4 months of the

declaration

of

the election results.

The

reason

non-production was totally beyond their control.

for

In the

- 34 -

first

two cases, the Scrutiny Committee itself did

not

decide upon the validity of the caste certificate within 4

months of the declaration of results of the election.

In

respect

validated

of the third case, the

Scrutiny

Committee

the caste certificate within 4 months of

the

declaration

of the results of the election but did

not

communicate

the decision to the petitioner.

the

petitioners

were

Thus,

not at fault in any of the

aforesaid

cases.

16.

If

we

production the

hold

period

of

4

months

of caste validity certificate as

consequence

constitutional classes

that

would

mandate

contained

Constitution

result of

in

mandatory,

frustration

reservation

for

of

backward

in Articles 243-D and 243-T

of India.

for

the

We

are

That is impermissible.

of

of the view that the period of 4 months is directory.

17.

It

anything

is trite to say that when a statute requires to

government citizen the

be

done

officer

by a statutory

authority

or

within a prescribed period and

the

has no control over the statutory authority

government

officer requiring him to do

the

a

or

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.

citizen

This is because the

has no control over the statutory authority

or

- 35 -

the

government

negligence officer

failure

the

within

the

This principle was enunciated by

the

time.

Constitution Moreshwar

from

of the statutory authority or the government

in

specified

officer and he cannot suffer

Bench

v.

to

duty

of the Supreme Court in

Dattatraya

The State of Bombay, reported in AIR 1952

SC 181, 181 wherein Das J.

"In

perform the

observed:

my opinion, this contention of the

Attorney-General settled of

prevail.

It

is

that generally speaking the

a

statute

directory are

must

and

creating

well

public

provisions duties

are

those conferring private

imperative.

statute

learned

relate

When

the

rights

provisions

to the performance of a

of

a

public

duty

and the case is such that to hold null and

void

acts

work

serious general inconvenience or injustice

to

persons

done in neglect of this

entrusted

who

would hold

with

have

no

control

duty

over

would

the duty and at the

those

same

time

not promote the practice of the Courts to such provisions to be directory only,

neglect

of

them not affecting the validity

the of

the acts done."

18. General,

Mr.Kumbhakoni, submitted

that

learned

Associate

the principle

laid

Advocate down

in

- 36 -

Dattatraya’s subsequent

case decision

Bhadrachalam Andhra

a

two

been

of

diluted in

the Supreme

Paperboards

Pradesh,

decision

has

v.

reported

Mandal

view

Court

Bench.

in

Revenue

the

I.T.C.

Officer,

in JT 1996 (8) SC

of the Supreme Court in I.T.C. Judge

of

67. 67

The

is rendered by

In para 20, therein

the

Supreme

Court observed:

"20.

Sri

Sorabjee

proposition that

then

repeatedly

"generally

relied

upon

affirmed by

the

the

speaking the provisions

Court of

a

statute creating public duties are directory and those

conferring private rights are imperative.

When

the provisions of a statute relate to

performance such

that

of

neglect

a public duty and the

case

is

to hold null and void acts

done

in

of this duty would work serious general

inconvenience no and

control

or injustice to persons who

have

over those entrusted with the

duty

at the same time would not promote the main

object

of

practice to

the

be

the

it

has

of the Courts to hold such

been

(Dattatraya

the

validity

Moreshwar v.

of

the

the

provisions

directory only, the neglect of them

affecting

S.C.R.

legislature,

acts

not done"

State of Bombay [1952

612] reiterating the proposition in J.K.

Gas Plant Manufacturing Company (Rampur) Limited

- 37 -

v.

Emperor [1947 F.C.R.

little

doubt

141]).

There can

difficult

to

employed

to

about the proposition but

be

it

is

agree that this principle can

be

dispense

with

a

mandatory

requirement."

19.

In

our

Bhadrachalam dilute

the

Paperboards

the

affirms

view,

principle

it.

It

decision

(supra) does not in

in Dattatraya’s

only

in

states that

case;

the

I.T.C. any

way

nay

it

principle

in

Dattatraya’s case cannot be applied to dispense with the mandatory

requirement of a statute.

As the requirement

of presentation of the caste validity certificate within a period of 4 months, in our view, is not mandatory, the decision

in I.T.C.

Bhadrachalam Paperboards cannot

be

pressed in service.

20.

It

must also be noted that the decision in case

of Dattatraya was rendered by a Constitution Bench while I.T.C.

was

decided

by a Bench of

two

Judges.

The

decision in Dattatraya was much binding on the two Judge Bench as it binds us.

21.

Aims

thereto

is

and object of section 5-B and the provisos 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

- 38 -

usurp

the benefit of reservation in favour of

classes. ensure

The

real intention of the legislature is

that

the candidate elected to a

belongs to a backward class. production

of

procedural

a

to

It

cannot

merely

supplant

a the

mandate and even invalidate the election

person

for

seat

The period of 4 months for

requirement.

therefore,

to

reserved

caste validity certificate is

constitutional of

backward

who

belongs to a

backward

class.

hold that the period of 4 months

We,

prescribed

production of caste validity certificate by proviso section 5-B of the MMC Act and the BPMC Act, section

9-A of the Municipalities Act, section 12-A of the Zilla Parishads Act and section 10-A of the Village Panchayats Act

is merely directory.

directory

we

do

candidate

can

not

go

However, by holding it to

mean to

say

that

the

on seeking adjournments

Committee at the time of hearing and

to

the post of a councillor.

fraudster, would

who

always

Scrutiny

try

of

backward

adjournments to

such

a

class,

before

continue In

and

to a

the

reap

the

case,

the

authority would not be powerless to declare

election

to be terminated retrospectively

on

his

to produce caste validity certificate within

reasonable the

as

reservation.

appropriate

failure

so

seek

the

continue

An impostor

not belong to a

to

Committee

benefits

his

does

elected

before

Scrutiny hold

be

time

(which in no case can be shorter

statutory period of 4 months).

a

than

If, however, for no

- 39 -

fault on

of his the Scrutiny Committee is unable to decide

the

validity of his caste certificate and

decides 4

actually

his claim say after about 5-6 months instead of

months,

the period of 4 months cannot be held to

mandatory.

If,

however,

the

Scrutiny

be

Committee

invalidates the caste claim of the elected candidate and /or

cancels

competent stand

the

caste certificate obtained

authority

terminated

by

him, then the

forthwith

on

the

from

election

the

decision

shall of

the

Scrutiny Committee.

22.

In

the light of what is stated above, it

would

be examined to ascertain on the facts of

each

have

to

case

whether the election of the petitioner therein

deemed that

to have been terminated. the

We, therefore,

petitions may be placed on board

is

direct

before

the

appropriate Bench as per the roster for consideration of each of the cases.

(D.G. KARNIK, J.)

(S.B. MHASE, J.)