Cav Judgemnt:
Bhaskar Bhattacharya, C.J.
1. This Special Civil Application has been referred to a Larger Bench by order dated 9th April 2013 passed by a Division Bench of this Court (Coram: Jayant Patel and Mohinder Pal, JJ.) as the said Bench was of the opinion that the view proposed by that Bench was, to some extent, in conflict with the one earlier taken by another Division Bench of this Court (Coram: S.J. Mukhopadhaya, CJ and J.B. Pardiwala, J.) in the case of Dashrathsinh Ramjubhai Gohil vs. State of Gujarat reported in 2011 (1) GLH 795.
2. The case made out by the petitioner in the Special Civil Application giving rise to this Reference can be summed up thus:-
2.1 The petitioner is a voter in the category of the traders constituency at Sr. No.1745 in the final voters list for the election of Agriculture Produce Market Committee, Deesa, the respondent no. 4.
2.2 That the term of elected body of the respondent No.4- committee was going to expire on 7th January 2012, and therefore, the respondent No.4 issued a notification dated 19th October 2011 for fresh election and consequently, published an election-programme for the election of 14 seats of all the three constituencies of the respondent No.4. The said three constituencies consist of 8 seats of agriculturists constituency, 4 seats of traders constituency and 2 seats of cooperative marketing societies constituency.
2.3 With respect to the 4 seats of traders constituency, 17 nomination forms were filed. However, for the reasons unknown to the petitioner, all the 17 candidates had withdrawn their nominationforms on the relevant date, namely, 7th January 2012 as a result, the respondent No.3 had issued a notice dated 7th January 2012 declaring that all the 17 candidates had withdrawn their nomination-forms.
2.4 The election with respect to the other 10 seats i.e. 8 seats of agriculturists constituency and 2 seats of cooperative marketing societies constituency were held and the result of the said elections were declared. Thereafter, the respondent No.2 published a notification dated 30th January, 2012 declaring the results of the election.
2.5 Subsequently, the respondent No.2 in breach of the provisions of the Agriculture Produce Markets Act, 1963 (hereinafter referred to as œthe Act?) and the Rules framed there under (hereinafter referred to as œthe Rules?) issued an order dated 1st February 2012 for conducting bye-election of 4 traders constituency and published an election-programme for the same. The petitioner claims that he was unaware of the same. However, the respondent No.2 again issued direction dated 18th March 2013 for conducting elections of the 4 seats of traders constituency and issued the programme for the same.
2.6 According to the petitioner, in terms of the direction of the respondent No.2, the said notice of election had not been published in a local Gujarati Daily Newspaper or even if the same had been published, such publication had not come to the knowledge of the petitioner. The petitioner alleged that some kind of mischief with respect to the publication of the notice dated 18th March 2013 had been committed by the persons having vested interest in not informing the people about the said election-program.
2.7 According to the petitioner, after having come to know about the notice dated 18th March 2013, he obtained a copy of the same and after going through the same, he came to know that previously another Special Civil Application being Special Civil Application No.2070 of 2012 was filed by one Laljibhai Kalaji Patel before this Court challenging the notification dated 1st February 2012 and the election-programme for the 4 seats of traders constituency. Upon further inquiry, the petitioner came to know that in view of interim order granted by this High Court on the said petition, the election of the 4 seats of traders constituency could not be held at the relevant point of time. However, the said petition being Special Civil Application No.2070 of 2012 came to be withdrawn unconditionally on 16th July 2012.
2.8 Subsequently, in terms of the election-programme dated 19th October 2012, a preliminary voters list was published on 2nd November 2011 for which the objections were invited and after considering the objections, the provisional voters list was published on 20th November 2011 and thereafter, the final voters list was published on 2nd December 2012. The petitioners name appeared in all the three voters list.
2.9 The petitioner contends that according to Section 11(2) (a) of the Act, if for any reason, no election was held in the market committee then the Director, with the previous approval of the State Government, has to nominate the members of the respective class from amongst the persons qualified to be elected as member in the said constituency.
