Parmar Samantsinh Umedsinh vs State Of Gujarat

REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 706 OF 2021 (ARISING OUT OF SLP(C)NO.24950 OF 2015)

PARMAR SAMANTSINH UMEDSINH … APPELLANT

VS.

STATE OF GUJARAT & ORS. … RESPONDENTS

WITH

CIVIL APPEAL NO. 707 OF 2021 (ARISING OUT OF SLP(C)NO.30635 OF 2015)

STATE ELECTION COMMISSION … APPELLANT

VS.

VIRENDRASINH MAFAJI VAGHELA & ORS. … RESPONDENTS

WITH

WRIT PETITION (C)NO.786 OF 2020

NARENDRA KUMAR AMBALAL RAVAT … APPELLANT

VS.

STATE OF GUJARAT & ORS. … RESPONDENTS

J U D G M E N T

ASHOK BHUSHAN, J.

Signature Not Verified Digitally signed by MEENAKSHI KOHLI Date: 2021.02.24

Leave granted.

15:11:12 IST Reason:

2. The civil appeals and writ petition, being tagged,

all three matters have been heard together. 2

3. We need to notice the facts and pleadings in the

first matter, i.e., Civil Appeal (arising out of

SLP(C)No.24950 of 2015-Parmar Samantsinh Umedsinh vs.

State of Gujarat & Ors.). The abovesaid appeal has been

filed against the judgment of Gujarat High Court dated

29.07.2015 in Special Civil Application No.12084 of 2015

dismissing the writ petition following an earlier

Division Bench judgment dated 13.08.2010 in Pankajsinh

Waghela v. State Election Commission through Election

Commissioner & others. The writ petition was filed by the

appellant herein challenging the vires of Section 5(3)

(iii)(a) and Section 29A of the Gujarat Provincial

Municipal Corporation Act, 1949 (hereinafter referred to

as “Act, 1949”) and other statutory provisions including

Rules framed thereunder and the notifications. In the

writ petition following reliefs were claimed:

“(A) Issue a writ of declaration, declaring that:

a) Section 5(3)(iii)(a) and 29A of the Gujarat Provincial Municipal Corporation Act, 1949 and

b) Sections 2 and 3 of the Gujarat Local Authorities Laws (Amendment) Act, 2009 as being ultra vires the Constitution of India as it violates one member one ward mandate.

3 (B) Issue a writ of declaration, declaring that Rule 4 and Rule 5 of the Bombay Provincial Municipal Corporation (Delimittaion of Wards in the City and Allocations of Reserved Seats) Rules, 1994 (including amendment of 2015) as being ultra vires the Constitution of India.

(C) Issue a writ of declaration, declaring Notification No.KV-194 of 2014-ELE-102014-

17010P dated 04.12.2014 as well as other Notification dated 15.01.2015 issued by State of Gujarat as ultra vires the Constitution of India and/or Gujarat Local Authorities Laws (Amendment)Act, 2009 and/or Gujarat Provincial Municipal Corporation Act, 1949.

(D) Quash and set aside the order dated 11.12.2014 passed by the State Election Commission under Section 5(3)(iii)(b) of the Gujarat Provincial Municipal Corporation Act, 1949.

(E) Pending admission, hearing and final hearing, be pleased to stay Notification No.KV-194 of 2014-ELE-102014-1701-P dated 04.12.2014 issued by the State of Gujarat as well as order dated 11.12.2014 passed by the State Election Commission under Section 5(3)

(iii)(b) of the Gujarat Provincial Municipal Corporation Act, 1949.

(F) Pending admission, hearing and final hearing, be pleased to stay the election process for the election due in October 2015 for Municipality in the State of Gujarat.

(G) Costs.

(H) Such other and further relief or relieves as may be deem fit, just and proper, in the facts and circumstances of the case.”

4. The Division Bench of the High Court dismissed the 4

writ petition noticing that earlier the vires of Section

5(3)(iii)(a) and Sections 29A(2)(a) and 29A(3)(a) of the

Act, 1949 as well as Rule 4 of the Bombay Provincial

Municipal Corporations (the Delimitation of Wards in the

City and Allocation of Reserved Seats) Rules, 1994 were

challenged and were upheld and the issues in the writ

petition being covered by the earlier Division Bench

judgment of the High Court in the case of Pankajsinh

Waghela v. State Election Commission and others, the writ

petition is to be dismissed.

5. Aggrieved against the judgment of the Division Bench

dated 29.07.2015 Civil Appeal (arising out of

SLP(C)No.24950 of 2015) has been filed.

6. The Civil Appeal (arising out of SLP(C)No.30635 of

2015) has been filed against the Division Bench judgment

of the High Court dated 21.10.2015 by which judgment

Special Civil Application No.16313 of 2015 filed by the

respondents has been allowed. In the writ petition

Clauses (3), (4) and (5) of Ordinance No.3 of 2015

promulgated by the Governor of Gujarat were under

challenge. A mandamus was also sought seeking a direction 5

to the State Election Commission to declare the dates of

holding Elections of Panchayats in the State of Gujarat

forthwith. On 03.10.2015 on the same date when Ordinance

No.3 of 2015 was issued by which Section 7A of the

Gujarat Provincial Municipal Corporations Act, 1949,

Section 8A of Gujarat Municipalities Act, 1963 and

Section 257 of the Gujarat Panchayats Act, 1993 have been

substituted an order was issued by the State Election

Commission that the Elections of 6 Municipal

Corporations, 53 Municipalities, 3 newly constituted

Munipalities, 23 Taluka Panchayats and 31 District

Panchayats which were to be held in October/November,

2015 were decided not to be held at present. The Division

Bench had disposed of the writ petition by recording its

conclusion in paragraph 72 which was to the following

effect:

“72.In view of the above observations and discussions, the following conclusions:-

(a) Section 15(1) of the Gujarat Panchayats Act inserted by Ordinance No.2 of 2015 is read down in a manner that the Election Commissioner must initiate the process of election at least 45 days prior to the expiry of the term of the respective Panchayats so as to enable the newly elected body to hold the first meeting and assume the power by replacing the outgoing elected body. If 6 Section 15(1) is not interpreted and read accordingly, Section 15(1) would unconstitutional and void.

If there is failure on the part of the State Election Commission to initiate the process for elections 45 days in advance, any citizen affected thereby would be at liberty to approach this Court under Article 226 of the Constitution for seeking appropriate direction against the State Election Commission.

(b) Section 7A of the GPMC Act, Section 8A of Page 86 of 89 Downloaded on : Sat Feb 20 15:44:28 IST 2021 C/SCA/16313/2015 CAV JUDGMENT Municipalities Act and Section 257 of the Act brought about by Ordinance No.3 of 2015 are held to be unconstitutional and void.

(c) The action of the State Election Commission for postponement of the election of all local bodies in the State is held to be illegal and is set aside. Respondent No.2 Election Commission is directed to initiate process of holding the election of the local bodies forthwith.

Respondent No.1 State Government is directed to render all cooperation and assistance, including providing necessary police force and reserved force or any other force as may be requisitioned by the Election Commission for ensuring the election at the earliest in a free and fair atmosphere.”

7. The State Election Commission aggrieved by the

judgment of the High Court has come up in this appeal.

8. Writ Petition(C)No.786 of 2020 has been filed 7

challenging the notifications dated 08.07.2020 issued by

the Governor of Gujarat in exercise of power under

Section 5(3)(iii)(a) of the Act, 1949 determining the

number of Wards, seats including the seats reserved for

Scheduled Castes, Scheduled Tribes, Backward Classes and

women of Vadodara Provincial Corporation, Ahmedabad

Provincial Corporation, Bhavnagar Provincial

Corporation, Ghandhinagar Provincial Corporation,

Jamnagar Provincial Corporation, Rajkot Provincial

Corporation and Surat Provincial Corporation. Writ order

or declaration declaring Section 5(3)(iii)(a) and 29A of

Act, 1949 as unconstitutional was also prayed for.

Section 5(3)(iii)(a) and 29A, Rule 4 and Rule 5 of Rules,

1994 as amended in 2015 has also been challenged.

