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2019 DIGILAW 1393 (BOM)

Raghunath Udelal Mahale v. State of Maharashtra

2019-06-14

K.K.SONAWANE, T.V.NALAWADE

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JUDGMENT : K.K. Sonawane, J. 1. Heard. Rule. Rule is made returnable forthwith. Matter is taken up for finality with the consent of learned counsel for parties. 2. The applicants preferred present application under Section 482 of the Code of Criminal Procedure (Cr.P.C.) seeking relief to quash and set aside the First Information Report (FIR) bearing Crime No.229/2018 registered at Dhule Taluka Police Station, for the offence punishable under Sections 442, 323, 504, 506, 427 r/w. 34 of the Indian Penal Code (IPC); as well as the proceeding of Charge Sheet bearing No. 268 of 2018 filed pursuant to the investigation of the aforesaid crime. 3. It is the case of the prosecution that the first informant Sau. Lalita Mahale on 31.7.2018, approached to the police of Dhule Taluka Police Station and filed report that the applicants are her distant relatives and residing in the same village Chaugaon, Taluka and District Dhule. There were strain relations in between the family of the first informant and the applicants on account of dispute of pathway from the Bandh of agricultural land. It has been contended that the agricultural land of the first informant was located adjoining to the land of the applicants and on account of Bandh, there were frequent quarrels in between the family of the first informant and the accused. It has been alleged that prior to 5-6 months of the incident, the applicant Raghunath allowed his buffaloes for grazing in the land of the first informant and caused damage to the onion crop. There was altercation in between the first informant and the applicants, which resulted into filing a criminal complaint to the police and the matter is pending before the learned Magistrate at Dhule. According to first informant, the applicants on one or the other pretext used to pick up quarrels with the family members of first informant, but, being adjoining land owners, the family members of the first informant did not pay any attention to the quarrelsome conduct of the applicants. The first informant further alleged that on 29.7.2018, her husband had gone out of station. She was doing the agricultural operation in her land. At that time, the applicant Raghunath and other applicants were also doing agricultural work in their land. The first informant further alleged that on 29.7.2018, her husband had gone out of station. She was doing the agricultural operation in her land. At that time, the applicant Raghunath and other applicants were also doing agricultural work in their land. At about 4.30 to 5.00 p.m. when the first informant was busy in agricultural operation, that time, the applicant Uttam suddenly appeared on the back side of the first informant and he caught hold to her. The first informant became frightened and yelled for help. She pushed the applicant Uttam back. On hearing shouts of the first informant, the other applicants also rushed to the scene of occurrence. The applicant Raghunath exhorted to kill the first informant as she was not ready to withdraw the proceeding filed in the court. The other applicants started jostling the first informant and hurled abuses. The applicant - Raghunath assaulted the first informant with stick and uttered filthy words by pulling her saree. The applicant Bhagesh attempted to outrage the modesty of the first informant by pressing her breast. They all gave threats of life to the first informant. Meanwhile, the adjoining land owners intervened in the scuffle and they extricated the first informant from the clutches of the applicant. It has been alleged that the clothes of the first informant were torn in the fight. The bangles and chain beads from her neck were broken on the spot. Thereafter, the first informant visited to the concerned police and filed the report. Pursuant to the report, the police of Dhule Taluka P.S. registered the crime and set the penal law in motion. 4. Pending investigation, the applicant preferred the present application by invoking the remedy under Section 482 of Cr.P.C. to quash and set aside the criminal proceeding filed againt them. Meanwhile, the I.O. recorded statements of the witnesses acquainted with the facts of the case. He collected the relevant document and after completion of investigation, the I.O. filed charge sheet against the applicants, which is pending before the learned Magistrate at Dhule. The applicants also prayed to quash and set aside the proceeding of charge sheet filed against them pursuant to the FIR bearing No. 268 of 2018. 5. The learned counsel for the applicant vehemently submits that the entire FIR is false, fabricated and not genuine one. The applicants also prayed to quash and set aside the proceeding of charge sheet filed against them pursuant to the FIR bearing No. 268 of 2018. 5. The learned counsel for the applicant vehemently submits that the entire FIR is false, fabricated and not genuine one. The first informant attempted to embroil the applicants by making false allegations in this case. The applicants are innocent of the charges pitted against them and they have not committed any crime. The learned counsel for the applicants drawn attention of this court towards the documents of civil proceeding produced on record. It has been contended that the family members of the first informant attempted to make demand of right of way from the Bandh of the agricultural land of the applicants by claiming easementary right. There was a dispute in between the two families on account of path way claimed by the family members of the informant for going to their land. They had also initiated proceeding under Section 143 of the Maharashtra Land Revenue Code for a right of way. The Tahsildar, Dhule rejected the application of the husband of first informant for claiming the right of way from the agricultural land of the applicants. The revision was also preferred by the husband of first informant under Section 257 of the Maharashtra Land Revenue Code. It was also turned down by the concerned Sub Divisional Magistrate, Dhule. Taking umbrage of the failure in the revenue proceeding, the family members of first informant used to pick up quarrels with the applicants frequently. The applicant Uttam Mahale also filed an application to the concerned police for preventive action against the family members of the applicants. Despite the same, the applicants, in the month of February 2018, filed a false private complaint against the applicants for the allegation of assault and intimidation etc. The