2.10 The petitioner asserts that the respondent No.2 has completely ignored the provisions of the Act and declared the electionprogramme for the 4 seats of traders constituency. The publication of the notification and the election-programme issued by the respondent No.2, according to the petitioner, are contrary to the reported judgment of a Division Bench of this Court in the case of DASHRATHSINH RAMJUBHAI GOHIL VS. STATE OF GUJARAT reported in 2011 (1) GLH 795. The petitioner, therefore, contends that the notification issued by the respondent No.2 and the electionprogramme published pursuant thereto for conducting the election for the 4 seats of traders constituency are illegal, perverse, arbitrary and contrary to the provisions of the Act. During the pendency of this application, pursuant to the election-programme impugned, four persons from the traders category having been elected, the petitioner, with the leave of this Court, added those four elected candidates of the traders constituency and a Rule was issued upon them.
3. As pointed out earlier, a Division Bench of this Court while entertaining the Special Civil Application was of the view that there was no illegality in the impugned notification and declaration of election-programme, but as the above view proposed to be adopted was in conflict with the view taken by an earlier Division Bench of this Court in the case of Dashrathsinh Ramjubhai Gohil (supra), Their Lordships were of the opinion that the matter should be referred to a Bench of three Judges in terms of Rule 5(2) of the Gujarat High Court Rules and consequently, the matter has been placed before this Bench by the order of the Chief Justice. The view adopted by the referring bench as it appears from paragraphs 8, 9 and 10 are quoted below:
œ8. The aforesaid sections show that if at any time any vacancy occurs for any reason in the market committee and remains unfilled, election or nomination may be made. A conjoint reading of the aforesaid both sections shows that if election of the whole market committee is not held, subsection (2) of section 11 may have applicability and if the election is held but the requisite number of qualified persons to take office is not available, sub-section (3) of section 11 may have a role to play. Neither section 11 (2)(a) nor subsection (3) of section 11 takes care of a situation where election of certain constituencies of the market committee is held but election of a particular constituency of a market committee is not held. To say in other words, like in the present case, when elections of agriculturists as well as cooperative societies constituencies are held but election of traders constituency is not held, in such circumstances, neither sub-section (2) nor sub-section (3) of section 11 will have any role to play. As a necessary consequence, it would be required for the Director of Agricultural Marketing and Rural Finance, who is authorized under Rule 4 to fix different stages of election and to publish the election programme, to exercise the power for holding election of a particular constituency of a market committee which has not been held. In our view, if interpretation of section 11 and more particularly section 11(2) and (3) is not made so as to include a situation of holding election of a particular constituency as against nomination as per subsection (2) and (3) of section 11, it would frustrate the very basic democratic principles of allowing elected candidates to be inducted in their respective office from amongst the voters or by election of the voters. If sub-sections (2) and (3) of section 11 are read in the manner that in a case where election of any particular constituency of a market committee is not held, by virtue of sub-sections (2) and (3), the State Government or the Director, as the case may be, would have the power to nominate members in the market committee for that particular constituency, the resultant effect would be that the power of such nomination would vest to the executive power of the State Government as against observance of the democratic principles of elected representatives to be elected by the voters for representing their respective constituency.
9. Section 15, as referred to hereinabove, speaks for filling up of vacancies and such is wide enough to cover all the vacancies occurring for any reason in the market committee and had such vacancy remained unfilled. The pertinent aspect is that if election of some constituencies are held in a market committee but election of a particular constituency is not held simultaneously, it may be treated as the vacancy qua that particular constituency in a market committee which is required to be filled up. But to fill up such vacancy, election would be required to be held.
10. In our considered view, if limited interpretation is made of section 15 that such would apply only in a case where the vacancy as referred to under section 12 or 13 or 14 has arisen, the same would run counter to observance of the democratic principles in an institution at par with local selfgovernment, like market committee, wherein principles of elected representatives to be permitted to manage the affairs of the market committee from amongst the voters are to be maintained.
4. As the entire Special Civil Application itself was referred to this Larger Bench for appropriate decision, we decided to formulate the following questions for decision in this matter:-
œ(1) In a case where no election at all could be held due to withdrawal of nomination by all the candidates in the traders constituency as provided in Section 11(1)(ii) of the Gujarat Agricultural Produce Markets Act, 1963, whereas pursuant to the election, requisite number of the candidates have been elected in other categories, whether either the procedure prescribed in Section 11(2) or Section 11(3) of the Act will be applicable for filling up the four vacancies in the traders constituency.
(2) Whether the unfilled vacancy in any category of the Market Committee not for death, resignation or disability but for withdrawal of candidatures of that particular category in a declared election will bring the case within the purview of Section 15 of the Act.?