Notification dated 04.12.2015 as well as 15.01.2015 was

also sought to be challenged including challenge to

Sections 2 and 3 of the Gujarat Local Authorities Laws

(Amendment) Act, 2009. By order of this Court dated

25.08.2020 the writ petition has been tagged with Civil

Appeal arising out of SLP(C) No.24950/2015.

9. We have heard Shri Kapil Sibal, learned senior 8

counsel and Shri Harin P. Raval, learned senior counsel

appearing in the first appeal and writ petition for the

appellants and petitioner.

10. We have heard Shri Maninder Singh, learned senior

counsel appearing for the appellant in the appeal filed

by the State Election Commission. Shri Tushar Mehta,

learned Solicitor General and Ms. Manisha Lavkumar,

learned senior counsel have been heard for the State of

Gujarat.

11. Shri Kapil Sibal has led the arguments on behalf of

the appellants in the first matter. Referring to

provisions of Article 243R and 243S of the Constitution

of India, Shri Sibal submits that the constitutional

scheme does not permit multi member representation from a

Ward in the Municipal Corporation/Municipality. Shri

Sibal submits that Article 243S sub-clause (3) and sub-

clause (4) uses expression “a member and the member”,

which indicates that from one Ward there can only be one

member in the Municipality. Similarly, Section 29A sub-

clause 2 of the Act, 1949 is inconsistent with Article 9

243S of the Constitution. He submits that Article 243R

does not contemplate/mandate a multi member Ward.

12. Shri Sibal submits that in the case of Lok Sabha it

is rule of election of one Member of Parliament is to be

from one unit of representation from one constituency.

Similarly, is the case of Vidhan Sabha only one member is

to be elected from one constituency. It is submitted that

Article 243S of the Constitution mandates that only one

member be elected from one Ward and it does not allow for

more than one member to be elected from the same Ward and

the impugned provisions and notifications are in

contravention of this cardinal constitutional principle

enshrined in Article 243S of the Constitution. It is

submitted that the election to a Municipal Corporation

ought to be conducted in the same manner as State

Legislative Assembly, wherein different constituencies

are represented by one member and no more. Further,

Article 243R cannot be interpreted to give wide, unguided

and uncontrolled powers to the State Legislature ignoring

other Constitutional provisions enshrined in the

Constitution of India. The State Legislature is empowered 10

to make laws with regard to representation in a

Municipality and also composition and territorial area of

Wards Committees and the manner in which the seats are to

be filled. However, in its exercise of legislative

powers, the State Legislature cannot make laws violative

of the Constitutional principles and mandate.

13. Shri Sibal submits that there has to be thematic

consistency while interpreting the provisions of Part IXA

of the Constitution. The thematic flow of the

Constitution is of election of only one member from one

Ward constituency/unit of representation. Multi member

representation from a Ward is against the principle of

empowerment of down-trodden and woman. One member Ward

enables exclusive representation of the women/other

backward classes/Scheduled Castes/Scheduled Tribes

resulting therein empowerment which cannot be achieved by

a multi member Ward. Shri Sibal further submits that a

holistic schematic interpretation of the Constitution has

to be advanced. Shri Sibal submits that words occurring

in the Constitution should be read in their ordinary,

natural and grammatical meaning. Wordings of Article 11

243S(4) would mean adding words to the plain language and

intent to Article 243S(4) of the Constitution of India.

14. It is submitted that singular cannot be read plural

in Article 243S. Applicability of the General Clauses Act

is restricted to the interpretation of the Constitution

of India by Article 367 itself. One of the submissions of

Shri Sibal is that Draft Rules for Amendment of

Delimitation Rules, 1994 were issued on 27.11.2014

inviting objections within 30 days of the publication of

Draft Rules, 1994. However, before expiry of 30 days

notification was issued on 04.12.2014 which is not in

accordance with law.

15. Shri Sibal submits that the Municipal Laws which are

prevalent in 28 States provide for one representation

from one Ward whereas Municipal Laws in Gujarat provide

for multi member Ward. It is submitted that in the

Municipal Laws of Bombay which provide for multi member

Ward now in 2019 it has reverted back to one member

representation.

16. Shri Harin P. Raval adopting the arguments of Shri 12

Kapil Sibal submits that if the words are clear Rule of

literal interpretation shall apply. He submits that

Section 29A of Act, 1949 is inconsistent with Article

243S of the Constitution. Shri Raval further submits that

without reference to notification dated 27.11.2014, the

notification dated 04.12.2014 was published which is a

colourable exercise of power.

17. Shri Tushar Mehta, learned Solicitor General submits

that in Gujarat there were always multi member Wards.

Shri Mehta submits that an Act can be challenged on the

grounds of (1) substantive ultra vires, i.e, competence;

(2) procedural ultra vires; (3) ultra vires and

arbitrariness and (4) runs contrary to the constitutional

provisions. He submits that under Entry 5 List II of

Seventh Schedule of the Constitution, “the State

Legislature is competent to legislate local on

Governments. Shri Tushar Mehta submits that the

expression “the member” used in sub-clause (4) of Article

243S is used in reference to the Chairperson. Article

243S does not contain any provision that there shall be

only one member for one Ward. He submits that Article 13

243S deals with constitution and composition of Wards

Committees and the provisions therein have to be confined

to constitution and composition of Wards Committees and

cannot be read in reference to constitution and

composition of a Municipality. He submits that the

constitutional provision of Article 243T contemplates

reservation of seats for the Scheduled Castes and the

Scheduled Tribes has to be seat wise and not Ward wise.

Reservation of 50% is the object of empowering the women.

Increase of seats for reserved category is a step towards

empowering the SC/ST and these provisions cannot be read,

in any manner, to hamper the empowerment of women, SC/ST.

By the amendments made in 2015 in each Ward two seats are

to be reserved for women which is with the intent and

purpose of empowerment of women and increasing women

representation in a Municipality.

18. Elaborating on Article 243R, Shri Mehta submits that

it is Article 243R which provides for composition of

Municipalities and there is no prohibition in the

constitutional provision in providing representation of

more than one member from one Ward. In interpretation of 14

provision of the Constitution by virtue of Article 357 of

the Constitution a singular can also be read as plural.

He submits that Constitution does not provide for any

thematic mode and manner, the election to Lok Sabha and

Rajya Sabha is entirely different. In Lok Sabha members

are elected by direct Election whereas in Rajya Sabha

members are elected by indirect Election. There is

complete different mode of election of President of

India. Even in Parliament there is no thematic schematic.

19. The power of competent Legislature, i.e., State

Legislature in the light of enabling provisions provided

in the Constitution with regard to framing of laws

concerning Legislature cannot be whittled down by way of

restrictive interpretation as contended by the

appellants. The State Legislature in federal set up

specially in the matter of local Government are to enable

enough seats to adopt the reservation based on local

body.

20. The overarching scheme of Article 243D and 243T is to

ensure the fair representation of social diversity in the

composition of elected local bodies so as to contribute 15

to the empowerment of the traditional weaker sections in

Society. The preferred means for pursuing this policy is

the reservation of seats and Chairperson positions in

favour of SC/ST, women and Backward Class candidates.

21. Learned counsel for the parties have also placed

reliance on various judgments of this Court which shall

be referred while considering the submission in detail.

22. From the submissions of the learned counsel for the

parties following questions arise for consideration:

(1) Whether Article 243R and Article 243S of the Consti-

tution of India contains any limitation to the ef-

fect that there shall be only one member from one

Ward?

(2) Whether the provisions of Sections 5(3)(iii)(a), 29A

of the Gujarat Provincial Municipal Corporations

Act, 1949 and Rules 4 and 5 of Bombay Provincial Mu-

nicipal Corporations (the delimitation of wards and

allocation of reserved seats) Rules, 1994 and Rule

2(b) of Gujarat Municipal Corporation’s Ward Commit-

tees Functions, Duties, Territorial Areas and Proce-

dure for Transaction of Business Rules, 2007 are ul- 16

tra virus to the provisions of Articles 243R and

243S of the Constitution?

