Kumar Gorakhnath Shinde and Ors. v. The State of Maharashtra and Ors.

“8. The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The court's task, within the permissible bounds of interpretation, is to give effect to Parliament's purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment.

9. There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking. If Parliament, however long ago, passed an Act applicable to dogs, it could not properly be interpreted to apply to cats; but it could properly be held to apply to animals which were not regarded as dogs when the Act was passed but are so regarded now. The meaning of “cruel and unusual punishments” has not changed over the years since 1689, but many punishments which were not then thought to fall within that category would now be held to do so. The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language: see Bennion, Statutory Interpretation, 4th Edn. (2002) Part XVIII, Section 288. A revealing example is found in Grant v. Southwestern and County Properties Ltd. [Grant v. Southwestern and County Properties Ltd., 1975 Ch 185: (1974) 3 WLR 221], where Walton, J. had to decide whether a tape recording fell within the expression “document” in the Rules of the Supreme Court. Pointing out (at p. 190) that the furnishing of information had been treated as one of the main functions of a document, the Judge concluded that the tape recording was a document.”

39. We see no reason to take a different view. Ordinarily, if a statute is well drafted and debated in Parliament there is little or no need to adopt any interpretation other than a literal interpretation of the statute. However, in a welfare State like ours, what is intended for the benefit of the people is not fully reflected in the text of a statute. In such legislations, a pragmatic view is required to be taken and the law interpreted purposefully and realistically so that the benefit reaches the masses. Of course, in statutes that have a penal consequence and affect the liberty of an individual or a statute that could impose a financial burden on a person, the rule of literal interpretation would still hold good.” In paragraph 40 while construing the provision of Representation of Peoples Act, the Constitution Bench emphasised on public interest in interpreting the provisions observing thus:-

45. Similarly, in Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay [Maganlal Chhaganlal (P) Ltd. v. Municipal Corpn. of Greater Bombay, (1974) 2 SCC 402] H.R. Khanna, J. rather pragmatically put it that: (SCC p. 426, para 22) “22. … As in life so in law, things are not static. Fresh vistas and horizons may reveal themselves as a result of the impact of new ideas and developments in different fields of life. Law, if it has to satisfy human needs and to meet the problems of life, must adapt itself to cope with new situations. Nobody is so gifted with foresight that he can divine all possible human events in advance and prescribe proper rules for each of them. There are, however, certain verities which are of the essence of the rule of law and no law can afford to do away with them. At the same time it has to be recognised that there is a continuing process of the growth of law and one can retard it only at the risk of alienating law from life itself.”

46. Finally, in Badshah v. Urmila Badshah Godse [Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188: (2014) 1 SCC (Civ) 51] this Court reaffirmed the need to shape law as per the changing needs of the times and circumstances. It was observed: (SCC p. 197, para 16) “16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society's changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.”

47. There is no doubt in our mind that keeping in view the social context in which clause (3) of Section 123 of the Act was enacted and today's social and technological context, it is absolutely necessary to give a purposive interpretation to the provision rather than a literal or strict interpretation as suggested by the learned counsel for the appellants, which, as he suggested, should be limited only to the candidate's religion or that of his rival candidates. To the extent that this Court has limited the scope of Section 123(3) of the Act in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750: AIR 1965 SC 183], Kanti Prasad Jayshanker Yagnik [Kanti Prasad Jayshanker Yagnik v. Purshottamdas Ranchhoddas Patel, (1969) 1 SCC 455] and Ramesh Yeshwant Prabhoo [Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte, (1996) 1 SCC 130: (1995) 7 Scale 1] to an appeal based on the religion of the candidate or the rival candidate(s), we are not in agreement with the view expressed in these decisions. We have nothing to say with regard to an appeal concerning the conservation of language dealt with in Jagdev Singh Sidhanti [Jagdev Singh Sidhanti v. Pratap Singh Daulta, (1964) 6 SCR 750: AIR 1965 SC 183]. That issue does not arise for our consideration.”

50. On a consideration of the entire material placed before us by the learned counsel, we record our conclusions as follows:

50.1. The provisions of clause (3) of Section 123 of the Representation of the People Act, 1951 are required to be read and appreciated in the context of simultaneous and contemporaneous amendments inserting clause (3- A) in Section 123 of the Act and inserting Section 153- A in the Penal Code, 1860.

50.2. So read together, and for maintaining the purity of the electoral process and not vitiating it, clause (3) of Section 123 of the Representation of the People Act, 1951 must be given a broad and purposive interpretation thereby bringing within the sweep of a corrupt practice any appeal made to an elector by a candidate or his agent or by any other person with the consent of a candidate or his election agent to vote or refrain from voting for the furtherance of the prospects of the election of that candidate or for prejudicially affecting the election of any candidate on the grounds of the religion, race, caste, community or language of (I) any candidate, or (ii) his agent, or (ii) any other person making the appeal with the consent of the candidate, or

(iv) the elector.

50.3. It is a matter of evidence for determining whether an appeal has at all been made to an elector and whether the appeal if made is in violation of the provisions of clause (3) of Section 123 of the Representation of the People Act, 1951.” The Constitution Bench held that giving a purposive interpretation to the provisions of the Representation of the People Act is necessary rather than a literal or strict interpretation. The Act must be interpreted broadly and purposively to fulfil its statutory purpose. The Constitution Bench held that when two interpretations of a statute are possible, the court must adopt the one that promotes the object of the legislation. The Constitution Bench emphasised that while penal statutes must generally be strictly construed, this rule of interpretation does not apply when the action falls within the mischief the legislation aims to prevent. In such cases, the court has to ensure that the legislative purpose is not frustrated. Furthermore, the Constitution Bench held that in well-drafted legislation, literal construction is not the only an option if the statute does not fully reflect its intended benefit for the people. In such instances, the legislation must be interpreted purposefully and in line with its intended legal effect to achieve its objectives effectively. The election statutes are not to be interpreted solely with the interest of the candidate in mind but in the interest of the polity in mind. The dicta of the Constitution Bench directs us to examine the Proviso accordingly.

