2021 (2) TMI 1400 - SC - Indian Laws

Limitation under Article 243R and Article 243S of the Constitution of India as regard that there shall be only one member from one Ward - vires of provisions of Sections 5(3)(iii)(a) 29A of the Gujarat Provincial Municipal Corporations Act 1949 and Rules 4 and 5 of Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules 1994 and Rule 2(b) of Gujarat Municipal Corporation s Ward Committees Functions Duties Territorial Areas and Procedure for Transaction of Business Rules 2007 - having more than one representative from a Ward negates the empowerment of weaker sections or not - requirement to issue notification dated 04.12.2014 before expiry of thirty days. Whether Article 243R and Article 243S of the Constitution of India contains any limitation to the effect that there shall be only one member from one Ward? - 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 Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules 1994 and Rule 2(b) of Gujarat Municipal Corporation s Ward Committees Functions Duties Territorial Areas and Procedure for Transaction of Business Rules 2007 are ul- tra virus to the provisions of Articles 243R and 243S of the Constitution? - HELD THAT - 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. 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 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 - The Constitution provisions 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. 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. On analysing the provisions of Article 243R 243S the definite conclusion is arrived at that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward. Article 243R and 243S of the Constitution of India does not contain any limitation to the effect that there shall be only one member from one Ward - 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. Whether having more than one representative from a Ward negates the empowerment of weaker sections i.e. women Scheduled Castes and Scheduled Tribes? - HELD THAT - 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. It is not able to subscribe to the submission of Shri Sibal that 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. 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. 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 published 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? - HELD THAT - 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. There are no 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 dismissed. Conclusion - i) Article 243R and 243S of the Constitution of India does not contain any limitation to the effect that there shall be only one member from one Ward. ii) 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. iii) 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. iv) 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. Appeal dismissed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal issues considered in this judgment were:

(1) Whether Articles 243R and 243S of the Constitution of India contain any limitation to the effect that there shall be only one member from one Ward?

(2) Whether the provisions of Sections 5(3)(iii)(a) and 29A of the Gujarat Provincial Municipal Corporations Act, 1949, and Rules 4 and 5 of the Bombay Provincial Municipal Corporations (the delimitation of wards and allocation of reserved seats) Rules, 1994, and Rule 2(b) of Gujarat Municipal Corporation's Ward Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007 are ultra vires 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 the issuance of the notification dated 04.12.2014 before the expiry of thirty days from the draft notification dated 27.11.2014 was legal?

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1 and 2:

The Court examined the constitutional provisions under Articles 243R and 243S, which relate to the composition of municipalities and the constitution and composition of Wards Committees. The Court noted that Article 243R mandates direct elections for all seats in a municipality from territorial constituencies known as wards, but it does not specify whether each ward must have only one representative. Article 243S deals with Wards Committees and does not impose any restrictions on the number of representatives from a ward.

The Court found that the legislative power of the State under Entry 5 of List II of the Seventh Schedule allows for the creation of laws regarding local government, including the composition of municipal corporations. The Court emphasized that legislative entries should be interpreted broadly, and the State's power is plenary unless expressly limited by the Constitution.

The Court concluded that the provisions of Sections 5(3)(iii)(a) and 29A of the Act, 1949, and the relevant rules were not inconsistent with Articles 243R and 243S, as these constitutional provisions do not explicitly prohibit multi-member wards. The Court also clarified that the General Clauses Act allows singular terms to be read as plural unless the context requires otherwise, supporting the interpretation that more than one member can represent a ward.

Issue 3:

The Court addressed the argument that multi-member wards could undermine the empowerment of weaker sections. It referred to the constitutional mandate for reservation under Article 243T, which aims to ensure adequate representation of Scheduled Castes, Scheduled Tribes, and women. The Court noted that having more representatives from a ward could enhance the representation and empowerment of these groups, as more seats would be reserved for them, leading to increased participation and influence in municipal governance.

The Court concluded that multi-member wards do not negate the empowerment of weaker sections; instead, they could potentially enhance it by providing more opportunities for representation.

Issue 4:

The Court examined the legality of the notification dated 04.12.2014, issued before the expiry of thirty days from the draft notification dated 27.11.2014. It found that the notification dated 04.12.2014 was issued under different statutory provisions and was not related to the draft notification dated 27.11.2014, which was concerned with amending delimitation rules. The final notification regarding the draft was issued on 15.01.2015, after considering objections and suggestions, thus complying with the procedural requirements.

The Court concluded that there was no illegality in the issuance of the notification dated 04.12.2014, as it was not connected to the draft notification process.

3. SIGNIFICANT HOLDINGS

The Court held that:

- Articles 243R and 243S of the Constitution do not limit the number of representatives from a ward to one, allowing for multi-member wards.

- The provisions of Sections 5(3)(iii)(a) and 29A of the Act, 1949, and the relevant rules are not ultra vires to the Constitution.

- Multi-member wards do not negate the empowerment of weaker sections; they may enhance it by providing more representation opportunities.

- The notification dated 04.12.2014 was legally issued and not related to the draft notification dated 27.11.2014.

The Court dismissed the appeals and writ petitions challenging these provisions and upheld the decisions of the lower courts. The appeal regarding the postponement of local body elections was dismissed as infructuous, as the elections had already been conducted following the High Court's directions.