(3) Whether having more than one representative from a

Ward negates the empowerment of weaker sections,

i.e., women, Scheduled Castes and Scheduled Tribes? (4) Whether when the draft rules for amendment of Bombay

Provincial Municipal Corporations (the delimitation

of wards and allocation of reserved seats) Rules,

1994 were issued on 27.11.2014 which were to be pub-

lished after noting of objections on or expiry of

thirty days, the State Government could have issued

notification dated 04.12.2014 before expiry of

thirty days?

Question Nos. 1 and 2

23. Both these questions being interrelated are being

taken together. We need to first notice the relevant

constitutional as well as statutory provisions which are

up for consideration before us. The provisions of the

Gujarat Provincial Municipal Corporations Act, 1949 and

the rules framed thereunder are under challenge. The

Legislation under challenge is referable to Entry 5 of

List II, i.e., State List under Seventh Schedule of the 17

Constitution. Entry 5 is as follows:-

“5. Local government, that is to say, the constitution and powers of municipal corporations, improvement trusts, districts boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.”

24. By Constitution (Seventy-fourth Amendment) Act, 1992,

Part IXA “The Municipalities” have been inserted in the

Constitution of India. Bill No.159 of 1991 was

introduced in the Lok Sabha for inserting new Part IXA.

The Bill, which was published in the gazette on

16.09.1991, contains the Statement of Objects and Reasons

for insertion of Part IXA in the Constitution. Paragraph

3(b) of the Statement of Objects and Reasons provides as

follows:-

“3. XXXXXXXXXXXXX

b) composition of Municipalities, which will be decided by the Legislature of a State, having the following features:

(i) persons to be chosen by direct election;

(ii) representation of Chairpersons of Com-

mittees, if any, at ward or other levels in the Municipalities;

18

(iii) representation of persons having spe- cial knowledge or experience of Municipal Ad- ministration in Municipalities (without vot- ing rights);

XXXXXXXXXXXXXXXX”

25. The provisions of Part IXA of the Constitution, which

are relevant for the present case are Articles 243P,

243R, 243S, 243ZA and 243ZG, which shall be noticed

hereinafter. The appellant has also laid challenge to

Section 5(3)(iii) sub-clause(a) of the Act, 1949, which

is to the following effect:-

“5. XXXXXXXXXXXXXXXXXXXX

(3) Where general election is to be held immediately after,—

XXXXXXXXXXXXXXXXXXXX

(iii) the limits of a City are altered,—

(a) the State Government shall, by notification in the Official gazette, determine the number of wards into which the City shall be divided, the number of councillors to be elected to the Corporation and the number of seats to be reserved in favour of the Scheduled Castes, the Scheduled Tribes, the Backward Classes and Women as provided in this section, and

XXXXXXXXXXXXXXXXXXXX” 19

26. Section 29A of the Act, 1949, which is also under

challenge, is to the following effect:-

“29A. Composition of Wards Committee.-

(1) Where the population of the City is three lakhs or more, there shall be constituted by the Municipal Corporation, Subject to the rules made by the State Government Wards Committee or Committees consisting of one or more wards within the territorial area of a Corporation.

(2) Each Wards Committee shall consist of –

(a) Councillors of the Corporation representing a ward within the territorial area of the Ward Committee;

[ * * * * * * * * *]:

Provided that a person shall be disqualified for being appointed, and for being a member of the Wards Committee, if under the provisions of this Act or any other law for the time being in force, he would be disqualified for being elected as, and for being, a councillor.

(3) The Wards Committee shall at its first meeting after its constitution under subsection (1) and at its first meeting in the same month in each succeeding year shall elect,-

where the Wards Committee consists of-

(a) one ward, the Councillor representing that ward in the Corporation; or

(b) two or more wards, one of the Councillors representing such 20

wards in the Corporation elected by the members of the Wards Committee, to be the Chairperson of that Committee.

XXXXXXXXXXXXXXXX”

27. Rules 4 and 5 of Bombay Provincial Municipal

Corporations (the Delimitation of wards in the city and

allocation of Reserved Seats) Rules, 1994, as it existed

prior to 2015 amendment are as follows:-

“4. All wards shall be multi-member wards with three councilors to be elected from each ward.

5. In each and every ward one seat shall be reserved for women (including seats to be reserved for women belonging to Scheduled Castes, Scheduled Tribes and Backward Classes) and one seat shall remain unreserved. The remaining third seat may be reserved, depending upon the requirement of reservation as notified by the State Government under Section 5 of the said Act.”

28. Another rule challenged before us is the Gujarat

Municipal Wards Committees Functions, Duties, Territorial

Areas and Procedure for Transaction of Business Rules,

2007. Rule 2(b) provides:-

“2(b) “Chairperson” means the persons elected by the members of the Wards Committee as the Chairperson of that Committee;” 21

29. The notifications issued in exercise of powers under

Section 5(3) as well as the Rules, 1994 have also been

challenged. The ambit and scope of legislative power of

the State being under consideration, we need to first

notice the rules of interpretation of a legislative

entry.

30. It is well settled that legislative entries as

contained in Lists under Seventh Schedule of the

Constitution have not to be read in a narrow or

restricted manner and each general word occurring in the

entries should be held to extend to all ancillary or

subsidiary matters, which can fairly and reasonably be

said to be comprehended in it. In construing an entry

in a List conferring legislative power, the widest

possible construction according to their ordinary meaning

must be put upon the words used therein.

31. We may refer to the Constitution Bench judgment of

this Court in Ch. Tika Ramji and Others, etc. Vs. The

State of Uttar Pradesh and Others, AIR 1956 SC 676where

the principles for interpretation of a legislative entry 22

has been enumerated in following words:-

“Each entry in the Lists which is a category or head of the subject-matter of legislation must be construed not in a narrow or restricted sense but as widely as possible so as to extend to all ancillary or subsidiary matters which can fairly and reasonably be said to be comprehended in it………………”

32. Article 245, which deals with distribution of

legislative powers, begins with the words “subject to the

provisions of this Constitution”. Thus, laws made by the

Parliament and by the Legislature of the State, have to

be subject to the provisions of the Constitution.

Article 245(1) is as follows:-

“245. Extent of laws made by Parliament and by the Legislatures of States.-(1) Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.”

33. Article 246 deals with subject-matter of the laws

made by the Parliament and by the Legislature of the

State. Reading Articles 245 and 246 together, it is

abundantly clear that the legislative power to be

exercised by the Parliament and the State Legislatures as

enumerated in List I, List II and List III of Seventh 23

Schedule are subject to the provisions of the

Constitution. Thus, when the Constitution expressly or

impliedly contains a limitation in exercise of

legislative power, the legislative power is subject to

such Constitution limitations. For example, Article

13(2) contains a limitation that State shall not make any

law which takes away or abridges the rights conferred by

Part III and any law made in contravention of this clause

shall, to the extent of the contravention, be void. A

Constitution Bench of this Court in Maharaj Umeg Singh

and Ors. Vs. State of Bombay and Ors., AIR 1955 SC 540

had categorically laid down that the legislative

competence of the State Legislature can only be

circumscribed by express prohibition contained in the

Constitution itself. In paragraphs 12 and 13 following

was laid down:-

“12. …………………..The legislative competence of the State Legislature can only be circum- scribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the sub- ject either absolutely or conditionally, there is no fetter or limitation on the ple- nary powers which the State Legislature en- joys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution.

24 13. The fetter or limitation upon the leg-

islative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists 2 and 3 of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which had been undertaken by either the Do- minion Government or the Province of Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the power to legislate on the topics enumer- ated in Lists 2 and 3 of the Seventh Schedule to the Constitution and this power was by virtue of Article 245(1) subject to the pro- visions of the Constitution.

The Constitution itself laid down the fet- ters or limitations on this power e.g. in Ar- ticle 303 or Article 286(2). But unless and until the court came to the conclusion that the Constitution itself had expressly prohib- ited legislation on the subject either abso- lutely or conditionally the power of the State Legislature to enact legislation within its legislative competence was plenary. Once the topic of legislation was comprised within any of the entries in the Lists 2 and 3 of the Seventh Schedule to the Constitution the fetter or limitation on such legislative power had to be found within the Constitution itself and if there was no such fetter or limitation to be found there the State Legis- lature had full competence to enact the im- pugned Act no matter whether such enactment was contrary to the guarantee given, or the obligation undertaken by the Dominion Govern- ment or the Province of Bombay or even the State of Bombay.