15. As stated earlier, the debate before us is whether the fiction, a declaration, that a Post-poll Aghadi under the second Proviso to Section 63(2B) to be treated as a Pre-poll Aghadi, is limited or it should be given full play. On the issue of the extent of legal fiction, the Petitioners rely upon the following decisions of this Court and the Hon’ble Supreme Court in the cases of Ittianam and Ors. Vs. Cherichi @ Padmini[3], Paramjeet Singh Patheja vs. ICDS 3 2010(8) SCC 612 Ltd.4, Nandkishore Ganesh Joshi vs. Commissioner, Municipal Corporation, KDMC and Ors.5, Umadevi Rajkumar Jeure and Ors. vs. District Collector, Solapur and Ors.6, New Okhala Industrial Development Authority (NOIDA) vs. Yunus and Ors.[7] and State of Maharashtra vs. Laljit Shah[8]. According to the Petitioners, the legal fiction in second Proviso only to decide relative strength and no further. According to the Petitioners, the logical end is only the relative strength. Based on the decision in the case of Paramjeet Singh Patheja vs. ICDS Ltd.9, the Petitioners contend that when the words “as if” are employed, it shows the distinction between two things and such words are used for a limited purpose. The Respondents rely upon the following decisions of the Hon’ble Supreme Court in the cases of Ittianam vs. Cherichi @ Padmini10, Builders’ Association of India vs. Union of India11 and Bhavnagar University vs. Palitana Supar Mills Pvt. Ltd.12. It is not necessary to burden the record with passages on how the legal fiction is to be construed. The principles of governing legal fiction are settled. It will suffice to reproduce the off-quoted passage from the judgement of Lord Asquith in East End Dwellings Co. Ld. v. Finsbury Borough as follows: 4 2006(13) SCC 322, 5 2004(11) SCC 417 6 2022(1) Mah.L.J. 562 7 2022(9) SCC 516 8 2000(2) SCC 699

13 (1952) AC 109, 132 “If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” In the case of Ittianam and Ors. vs. Cherichi @ Padmini14, the Hon’ble Supreme Court observed that once the legislative purpose is ascertained, the Court must give full effect to the statutory fiction and the fiction be carried to its logical end. The legal fiction has to be extended to achieve the intended purpose but not beyond the policy. The first step is to determine the legislative intent for which the fiction is created. Once understood, the legal fiction must be taken to its logical end. Therefore the enquiry would be of the purpose and object of the enactment creating the fiction.

16. To interpret a statute, both external and internal aids can be utilised. The court can refer to the statement of objects and reasons and the debates in the house during the introduction of the Bill as aid in interpreting a provision. The Full Bench of this court, in the case of Mahadeo Nathuji Patil v. Surjabai Khushalchand Lakkad,15 observed that it is well-settled that the reports of

15 1994 (2) Mh.L.J. (F.B.) 1145 commissions, inquiry committees, and the objects and reasons preceding the introduction of the Bill can be referred to for understanding the context in which the statute was enacted. This includes understanding the background, the antecedent state of affairs, the surrounding circumstances, and the issue the statute was intended to address. Thus, the objects and reasons of the Bill can be referred to for understanding the background, the surrounding circumstances in relation to the statute, and the mischief the statute sought to remedy.

17. First to consider the statement of objects and reasons. The Disqualification Act is modelled on the Tenth Schedule of the Constitution of India with certain modifications. The statement of objects and reasons of the disqualification act and the Tenth Schedule are reproduced in the decision of the Full Bench Shah Faruq Shabir as under 10 …The statement of objects and reasons recorded in the Bill, are set out as below: “With a view to eradicating the evil of political defection in the Parliament on the National level and in the State Legislatures on the State Level, the Parliament has amended the Constitution of India by the Constitution (Fifty second Amendment) Act, 1985. At the level of district, Taluka, city and town, different local authorities are charged with the administration of functions relating to Local Government. These local authorities are, in the main elective. The field of Local Government constitutes a training ground for the State and National Government. Many of our ablest statesmen and legislators have received their earliest training to the sphere of Local Government. The local authorities may become the pioneers in various fields of political activity. This evil of political defections is also present in the local authorities which is the base of our democratic institutions. It is, therefore, expedient to prevent political defections in certain local authorities also in the State.”

13. … However, after the General Elections in the year 1984, the Constitution, (Fifty-second Amendment) Bill was presented in Lok Sabha on 24th January, 1985. The Statement of Objects and Reasons appended to the Bill stated thus:

1. The evil of political defections has been a matter of national concern. If it is not combated, it is likely to undermine the very foundations of our democracy and the principles which sustain it. With this object, an assurance was given in the Address by the President to Parliament that the Government intended to introduce in the current session of Parliament an anti-defection Bill. The Bill is meant for outlawing defections and fulfilling the above assurance.

2. The Bill seeks to amend the Constitution provide that an elected member of Parliament or a State Legislature, who has been elected as a candidate set up by a political party and a nominated member of Parliament or a State Legislature, who is a member of a political party at the time he takes his seat or who becomes a member of a political party within six months after he takes his seat would be disqualified on the ground of defection if he Voluntarily relinquishes his membership of such political party or abstains from voting in such House contrary to any direction of such party or is expelled from such party. An independent member of Parliament or a State Legislature shall also be disqualified if he joins any political party after his election. A nominated member of Parliament or a State Legislature who is not a member of a political party at the time of his nomination and who has not become a member of any political party before the expiry of six months from the date on which he takes his seats shall be disqualified if he joins any political party after the expiry of the said period of six months. The Bill also makes suitable provisions with respect to splits in, and mergers of, political parties. A special provision has been included in the Bill to enable a person who has been elected as a presiding officer of a House to sever his connection with his political party. The question as to whether a member of a House of Parliament or State Legislature has become subject to the proposed disqualification will be determined by the presiding officer of the House; where the question is with reference to the presiding officer himself, it will be decided by a member of the House elected by the House in that behalf.