matter is pending before the learned Magistrate at Dhule. According to learned counsel, the applicant No.4 is the student and one of the aspirants of Civil Services Examination. At the relevant time, he was studying at Unique Academy Pune. He was not present at the scene of occurrence as alleged by the first informant. The applicant No.2 was also at the relevant time I.e on 29.7.2018. busy in the meeting convened by the management of the school. He produced the Attendance Certificate on record. At the relevant time, he was studying at Unique Academy Pune. He was not present at the scene of occurrence as alleged by the first informant. The applicant No.2 was also at the relevant time I.e on 29.7.2018. busy in the meeting convened by the management of the school. He produced the Attendance Certificate on record. According to learned counsel, the present proceeding is totally false, baseless and fabricated one. It is nothing but an abuse of process of law. Therefore, the criminal proceedings initiated against the applicant is required to be quashed and set aside. 6. The learned APP as well as learned counsel for respondent No. 2- first informant vociferously opposed the contentions put-forth on behalf of applicants and submit that the allegations of assault on behalf of complainant in the FIR discloses commission of crime punishable under Sections 354A, 427, 447, 323, 504, 506 r/w. 34 of the IPC. The complainant categorically described the episode of outraging her modesty and assault on her. There are concrete allegations of assault and outraging modesty by the applicants. 7. We have given anxious consideration to the submissions advanced on behalf of both sides. We have also perused the document produced on record. Admittedly, the relations between the family members of the first informant are strain and not cordial one. There was a dispute on account of path way from the Bandh of the agricultural land of applicants. The documents produced on record show that the husband of first informant filed proceeding before the revenue authority for claiming the easementary right of way for ingress and egress to his land from the Bandh of agricultural land of applicants. He did not succeed in the proceeding. There was also attempt to file criminal complaint against the applicants for charges of assault, indimidation etc. The document of Attendance Certificate produced on record on behalf of applicant No.2 about his presence in the meeting convened by the Management of the school on the day of incident, created doubt about the veracity and truthfulness of the allegations nurtured against the applicants by the first informant. It is also a fact that the applicant No.4 was pursuing his studies for Civil Services Examination in the coaching class at Pune. His attendance in the coaching class at Pune also devastated the gravity of the allegation. It is also a fact that the applicant No.4 was pursuing his studies for Civil Services Examination in the coaching class at Pune. His attendance in the coaching class at Pune also devastated the gravity of the allegation. The first informant cast allegations about molestation against applicant No.4 Bhagyesh whose presence at the scene of occurrence found improbable and unbelievable. In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants. There is no propriety to allow the prosecution to continue against present applicants, in which the ultimate probability of conviction is totally bleak. 8. It is worth to mention that the Honourable Apex Court in the case of Madhavrao Jiwaji Rao Schindia AIR 1988 SC 709 above categorically elucidated in paragraph No. 7 as under: 7. The legal position is well-settled that when a prosecution at the initial stage is asked to be quashed, the test to be applied by the court is as to whether the uncontroverted allegations as made prima facie establish the offence. It is also for the court to take into consideration any special features which appear in a particular case to consider whether it is expedient and in the interest of justice to permit a prosecution to continue. This is so on the basis that the court cannot be utilised for any oblique purpose and where in the opinion of the court chances of an ultimate conviction is bleak and, therefore, no useful purpose is likely to be served by allowing a criminal prosecution to continue, the court may while taking into consideration the special facts of a case also quash the proceeding even though it may be at a preliminary stage. 9. The Honourable Apex Court in the case of State of Haryana and others Vs. Ch. Bhajan Lal and others, (1991) 1 RCR(Cri) 383 (SC) : MANU/SC/0115/1992 held that where the proceedings is instituted with an ulterior motive or were the allegations made in the complaint are absurd and improbable, the Court would be within its power to quash the complaint/FIR . Ch. Bhajan Lal and others, (1991) 1 RCR(Cri) 383 (SC) : MANU/SC/0115/1992 held that where the proceedings is instituted with an ulterior motive or were the allegations made in the complaint are absurd and improbable, the Court would be within its power to quash the complaint/FIR . Moreover, if the allegations in the FIR against the applicants are taken at their face value and accepted the same in its entirety would not constitute any offence or make out case against applicants, in such circumstances, there would not be any propriety to allow the prosecution to proceed further into the matter. [9] In the instant case, the attending circumstances demonstrate that the present proceeding is nothing but an abuse of process of law. It is not just and proper to compel the applicants to unnecessarily face the agony of trial. In view of inimical terms in between the two families, it appears that the present complaint came to be filed with an ulterior motive to harass the applicants. If the applicants are compelled to face the trial, it would be an futile efforts and would cause injustice to them. It would also dissipate the precious time of Court of law as the possibility of ultimate conviction is totally bleak. The ends of justice would be served by ensuring that the applicants may not be forced unnecessarily to go on litigations before the Criminal Court. Hence, penal proceeding initiated against these applicants deserves to be quashed and set aside. Therefore, we proceed to pass following order : -:ORDER:- [1] The criminal application stands allowed. [2] Relief is granted in terms of prayer clause (A) and (D). Crime No. 229 of 2018 filed against the applicants for the offence punishable under Sections 354-A, 427, 447, 323, 504, 506 r/w. 34 of IPC at Dhule Taluka Police Station is quashed and set aside. The Charge sheet No. 