XXXXXXXXXXXXXXXX”

34. Justice R. Banumathi in her separate opinion in a 25

Constitution Bench in Jindal Stainless Limited and Anr.

Vs. State of Haryana and Ors., (2017) 12 SCC 1 laid down

following in paragraph 316:-

“316. In Umeg Singh v. State of Bombay [AIR 1955 SC 540], this Court held that since the power of the State to legislate within its legislative competence is plenary and the same cannot be curtailed in the absence of an express limitation placed on such power in the Constitution itself, there is no express prohibition on the legislative powers of the State to levy taxes on the goods entering into a local area for consumption, use or sale therein. Taxes being the lifeblood of the State, they cannot be decimated by implication.”

35. The ratio which can be culled out from the above

judgment is that power of the State to legislate within

its legislative competence is plenary and the same cannot

be curtailed in the absence of an express limitation

placed on such power in the Constitution itself.

36. Article 243ZF provides that any law relating to

municipalities in force in a State immediately before the

commencement of the Constitution (Seventy-fourth

Amendment) Act, 1992, which is inconsistent with the

provisions of Part IXA, shall not continue beyond

expiration of one year from commencement of the 26

constitutional amendment. Thus, Part IXA of the

Constitution categorically contemplated that any law made

by State Legislature, which is inconsistent with the

provisions of Part IXA shall cease to operate on the

expiration of one year or till amended or repealed by a

competent Legislature, whichever is earlier. The

Constitution provisions, thus, mandates that any law of

the State, which is inconsistent, cannot continue. Thus,

this limitation shall also govern any law made after

enforcement of Constitution (Seventy-fourth Amendment)

Act. Thus, a law, which is inconsistent with Part IXA

cannot be framed by the State Legislature.

37. Explaining the expression “inconsistent”, this Court

in Basti Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh

and Anr., (1979) 2 SCC 88where following was laid down in

paragraph 23:-

“23. …………………………………….“Inconsistent”, according to Black's Legal Dictionary, means “mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other”………………………”

38. One of the meanings of expression “inconsistent” as

approved by this Court is mutually repugnant or 27

contradictory. Article 254 of the Constitution contains

a heading “inconsistency between laws made by the

Parliament and the laws made by the Legislature of the

State” whereas under Article 254(1) and Article 254(2)

the words used are repugnant. The Constitution itself,

thus, has used the words inconsistency and repugnancy

interchangeably. To find out as to whether a law made by

State Legislature is inconsistent with provisions of Part

IXA of the Constitution, the principles which have been

laid down by this Court to determine the repugnancy

between the law made by the Legislature of a State and

law made by Parliament can be profitably relied on. We,

thus, need to notice the principles on which the

repugnancy of law made by State and law made by the

Parliament is found out.

39. The Constitution of India is a paramount law to which

all other laws are subject. One of the important tests

to find out as to whether or not there is repugnancy is

to ascertain the intention of the Legislature regarding

the fact that the dominant Legislature allowed the

subordinate Legislature to operate in the same field 28

paripasu the State Act and there will be no inconsistency

when the State Act and Central Act are supplemental to

each other. Things are inconsistent when they cannot

stand together at the same time and one law is

inconsistent with another law, when the command or power

or provision in the law conflicts directly with the

command or power or provision in the other law. While

legislating on a particular subject matter, the paramount

Legislature may evince the intention to cover only

certain specific matters leaving it to the State

Legislature to deal with the rest. One more preposition

need to be noticed is that there is always a presumption

that Legislature does not exceed its jurisdiction and

Court should make every attempt to reconcile the

provisions of apparently conflicting enactment. This

Court in Ch. Tika Ramji and Others, Etc. Vs. The State of

Uttar Pradesh and Others, AIR 1956 SC 676 had occasion to

consider the repugnancy between a State legislation, U.P.

Sugarcane (Regulation of Supply and Purchase) Act, 1953

and the Central Legislation namely the Industries

(Development and Regulation) Act, 1951 as well as the

Essential Commodities Act, 1955. It was held by this 29

Court that repugnancy falls to be considered when the law

made by the Parliament and the law made by the State

Legislature occupies the same field. This Court quoted

with approval three tests as referred by Nicholas in his

Australian Constitution and one test referred by Isaacs,

J. in paragraphs 27 and 28 of the judgment, which are to

the following effect:-

“27. Nicholas in his Australian Consti- tution, 2nd Ed., p. 303, refers to three tests of inconsistency or repugnancy:—

(1) There may be inconsistency in the actual terms of the competing statutes (R. v. Brisbane Licensing Court, [1920] 28 CLR 23).

(2) Though there may be no direct con-

flict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a com- plete exhaustive code (Clyde Engineering Co. Ltd. v. Cowburn, [1926] 37 CLR 466).

(3) Even in the absence of intention, a conflict may arise when both State and Com- monwealth seek to exercise their powers over the same subject-matter (Victoria v. Common- wealth, [1937] 58 CLR 618; Wenn v. Attorney- General (Vict.), [1948] 77 CLR 84)

28. Isaacs, J. in Clyde Engineering Com- pany, Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down one test of inconsistency as conclusive: “If, however, a competent legis- lature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where an- 30

other Legislature assumes to enter to any ex- tent upon the same field”.”

40. This Court after referring to the provisions of State

Legislation as well as Central Legislation held that none

of these provisions do overlap, the Centre being silent

with regard to some of the provisions, which have been

enacted by the State, hence no repugnancy was found.

Following was laid down in paragraph 36:-

”(36). XXXXXXXXXXXXXXXX

Suffice it to say that none of these provisions do overlap, the Centre being silent with regard to some of the provisions which have been enacted by the State and the State being silent with regard to some of the provisions which have been enacted by the Centre. There is no repugnancy whatever between these provisions and the impugned Act and the Rules framed thereunder as also the U.P. Sugarcane Regulation of Supply and Purchase Order, 1954 do not trench upon the field covered by Act 10 of 1955.”

41. Another Constitution Bench in Deep Chand and Ors. Vs.

The State of Uttar Pradesh and Ors., AIR 1959 SC 648

speaking through K. Subba Rao, J. after referring to the

earlier judgments of this Court and other precedents laid

down following three principles for ascertaining the

repugnancy between two statutes:-

31

“(29). XXXXXXXXXXXX

Repugnancy between two statutes may thus be ascertained on the basis of the following three principles:

(1) Whether there is direct con-

flict between the two provisions;

(2) Whether Parliament intended to lay down an exhaustive code in respect of the subject-matter re-

placing the Act of the State Legis-

lature and

(3) Whether the law made by Par-

liament and the law made by the State Legislature occupy the same field.”

42. Again a Constitution Bench of this Court in

M.Karunanidhi Vs.Union of India and Anr., (1979) 3 SCC

431 reiterated the principles to determine the

inconsistency between two Statutes. In paragraph 35,

following prepositions were laid down:-

“35. On a careful consideration, there- fore, of the authorities referred to above, the following propositions emerge:

1. That in order to decide the question of repugnancy it must be shown that the two enactments con-

tain inconsistent and irreconcil-

able provisions, so that they can-

not stand together or operate in the same field.

32

2. That there can be no repeal by implication unless the inconsis-

tency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field, but there is room or possibility of both the statutes operating in the same field without coming into col-

lision with each other, no repug-

nancy results.

4. That where there is no incon-

sistency but a statute occupying the same field seeks to create dis-

tinct and separate offences, no question of repugnancy arises and both the statutes continue to oper-

ate in the same field.”