3. The Bill seeks to achieve the above objects.” Therefore, the object of both the Disqualification Act and the Tenth Schedule is to eradicate the evil of political defection in the Parliament on the National level and in the State Legislatures on the State Level and discourage and prevent elected representatives from changing their allegiance from one party to another and their frequent crossing of the floor in all its aspects. This object must be kept in mind when the concerned provision is to be interpreted.

18. In the case of K.P. Verghese v/s. The Income Tax Officer, Ernakulam16. The Hon’ble Supreme Court had an occasion to consider whether the speech made by the mover of the Bill could be considered for ascertaining mischief sought to be curbed by the legislature, the Hon’ble Supreme Court held thus:-

19. The learned Advocate General has placed the legislative history of Section 5 of the second Proviso to Section 63(2B) including the original bill and the discussion in the Maharashtra Legislative Assembly and Maharashtra Legislative Council on the subject matter.

20. In the year 2006, LA Bill No. CIV of 2006 was introduced in the State legislature to amend the provisions of the Municipalities Act. Section 5 of the Bill proposed amendment to Section 63 by substituting sub-Section 2, 2(B), (3), (3A) and (3B) with Section 63. Section 5 of the Bill read thus:

(i) In sub-section (2), for clause (b), the following clause shall be substituted, namely: - "(b) nominating Councilors on the Subjects Committees in accordance with the provisions of sub- section (2B):

(ii) For sub-sections (2B), (3), (3A) and (3B), the following sub-sections shall be substituted, namely: - "(2B) In nominating the Councilors, the Collector shall take into account the relative strength of recognized parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups in the Council, after consulting the leader of each such party or group: Provided that, nothing contained in this sub-section shall be construed as preventing the Collector from nominating on the Committee, any member not belonging to any such party or group.” The Statement of Object and Reasons to the Bill also needs to be noted. It reads thus:- “ The statement of objects and reasons appended to the Bill set out the rationale for such amendment. The relevant portion of the statement of objects and reasons is set out as under: “3. To ensure that all the recognized political parties and groups in the Council are adequately represented in the Committees constituted under the Maharashtra Municipal Councils, Nagpur Panchayats and Industrial Townships Act, 1965 the Government considers it expedient to amend the said Act to provide for the nomination of members of the Committees in proportion to the strength of political parties or groups in the Council". The Original Bill did not contain the second Proviso to Section 63(2B). The second Proviso came to be added when the Bill for was taken for consideration

21. On 12 December 2022, the Bill was introduced in the Maharashtra Legislative Assembly. During the discussion, one Hon’ble member introduced an amendment to the Bill for inserting a second Proviso to Section 63(2B). The rationale provided by a member for introducing the Proviso would be of interest to note and will not be entirely irrelevant for further consideration. While introducing the amendment (the concerned Proviso), it was pointed out that: “councillors who have been elected under the aegis of various Alliances and whose current status is that of an independent councillor, in such cases, Post-poll Alliance needs to be covered and an amendment to this effect needs to be passed. After the Post-poll Alliance, if any councillor splits from such an alliance, he will be disqualified; therefore, the Post-poll Alliance should also be covered in this Bill. Once it is registered, it shall be eligible to all rights that are enjoyed by the President Alliance and eventually, the Members’ Disqualification Act shall also get applicable to them. If the amendment is included, it may address the issue of Independent councillors. It may also help curb the practice of Horse-trading. Moreover, it may also prevent the formation of successive Alliances”. The record shows that the House accepted this suggestion, and the amendment was allowed, and the scond Proviso was included, even though it was not part of the original Bill.

22. The Bill was accordingly passed on 12 December 2006 in the Legislative Assembly. While introducing the Bill before the Legislative Council on 13 December 2006, the Hon'ble Minister stated as under:- “Chairman Madam…. Many have expressed their views from the perspective of independents. They can form a group among themselves. Independents can also register that group. The rules applicable for an alliance shall also be applicable to them. They shall also have Whip or Group Leader. Post Election Alliance would be made. The Group Leader of that alliance would also have power to issue a Whip and if the Whip is violated then anti-defection law will be applicable in that. Whether there is one or two independent, the post-poll alliance will decide which party they will go with. Thus, the incidents of constant defection and political instability which are arising out of the prevailing situation will not arise henceforth. Many honourable members mentioned about maintaining of political stability. All these things are created with a view to maintain political stability. It has been desired that such an amendment in the Municipal Corporation be made with a view to increase the party’s importance. I welcome this suggestion. A bill to enact similar provision in respect of Municipal Corporation will be introduced in the forthcoming session.” The members thereafter approved the Bill of the Legislative Council, and after that, the Maharashtra Municipal Councils (Third Amendment) of the Act of 2006 was enacted. Thus, the speeches of the moves of the Bill in the discussions of the Houses would show the object of the Amendment (Second Proviso) was to provide an opportunity for independent councillors to form an group Aghadi among themselves and register that Aghadi. The rules applicable to an Aghadi shall also apply to them. They shall also have a Whip or Group Leader. The Leader of that alliance Aghadi would have the power to issue a Whip. If the Whip is violated, the anti-defection law will apply. Thus the second Proviso was introduced to give opportunities to independent candidates but at the same time with restrictions to prevent horse-trading.

23. With this legislative history, which indicates the object of the concerned provision, we now analyse the statutory scheme in detail.