268 of 2018 filed before the JMFC, Dhule filed pursuant to the aforesaid crime is also quashed and set aside to the extent of present applicants. [3] Rule made absolute in those terms. The Charge sheet No. 268 of 2018 filed before the JMFC, Dhule filed pursuant to the aforesaid crime is also quashed and set aside to the extent of present applicants. [3] Rule made absolute in those terms. (1B)(a) A person shall be disqualified for being a Councillor or for contesting an election for being elected as a Councillor, for a period of six years, if, an order is passed by the concerned authority, under section 18 or as the case may be, section 33, holding that such person was elected as a Councillor to a seat which was reserved for a member belonging to a Scheduled Caste, Scheduled Tribe or a Backward Class of Citizens (hereinafter referred to as a reserved category ), on the basis of a false claim or a false Caste Certificate declaring that such person belonged to such reserved category. (b) Such period of disqualification shall be computed with effect from the date of passing of such order by the concerned authority. (1C)(a) Notwithstanding anything contained in subsection (1B), a Councillor who has been elected to a reserved seat as mentioned in sub-section (1B), shall be disqualified for being such Councillor consequent upon the Caste Certificate Verification Committee or any other Competent Authority specified by the State Government for the purpose of scrutiny of the Caste Certificates, declaring the Caste Certificate of such Councillor to be invalid and cancelling the same, on the ground of the same having been based on a false claim or declaration made by such person claiming to be belonging to the reserved category, and thereupon the Councillor shall be deemed to have vacated his office on and from the date of declaration of such Certificate to be invalid and cancellation of the same by the said Committee or the Competent Authority. (b) On any person having been disqualified for being a Councillor and consequently, his seat as such Councillor having become vacant under clause (a), the State Government shall, by notification in the Official Gazette, disqualify such person for being elected or being a Councillor for a period of six years from the date of such order.(Sections 16(1B)(a), 16(1B)(b), 16(1C)(a) and 16(1C)(b) were inserted by an amendment of 2015.) (1D) A Councillor shall be disqualified for being a Councillor, if such Councillor has constructed or constructs by himself, his spouse or his dependent, any illegal or unauthorised structure violating the provisions of this Act or the Maharashtra Regional and Town Planning Act, 1966 or the rules or bye-laws framed under the said Acts; or has directly or indirectly been responsible for, or helped in his capacity as such Councillor in carrying out such illegal or unauthorised construction or has by written communication or physically, obstructed or tried to obstruct any Competent Authority from discharging its official duty in demolishing any illegal or unauthorised structure. Such disqualification shall be for the remainder of his term as a Councillor from the date of the declaration of such structure to be illegal or unauthorised by the concerned authority under the provisions of the said Acts or, as the case may be, from the date of commission of the act of interference or obstruction by the Councillor against the Competent Authority. (1E) If the State Election Commission is satisfied that a person,- (a) has failed to lodge an account of election expenses within the time and in the manner required by the State Election Commission, and (b) has no good reason or justification for such failure, the State Election Commission may, by an order published in the Official Gazette, declare him to be disqualified and such person shall be disqualified for being a Councillor or for contesting an election for being a Councillor for a period of three years from the date of the order. (1F) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub-section (1E) or reduce the period of any such disqualification. (1F) The State Election Commission may, for reasons to be recorded, remove any disqualification under sub-section (1E) or reduce the period of any such disqualification. (2) But a person shall not be so disqualified or be deemed to have any share or interest in such a contract or employment by reason only of his receiving fee for attendance at meetings of the Brihan Mumbai Electric Supply and Transport Committee or of his having any share or interest in- (g) subject to the provisions of clause (fa) of subsection (1), any lease including any leave or licence, sale or purchase of land or any agreement for the same, by or on behalf of the Corporation; or (h) any agreement for the loan of money or any security for the payment of money only; or (i) any newspaper in which any advertisement relating to the affairs of the corporation is inserted; or (j) any joint stock company which shall contract with or be employed by the Commissioner on behalf of the corporation; or (k) the occasional sale to the Commissioner on behalf of the corporation to a value not exceeding in any official year two thousand rupees, of any article in which he regularly trades. '17. A person becoming disqualified to cease to be a councillor. Any councillor who,- (a) becomes disqualified for being a councillor for any reason mentioned in the last preceding section, or (b) absents himself during three successive months from the meetings of the corporation, except from temporary illness or other cause to be approved by the corporation, (d) absents himself from or is unable to attend the meetings of the corporation during twelve successive months from any cause whatever, whether approved by the corporation or not, shall cease to be a councillor and his office shall thereupon be vacant. '18. Questions as to disqualifications to be determined by Chief Judge of the Small Cause Court. '18. Questions as to disqualifications to be determined by Chief Judge of the Small Cause Court. Whenever it is alleged that any councillor has become disqualified for office for any reason aforesaid, and such councillor does not admit the allegation, or whenever any councillor is himself in doubt whether or not he has become disqualified for office, such councillor or any other councillor may, and the Commissioner, at the request of the corporation, shall apply to the Chief Judge of the Small Cause Court; and the said Chief Judge, after making such inquiry as he deems necessary, shall determine whether or not such councillor has become disqualified for being a councillor, and his decision shall be a conclusive. (Emphasis added) 10. Broadly speaking, Section 16 tells us when and in what circumstances a councillor is disqualified. Section 17 sets out the consequences of a disqualification. Section 18 then tells us in which legal forum any questions regarding disqualification must be raised. There is, therefore, a logical flow to these three tightly-knit sections. And we must bear in mind that this councillor-disqualification statutory troika has a direct nexus to that part of Section 9, which deals with casual vacancies. The hierarchical progression runs like this: casual vacancy on disqualification (Section 9); when is a councillor disqualified (Section 16); the consequences of that disqualification (Section 17); and disqualification dispute resolution (Section 18). 