5. Mr Shalin Mehta, the learned Senior Advocate appearing on behalf of the petitioner, has strenuously contended before us that having regard to the fact that there was no election in the traders constituency due to withdrawal of nomination by all the candidates, whereas the required 10 persons were elected from the other two categories, it was a fit case where the unfilled vacancies in the traders constituency should be filled up by way of nomination and not by way of fresh election. According to Mr Mehta, if for one or the other reason, the election of the traders constituency of the market committee was not held it would call for action by the Government for nomination under Section 11(2) or 11(3) of the Act, but an election in terms of Section 15 of the Act cannot be held.
6. Mr Jani, the learned Government Pleader appearing on behalf of the State-respondent has, on the other hand, opposed the aforesaid contentions of Mr. Mehta and has contended that Section 15 is clearly applicable in the facts of the present case and thus, there is no bar in proceeding with fresh election in terms of Rule 26. According to Mr Jani, the provision of Section 15 is wide enough to cover all vacant seats occurring for any reason in the market committee and it includes the cases where the elections of some constituencies are held in the market committee but election to a particular constituency is not held.
7. Mr Kavina, the learned Senior Advocate appearing on behalf of the elected candidates in the traders category, has supported the submissions of Mr Jani and further contended that we should dismiss the Special Civil Application on the ground that the petitioner has no locus standi to maintain the Special Civil Application as no material has been placed before this Court indicating that the petitioner is a trader having licence so as to affect any of his legal or fundamental rights. Mr. Kavina also raised the question of maintainability of the present application on the ground that the petitioner has an efficacious alternative remedy in Rule 28 of challenging the elections of his clients.
8. Mr Vaghela, the learned advocate appearing on behalf of the respondent No.4 has also supported Mr Kavina and Mr Jani.
9. In order to appreciate the question involved in this Special Civil Application, it will be profitable to quote relevant Sections 11 and 15 and the Rule 26 of the concerned Act and Rules framed there under.
Those are quoted below:-
œSec. 11. Constitution of market committee. “
(1) Every market committee shall consist of the following members, namely:
(i) eight agriculturists who shall be elected by members of managing committees of cooperative societies (other than cooperative marketing societies) dispensing agricultural credit in the market area;
(ii) four members to be elected in the prescribed manner from amongst themselves by the traders holding general licenses;
(iii) two representatives of the Cooperative marketing societies situate in the market area and holding general licenses, to be elected from amongst the members (other than nominal, associate or sympathizer members) of such societies by the members of the managing committees of such societies:
Provided that where the number of cooperative marketing societies so situate does not exceed two, only one representative shall be so elected;
(iv) one member to be nominated by the local authority (other than the market committee) within whose jurisdiction the principal market yard is situated from amongst its councilors or, as the case may be, members who do not hold any general licence:
Provided that where under the law applicable to the local authority its councilors or members have vacated office and any person or administrator has been appointed to exercise the power and perform the functions of the local authority, such person or, as the case may be, administrator shall nominate a member under this paragraph from amongst persons qualified to be councilors or members of the local authority and not holding a general licence;
(v) two members to be nominated by the State Government:
Provided that when a market committee is constituted for the first time all the members thereof shall be persons nominated by the State Government and shall hold office for a period of two years from the date of their nomination;
(2) (a) If for any reason in the case of a market committee no election is held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the market committee members of the respective class specified in sub-section (1) from amongst persons qualified to be elected as members of the respective class;
(b) The persons so nominated shall hold office for such period not exceeding two years as the Director may, with the approval of the State Government determine.
(3) If for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected shall as soon as possible nominate from amongst person qualified to be elected such number as is necessary to make up the required number and the persons so nominated shall be deemed to have been duly elected as members of the market committee.
(4) xxx xxx xxx xxx
(5) xxx xxx xxx xxx
Sec. 15 Filling up of vacancies.-
If at any time any vacancy occurs for any reason in a market committee and remains unfilled, it shall be filled within such period and in such manner as may be prescribed by the election or nomination as the case may be, of a member thereto. The member so elected or nominated shall hold office so long only as the member in whose place he is elected or nominated would have held it if the vacancy had not occurred. Rule 26 Filling in casual vacancies in the market Committee. “
The procedure for holding a bye election under section 15 for filling any vacancy shall be the same as that for a general election.?