24. The object of the Disqualification Act is to curb defections by disqualifying the members of certain local authorities on the grounds of matters incidental or connected therewith. On the concept of Aghadi, the Joint Committee on the Maharashtra Local Authority Members’ Disqualification Bill made a report wherein it is noticed as follows: “ The Committee, however, felt that elections to local authorities are not always fought on political or party lines but individuals or groups come together on some common programme and form a front of Aghadi for the purpose of contesting election. The Committee therefore thought it necessary to define ‘Aghadi’ or ‘front’ so that they could also be considered as a party for purpose of this Act. Clause 2 has been amended for this purpose.” Thereupon, Section 2(a) of the Disqualification Act defines Aghadi as under:-

Thus, ‘Aghadi’ means a group of persons who have formed themselves into parties to set up candidates for election to a local authority. Under Section 2(d), the Councillor is defined as a Councillor of Municipal Corporation, Municipal Council and a Zilla Parishad. A Local Authority under the Disqualification Act means the Municipal Corporation, Municipal Council, Zilla Parishad or the Panchayat Samiti. Section 3 provides for disqualification on the grounds of defection. This is a core of the Disqualification Act. Section 3 reads thus:-

25. Section 5 Disqualification Act provides for disqualification on the ground that defection will not apply in case of a merger. Section 6 provides for a councillor or member to vacate the office or not to hold office after the merger. Section 7 provides a decision on the question as to the disqualification on the grounds of defection. Section 8 bars the jurisdiction of the Civil Courts with respect to the subject matter under the Act, and Section 9 empowers the State Government to frame the Rules to carry out the object of the Act. Section 10 states that the provisions of the Disqualification Act and the Rules will have effect notwithstanding anything inconsistent contained in any other law for the time being in force. Section 10(2) provides that the provisions of the Act are subject to Section 10(1) and that what is expressly provided in the Disqualification Act cannot be derogated by any law relating to the Municipal Corporation, Municipal Council and Local Authority. This framework of the Disqualification Act ensures that councillors and members remain loyal to their political affiliations and follow party directives, maintaining party discipline and cohesion in the elected bodies. As will be elaborated later, the phrase "in any meeting" in Section 3(1)(a) is of significance.

26. Rule 4 of the Maharashtra Local Authority Members Disqualification Rules 1987 (Disqualification Rules) also provides for information to be furnished as a councillor for a member, which reads thus:-

Corporation, Municipal Council, Zilla Parishad or as the case may be, in Panchayat Samiti shall furnish to the Commissioner or, as the case may be, to the Collector within thirty days from the date of commencement of these rules or within such further period as the Commissioner or, as the case may be, the Collector may for sufficient reason allow, a statement of particulars and declaration in Form III. (b) Every Councillor in relation to a municipal party or a Zilla Parishad party and a member in relation to a Panchayat Samiti party after the commencement of the Act who is elected to the Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, the Panchayat Samiti before taking his seat, shall be furnished to the Commissioner, or, as the case may be, the Collector within thirty days from the date of the declaration of the election results or within such further period as the Commissioner or, as the case may be, the Collector may for sufficient reason allow a statement of particulars and declaration in Form III. Explanation (1). - For the purpose of this sub-rule 'councillor' in relation to a Municipal party or a Zilla Parishad party and 'member' in relation to a Panchayat Samiti party means a councillor or member belonging to such political party or Aghadi or front, which has set up his candidature for the election of Municipal Corporation, Municipal Council, Zilla Parishad or as the case may be, the Panchayat Samiti. Explanation (2). - For the purpose of this sub-rule, the Commissioner or as the case may be the Collector, after the expiry of the date prescribed for the statement of the particulars and the declaration in Form III may decide as and when need arises about the affiliation of the political party or Aghadi or front of the Councillor, or as the case may be the member on the basis of the election symbol allotted to him at the time of his election.] [Explanation (3). - For the purpose of his sub-rule, if a councillor is elected as a nominee of a particular political party or Aghadi or front in Zilla Parishad, he will automatically be considered as a nominee of the same political party or Aghadi or front in Panchayat Samiti; as each Councillor who is elected on Zilla Parishad is a member of Panchayat Samiti.] (2) Every Councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party who takes his seat in the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, in Panchayat Samiti, after the commencement of these rules shall, before taking his seat in the Municipal Corporation, Municipal Council, Zilla Parishad or, as the case may be, Panchayat Samiti, deposit with the Commissioner or, as the case may be, Collector his election certificate or, as the case may be, a certified copy of the notification nominating him as a member and also furnish to him a statement of particulars and declaration in Form III. Explanation. - For the purposes of this sub rule, "election certificate" means the certificate of election issued under the Bombay Municipal Corporation Act (Bombay Ill of 1888), the Bombay Provincial Municipal Corporations Act, 1949 (Bombay LIX of 1949), the Maharashtra Municipalities Act, 1965 (Maharashtra XL of 1965), the City of Nagpur Corporation Act, 1948 (C.P. and Berar II of 1950), the Maharashtra Zilla Parishads and Panchayat Samitis Act, 1961 (Maharashtra V of 1962) and the rules made thereunder. (3) A summary of the information furnished by the Councillor in relation to a municipal party and a Zilla Parishad party and member in relation to a Panchayat Samiti party, under this Rule shall be published in the Maharashtra Government Gazette and if any discrepancy therein is pointed out to the satisfaction of the Commissioner or, as the case may be, Collector, necessary corrigendum shall be published in the said Gazette." This Rule mandates that every Councillor must submit a form within 30 days of taking a seat, including a statement of particulars and a declaration in format 3. The Collector is required to maintain a register in the specified format based on the information furnished by the elected Councillor under Rule 3.

27. The Municipalities Act is a statute that provides for the uniform pattern of constitution, administration, and powers of the Municipalities in the State of Maharashtra. It was brought into force in the year 1965. Section 2(7) defines the Councillor as a person duly elected as a member of the Council elected by the President and including a nominated councillor. The Scheme of Municipalities Act is primarily structured around providing a uniform pattern of administration and power of Municipalities. Chapter 1 deals with preliminary such as definitions. Chapter 2 deals with municipal councils, municipal areas, and their classifications, provides compensation for councils for persons contesting the elections, disputes with respect to elections, and the conduct of the councillors. Section 44 provides for the disqualification of councillors during the term of office. Chapter 3 provides for dues and functions of Councillors and the Municipal Executives. Chapter 5 makes provisions regarding officers and servants. Chapter 6 deals with the Director of Municipal Administration and Collector. The other Chapters deal with the conduct of business conditions, etc.