11. Within Section 16, we are concerned with the newly-added provisions in Section 16(1B) and Section 16(1C). They operate in distinct ways. (There are evident syntactical errors in Section 16(1B)(a). The phrase should be authority concerned, meaning the authority in question, not the concerned authority, which can only mean the authority who is caused some sort of concern, or is worried. There should be no comma after authority, and there should be one after section 18 or. I read the section with these obviously necessary corrections, though it is reproduced verbatim.) Section 16(1B)(a) tells us that a disqualification of the kind mentioned here, i.e. on a false caste claim or caste certificate, occurs in either of two eventualities. There should be no comma after authority, and there should be one after section 18 or. I read the section with these obviously necessary corrections, though it is reproduced verbatim.) Section 16(1B)(a) tells us that a disqualification of the kind mentioned here, i.e. on a false caste claim or caste certificate, occurs in either of two eventualities. One, when (a) the Chief Judge of the Small Causes Court in a proceeding alleging an elected councillor s disqualification on this ground, viz., impugning the validity of that caste claim or certificate, decides that the caste claim or certificate is false; or, two, in an election petition under Section 33, impeaching the election of the elected councillor. The date of the order is the starting date for reckoning the disqualification. Section 16(1C) opens with a non-obstante clause that therefore operates irrespective of Section 16(1B). This speaks of a disqualification earned not on account of any judicial pronouncement of the Chief Judge of the Small Causes Court, but on the elected councillor s caste certificate being invalidated and ordered to be cancelled by the Caste Certificate Verification Committee or competent authority under the Caste Certificate Act. The disqualification runs from the date of the order of the Caste Certificate Verification Committee. For, Section 16(1C) also says that upon the declaration of the Caste Certificate Verification Committee and its order cancelling the caste certificate, the elected councillor shall be deemed to have vacated his office on and from the date of the declaration. A Section 16(1C) disqualification requires the State Government to notify it, and the disqualification operates for six years from the date of the State Government order. 12. Section 16(1B) requires us to immediately examine Section 33 and, with it, Section 34: '33. A Section 16(1C) disqualification requires the State Government to notify it, and the disqualification operates for six years from the date of the State Government order. 12. Section 16(1B) requires us to immediately examine Section 33 and, with it, Section 34: '33. Elections petitions to be heard and disposed of by Chief Judge of the Small Cause Court.- (1) If the qualification of any person declared to be elected for being a councillor is disputed, or if the validity of any election is questioned, whether by reason of the improper rejection by the State Election Commissioner of a nomination or of the improper reception or refusal of a vote, or for any other cause or if the validity of the election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of section 28F, any person enrolled in the municipal election roll may, at any time, within ten days form the date on which the list prescribed under clause (k) of section 28 was available for sale or inspection apply to the Chief Judge of the Small Cause Court. If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate. (1A) The applicant shall, whenever so required by the Chief Judge, deposit in the Court a sum of Rs.500 in cash or Government securities of equivalent value at the market rate of the day as security for any costs which the applicant, may be ordered to pay to other parties to the said application. (2) If the said Chief Judge, after making such inquiry as he deems necessary, finds that the election was a valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. If he finds that the person whose election is objected to is disqualified for being a councillor he shall declare such person s election null and void. If he finds that the election is not a valid election he shall set it aside. If he finds that the person whose election is objected to is disqualified for being a councillor he shall declare such person s election null and void. If he finds that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person and against whose election no cause of objection is found, shall be deemed to have been elected. (2A) When an election of a person is questioned on the ground that he has committed a corrupt practice within the meaning of Section 28F, the Chief Judge, if he is satisfied that a candidate has committed such corrupt practice, declare a candidate disqualified both for the purposes of that election and of such fresh election as may be held during the current term of office of the councillors elected at the general election and shall set aside the election of such candidate if he has been elected. (3) The said Chief Judge s order shall be conclusive. *** *** *** (5) Every election not called question in accordance with the foregoing provisions shall be deemed to have been to all intents a good and valid election. '34. Procedure if election fails or is set aside.