(Emphasis supplied by us).
10. We first propose to answer the preliminary objection raised by Mr Kavina as regards the locus standi of the petitioner to maintain the Special Civil Application.
11. It appears that in paragraph 10 of the application, the petitioner has specifically averred that he is a voter at Sr. No.1745 in the voters list of the traders constituency. The aforesaid fact necessarily indicates that he is a trader having licence. There is no denial on the part of any of the respondents disputing the aforesaid fact. Such being the position, we find that the petitioner has locus standi to maintain this application.
12. Next we propose to dispose of another objection raised by Mr Kavina as to the existence of alternative remedy of availing Rule 28 for setting aside the election of his clients. Rule 28 is quoted below:-
œRule 28. Determination of validity of election. “
(1) If the validity of any election of a member of the Market Committee is brought in question by any person qualified either to be elected or to vote at the election to which such question refers such person may, within seven days after the date of the declaration of the result of the election, apply in writing :-
(a) to the Director, if the election has been conducted by a person authorized by the Director, to perform the function of an Election Officer, and
(b) to the State Government if the election has been conducted by the Director as an Election Officer and (2) On receipt of an application under sub-rule (1), the Director, or the State Government, as the case may be, shall, after giving an opportunity to the applicant to be heard and after making such inquiry as he or it, as the case may be, deems fit, pass an order confirming or amending the declared result of election or setting the election aside and such order shall be final. If the Director or the State Government as the case may be sets aside the election, a date shall be forthwith fixed, and the necessary steps be taken for holding a fresh election for filling up the vacancy of such member.?
13. The existence of an alternative remedy, no doubt, is a factor which should be taken into consideration at the stage of entertaining an application but the law is equally settled that this is not an absolute bar, particularly when the action challenged in the writapplication is a pure question of jurisdiction and no disputed question of facts is required to be adjudicated. (See Godrej Sara Lee Ltd. vs. Assistant Commissioner AA and another reported in 2009(14) SCC 338 where other previous decisions on the above question have been taken note of.)
14. In the case before us, a Division Bench of this Court, in the past, having taken a specific view that Section 15 has no application in this type of vacancy, but the Referring Division Bench having disagreed with such view and referred this application for disposal by a larger bench, we have decided to ignore the aforesaid objection taken by Mr Kavina and propose to answer the pure question of law raised in this application as to the jurisdiction of the respondent No.2 in holding election for filling in the vacancies in question as a result of no election only in the traders constituency pursuant to the withdrawal of the candidatures in that category.
15. According to Section 11(2) (a) of the Act, if for any reason in the case of a market committee, no election is at all held, the Director shall report the fact to the State Government and with the previous approval of the State Government nominate on the market committee members of the respective class specified in sub-section (1) from amongst persons qualified to be elected as members of the respective class. Sub-section (b) of Section 11 (2) states that the persons so nominated shall hold office for such period not exceeding two years as the Director may, with the approval of the State Government determine. Similarly, according to sub-section (3) of Section 11, if for any reason in the case of a market committee an election does not result in the return of the required number of qualified persons to take office, the Director, after taking into consideration the views of the members already elected, shall as soon as possible nominate from amongst persons qualified to be elected such number as is necessary to make up the required numbers and the persons so nominated shall be deemed to have been duly elected as members of the market committee.
16. In our opinion, sub-section 2 of the Section 11 speaks of a situation where for any reason, the formalities required for holding the election as a whole were not complied with as a result, no election of the market committee was at all held and consequently, no body has been elected. Sub-section 3, on the other hand, indicates the situation where although election in respect of all the three categories was declared and consequently, the election of the market committee was held, but the required number of the candidates prescribed for any of the categories have not been returned for any reason. The only plausible reasons for a situation covered by subsection 3 of Section 11 are when the sufficient number of the candidates in any of the categories either did not file their nomination papers or in spite of filing such nomination papers, some were rejected being found to be defective or some of the candidates after the last date for filing nomination papers was over had withdrawn their nomination papers.