28. Chapter 3 of the Municipalities Act provides for the functions, election and removal of the President and Vice President. Sub-chapter 4 of the Chapter 3 of the Municipalities Act deals with Committees. Section 62 deals with appointing standing and subject committees for the A and B class councils. Section 63 deals with the constitution of subject committees of A and B class Councils. Section 64 is regarding standing committees of A and B class Councils, and subject committees of C class Councils deal with under Section 65. Section 66 deals with the constitution of standing committees for C-class Councils, and Section 66(a) provides for the constitution of ward committees. Under Section 62, there is a Standing Committee and 4(six) subject committees for every 'A' and 'B' Class Council. These are the Public Works Committee, Education, Sports and Cultural Affairs, Sanitation, Medical and Public Health Committee, Water Supply and Drainage Committee, Planning and Development Committee and Women and Child Welfare Committee. If any such Council has acquired or established Transport Undertaking, then a Transport Committee.

29. Section 63, with which we are concerned, reads thus:- “63. (1) Each Subjects Committee of the Council appointed under the last preceding section shall consist of such number of councillors as the Council may determine, so however that the number of members of a Subjects Committee shall not be less than one-fourth or more than one-third of the total number of councillors: Provided that, in so determining the number of members of any Subjects Committee, a fraction shall be ignored: [Provided further that, on the Women and Child Welfare Committee, not less than seventy-five per cent. of the members shall be from amongst women councillors: Provided also that, the Chairperson and the Deputy Chiarperson on the Women and Child Welfare Committee shall be from amongst the women Councillor members thereof. Explanation.—For the purpose of computing the number of members at seventy-five per cent., fraction, if any, shall be rounded off to one.] (2) [The Collector shall, within seven days of the election of the President under section 51,] call a special meeting of the Council for the purpose of,— (a) determining the number of the members of each of the 3*Subject Committees referred to in the last preceding section, and the Subjects Committee of which the Vice-President shall be the ex-officio Chairman, and [(b) nominating councillors on the Subjects Committees in accordance with the provisions of sub-section (2B): ] Provided that, the President shall not be eligible for being a member of any of the Subjects Committees 5[but he shall have the right to speak in, and otherwise to take part in the proceedings of, any Subjects Committee, except that he shall not be entitled to vote thereat.] [(2A) [(i)] The meeting called under sub-section (2) shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or such officer shall, when presiding over such meeting have the same powers as the President of a Council, when presiding over a meeting of the Council has, but shall not have the right to vote. [(ii) Notwithstanding anything contained in this Act, for regulating the procedure at meetings (including the quorum thereat), the Collector or such officer may, for reasons which in his opinion are sufficient, refuse to adjourn the meeting convened as per the provisions of sub-section (2), after it was once cancelled or adjourned for want of quorum.] [(2B) In nominating the councillors, the Collector shall take into account the relative strength of recognised parties or registered parties or groups and nominate members, as nearly as may be, in proportion to the strength of such parties or groups in the Council, after consulting the leader of each such party or group: [Provided that, the relative strength of the recognised parties or registered parties or groups or Aghadi or front shall be calculated by first dividing the total number of councillors by the total strength of members of the Committee. The number of councillors of the recognised parties or registered parties or groups or Aghadi or front shall be further divided by the quotient of this division. The figures so arrived at shall be the relative strength of the respective recognised parties or registered parties or groups or Aghadi or front. The seats shall be allotted to the recognised parties or registered parties or groups or Aghadi or front by first considering the whole number of their respective relative strength so ascertained. After allotting the seats in this manner, if one or more seats remain to be allotted, the same shall be allotted one each to the recognised parties or registered parties or groups or Aghadi or front in the descending order of the fraction number in the respective relative strength starting from the highest fraction number in the relative strength, till all the seats are allotted:] Provided further that, for the purpose of deciding the relative strength of the recognised parties or registered parties or groups under this sub-section, the recognised parties or registered parties or groups, or elected Councillor not belonging to any such party or group may, notwithstanding anything contained in the Maharashtra Local Authority Members’ Disqualification Act, 1986, within a period of not more than one month from the date of notification of election results, form the Aghadi or front and, on its registration, the provisions of the said Act shall apply to the members of such Aghadi or front, as if it is a pre-poll Aghadi or front. (2C) If any question arises as regards the number of councillors to be nominated on behalf of such party or group, the decision of the Collector shall be final.] (4) The Chairman of every Subjects Committee (other than the Subjects Committee of which the Vice- President is to be the ex-officio Chairman) shall be elected by the members of that Committee at the meeting convened under sub-section (2): Provided that, no Councillor shall be eligible to be the Chairman of more than one Subjects Committee.” The underlined portion, the second Proviso, is the subject matter of debate.

30. The subject committees of A and B class Councils consist of a public works committee, an education, sports, and cultural affairs committee, sanitation and medical public health committee, water supply and drainage committee, planning and development committee, women and child welfare committee, and transport committee, as the case may be. Subject committees will consist of councillors as the Council may determine, which shall not exceed the prescribed limit. When nominating councillors, the Collector has to consider the relative strength of recognised parties, registered parties, or groups in the Council. The Collector nominates members proportionally to the strength of these parties or groups, after consulting with their leaders.The relative strength of these parties or groups is calculated by dividing the total number of councillors by the total number of committee members. The number of councillors from each recognised party, registered party, or group is then divided by the result of this division. This gives the relative strength of each party or group. Seats are allocated to the parties or groups based on the whole numbers of their relative strength. If there are remaining seats, they are allocated one by one to the parties or groups with the highest fractions of relative strength, in descending order, until all seats are filled. Additionally, to determine the relative strength of the parties or groups recognised or registered parties or elected councillors not affiliated with any party or group, they can form an Aghadi or front within one month of the election results. Once registered, the provisions of the Disqualification Act will apply to members of this Aghadi or front as if it formed before the election.

