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18 The State of Maharashtra had enacted the Maharashtra Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes; other Backward Classes Tilak/Nilam Kamble 54 WP 181-18 and ors.doc and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Act, 2000 (Mah.XXIII of 2001) which provides for regulation of issuance and verification of the caste certificates belonging to the Scheduled Castes, Scheduled Tribes, De-notified Tribes (Vimukta Jatis), Nomadic Tribes; other Backward Classes and Special Backward Category. The said enactment is the legislative culmination of the guidelines issued by the Hon'ble Apex Court in case of Madhuri Patil (supra). The Hon'ble Apex Court while dealing with the situation of the necessity to eliminate the spurious claims of the stake holders in order to avail the benefits of reservation, had issued directions for issuance of social status certificates and their scrutiny. The Hon'ble Apex Court directed constitution of Committees including a person having intimate knowledge in the verification and issuance of the social status certificates. It also directed for constitution of a vigilance cell consisting of a Senior Deputy Superintendent of Police in overall charge and such number of Police Inspectors to investigate into social status claims. The entire procedure to be followed by the scrutiny committee was set out by their Lordships and which Tilak/Nilam Kamble 55 WP 181-18 and ors.doc ultimately find its way in Maharashtra Act No.23 of 2001 enacted by the State legislature. In exercise of the powers conferred under the said enactment to make Rules, the State Government has notified the rules applicable to the Scheduled Tribes in form of Maharashtra Scheduled Tribes (Regulation of Issuance and Verification of) Caste Rules 2003 and Maharashtra Scheduled Caste, De-notified Tribes (Vimukta Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Category (Regulation of Issuance and Verification of) Caste Certificate Rules 2012.

By virtue of the said enactment, any person belonging to any of the reserved categories, and who intends to claim the benefits of any reservation provided to such caste, tribes or classes, either in any public employment or admission to any educational institutions or any other benefit under any special provisions made under clause 4 of Article 15 of the Constitution or for the purpose of contesting of elective post in any local authority or in the co-operative societies, it is imperative for him to obtain the caste certificate. This caste Tilak/Nilam Kamble 56 WP 181-18 and ors.doc certificate is subject to verification by the Caste Scrutiny Committees constituted under the said enactment. 19 The Maharashtra Act of 2000, apart from prescribing the procedure for obtaining the caste certificate and its verification has also dealt with the consequences of failure to establish a claim. In terms of Section 8 of the enactment, whenever an application is made to a competent authority for issuance of a caste certificate or for its scrutiny, the burden would lie upon the person staking such a claim.