17. In the case before us, there is no dispute that with respect of all the three categories of constituency, the formalities required for holding election had been complied with, thereafter, the candidates participated in the process of election by filing their nomination papers but all the 17 candidates of the traders category had withdrawn their nomination papers; but the required number of candidates of the other two categories have returned after being duly elected; however, for the withdrawal of the nominations, 4 persons in the category of traders constituency could not be elected or returned. This is not a case where the election of the market committee could not be held but is one where the required number of candidates were not returned. Therefore, in our opinion, the present case clearly comes within the purview of Section 11(3) of the Act. If in the election of a market committee, the candidatures of candidates for four seats of traders constituency out of 14 are withdrawn, it cannot be said that there was no election of the market committee. Section 11 prescribes election of a market committee in general but does not refer to separate election of three different categories of constituency.
18. So far as Section 15 is concerned, it speaks of a vacancy occurring at any time for any reason in the market committee which was already duly filled in accordance with the provisions of the Act but thereafter, any vacancy has occurred and it remains unfilled. In such cases, it should be filled within such period and in such manner as may be prescribed by the election or nomination as the case may be of a member thereto. Once the provision of Section 15 of the Act mentions of vacancy occurring for any reason that must be construed to be a vacancy occurring after the prescribed number of seat in the market committee has been filled up. For instance, if after election is held, sufficient number of candidate has not been returned and consequently, the vacancy is filled up by nomination by taking aid of Section 11(3) and thereafter, such nominated member dies or resigns or is disqualified for any reason, his vacancy will be filled up by way of nomination as provided in Section 15.On the other hand, if one of the regularly elected member dies or resigns or becomes disqualified for any reason, such vacancy should be filled up by way of fresh election in terms of Rule 26 mentioned above. With great respect to the learned judges of the referring bench, we are unable to subscribe the view reflected in paragraph 10 of the referring judgment by giving importance to the observation that œdemocratic principles in an institution at par with the local self-government like marketing committee, wherein principles of elected representatives to be permitted to manage the affairs of the marketing committee from among the voters are to be maintained?.
19. Mr Jani, Mr Kavina and Mr Vaghela strenuously contended before us that we should prefer the above interpretation given by the later Division Bench in view of democratic set-up prescribed by our Constitution.
20. We, however, find that if the provision of a Statute is clear and unambiguous, it is not for the Court to interpret the same in a different way simply because the Court thinks that it would be wise to adopt other reasonable view instead of the one specifically mandated. There being specific provision for nomination in Section 11(2) in consultation with the State Government and in Section 11(3) in consultation with the members already elected, we cannot shut our eyes to those provisions. If we adopt the above interpretation suggested by the referring bench, it would amount to introduction of a different thought not prescribed by the Statute and will run counter to the provisions contained in Sections 11 and 15 which give mandate for both the election and the nomination depending upon the nature of vacancy, as the case may be.
21. In this connection, we may refer to the following observations of the Supreme Court in the case of B. Premchand vs. Mohan Koikal reported in AIR 2011 SC 1925 where detailed discussions were made on the scope of deviation from the literal rule of interpretation of a Statute after taking into consideration a large number of decisions:
œ13. In our opinion, Rule 27(c) of the Rules is plain and clear. Hence, the literal rule of interpretation will apply to it. No doubt, equity may be in favour of the respondents because they were selected earlier, but as observed earlier, if there is a conflict between equity and the law, it is the law which must prevail. The law, which is contained in Rule 27(c), is clearly in favour of the appellants.
14. Hence, we cannot accept the submission of the learned senior counsel for the private respondents. The language of Rule 27(c) of the Rules is clear and hence we have to follow that language.
15. In M/s. Hiralal Ratanlal v. STO, AIR 1973 SC 1034, this Court observed :
"In construing a statutory provision the first and foremost rule of construction is the literal construction. All that the Court has to see at the very outset is what does the provision say. If the provision is unambiguous and if from the provision the legislative intent is clear, the Court need not call into aid the other rules of construction of statutes. The other rules of construction are called into aid only when the legislative intent is not clear."