- (1) If any general election or an election held to fill a casual vacancy, no councillor is elected, or the election of any councillor is set aside under sub-section (2) of section 33 and there is no other candidate who can be deemed to be elected in his place under the said sub-section, the State Election Commissioner shall appoint another day for holding a fresh election and a fresh election shall be held accordingly. (2) A councillor elected under this section shall be deemed to have been elected to fill a casual vacancy under section 9. (Emphasis added) 13. Section 18 and Section 33 thus both contemplate a proceeding being brought before the Chief Judge of the Small Causes Court. But the two are different and distinct types of proceedings. A Section 18 proceeding is directed only to the question of qualification or disqualification. That disqualification may be of any kind, and it may have been triggered or incurred at any time during the term of office. But the two are different and distinct types of proceedings. A Section 18 proceeding is directed only to the question of qualification or disqualification. That disqualification may be of any kind, and it may have been triggered or incurred at any time during the term of office. For instance, a councillor may be within the two-child rule when elected, but may earn a disqualification if he or she has a third child during the term of councillorship. Or it may relate to an illegal or unauthorised construction done while serving as a councillor, or the acquisition in that interregnum of a disqualifying financial interest. The disqualification does not have to be initial, i.e. one that goes back to the date of the election. It can be one that comes up at any time. (Most disconcerting is the potential disqualification under Section 16(1)(h), which requires every councillor to regularly use either a private toilet or a community or public toilet. How a petitioner would prove that an elected councillor has ceased use of such a privy, and thereby earned a disqualification, is a matter perhaps best left to riper speculation - possibly a chronicling in a domestic context in the manner of John Mortimer s Rumpole of the Bailey, or AP Herbert s Uncommon Law.) Section 33, however, operates entirely differently. It is not restricted to a contest in litigation about a disqualification. Its ambit is wider. It allows a challenge to an election result on broader grounds, including an electoral malpractice of the kind set out in Section 28F (What is a corrupt practice). Further, a Section 18 application cannot be for an order declaring that a particular candidate should be declared elected upon the returned candidate being held disqualified. This is in contrast to Section 33, which specifically allows a petitioner before the Chief Judge to seek an order declaring that on the returned candidate being unseated (on any of the available grounds), another contestant be declared elected. If such a relief is sought, then all those who garnered more votes than the candidate being promoted by the petitioner must be joined to the law suit. 14. Section 33(2) is critical. Though bundled into a single composite provision, it has distinct components. If such a relief is sought, then all those who garnered more votes than the candidate being promoted by the petitioner must be joined to the law suit. 14. Section 33(2) is critical. Though bundled into a single composite provision, it has distinct components. It envisages at least three different, and distinct, outcomes of the election petition: (a) If the Chief Judge finds the election to be valid and that the elected councillor is not disqualified - the election result is to be confirmed. The election petition fails. (b) Otherwise: (1) If the Chief Judge finds the elected person was disqualified, the election is declared null and void. The Petition succeeds. (2) If the election is invalidated - that is to say it suffers from an electoral defect or malpractice, a cause other than the elected person being disqualified, then the election is set aside. Again, the Petition succeeds. If either of events (b)(i) or (b)(ii) occur, then the candidate with the second highest number of valid votes is deemed to have been elected , and the Chief Judge must make an order so declaring. (Provided, of course, that his own election is not similarly invalidated. This is why Section 33(1) requires the joinder to the law suit of all candidates who secured more votes than the candidate the plaintiff seeks should be declared elected.) 15. This has an almost Boolean or binary logical structure, following the if-then logical paradigm familiar to programming and coding. The confirmation of the second-highest vote-gatherer occurs only in these two circumstances, and it occurs only as a result of an election petition, i.e. following a judicial determination or final decision on an election petition. It follows, therefore, that for the second-highest vote-gatherer to succeed to the office, (1) there must be an election petition; (2) it must be finally decided; and (3) the final decision must be one or the other of outcomes (b)(i) or (b)(ii) above. 16. What happens if the returned candidate is disqualified outside of an election petition? Let us assume there is no election petition filed at all, but merely a successful challenge to the returned candidate s qualifications - age, for instance, or the validity of his caste certificate (as in this case). When that happens, Section 33(2) has no role to play at all. It simply does not operate. Its trigger events do not exist. Let us assume there is no election petition filed at all, but merely a successful challenge to the returned candidate s qualifications - age, for instance, or the validity of his caste certificate (as in this case). When that happens, Section 33(2) has no role to play at all. It simply does not operate. Its trigger events do not exist. What then comes into operation is Section 9. 17. It is the in-between position that presents one conundrum - viz., there is a pending election petition, not yet disposed of at all, and the returned candidate has earned a disqualification in other, separate proceedings (his caste certificate having been invalidated). On my analysis of the statute, this will make no difference at all, and Section 33 will simply not apply. This is because its parent trigger event or requirement, the final determination of the election petition, has not occurred. The mere pendency of an election petition cannot cause Section 33(2) to operate. 18. To hold otherwise would, in fact, require a wholesale rewriting of the statute, something along these lines: '33(2)If the said Chief Judge, after making such inquiry as he deems necessary, finds or may or is likely to find that the election was a valid election and that the person whose election is objected to is not disqualified he shall confirm the declared result of the election. If he finds or may or is likely to find that the person whose election is objected to is disqualified for being a councillor he shall declare such person's election null and void. If he finds or may or is likely to find that the election is not a valid election he shall set it aside. In either case he shall direct that the candidate, if any, in whose favour the next highest number of valid votes is recorded after the said person and against whose election no cause of objection is found, shall be deemed to have been elected. Any such insertion by a judicial order on statutory interpretation is wholly impermissible. 