43. Thakkar, J. speaking for himself and Fazal Ali, J.

in M/s. Ram Chandra Mawa Lal, Varanasi and Ors. Vs. State

of Uttar Pradesh and Ors., 1984 (Supp.) SCC 28 had

occasion to elaborately consider the principles to

determine inconsistency between two Statutes. The

principles were stated in following words in paragraph

47:-

47. ……………………………..The principle may be stated thus. The Centre and the State both cannot speak on the same channel and create disharmony. If both speak, the voice of the Centre will drown the voice of the State.

The State has to remain “silent” or it will be “silenced”. But the State has the right 33

to “speak” and can “speak” (with unquestionable authority) where the Centre is “silent, without introducing disharmony……………………………..”

44. The last judgment which needs to be noticed is

another Constitution Bench judgment in K.T. Plantation

Private Limited and Anr. Vs. State of Karanataka, (2011)

9 SCC 1 where on repugnancy, following was laid down in

paragraph 108:-

“108. The question of repugnancy under Article 254 of the Constitution arises when the provisions of both laws are fully inconsistent or are absolutely irreconcilable and it is impossible without disturbing the other, or conflicting results are produced, when both the statutes covering the same field are applied to a given set of facts. Repugnancy between the two statutes would arise if there is a direct conflict between the two provisions and the law made by Parliament and the law made by the State Legislature occupy the same field. Reference may be made to the decisions of this Court in Deep Chand v. State of U.P. [AIR 1959 SC 648], Prem Nath Kaul v. State of J&K [AIR 1959 SC 749], UkhaKolhe v. State of Maharashtra [AIR 1963 SC 1531], Bar Council of U.P. v. State of U.P. [(1973) 1 SCC 261] , T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177], Hoechst Pharmaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45], LingappaPochannaAppelwar v. State of Maharashtra [(1985) 1 SCC 479] and Vijay Kumar Sharma v. State of Karnataka [(1990) 2 SCC 562].” 34

45. After noticing the principles laid down by this Court

in above noted cases to find out repugnancy between law

made by State Legislature and that of Parliament, we need

to apply the above prepositions to find out as to whether

the provisions of Act, 1949 and the Rules framed

thereunder are inconsistent with constitutional

provisions as contained in Part IXA of the Constitution

of India.

46. We, now, proceed to notice the relevant

constitutional provisions contained in Part IXA. Article

243P is a definition clause. Article 243P(a) defines the

“Committee” in following words:-

“(a)"Committee" means a Committee constituted under Article 243S;

47. Article 243(e) defines “Municipality” in following

words:-

“(e) "Municipality" means an institution of self-government constituted under Article 243Q;”

48. Article 243Q provides for constitution of 35

Municipalities. Article 243R deals with composition of

Municipalities, which is as follows:-

“243R. Composition of Municipalities—(1) Save as provided in Clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards.

(2) The Legislature of a State may, by law, provide –

(a) for the representation in a Municipality of –

i. persons having special knowledge or experience in Munici-

pal administration;

ii. the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Mu-

nicipal area;

iii. the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area;

iv. the Chairpersons of the Com-

mittees constituted under Clause (5) of Article 243S:

Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meeting of the Municipality;

36 b. the manner of election of the Chair- person of a Municipality.”

49. Sub-article(1) of Article 243R contains two

constitutional requirements:- (i) all the seats in a

Municipality shall be filled by persons chosen by direct

election and (ii) from the territorial constituencies in

the Municipal area and for this purpose each Municipal

area shall be divided into territorial constituencies to

be known as wards. Sub-article (2) of Article 243R

provided for the representation in a municipality of four

categories of persons which is a constitutional

requirement required to be adopted by State Legislature.

It may be noted that sub-article(2) of Article 243R does

not deal with seats in the Municipalities, which shall be

filed up by persons chosen by direct election. Article

243ZA deals with elections to the Municipalities, thus,

direct election, as contemplated under Article 243R has

to be as per Article 243ZA. 243ZA(2) provides as

follows:-

“243ZA Elections to the Municipalities—

XXXXXXXXXXXXXX 37

(2) Subject to the provisions of the Consti-

tution, the Legislature of a State may, by law, make provision with respect to all matters relating to, or in connec- tion with, elections to the Municipali- ties.”

50. Thus, the Legislature of a State may by lay has to

provide all matters relating to or in connection with

election to the Municipalities, which includes filling of

the seats in the Municipality by person chosen by direct

election. Articles 243R and 243ZA does not give any

indication as to whether from territorial constituency,

i.e., the Wards, whether only one member has to be

elected in the Municipality or it can be multiple member

constituency. The constitutional provisions of Article

243R, which provides for composition of Municipalities

and that of Article 243ZA does not give any indication to

the above. The provisions of Article 243ZG, which deals

with bar to interference by courts in electoral matters

throws some light. Article 243ZG is as follows:-

“243ZG Bar to interference by Courts in electoral matters-Notwithstanding anything in this Constitution,-

a. the validity of any law relating to the delimitation of constituencies 38

or the allotment of seats to such constituencies made or purporting to be made under Article 243ZA shall not be called in question in any Court;

b. ………”

51. Article 243ZG(a) used two expressions: “any law

relating to the delimitation of constituencies or the

allotment of seats to such constituencies” may be read as

allotment of more than one seat to one constituency but

it can be said that the above provision also do not

provide that in one constituency, there may be more than

one seats.

52. Now, we turn to Article 243S, which is sheet anchor

of the argument of Shri Kapil Sibal, learned senior

counsel. Article 243S deals with Constitution and

Composition of Wards Committees. Article 243S is as

follows:-

“243S Constitution and composition of Wards Committees, etc.—(1) There shall be constituted Wards Committees, consisting of one or more Wards, within the territorial area of a Municipality having a population of three lakhs or more.

(2) The Legislature of a State may, by law, 39

make provision with respect to –

a. the composition and the terri-

torial area of a Wards Commit-

tee;

b. the manner in which the seats in a Wards Committee shall be filled.

(3) A member of a Municipality representing a ward within the territorial area of the Wards Committee shall be a member of that Committee.

(4) Where a Wards Committee consists of -

a. one ward, the member repre-

senting that ward in the Mu-

nicipality; or

b. two or more wards, one of the members representing such wards in the Municipality elected by the members of the Wards Committee,

shall be the Chairperson of that Committee.

(5) Nothing in this article shall be deemed to prevent the Legislature of a State from making any provision for the Constitution of Committees in addition to the Wards Committees.”

53. On sub-article(3) and sub-article (4) of Article 243S

great emphasis has been laid down. It is submitted by

Shri Sibal that sub-article (3) uses the expression “a 40

member of a Municipality representing a ward”. It is

submitted that the expression “a member” clearly means

that only one member shall represent a ward. He further

submits that sub-article (4) sub-clause(a) uses the

expression “the member representing that ward” which

again reinforces that one ward shall be represented by

only one member. On a first blush, the argument appears

to be attractive but when we carefully analysed the

extent and purpose of Article 243S, we do not find any

such limitation in provision of Article 243S, which

limits the State Legislature for requiring multi-member

seats in a Ward. Reverting to sub-article (3) of Article

243S, the requirement is that a member of the

Municipality representing a Ward shall be a member of the

Ward Committee. Thus, constitutional requirement or

limitation engrafted in sub-article(3) is that a member

of the Municipality representing a Ward shall be a member

of the Ward Committee. The provision of Article 243S(3)

is not a provision regarding composition of Municipality

rather the provision is for constitution and composition

of Wards Committee. In Wards Committee, a member

representing a Ward in Municipality has to be the member 41

sub-article(3) of Article 243S cannot be read to mean

that it mandates that from one Ward more than one members

cannot be made representatives. In cases, where there

are more than one member from one Ward all will become

the member of the Committee. When all the members of the

Municipality representing a Ward are members of the

Committee, there is no breach of Article 243S(3).

54. Now, we come to sub-article (4) of Article 243S. Article 243S(4) is a provision indicating as to who shall

be the Chairperson of Wards Committee. Sub-article(4)

says that where Wards committee consists of one ward, the

when it consists of two or more wards, one of the members

representing such wards in the Municipality elected by

the members of the Wards Committee. Shri Sibal submits

that sub-article(4) of Article 243S uses the expression

“the member” which means that with regard to one Ward

only one member has to represent in the Municipality and

in case of multi-member Ward, no election is contemplated

to elect Chairperson with regard to one Ward and election

is contemplated to elect one person only when there are

two or more Wards. It is true that under sub-article (4) 42

(a), in case of one Ward member representing that Ward

shall be the Chairperson.