(Emphasis supplied)
16. It may be mentioned in this connection that the first and foremost principle of interpretation of a statute in every system of interpretation is the literal rule of interpretation. The other rules of interpretation e.g. the mischief rule, purposive interpretation etc. can only be resorted to when the plain words of a statute are ambiguous or lead to no intelligible results or if read literally would nullify the very object of the statute. Where the words of a statute are absolutely clear and unambiguous, recourse cannot be had to the principles of interpretation other than the literal rule, vide Swedish Match AB v. Securities and Exchange Board, India, AIR 2004 SC 4219 : (2004 AIR SCW 4853). As held in Prakash Nath Khanna v. C.I.T. 2004 (9) SCC 686 : (AIR 2004 SC 4552 : 2004 AIR SCW 3692), the language employed in a statute is the determinative factor of the legislative intent. The legislature is presumed to have made no mistake. The presumption is that it intended to say what it has said. Assuming there is a defect or an omission in the words used by the legislature, the Court cannot correct or make up the deficiency, vide Delhi Financial Corporation v. Rajiv Anand, 2004 (11) SCC 625. Where the legislative intent is clear from the language, the Court should give effect to it, vide Government of Andhra Pradesh v. Road Rollers Owners Welfare Association, 2004(6) SCC 210, and the Court should not seek to amend the law in the garb of interpretation.
17. As stated by Justice Frankfurter of the U.S. Supreme Court (see 'Of Law and Men: Papers and Addresses of Felix Frankfurter'):
"Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policy-making might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction."
18. As observed by Lord Granworth in Grundy v. Pinniger, (1852) 1 LJ Ch 405:
"To adhere as closely as possible to the literal meaning of the words used, is a cardinal rule from which if we depart we launch into a sea of difficulties which it is not easy to fathom."
19. In other words, once we depart from the literal rule, then any number of interpretations can be put to a statutory provision, each Judge having a free play to put his own interpretation as he likes. This would be destructive of judicial discipline, and also the basic principle in a democracy that it is not for the Judge to legislate as that is the task of the elected representatives of the people. Even if the literal interpretation results in hardship or inconvenience, it has to be followed(see G.P. Singh's Principles of Statutory Interpretations, 9th Edn. Pp 45-49). Hence departure from the literal rule should only be done in very rare cases, and ordinarily there should be judicial restraint in this connection.
20. As the Privy Council observed (per Viscount Simonds, L.C.) :
"Again and again, this Board has insisted that in construing enacted words we are not concerned with the policy involved or with the results, injurious or otherwise, which may follow from giving effect to the language used."(see Emperor v. Benoarilal Sarma, AIR 1945 PC 48, pg. 53).
21. As observed by this Court in CIT v. Keshab Chandra Mandal, AIR 1950 SC 265:
"Hardship or inconvenience cannot alter the meaning of the language employed by the Legislature if such meaning is clear on the face of the statute".
22. Where the words are unequivocal, there is no scope for importing any rule of interpretation vide Pandian Chemicals Ltd. v. C.I.T., 2003(5) SCC 590.
23. It is only where the provisions of a statute are ambiguous that the Court can depart from a literal or strict construction vide Narsiruddin v. Sita Ram Agarwal, AIR 2003 SC 1543 : (2003 AIR SCW 908). Where the words of a statute are plain and unambiguous effect must be given to them vide Bhaiji v. Sub-Divisional Officer, Thandla, 2003(1) SCC 692.
24. No doubt in some exceptional cases departure can be made from the literal rule of the interpretation, e.g. by adopting a purposive construction, Heydon's mischief rule, etc. but that should only be done in very exceptional cases. Ordinarily, it is not proper for the Court to depart from the literal rule as that would really be amending the law in the garb of interpretation, which is not permissible vide J.P. Bansal v. State of Rajasthan and Anr., AIR 2003 SC 1405 : (2003 AIR SCW 1848), State of Jharkhand and Anr. v. Govind Singh, JT 2004 (10) SC 349 : (AIR 2005 SC 294 : 2004 AIR SCW 6799) etc.. It is for the legislature to amend the law and not the Court vide State of Jharkhand and Anr. v. Govind Singh, JT 2004(10) SC 349. In Jinia Keotin v. K.S. Manjhi, 2003 (1) SCC 730, this Court observed:
"The Court cannot legislate.....under the garb of interpretation.......".
25. Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron.
26. In Shiv Shakti Co-operative Housing Society v. Swaraj Developers, AIR 2003 SC 2434, this Court observed: "It is a well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent."
27. Where the language is clear, the intention of the legislature has to be gathered from the language used vide Grasim Industries Limited v. Collector of Customs, 2002 (4) SCC 297 : (AIR 2002 SC 1706 : 2002 AIR SCW 1646) and Union of India v. Hamsoli Devi, 2002 (7) SCC 273 : (AIR 2002 SC 3240 : 2002 AIR SCW 3755).