19. But the position today is even more of a hybrid. For, on the basis of the invalidation of the 3rd Respondent s caste certificate, the Chief Judge has actually made an order that he stands disqualified. The first part of the election petition is over. The Petitioner before us has succeeded. 19. But the position today is even more of a hybrid. For, on the basis of the invalidation of the 3rd Respondent s caste certificate, the Chief Judge has actually made an order that he stands disqualified. The first part of the election petition is over. The Petitioner before us has succeeded. But before the Chief Judge could get to the second part, viz., the declaration that the Petitioner, the candidate with the next highest number of votes, is deemed to have been elected, the Election Commission s machinery has been set in motion; a fresh Election has been called. What Mr Mendadkar and Mr Godbole canvas is that no such election can be called, and that the Petitioner must be allowed to occupy the office vacated by the 3rd Respondent until the end of the current term. 20. Election statutes must be strictly construed. The law in this regard is well-settled. There is no room in them for interpretive elasticity or latitude. A liberal construction is impermissible, and I believe this to be true as much of the municipal election provisions of the MMC Act as it is undoubtedly true of the Representation of People Act, 1951. (GV Sreereama Reddy & Anr v Returning Officer, (2009) 8 SCC 736 ; Arikala Narasa Reddy v Venkata Ram Reddy Reddygari & Anr, (2014) 5 SCC 312 ; as also the decision of a learned single Judge of this Court, SV Gangapurwala J, in Khalil Ahmed Shaikh Mannu v Election Commissioner of India & Ors, (2011) 6 MhLJ 177.) 21. There are two aspects I believe I must consider immediately. The first is the meaning of casual vacancy , defined only in Section 9, which tells us when it occurs. The second is the question of temporality, that is to say, the timing and time-sequencing of these possible outcomes. 22. Vacancy means emptiness. Black s Law Dictionary defines it like this: (Bryan Garner, ed; Black s Law Dictionary, 7th ed., West Group.) 1. The state or fact of a lack of occupancy in an office, post or piece of property. 2. The time during which an office, post or piece of property is not occupied. 3. An unoccupied office, post, or piece of property. ... a vacancy, properly speaking, does not occur until the officer is officially removed. (Emphasis added) 23. This takes us directly to the second point of temporality. 2. The time during which an office, post or piece of property is not occupied. 3. An unoccupied office, post, or piece of property. ... a vacancy, properly speaking, does not occur until the officer is officially removed. (Emphasis added) 23. This takes us directly to the second point of temporality. The very expression casual vacancy means, therefore, that there is a period of time during which the office lies unoccupied. Section 9 says that the State Election Commission must hold an election to fill that vacancy as soon as may be convenient - this provides no definite time-frame - and, further clarifies that this is not to be done if there are only six months left to go to the end of the term when fresh general elections would have to be held anyway. In other words, for that six-month term, the disqualified councillor s seat would continue to remain vacant. 24. Section 34 outlines two other, very specific, circumstances in which a fresh election is to be called for that seat: (1) at a general election or at an election to fill a casual vacancy no councillor is validly elected; or (2) in a Section 33 law suit, if there is no other candidate who can be declared to have been validly elected in place of the unseated candidate, the Election Commission must then hold a fresh election. 25. The underlying rationale is plain to see: like nature, law abhors a vacuum; and this part of the municipal law particularly abhors an electoral vacuum. No constituency should remain unrepresented. Therefore the mandate to the election commission in Section 9 to fill up the vacancy as soon as convenient. This the Election Commission must also do whenever a Section 34 situation occurs: there is no validly returned candidate at a general election or one held to fill a casual vacancy; or, at the end of a Section 33 proceeding, there is no validly returned candidate holding the second-highest number of votes (what I call the runner-up). I see no reason why the Election Commission should be forbidden from acting in the in-between position either, i.e. when a declaration has been made that the returned candidate has been disqualified and is deemed to have vacated his seat, but the next necessary declaration, that the runner-up candidate is deemed to have been elected has not yet been made. I see no reason why the Election Commission should be forbidden from acting in the in-between position either, i.e. when a declaration has been made that the returned candidate has been disqualified and is deemed to have vacated his seat, but the next necessary declaration, that the runner-up candidate is deemed to have been elected has not yet been made. As Dharmadhikari J notes, the completion of that legal proceeding has no prescribed limit. It simply cannot be that pending the second declaration under Section 33(2) in favour of the runner-up candidate, the seat remains vacant. Further, I do not believe that the second declaration under Section 33(2) of a candidate deemed to have been elected is either a foregone conclusion, or that it is a relief that can be obtained for the asking. It is not as if there is no adjudication required. Section 32(1) has these words: If the application is for a declaration that any particular candidate shall be deemed to have been elected, the applicant shall make parties to his application all candidates who although not declared elected, have, according to the results declared by the State Election Commissioner under section 32, a greater number of votes than the said candidate, and proceed against them in the same manner as against the said candidate. This means that in a given case there may be more than one aspirant to the seat of the returned candidate who is disqualified or whose election is set