31. The Scrutiny of the legislative scheme will show that the interpretation by the Respondents is valid. Section 2 of the Disqualification Act defines an Aghadi or front. This definition indicates that an Aghadi or front is not merely a combination of a political party or individuals but a group formed with a specific intent. According to the Disqualification Act, an Aghadi formed to set up candidates for local authority elections must be established prior to the election. The Disqualification Act does not permit the formation of a Post-poll Aghadi. Additionally, the specific purpose of a Pre-poll Aghadi is to set up candidates for the election. Section 3 of the Disqualification Act applies to elected and nominated candidates. The Disqualification Act is attracted regarding the conduct of any meeting of the Municipal Council contrary to the directions issued by the Aghadi. Section 3(2) applies to an independent Councilor. Once he joins an Aghadi and acts contrary to the Whip issued by the Aghadi, he is liable to be disqualified under Section 3. Under Section 51(2) of the Municipalities Act, within twenty-five days from which the councillor's name is published, the Collector has to call a special meeting of the councillors for the election of the president. Under Section 63(2B), for the election of the Councillor, the Collector has to call a special meeting of the Councillor to determine the number of members on each subject committee and the nomination of councillors of the subject committee. Therefore, under the scheme of the Municipalities Act, the committees are to be formed in general around 32 days and in this period to enable the independent Councillor to form an Post-poll Aghadi. The second Proviso to Section 63(2B) was subsequently added. This facilitates the formation of Post-poll Aghadis, even though such a concept was prohibited under the Disqualification Act. This Proviso came with a rider that it would be an Aghadi for all purposes once it is formed.

32. In the case of Dattatraya Maruti Bawalekar v/s. the question of applicability of Section 3(2) of the Disqualification Act to an independent candidate on being elected as a councillor and subsequently joining an Aghadi was considered before the Hon’ble Supreme Court. In this case, Dattatray Bawalekar and others contested the election for the Municipal Council as independent candidates and were elected. Subsequently, they formed an Aghadi when the election for the Office of the President was proposed. The Aghadi nominated one of the appellants as a candidate, and a Whip was issued to vote for the Aghadi candidate. The High Court held that the appellants had incurred a disqualification and had ceased to be councillors. This decision was challenged in the Hon'ble Supreme Court. The Hon’ble Supreme Court held as under:- “7. According to Section 3(2) to which we have adverted to earlier with reference to a Councillor or a member who has been elected otherwise than as a candidate set up by a political party or Aghadi or front, such a candidate or such Councillor or member shall be disqualified for being a Councillor if he joins any political party or Aghadi or front after such election. The section specifically provides that an independent candidate not set up by a political party or front incurs disqualification on his joining any political party after such election. This Court in Kihoto Hollohan v. Zachillhu [1992 Supp (2) SCC 651] (SCC at p. 688) while dealing with the effect of the provisions of the Tenth Schedule to the Constitution noticed that the same yardstick has to be applied to a person who is elected as an independent candidate and wishes to join a political party after the election as is done with reference to a person who has been elected on a political plank. Therefore, no distinction could be made between a person belonging to a political party and a person who is elected as an independent and such distinction has not been made by the Act in question. On the other hand, it is made clear a councillor or a member has been elected not set up by a political party or front joins such political party subsequently would incur disqualification.”

33. The analysis of the second Proviso to Section 63(2B) would show that the first part of the second Proviso permits the formation of the Post-poll Aghadi and explains the reason for the same. This initial part of the Proviso provides the justification for allowing the formation of a Post-poll Aghadi despite it not being explicitly permitted under the Disqualification Act. The second Proviso then expressly states that once this Aghadi is registered, the provisions of the Disqualification Act will apply to it as if it were a Pre-poll Aghadi. Reading the second Proviso in the context of the Disqualification Act and the Tenth Schedule, it becomes clear that the Post-poll Aghadi is allowed within a stipulated time after the election for independent candidates, and once the Aghadi is formed, upon registration, it will be treated in the same manner as a Pre-poll Aghadi. The first part of the second Proviso merely explains why forming an Aghadi is permitted. Once the Aghadi is established, it assumes all the characteristics of a Pre-poll Aghadi, including the obligation of its members to follow the Whip. There is a significant difference between creating a legal fiction for a specific reason to facilitate a course of action and suggesting that the legal fiction exists solely to achieve that purpose. This distinction is crucial, and the provision containing the legal fiction at hand needs to be interpreted keeping in mind the law laid down by the Constitution Bench in the case of Abhiram Singh.

34. The legislative history of the second Proviso to Section 63(2B) would show that the legislature aimed to give representation to independent councillors by allowing them to be part of a Post-poll Aghadi and treating it as if it were a Pre-poll Aghadi. To achieve this, the relative strength of political parties and groups has to be determined when nominating councillors to the subject committee. It is not compulsory for independent councillors to form an Aghadi. It is their choice. However, choosing to join and register an Aghadi under the second Proviso to Section 63(2B) comes with significant consequences. Once this Aghadi is legally created, it is an Aghadi for all purposes, similar to a Pre-poll Aghadi. This Proviso offers independent candidates the option to join a subject committee even after the elections. However, this option must be exercised with due consideration, as an Aghadi, once formed under the Proviso, will retain all the attributes of a Pre-poll Aghadi for the duration of its term. This ensures that independent councillors, upon forming an Aghadi, commit to the same responsibilities and discipline that govern Pre-poll Aghadis, thereby maintaining the integrity and consistency of the functioning of the elected body.

35. Thus, the purpose of the second Proviso to Section 63(2B) is to facilitate the formation of an Aghadi and provide for the consequences of this formation. Once an Aghadi is registered under the second Proviso to Section 63(2B), it is recognised as an Aghadi for all purposes, just like a Pre-poll Aghadi. The second Proviso to Section 63(2B) allows the creation of an Aghadi for the relative strength of political parties and groups. However, this does not mean that the Aghadi is created solely to determine relative strength and nothing more. The formation of an Aghadi under this Proviso ensures that independent councillors have a structured and recognised way to participate in the political process post-election. Once formed, this Aghadi must be treated with respect and subject to the same rules as a Pre-poll Aghadi, including adherence to the Disqualification Act. This continuity will preserve the integrity and intent of the legislative framework, ensuring that all councillors, whether part of a Pre-poll or Post-poll Aghadi, are subject to the same standards and responsibilities.