In order to translate the said provisions into the local laws providing for election of the candidate, provisions came to be introduced in the local enactment and in the State of Maharashtra in case of the laws relating to the municipal councils, Nagar Panchayats, Corporations, Village Panchayats etc. The Mumbai Municipal Corporation Act is also such an enactment where the provision was inserted in Section 5B. Tilak/Nilam Kamble 59 WP 181-18 and ors.doc 21 The Mumbai Municipal Corporation Act came to be amended in the year 2006 and Section 5B was inserted making it imperative for every person desirous of contesting election to a reserved seat, to submit along with the nomination paper, caste certificate issued by the Competent Authority and also the validity certificate issued by the Scrutiny Committee in accordance with the provisions of the Act No.XXIII of 2001. The Section originally inserted therefore made it mandatory to file the nomination paper for contesting a seat from reserved category along with a caste certificate and the validity certificate. The proviso came to be inserted in the said section for the first time in the year 2006 itself and to be precise with effect from 27.10.2006, by which a period of four months was granted to submit the validity certificate. The said proviso however, came to be deleted in the year 2008. Once again the proviso was reintroduced on 31.12.2013 and the time to submit validity certificate was stipulated as 6 months. On 07.04.2014 the proviso was substituted and this intended to cover those nominations for which the last date of filing was scheduled on or before 31.12.2017, in accordance with the election program Tilak/Nilam Kamble 60 WP 181-18 and ors.doc declared by the State Election Commission. The said proviso craved out an exception to the operational part of Section 5B and stipulated that the candidate who were to submit the nomination paper on or before 31.12.2017 and who had applied to the Caste Scrutiny Committee for verification of his caste certificate but has not received the same, the concession was made in his favour by permitting him to file along with the nomination paper, a true copy of the application preferred by the Scrutiny Committee for issuance of the validity certificate or any other proof demonstrating that he had preferred such an application and an undertaking to be submitted that he shall submit the validity certificate within a period of 6 months from the date of the election. A second proviso inserted stipulated the consequences if there was a failure to abide by the undertaking and to produce the validity certificate within a period of six months, then the election of such candidate shall be deemed to have been terminated retrospectively and he was liable to be disqualified as being a councilor. When the said amendment was introduced, the intention of the legislature could be clearly read in the statement of objects and reasons Tilak/Nilam Kamble 61 WP 181-18 and ors.doc and made it clear that Caste Scrutiny Committees are not able to decide the claims within the period stipulated and the concession was granted in favour of the candidate who though applied for verification of his/her claim was not able to obtain the validity certificate and the claim was pending before the committee. The intention was to confer a relaxation for period of 6 months in favour of a candidate who was not armed with the validity certificate and since he has already approached the Committee and the Committee was expected to take some time for adjudicating his claim, the undertaking submitted by the candidate that he will produce the validity certificate within a period of 6 months was considered sufficient compliance of sub-section (1) of Section 5B. The proviso thus carved out an exception to the contingency contemplated by Section 5B, namely, that a person should be armed with the validity certificate at the time of submission of his nomination paper. This amendment was subject matter of the decision of the Full Bench, and the Full Bench after referring to the clear and unambiguous language employed by the legislature held the said provision to be mandatory. The Full Bench construed the Tilak/Nilam Kamble 62 WP 181-18 and ors.doc said proviso merely as an exception and construed the time limit of "6 months" prescribed in the two provisos appended to Section 9A (similar to Section 5B of the MMC Act) within which an elected person is required to produce validity certificate from the Scrutiny Committee and this time limit of 6 months prescribed in the two provisos was construed to be mandatory. The Full Bench also held that the second proviso enshrined the consequences of failure to produce validity certificate within the stipulated period and then the election of such a candidate shall be deemed to have been terminated retrospectively and this disqualification would be automatic and validation of his caste claim after the stipulated period would not restore his period of election. The said views and conclusions reached by the Full Bench were upheld by the Hon'ble Apex Court. 22 The question that is now posed before us is whether the said decision of Full Bench requires reconsideration and it is sought to be canvassed before us that the subsequent legislative amendments convey an intention that the stipulations which have been held mandatory by the Full Bench should be Tilak/Nilam Kamble 63 WP 181-18 and ors.doc construed as directory in nature. In light of the said issue we make reference to the amendment to the Mumbai Municipal Corporation Act brought in initially by the Ordinance No.XX of 2018 and subsequently by Act No.LXV/2018. The statement of objects and reasons appended to the Ordinance set out the reasons for introducing the said Ordinance which reads thus :-

Our attention was also invited to Rule 14 of the Rules of 2012 which prescribes the procedure for verification of claims of Scheduled Caste, De-Notified Tribes (Vimukt Jatis), Nomadic Tribes, Other Backward Classes and Special Backward Tilak/Nilam Kamble 73 WP 181-18 and ors.doc Category. Rule 12 sets out the mechanism to be followed for verification of a caste claim and it prescribes that a person desirous of verification of his caste claim for any of the purposes mentioned in Section 3 of the Act, shall submit an application in the various forms appended to the Rules. This covers submission of an application in Form No.16 - verification of caste claim for the purposes of education, form no.18 - verification for the purposes of service, form no.19 - verification for the purposes of Government, Semi-Government employee, Form no.20 - verification for the purposes of election etc. Perusal of Form no.20 appended to the Rules of 2012 is the prescribed form in which the applicant is to prefer an application whenever he desires to contest an election. The said form is accompanied by two important documents, one is the certificate issued by the Collector/Election Officer and another is the affidavit to be submitted along with the certificate for caste verification. The certificate issued by the Collector/Election Officer reads thus :