aside. Moreover, Section 34 contemplates precisely this scenario, where there is no one who can obtain the second declaration under Section 33(2) of being deemed to have been elected. Therefore, it is simply not possible to prescribe any rigid time-limit for the completion of the adjudication required for the second declaration under Section 33(2). Equally, that factual adjudication is not a task within our limited remit under Article 226 of the Constitution of India. It seems to me obvious that to obtain a declaration of being deemed to have been elected, the candidate aspiring to that declaration must show not only that he or she is the runner-up, i.e. has gathered the next highest number of votes, but also that he or she is not himself under any disqualification. It seems to me obvious that to obtain a declaration of being deemed to have been elected, the candidate aspiring to that declaration must show not only that he or she is the runner-up, i.e. has gathered the next highest number of votes, but also that he or she is not himself under any disqualification. Conceivably, there could be multiple layers to the second declaration under Section 33(2), and the proposition that Mr Mendadkar and Mr Godbole advance seems to me, for that reason, to be overbroad. 26. For completeness, I should at this stage consider two decisions of Division Benches of this Court. The first is the decision in Geeta Kisan Gore v State of Maharashtra & Ors., (2003) 4 MhLJ 287 That decision did consider Sections 9 and 33 of the MMC Act. The difference, and the distinguishing factor, was that the State Election Commission had done nothing by way of calling an election to fill a casual vacancy. What seems to have happened is that a returned candidate suffered a disqualification. Her OBC caste certificate was invalidated. Her challenge to that in this court failed. In the meantime, the 4th respondent had filed an election petition. The Chief Judge made an order declaring the 4th respondent duly elected, that is to say, the election petition was finally disposed with both declarations contemplated by Section 33(2) being made: unseating the returned candidate as disqualified, and also declaring the runner-up as being deemed to have been elected. The petitioner came to this court in a writ petition. It was in this context that the Division Bench upheld the order of the Chief Judge and said in paragraphs 8 and 9 that the runnerup had to be declared elected. There can be no quarrel with this ratio. In Mohammed Ishak Kasim Ali Shaikh v Municipal Corporation of Greater Mumbai, (2017) 1 MhLJ 402 a later Division Bench, relied on the decision in Geeta Kisan Gore to take much the same view in very similar factual circumstances. One Mohammed Shaikh contested a municipal election for a seat reserved for OBC candidates. He was declared elected. The 3rd respondent was the losing runner-up. He filed an election petition claiming that Shaikh was not of the OBC category at all. One Mohammed Shaikh contested a municipal election for a seat reserved for OBC candidates. He was declared elected. The 3rd respondent was the losing runner-up. He filed an election petition claiming that Shaikh was not of the OBC category at all. While this was pending, Shaikh s caste certificate came to be validated - that is, held good and correct - by the Caste Scrutiny Committee. The 3rd respondent challenged this order in a writ petition in this Court. He succeeded. The writ petition was allowed. As a result, the Additional Municipal Commissioner made an order disqualifying Shaikh. Since Shaikh never challenged that order, it attained finality. Therefore, the Civil Judge allowed the 3rd respondent s election petition and, since he had the second highest number of votes, also made the second order under Section 33(2), declaring that the 3rd respondent was deemed to have been elected. This is the precise point at which the Mohd Ishak Shaikh case diverges from the present one. Shaikh came back to this court in another writ petition, this time challenging the Chief Judge s order on the 3rd respondent s election petition. It was in these circumstances that the Division Bench in Mohd Ishak Shaikh upheld the Chief Judge s order, following, as it was bound to do, the previous decision in Geeta Kisan Gore. Again, there was no issue of the State Election Commission having put in motion its machinery to conduct an election to fill any casual vacancy. The scope for this did not arise. The election petition had been fully decided and the mandatory result of Section 33(2) had to follow in both cases. 27. In the present case, we are in a situation that never arose either in Geeta Kisan Gore or Mohd Ishak Shaikh. What has happened here is that the returned candidate s caste claim or certificate has been invalidated independently and outside the pending election petition filed by the Petitioner against the 3rd Respondent. The Section 33 petition has received an order declaring that the 3rd Respondent was disqualified at the date of the election. But the second declaration in favour of the Petitioner, that he is deemed to have been elected, is yet to be made. The Section 33 petition has received an order declaring that the 3rd Respondent was disqualified at the date of the election. But the second declaration in favour of the Petitioner, that he is deemed to have been elected, is yet to be made. What Mr Mendadkar and Mr Godbole seek is that the fresh election process mandated under Section 9 should now be stopped in its tracks to enable the Petitioner to take over the seat for which the 3rd Respondent has been disqualified. Their submission is that no election can ever be held for this seat until the next general elections, and it is wholly irrelevant that the election petition is yet pending the second declaration. The mere pendency of the election petition for the second declaration enthroning the Petitioner will ipso facto operate to stay any election is what they seem to suggest. Even if the election petition is not decided until the end of the present term, so be it, goes the argument (or its consequence). The ward s citizens can go without an elected representative so long as the Petitioner s election petition is pending. In other words, Mr Mendadkar and Mr Godbole commend a statutory interpretation that allows the indefinite continuance of an electoral vacuum. 