36. Under the Disqualification Act, the formation of a Postpoll Aghadi is not permitted. However, the second Proviso to Section 63(2B) makes an exception. The validity of this Proviso is not under consideration before us. When the second Proviso permits a post-poll Aghadi, the implications shift post-election and allow for the formation of an Aghadi even after the polls. Once formed, this Post-poll Aghad assumes all the attributes of a Pre-poll Aghadi. This is the legal fiction Section 63(2B) has created in conjunction with the Disqualification Act. Once an Aghadi is formed, it is treated as a Pre-poll Aghadi under both governing statutes and retains its full set of attributes without restriction. Therefore, the argument that the Aghadi should be restricted only to the subject committee will effectively amend the provisions of the Disqualification Act and the Rules. Once Aghadi is formed and registered, the independent candidate will lose his status and become part of the Aghadi. As expanded later limiting the Aghadi only to the subject committee with Section 63(2B) would be contrary to the purpose and intent of the Disqualification Act, which aims to prevent ‘horse trading’. Therefore, the Respondents correctly argue that the purposive Rule of interpretation should be applied to ensure the Proviso's intent and purpose are upheld.

37. If the Petitioners' contention is accepted, an Aghadi will only be for numbers, and once representation is sought in the subject committees, the Aghadi will become meaningless. The Aghadis are formed under Section 63(2B ) so as to conduct business in the Council. The ultimate object should be how efficiently the functioning of the Council is achieved. The committees are formed for the Municipal Council to perform efficiently and discharge public duties. It is, therefore, in the larger public interest that the Council functions with efficacy. When Aghadi is formed to conduct the business, it should be practicable and disciplined. The debates in both Houses while introducing the Bill would indicate that though an opportunity is given to the independent councillors for representation in the committees, it was not contemplated that there would be some other type of Aghadi, but an Aghadi akin to a Prepoll Aghadi with all its attributes and to curb further ‘horse-trading’. Also, the second Proviso to Section 63(2B) cannot be read only in relation to the rights and liabilities of the councillors but also in the context of the object of the Municipalities Act, which is better administration of a local authority to serve the people more effectively.

38. If the interpretation that the second Proviso of Section 63(2B) is restricted only within the said section is accepted, it would give rise to various malpractices. In the case of Dilip s/o. Keshavrao Ingole v/s. Janardhan Biju Gonnade and Ors.19, the Division Bench of this court observed that the Standing Committee is subordinate to the Council. There is no dispute that the Standing Committee is constituted by the General Body for discharging certain functions. The General Body is not divested of its powers to supervise the working of the Standing Committee. The General Body can always approve or disapprove the decision of the Standing Committee. If it is held that an independent candidate who has chosen to form an Aghadi for the subject committee will only be part of the Aghadi for matters related to the subject committee, it will defeat the purpose and object of the legislation. For instance, a case where in a subject committee consisting of members from An Aghadi issues Whip regarding voting on a subject of public importance. If the resolution is passed in conformity with the Whip, it will proceed to the Standing and General Committees. It is possible that some members who are part of the Subject Committee are also members of the Standing Committee. When the same issue comes before the standing committee, these members might vote contrary to their stand and the Whip on the premise that the Post-poll Aghadi under the second Proviso to Section 63(2B) is limited to the Subject Committee and does not extend beyond it. A similar situation could arise when the resolution is placed before the General Body. This will lead to contradictory stands by the councillors. This could lead to inconsistent voting patterns and undermine the integrity of the 19 (1991) Mh.L,J, 986 decision-making process, enabling the counsellors to exploit the loophole for personal or political gain. This will lead to a lack of discipline and a breach of morality, violating the object behind the Tenth Schedule and the Disqualification Act. The second Proviso to Section 63(2B), therefore, has to mean that once an Aghadi comes into being under the second Proviso to Section 63(2B) and upon its registration, the Aghadi will remain for all purpose of the Act, and the members will be bound by the Whip issued by the leader of the Aghadi.

39. One of the Petitioners' contentions is that the provision involved is regarding the disqualification of a councillor, being a penal provision and must be strictly construed, and the fiction cannot travel beyond Section 63(2B). The Full Bench in Shah Faruq Shabir observed thus: “71. The law concerning disqualification is a law imposing disentitlements. The law of election is a special branch of statutory law and secondly the entitlement to contest as well the matters of dis-entitlement in that regard are all specified matters originating in the statute. They cannot have any other source except the statute. The general principles of equity or other common law doctrines would not be relevant nor operative nor applicable in such a field expressly defined by the statute. Not only the intendment but also its effects will have to be found in the given law and not outside. This equally applies to the definition, procedure jurisdiction and penalty attached to the stated act or omissions. The rule of strict construction is the basic canon that governs all matters of law concerning disqualification or disentitlement of those who seek the election as candidates and those who are chosen and are continuing to hold the elective offices, after being so chosen.” In this context the decision of the Hon'ble Supreme Court in the case of CIT, Delhi vs. S. Teja Singh20 needs to be noticed where the Hon'ble Supreme Court negatived the argument that a legal fiction which attaches a penalty always have to be always strictly construed. The Hon'ble Supreme Court observed thus:

7. Some argument was addressed to us based on the use of the definite article “the qualifying the word return” in Section 18-A(9)(b). It was said that that expression meant the return which is to be furnished under Section 22, and that that requires that there must have been a notice issued Section 22(1) or Section 22(2), before action could be taken under Section 28. In the view expressed above that the fiction enacted in Section 18- A(9)(b) involves the fiction that notices had been issued under Section 22(1) or Section 22(2), this contention does not call for further consideration.