55. We may now examine, if there are multi-members in one

ward, whether Constitutional provisions of Article

243S(4) are breached when Chairperson is to be elected.

The requirement is that member representing the Ward

shall be the Chairperson of the Committee and if there

are more than one members and one member out of multi-

member Ward is elected as Chairperson, the provision of

Article 243S(4) shall be applied. When the

constitutional provisions under Article 243S(4)(a) does

not provide for election for electing Chairperson in case

of a multi-member Ward, the same is supplemented by the

State legislation. In the present case, we have noticed

that Rule 2(b) of Rules, 2007, which provides that

Chairperson of a Ward Committee is the person elected by

the members of the Wards Committee. The Rule, thus,

contemplate an election of Chairperson amongst the

members of the Wards Committee, which shall also be

applicable in a case where there are more than one

members from one Ward. When out of multiple members in a 43

Ward, one member is elected as Chairperson, the mandate

of Article 243S(4)(a) is complied with. The requirement

is that member representing the ward in the Municipality

shall be the Chairperson. The above provision cannot be

read in providing any prohibition or limitation that in

one Ward, there cannot be more than one member. The

composition of Municipality has been dealt separately by

Article 243R and for composition of Municipality, the

provisions of Article 243S cannot be said to be

applicable or intended to provide any limitation or

prohibition with regard to composition of the

Municipalities. The Rule 2(b) of Rules, 2007 which

provides for election of Chairperson, by following which

rule, in case of multi-member Ward, Chairperson can be

elected, which may apply both to Article 243S(4) as well

as Rule 2(b) of the Rules, 2007. Thus, Rules 4 and 5 of

Rules, 1994 as well as Rule 2(b) of Rules, 2007 does in

no manner disobey the mandate of Article 243S(4), both

can be complied with without any conflict between the two

different provisions. We, thus, come to the conclusion

that provisions of Section 5(3)(iii)(a) as well as Rules

4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are 44

not inconsistent with provisions of Article 243S.

56. Now, we come to the cases, which have been relied by

Shri Kapil Sibal in support of his submissions. Shri

Sibal has placed reliance on judgment of this Court in

Manoj Narula Vs. Union of India, (2014) 9 SCC 1 for the

preposition that doctrine of implication has to be

applied to explain the constitutional concepts. He has

referred to paragraph 17 of the judgment, which is to the

following effect:-

“17. Recently, in Subramanian Swamy v. CBI [(2014) 8 SCC 682], the Consti- tution Bench, speaking through R.M. Lodha, C.J., while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946, which was inserted by Act 45 of 2003, as un- constitutional, has opined that: (SCC pp. 725-26, para 59)

“59. It seems to us that clas-

sification which is made in Section 6-A on the basis of status in the government service is not permissi- ble under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or po-

sition, corrupt public servants are 45

corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the posi-

tion or status in service, no dis-

tinction can be made between public servants against whom there are al-

legations amounting to an offence under the PC Act, 1988.”

And thereafter, the larger Bench further said: (SCC p. 726, para 60)

“60. Corruption is an enemy of the nation and tracking down cor-

rupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is diffi-

cult to justify the classification which has been made in Section 6-A because the goal of law in the PC Act, 1988 is to meet corruption cases with a very strong hand and all public servants are warned through such a legislative measure that corrupt public servants have to face very serious consequences.” And again: (SCC pp. 730-31, paras 71-72)

“71. Office of public power cannot be the workshop of personal gain. The probity in public life is of great importance. How can two public servants against whom there are allegations of corruption of graft or bribe-taking or criminal misconduct under the PC Act, 1988 can be made to be treated differ-

ently because one happens to be a junior officer and the other, a se-

nior decision maker.

46

72. Corruption is an enemy of nation and tracking down corrupt public servant, howsoever high he may be, and punishing such person is a necessary mandate under the PC Act, 1988. The status or position of public servant does not qualify such public servant from exemption from equal treatment. The decision- making power does not segregate corrupt officers into two classes as they are common crimedoers and have to be tracked down by the same process of inquiry and investiga-

tion.”

57. No exception can be taken to the preposition laid

down by this Court as above. But this Court in

subsequent paragraph 71 while explaining the doctrine of

implication has held that this doctrine has its own

limitations. Interpretation has to have a base in the

Constitution. The relevant observations made in

Paragraph 71 are as follows:-

“71. …………………….Thus, the said principle can be taken aid of for the purpose of inter- preting constitutional provision in an expan- sive manner. But, it has its own limitations. The interpretation has to have a base in the Constitution. The Court cannot rewrite a con- stitutional provision. In this context, we may fruitfully refer to Kuldip Nayar case [Kuldip Nayar v. Union of India, (2006) 7 SCC 1] wherein the Court repelled the con-

tention that a right to vote invariably car- ries an implied term i.e. the right to vote in secrecy. The Court observed that where the 47

Constitution thought it fit to do so, it has itself provided for elections by secret bal- lot e.g. in the case of election of the Pres- ident of India and the Vice-President of In- dia. ……………………………………….”

58. In paragraph 72, the Court rejected the submission of

petitioner that while interpreting the words “advise of

the Prime Minister” a prohibition to think of a person as

a Minister, if charges have been framed against him

cannot be inferred. In paragraph 72, following has been

laid down:-

“72. Thus analysed, it is not possible to accept the submission of Mr Dwivedi that while interpreting the words “advice of the Prime Minister” it can legitimately be inferred that there is a prohibition to think of a person as a Minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law.

59. We have analysed the provisions of Article 243R, 243S

and have come to the definite conclusion that no

limitation in Article 243S can be found of which contains

any prohibition of having more than one member for a

Ward.

60. Next judgment relied by Shri Kapil Sibal is Chief

Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu 48

and Ors., (1979) 2 SCC 34. In the above case, this Court

has reiterated the principles of interpretation of a

constitutional provision. In paragraphs 66 and 67

following has been laid down:-

“66. The primary principle of interpretation is that a Constitutional or statutory provision should be construed “according to the intent of they that made it” (Coke). Normally, such intent is gathered from the language of the provision. If the language or the phraseology employed by the legislation is precise and plain and thus by itself proclaims the legislative intent in unequivocal terms, the same must be given effect to, regardless of the consequences that may follow. But if the words used in the provision are imprecise, protean or evocative or can reasonably bear meanings more than one, the Rule of strict grammatical construction ceases to be a sure guide to reach at the real legislative intent. In such a case, in order to ascertain the true meaning of the terms and phrases employed, it is legitimate for the Court to go beyond the and literal confines of the provision and to call in aid other well recognised rules of construction, such as its legislative/history, the basic scheme and framework of the statute as a whole, each portion throwing light on the rest, the purpose of the legislation, the object sought to be achieved, and the consequences that may flow from the adoption of one in preference to the other possible interpretation.

67. Where two alternative constructions are possible, the court must choose the one which will be in accord with the other parts of the statute and ensure its smooth, 49

harmonious working, and eschew the other which leads to absurdity, confusion, or friction, contradiction and conflict between its various provisions, or undermines, or tends to defeat or destroy the basic scheme and purpose of the enactment. These canons of construction apply to the interpretation of our Constitution with greater force, because the Constitution is a living, integrated organism having a soul and consciousness of its own……………………………………”

61. There can be no dispute to the above preposition

which has been laid down for interpretation of a

constitutional provision. Applying the above principle

of interpretation on the Constitution, we may notice that

when the State Legislature has been given preliminary

power of legislation with regard to composition of the

Municipalities, there has to be express or implied

limitation, which may prohibit the State Legislature to

make a law providing for multi-member Ward.

62. Another judgment relied by Shri Sibal is M.T. Khan

and Ors. Vs. Govt. of A.P. and Ors., (2004) 2 SCC 267.