28. This submission is, to all intents and purposes, not that Sections 9 and 33 must be harmonized, but that Section 33 trumps Section 9 every time. To put it shortly: whenever there is an election petition pending, no election can be held to fill the casual vacancy caused by the disqualification of the defendant or respondent to the election petition. This submission appeals neither to reason nor to any reasonable interpretation of statutory intent and purpose. Indeed, it would render Section 9 almost entirely otiose: all that a losing candidate needs to do to stave off any election to fill a casual vacancy is to file an election petition and keep it pending for the second declaration under Section 33(2). That way, she or he can keep at bay any fresh election or bye election. That is not the statutory mandate. 29. I venture the following illustration to explain the position. I will, for this example, assume that at a relevant general municipal election, A wins the most votes, and B polls the second highest number of votes, and that the seat is a reserved candidate seat. That is not the statutory mandate. 29. I venture the following illustration to explain the position. I will, for this example, assume that at a relevant general municipal election, A wins the most votes, and B polls the second highest number of votes, and that the seat is a reserved candidate seat. (a) Scenario 1: B challenges A s qualification (questioning his caste validity, for instance) outside of an election petition. No election petition is filed. B succeeds in his challenge. A is held to have earned a disqualification. A casual vacancy occurs. Section 9 applies. A fresh election must be held as soon as convenient. (b) Scenario 2: B challenges A s election, including on the question of qualification in an election petition. There are no separate proceedings challenging A s qualification. The election petition succeeds. A is found by a final order on the election petition to be disqualified, or the election is invalidated. Section 33(2) applies. A is unseated, and B also receives an order declaring that he is deemed to have been elected. No question arises of a fresh election. (c) Scenario 3: B challenges A s qualification (questioning his caste validity, for instance) outside of an election petition. B also files an election petition, including on the question of A s qualification. The election petition remains wholly undecided. In the meantime, B s separate challenge to A s qualification succeeds. A is automatically unseated by Section 9, and a casual vacancy occurs. The Election Commission has not called any fresh election. B is entitled to an order in his election petition unseating A and declaring him to be the returned candidate. This is the Geeta Kisan Gore and Mohd Ishak Shaikh scenario. (d) Scenario 4: B challenges A s qualification (questioning his caste validity, for instance) outside of an election petition. B also files an election petition, including on the question of A s qualification. In the meantime, B s separate challenge to A s qualification succeeds. A is automatically unseated by Section 9, and a casual vacancy occurs. B also gets the first declaration under Section 33(2) declaring A to have been disqualified. But there is no order in terms of the second part of Section 33(2) declaring that B is deemed to have been elected. The election petition continues to remain pending for this second declaration. B also gets the first declaration under Section 33(2) declaring A to have been disqualified. But there is no order in terms of the second part of Section 33(2) declaring that B is deemed to have been elected. The election petition continues to remain pending for this second declaration. Meanwhile, the Election Commission does call for a fresh election. This is the case at hand. B is not entitled to an order staying the fresh election called since he does not have the second declaration under Section 33(2) in hand. 30. Lastly, there is nothing in Section 9, Section 16, Section 33 or Section 34 that can be interpreted to mean that the mere pendency of an election petition will operate to stay the Election Commission from performing its statutory duties. Section 9 is not made subject to Section 33 or subject to any proceeding in Section 33. Similarly, Section 33 does not contain any non-obstante provision that allows it to over-ride Section 9. 31. As the Geeta Kisan Gore court said, both sections must be harmonized. That harmony is not found by letting one trump the other, but by recognizing that the time-lines and time-frames involved may in a given case be determinative. At all times, this jurisprudential harmonisation demands a recognition of something fundamental: the interests and needs of the citizens of a ward are paramount. Those interests and needs must be served. They must receive preference and priority over all claims to being returned or winning a seat. There is no fundamental right to an electoral seat. The essence of a democratic system of governance is the right to vote, and to select a representative. Voters are not to be kept on hold while litigations wend their way through the legal system at a glacial pace. The needs of citizens, and their concerns, are matters that they expect their chosen, elected representatives to espouse. Voters select and elect their champions, not the other way around. 32. Therefore, if the election petition is decided first, or without there being any election call, the runner-up gets his or her seat. The needs of citizens, and their concerns, are matters that they expect their chosen, elected representatives to espouse. Voters select and elect their champions, not the other way around. 32. Therefore, if the election petition is decided first, or without there being any election call, the runner-up gets his or her seat. But if the election petition is merely pending either in whole or in part, and an election is called (the returned candidate being disqualified elsewhere, and therefore to have vacated his seat), a delayed elevation of the runner-up to the reserved seat cannot, will not and should not be allowed to happen. 33. This of course raises the broader question whether any court should adopt an interpretation that results in a losing candidate securing a seat contrary to the popular mandate of an established, and Constitutionally valid, democratic electoral process. This is a sort of across-the-board double-reservation, and it is not contemplated by the law at all. Moreover, as a Division Bench of the Madhya Pradesh High Court correctly said in Arun Yadav v MP Rajya Nirvachan Ayog & Anr, (2015) 3 MPLJ 104 , paragraph 12 citing the Supreme Court in NP Ponnuswami v Returning Officer, (1952) AIR SC 64 once a process of election has been set in motion, the High Court under Article 226 of the Constitution of India should not interfere. 34. For these reasons, I agree with Dharmadhikari J s conclusion that the petitions are misconceived and without merit, and ought to be dismissed.