28. In Union of India and another v. Hansoli Devi and others, 2002 (7) SCC 404: (AIR 2001 SC 2184: 2001 AIR SCW 1925) (vide para 9), this Court observed:
"It is a cardinal principle of construction of a statute that when the language of the statute is plain and unambiguous, then the court must give effect to the words used in the statute and it would not be open to the courts to adopt a hypothetical construction on the grounds that such construction is more consistent with the alleged object and policy of the Act."
29. The function of the Court is only to expound the law and not to legislate vide District Mining Officer v. Tata Iron and Steel Company, 2002 (7) SCC 358. If we accept the interpretation canvassed by the learned counsel for the private respondents, we will really be legislating because in the guise of interpretation we will be really amending Rule 27(c) of the Rules.
30. In Gurudevdatta VKSSS Maryadit v. State of Maharashtra, AIR 2001 SC 1980 : (2001 AIR SCW 1380), this Court observed :
"It is a cardinal principle of interpretation of statute that the words of a statute must be understood in their natural, ordinary or popular sense and construed according to their grammatical meaning, unless such construction leads to some absurdity or unless there is something in the context or in the object of the statute to suggest to the contrary. The golden rule is that the words of a statute must prima facie be given their ordinary meaning. It is yet another rule of construction that when the words of the statute are clear, plain and unambiguous, then the Courts are bound to give effect to that meaning, irrespective of the consequences. It is said that the words themselves best declare the intention of the law-giver. The Courts are adhered to the principle that efforts should be made to give meaning to each and every word used by the legislature and it is not a sound principle of construction to brush aside words in a statute as being inapposite surpluses, if they can have a proper application in circumstances conceivable within the contemplation of the statute".
31. The same view has been taken by this Court in S. Mehta v. State of Maharashtra, 2001 (8) SCC 257: (AIR 2001 SC 3774: 2001 AIR SCW 3492) (vide para 34) and Patangrao Kaddam v. Prithviraj Sajirao Yadav Deshmugh, AIR 2001 SC 1121: (2001 AIR SCW 871).
32. The literal rule of interpretation really means that there should be no interpretation. In other words, we should read the statute as it is, without distorting or twisting its language.
33. We may mention here that the literal rule of interpretation is not only followed by Judges and lawyers, but it is also followed by the layman in his ordinary life. To give an illustration, if a person says "this is a pencil", then he means that it is a pencil; and it is not that when he says that the object is a pencil, he means that it is a horse, donkey or an elephant. In other words, the literal rule of interpretation simply means that we mean what we say and we say what we mean. If we do not follow the literal rule of interpretation, social life will become impossible, and we will not understand each other. If we say that a certain object is a book, then we mean it is a book. If we say it is a book, but we mean it is a horse, table or an elephant, then we will not be able to communicate with each other. Life will become impossible. Hence, the meaning of the literal rule of interpretation is simply that we mean what we say and we say what we mean.?
22. By applying the above principles, we hold that if we adopt the view proposed by Mr Jani, Mr Kavina and Mr Vaghela, we have to totally ignore the clear provisions of nomination prescribed in Section 11(2), 11(3) and 15 of the Act, which is not permissible, and if we do so, the purpose of enacting the provisions of Section 11(2), 11(3) and 15 will be totally frustrated.
23. We, thus, find that in the case before us, the respondent No.2 acted illegally and without jurisdiction in proceeding with the election for the four vacant seats of traders constituency notwithstanding the fact that the required number of elected candidates of the market committee has not been returned and as such, it was a fit case where the respondent No.2 ought to have proceeded in terms of 11(3) of the Act for filling up the vacancies by way of nomination after taking into consideration the views of the members already elected. We agree with the view taken by the Division Bench in the case of Dashrathsinh Ramjubhai Gohil (supra) and respectfully differ from the one taken by the referring bench.
24. We, therefore, set aside the declaration of notice of election and the election-programme and the consequent election of the added respondents during the pendency of this Special Civil Application. The respondent No.2 is directed to proceed in terms of Section 11(3) of the Act positively within two months from today.
25. The Special Civil Application is, thus, allowed by answering the first question formulated by us in the affirmative by holding that Section 11(3) would be attracted and the second one, in the negative.