This Court in the above case had occasion to consider

Articles 165 and 367 of the Constitution. Article 367

provides that the General Clauses Act could be applied in

dealing with interpretation unless the context otherwise 50

requires. This Court held that the Advocate General

referred to in Article 165 cannot be read in plural

sense. The Advocate General discharges the

constitutional functions and if more than one person is

appointed to discharge the constitutional functions,

different Advocate Generals may act differently,

resulting in a chaos. The office of Advocate General is

a public office, hence, Additional Advocate General

appointed by the State cannot be said to have been

appointed under Article 165 but that appointment has to

be traced to the source of the State’s power under

Article 162 of the Constitution of India. No exception

can be taken to the preposition as laid down by this

Court in the above judgment. Similarly, in Karnataka

Bank Ltd. Vs. State of Andhra Pradesh and Ors., (2008) 2

SCC 254. This Court held that the definition of person

under Section 3(42) of the General Clauses Act is not

applicable automatically to interpret the provision of

the Constitution unless the context so requires and makes

the definition applicable. Again, there can be no

dispute to the preposition as laid down in the above

case.

51

63. We, in the present case, after analysing the relevant

provisions of Part IXA of the Constitution has come to

the conclusion that there is no prohibition or limitation

in Part IXA of the Constitution prohibiting the State

Legislature from making a law providing for election of

more than one member from one territorial constituency,

i.e., Ward.

64. We, thus, answer Question Nos.1 and 2 in following

manner:-

(1) Article 243R and 243S of the Constitution of In-

dia does not contain any limitation to the ef-

fect that there shall be only one member from

one Ward.

(2) Provisions of Section 5(3)(iii)(a) and Section

29A of the Act, 1949 and Rules 4 and 5 of the

Rules, 1994 and Rule 2(b) of Rules, 2007 are not

ultra vires to the provisions of Articles 243R

and 243S of the Constitution.

Question No.3 52

65. The submission of Shri Sibal is that having more than

one representative from a Ward negates the very concept

of empowerment of weaker sections, i.e., women, Scheduled

Castes and Scheduled Tribes. He submits that when there

is only one member from a Ward and if the Ward is

reserved for women, Scheduled Castes and Scheduled

Tribes, it is empowerment of women, Scheduled Caste and

Scheduled Tribes and if there are 4 members in a Ward,

women, Scheduled Castes and Scheduled Tribes shall not be

able to effectively espouse the cause of weaker sections.

The Statement of Objects and Reasons of the Bill No.159

of 1991 which was introduced in the Lok Sabha for

inserting Part IX in the Constitution, in paragraph 2

stated:

“2. Having regard to these inadequacies, it is considered necessary that provisions relating to Urban Local Bodies are incorporated in the Constitution particularly for-

(i) putting on a former footing the relationship between the State Government and the Urban Local Bodies with respect to-

(a) the functions and taxation powers; and

(b) arrangements for revenue 53

sharing;

(ii) ensuring regular conduct of elections;

(iii) ensuring timely elections in the case of supersession; and

(iv) providing adequate representations for the weaker sections like Scheduled Castes, Scheduled Tribes and women.”

66. Article 243T of the Constitution of India included in

Part IXA, provides for reservation of seats. The

provision in the Constitution for providing reservation

of seats is a provision for empowering the women,

Scheduled Castes and Scheduled Tribes. The Gujarat

Delimitation of Wards and Allocation of Reserved Seats in

Municipal Borough Rules, 1994 has been amended by

Amendment Rules, 2015. Clauses 2 and 3 of which provide

as follows:

“2. In the Delimitation of Wards and alloca- tion of Reserved Seats in Municipal Bor- ough Rules, 1994 (hereinafter referred to the "the said rules"), in rule 4, for the word "three", the word "four" shall be substituted.

3. In the said rules, for rule 5, the fol-

lowing rule shall be substituted, namely:-

54

"5. (1) In each Ward two seats shall be reserved for women (includ- ing seats to be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes) and the remaining seats shall be allocated taking into con- sideration the requirement of reser- vation as provided under Section 6 of the said Act.

(2) While determining the number of seats to be reserved for the differ-

ent reserved categories as provided in sub-rule (1);-

(a) if it is not feasible to exactly divide the number of seats evenly, then, after such division the remaining one seat, or

(b) if in case only one seat is required to be re-

served for any of the reserved categories, then, such seat,

Shall first be allocated to a male candidate and then a women by rota-

tion in the general elections to be held after coming into force of the Delimitation of Wards and Allocation of Reserved Seats in Municipal Bor-

ough (Amendment) Rules, 2015".”

67. As per above provision now it is 4 member Ward, 2

seats are to be reserved for women including seats

reserved for women belonging to Scheduled Castes,

Scheduled Tribes and Back Ward Classes. 55

68. This Court in Kasambhai F. Ghanchi vs. Chandubhai D.

Rajput and others, (1998) 1 SCC 285, had held that the

idea of providing reservation for the benefit of weaker

sections of the society is not only to ensure their

participation but it is an effort to improve their lot.

Following observations were made in paragraph 13:

“13. The idea of providing reservation for the benefit of weaker sections of the society is not only to ensure their participation in the conduct of the affairs of the municipality but it is an effort to improve their lot. The reservation ensures that the specified minimum number of persons belonging to that category become members of the municipality. If because of their popularity a larger number of Scheduled Castes, Scheduled Tribes, Backward Classes or women get elected to the municipality than the number of reserved seats that would be welcome. ……………”

69. The entire purpose and object of reserving seats for

weaker sections is to empower the weaker sections, i.e.,

women, Scheduled Castes and Scheduled Tribes, when there

are more numbers are reserved for weaker sections their

participation in municipality is bound to increase giving

strength to their voice and effective participation which

is nothing but empowerment of weaker sections. We are not

able to subscribe to the submission of Shri Sibal that 56

when there are only one representation from one Ward only

then empowerment of weaker sections can be made. By the

Rules, 1994 as amended in 2015 now the voice of weaker

sections can be felt from every Ward which clearly

enhances of presence and participation of weaker sections

and does not, in any manner, negate the empowerment of

weaker sections. We, thus, do not find any substance in

the above submission of Shri Sibal.

70. We answer Question No.3 in the following manner:

Having more than one representation from a

Ward in no manner negates the empowerment of

weaker sections rather it increases the

empowerment of weaker sections.

Question No.4

71. The submission of Shri Sibal is that before expiry of

30 days from the date of publication of notification

dated 27.11.2014, the notification has been issued on

04.12.2014 itself which is illegal. He submits that

notification dated 04.12.2014 has been issued without 57

considering the objection which was contemplated to be

filed within 30 days. The notification dated 27.11.2014

as well as notification dated 04.12.2014 has been brought

on record as Annexure P-1 and Annexure P-2 to the paper

book. It is useful to notice the notification dated

27.11.2014 along with draft notification which is to the

following effect:

"NOTIFICATION Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar

Dated: 27.11.2014

No.KV/184 of 2014/MISC/102014/5640/P:- The following draft of rules which is proposed to be issued under sub-section (1) of section 456, read with section 5 of the Gujarat Provincial Municipal Corporations Act, 1949 (Born.LIX of 1949) is hereby published as required by subsection (2) of the said section 456 of the said Act, for informatioria all persons likely to be affected thereby and notice is hereby given that the said draft rules will be taken into consideration by the Government of Gujarat on or after the expiry of thirty days from the date of publication of this notification in the Official Gazette.

2 Any objection or suggestion which may be received by the Additional Chief Secretary to the Government of Gujarat, Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar, from any person with respect to the said draft notification before the expiry of the aforesaid period will be considered by 58

the Government.

DRAFT NOTIFICATION

No. KV/184 of 2014/MISC/102014/5640/P:- In exercise of the powers conferred by sub- section (1) of section 456 read with section 5 of the Gujarat Provincial Municipal Corporations Act, 1949 (Born. LIX of 1949), the Government of Gujarat hereby makes the following rules further to amend the Delimitation of Wards and Allocation of Reserved Seats Rules, 1994, namely:-

1. These rules may be called the Delimitation of Wards and Allocation of Reserved Seats (Amendment) Rules, 2014.

2. In the Delimitation of Wards and Allocation of Reserved Seats Rules, 1994 (hereinafter referred to as “the said rules”), in rule 4, for the word “three”, the word “four” shall be substituted.

