HC upholds 6-month time frame for councillors to produce caste

Describing it as "mandatory", a full bench of the Bombay High Court has upheld the time limit of six months prescribed in the Act governing municipal polls within which an elected councillor from a reserved seat is required to produce before the authorities his caste validity certificate.
"We holdthatthetimelimitofsixmonths prescribed in the two provisos of section 9A of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, within which an elected person is required to produce (before the poll authorities) the validity caste certificate from the scrutiny committee, is mandatory," said the bench comprising Justices Abhay Oka, M S Sonak and A S Gadkari.

The high court further held that in terms of second proviso to section 9A if such an elected person fails to produce validity caste certificate within the stipulated period of six months, his election shall be deemed to have been terminated retrospectively and he shall be disqualified from being a councillor.
"Such retrospective termination of his election and disqualification from being a councillor would be automatic and validation of his caste claim after the stipulated period would not result in restoration of his election," the bench observed while hearing a petition filed by Anant H Ulahalkar seeking interpretation of section 9A of the Act.

The first proviso to section 9A of the Act permits a person to so contest even without submitting the validity certificate, provided, he files and undertaking that he shall submit such certificate within a period of six months from the date on which he is elected.
The second proviso to section 9 A provides that if such a person fails to produce validity certificate within the prescribed period of six months from the date on which he is elected, his election shall be deemed to have terminated retrospectively and he shall be disqualified from being a councillor.

A reference was made to the full bench to interpret whether the stipulated period of six months is mandatory.

The high court observed that validation of caste claim of
an elected councillor by the Scrutiny Committee beyond the prescribed period would have no effect upon the statutory consequences prescribed under the second proviso to section 9A, i.E deemed retrospective termination of such councillor and his disqualification for being a councillor.
"Subsequent validation or issue of the validity certificate will therefore be irrelevant for the purpose of restoration of the councillor's election but such validation will obviously entitle him to contest the election to be held on account of termination of his election and the consequent vacancy caused thereby," the full bench ruled.

It said, "In the present case also, the legislature in enacting section 9 A (of the Act) has provided for a statutory fiction, which is evident from the use of expression i.E 'his election shall be deemed to have been terminated retrospectively and he shall be disqualified from being a councillor'."
"The statutory fiction must be allowed to have its full play. No other provision of reason has been pointed out to take the view that consequences prescribed under the second proviso to section 9 A 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 the stipulated period of six months from the date of his election," the bench observed.

"In the result, we hold that the time limit of 6 months prescribed in the two provisos to section 9 A of the Act, within which an elected person is required to produce the validity of caste certificate from the scrutiny committee, is mandatory," the bench ruled.