8. It was finally argued that a fiscal statute and especially one imposing a penalty, should be strictly construed and that if the words of the enactment be not sufficiently explicit to reach the subject, the Revenue must fail, and the following observations in Vestey's (Lord) Executors v. Inland Revenue Commissioners [(1949) 1 All ER 1108, 1120] were relied on in support of this position: “Parliament in its attempts to keep pace with the ingenuity devoted to tax avoidance may fall short of its purpose. That is a misfortune for the taxpayers who do not try to avoid their share of the burden, and it is disappointing to the Inland Revenue. But the court will not stretch the terms of taxing Acts in order to improve on the efforts of Parliament and to stop gaps which are left open by the statutes. Tax avoidance is an evil, but it would be the beginning of much greater evils if the courts were to over stretch the language of the statute in order to subject to taxation people of whom they disapproved.” These observations would be in point if the language of the enactment left us in any doubt as to what the legislature meant. But can that be said of Section 18- A(9)(b)? Its object avowedly is to assimilate the position of a person who has failed to send the estimate under Section 18-A(3) to that of a person who has failed to furnish the return under Section 22, and that object is sought to be achieved by enacting the fiction which is contained in Section 18A(9)(b). And if, on the principles laid down in East End Dwellings Co. Ld. v. Finsbury Borough Council [(1952) AC 109, 132], the true effect of that fiction is that it imports that notice had been issued under Section 22, then the conditions prescribed in Section 28 of the Act are satisfied and penalty could be imposed under that section for failure to comply with Section 18-A(3), on the clear language of that enactment itself without straining or over stretching it.

9. We must now refer to an aspect of the question, which strongly reinforces the conclusion stated above. On the construction contended for by the respondent, Section 18-A(9)(b) would become wholly nugatory, as Sections 22(1) and 22(2) can have no application to advance estimates to be furnished under Section 18- A(3), and if we accede to this contention, we must hold that though the legislature enacted Section 18-A(9)(b) with the very object of bringing the failure to send estimates under Section 18-A(3) within the operation of Section 28, it signally failed to achieve its object. A construction which leads to such a result must, if that is possible, be avoided, on the principle expressed in the maxim, “ut res magis valeat quam pereat”. Vide Curtis v. Stovin [(1889) 22 QBD 513] and in particular, the following observations of Fry, L.J. at p. 519: “The only alternative construction offered to us would lead to this result, that the plain intention of the Legislature has entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt this construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect.” Vide also Craies on Statute Law, p. 90 and Maxwell on The Interpretation of Statutes, Tenth Edition, pages 236-237. “A statute is designed”, observed Lord Dunedin in Whitney v. Commissioners of Inland Revenue [(1925) 10 TC 88, 110], “to be workable, and the interpretation thereof by a court should be to secure that object, unless crucial omission or clear direction makes that end unattainable”. Thus there is no absolute rule that all provisions which entail consequences akin to penal one must necessary be construed strictly as it would depend on the scheme and object of the Act. What is under consideration before us is the second Proviso to Section 63(2B). Apart from the above position of law, the second Proviso to Section 63(2B) is a provision framed to give representation to the independent candidates with certain limitations. It is not a provision that provides solely for disqualification. It is a provision that permits the creation and registration of a Post-poll Aghadi for the benefit of the independent councillors, and it declares that if they form part of an Aghadi, it will be an Aghadi under Section 2(a) of the Disqualification Act. The second Proviso grants a privilege to form a Post-poll Aghadi even though it is not permitted under the Disqualification Act. Section 3 of the Disqualification Act provides for consequences for the councillor who is part of an Aghadi in voting or abstaining from any meeting of the Municipal Council contrary to the Whip. Once it is held that such Aghadi has all the attributes of a pre-poll Aghadi, Section 3 of the Disqualification Act is applicable.

40. The Petitioners' interpretation of the Proviso fails to consider the broader implications and legislative intent behind the Act. The language of the second Proviso to Section 63(2B) itself does not support the Petitioners' interpretation. Section 3(1)(b) of the Disqualification Act, read with this Proviso, would show that it applies to all Aghadis, including Post-poll Aghadi, under the Proviso. This section is clear in its reference to a Councillor voting or abstaining from voting in “Any meeting” of the Municipal Council. The language of this provision is unambiguous. If the attributes of Aghadi cannot be restricted to the meetings only of the subject committee as the Section 3(1)(b) of the Disqualification Act applies to any meeting of the Council. Therefore, when an Aghadi is formed under the second Proviso to Section 63(2B) it will be operative for any meeting of the Municipal Council as per Section 3(1)(b). Restricting it only to the subject committee will amount to amending Section 3(1)(b) of the Disqualification Act, which is not permissible.

41. The petitioners also argued that the phrase ‘House’ exists in the Maharashtra Municipal Corporation Act and Mumbai Municipal Corporation Act but is absent in the Municipalities Act, and this indicates legislative intent to restrict the Post-Poll Aghadi under the Municipalities Act only to the sub-section. There is no merit in this argument. The legislative intent across the statutes can be different. The learned Advocate General pointed out that the Disqualification Act applies to all local authorities, including Zilla Parishad and Panchayat Samities. The concept of Post-poll Aghadi does not apply to the Zilla Parishad or Panchayat Samities. Perhaps that is the reason why the legislature sought to amend the Act consisting Municipal Councils and not the Disqualification Act. It is also contended that the second Proviso to Section 63(2B) is legislation by reference where the provisions of the Disqualification Act which made applicable to the formation of Post poll Aghadi. The choice of methodology to achieve a particular purpose has to be normally left to the legislature to decide.

42. Having reach this conclusion, we revert to the decision of the Full bench in Shah Faruq Shabir, whose correctness is in question. The Full Bench has referred to the decision of the Hon’ble Supreme Court in the case of Jeevan Chandrabhan Idnani v/s. Divisional Commissioner, Konkan Bhavan21 wherein the Supreme Court observed thus:-