3. In the said rules, for rule 5, the following rule shall be substituted, namely:-

"5.(1) In each ward two seats shall be reserved for women (including seats to be reserved for women belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes) and the remaining seats shall be allocated taking into consideration the requirement of reservation as provided under section 5 of the said Act.

(2) While determining the 59

number of seats to be reserved for the different reserved categories as provided in sub-rule (1),-

(a) if it is not feasible to exactly divide the number of seats evenly then after such division the remaining one seat, or

(b) if in case only one seat is required to be reserved for any of the reserved categories, then, such seat-

shall first be allocated to a male candidate and then a woman by rotation in the general elections to be held after coming into force of the Delimitation of Wards and Allocation of Reserved Seats (Amendment) Rules, 2014.”

4. In the said rules, in rule 8, for the words, brackets and figures “recognized for the purposes of Representation of Peoples Act, 1951 (43 of 1951)”, the words “registered with the State Election Commission” shall be substituted.

By order and in the name of the Governor of Gujarat,

(Ashoksinh Parmar) Deputy Secretary to Government.”

72. A perusal of the above notification indicates that 60

the said notification was a draft notification to amend

the Delimitation of Wards and Allocation of Reserved

Seats (Amendment) Rules, 2014 wherein Rule 4, for the

word “three”, the word “four” was sought to be

substituted.

73. The notification dated 04.12.2014 has been issued in

exercise of powers conferred by sub-clause (a) of clause

(iii) of sub-section (3) of Section 5 of Act, 1949. The

notification dated 04.12.2014 reads:

“NOTIFICATION Urban Development and Urban Housing Department Sachivalaya.

Gandhinagar.

Dated the 4th December, 2014

No.KV-194 of 2014 -ELE – 102014 – 1701 – P:

WHEREAS the Government of Gujarat in exercise of powers conferred by sub-clause

(a) of clause (iii) of sub-section (3) of section 5 read with sub-sections (4), (5), (6) and (7) of the said section 5 of the Gujarat Provincial Municipal Corporations Act, 1949(Born. LIX of 1949) (hereinafter referred to as “the said Act”) under the Government Notification, Urban Development and Urban Housing Department No.KV-47 of 2010-ELE102009-526-P, dated the 23rd March, 2010 has determined the numbers of Wards and Councillors, numbers of Seats reserved for Scheduled Tribes, Backward Classes and Women for the Ahmedabad Municipal Corporation.

61 AND WHEREAS, the number of Wards and Councillors, number of seats to be reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and Women is required to be ascertained in accordance with the figures of the population as declared on the basis of Census-2011 as also in view of the provisions of section 5 of the said Act;

AND WHEREAS, the General Election of the Municipal Corporation of the City of the Ahmedabad is to be held;

NOW, THEREFORE, in exercise of the powers conferred by sub-clause (a) of clause (iii) of sub-section (3) of section 5 read with sub-sectoins (4), (5), (6) and of the said section 5 of the said Act, so far as the City of Ahmedabad is concerned, the Government of Gujarat hereby determines the numbers of Wards and Seats as follows:-

1. The areas of the City of Ahmedabad shall be divided into Forty-eight (48) Wards and the Municipal Corporation of the City of Ahmedabad shall consist of One Hundred and Ninety – two (192) Councillors;

2. Out of One Hundred and Ninety-two (192) Seats-

(i) Twenty (20) Seats shall be reserved for persons belonging to the Scheduled Castes out of which Ten(10) Seats shall be reserved for women belonging to the Scheduled Castes;

(ii) Two(2) Seats shall be 62

reserved for the persons belonging to the Scheduled Tribes out of which One(1) seat shall be reserved for women belonging to the Scheduled Tribes;

(iii)Nineteen (19) Seats shall be reserved for the persons belonging to the Backward Classes out of which Nine(9) Seats shall be reserved for women belonging to Backward Classes;

(iv) Ninety-six (96) Seats shall be reserved for the women (including the number of seats reserved for the women belonging to Scheduled Castes, Scheduled Tribes and the Backward Classes referred to as above).

By order and in name of the Governor of Gujarat.

(Ashoksinh Parmar) Deputy Secretary to Government.”

74. A bare perusal of the notification dated 04.12.2014

indicates that the said notification is not in reference

to the notification dated 27.11.2014 rather the said

notification was issued regarding determination of number

of Wards and Councillors' seats reserved for Scheduled 63

Castes and Scheduled Tribes and women. Thus, the argument

that notification dated 04.12.2014 issued before expiry

of 30 days is wholly misconceived. The appellants

themselves have brought on record a notification dated

15.01.2015 as Annexure P-9 to the paper book which is the

notification issued in reference to the notification

dated 27.11.2014. Notification dated 15.01.2015 reads:

"NOTIFICATION Government of Gujarat Urban Development and Urban Housing Department Sachivalaya, Gandhinagar Dated 15th January, 2015

NO.KV-38 of 2015 – MISC – 102014 – 564- - P:

WHEREAS, the certain draft rules were published as required by sub-section (2) of section 456 of the Gujarat Provincial Municipal Corporations Act, 1949 (Bom. LIX of 1949), at pages 76-1 and 76-2, Part I-A, in the Central Section of the Gujarat Government Gazette, Extra Ordinary, dated the 27th November, 2014 under the Government Notification, Urban Development and Urban Housing Department No.KV/184 of 2014, inviting objections or suggestions from all persons likely to be affected thereby, within a period of thirty days from the date of publication of the said notification in the Official Gazette.

Xxx xxx xxx xxxx”

75. Thus, in reference to notification dated 27.11.2014,

the notification was issued on 15.01.2015,Rules, namely, 64

Bombay Provincial Municipal Corporation (Delimitation of

Wards in the City and Allocation of Reserved Seats)

(Amendment) Rules, 2015 were issued which specifically

mentioned that objections and suggestions in pursuance of

draft have been considered by the Government. We, thus,

do not find any infirmity in the above notification.

76. In view of the above discussion, we answer Question

No.3 in the following manner:

Notification dated 04.12.0214 being not in

reference to notification dated 27.11.2014

which notification was on entirely different

subject, there is no illegality in issuing

notification dated 04.12.2014.

77. We having found that the provisions of Section 5(3)

(iii)(a) and Section 29A of Act, 1949 and Rule 4 and 5 of

Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra

vires to Part IXA of the Constitution, the Division Bench

of the High Court did not commit any error in dismissing

the writ petition filed by the appellants. We, thus, do

not find any merit in the Civil Appeal arising out of

SLP(C)No.24950 of 2015 and the Writ Petition (C)No.786 of

2020. Hence, the civil appeal and writ petition are 65

dismissed.

Civil Appeal (arising out of SLP(C)No.30635 of 2015-State Election Commission vs. Virendrasinh Mafaji Vaghela & Ors.)

78. The appeal has been filed against the Division Bench

judgment of the Gujarat High Court dated 21.10.2015 by

which writ petition filed by the respondents was allowed.

The High Court in paragraph 72 has issued directions

which we have noted above. The High Court found the

Ordinance No.3 of 2015 as unconstitutional and void. The

action of the State Election Commission for postponement

of the election of all local bodies in the State was held

to be illegal and set aside. The State Election

Commission was directed to initiate process of holding

the election of the local bodies forthwith. In pursuance

of the Division Bench judgment of the High Court dated

21.10.2015 Elections for the local bodies were held in

November/December, 2015. The direction of the Division

Bench dated 21.10.2015 having been carried out nothing

remains to be decided in this appeal. The tenure of the

Local Body constituted in pursuance of the impugned

direction of the High Court dated 21.10.2015 having come

to end, we see no necessity to enter into issue raised in 66

this appeal. Thus, the appeal is dismissed as having

become infructuous.

....................J. (Ashok Bhushan)

....................J. (R.Subhash Reddy)

New Delhi, ....................J. February 24, 2021. (M.R. Shah)