9911796707
TMI Blog2021 (2) TMI 1400X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (B) Issue a writ of declaration, declaring that Rule 4 and Rule 5 of the Bombay Provincial Municipal Corporation (Delimittaion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gujarat were under challenge. A mandamus was also sought seeking a direction 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hallenged 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 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 subclause (4) uses expression "a member and the member", which indicates that from one Ward there can only be o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a 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 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 lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ph 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 Committees, if any, at ward or other levels in the Municipalities; (iii) representation of persons having special knowledge or experience of Municipal Administration in Municipalities (without voting 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 nu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "2(b) "Chairperson" means the persons elected by the members of the Wards Committee as the Chairperson of that Committee;" 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 has been enumerated in following words:- "Each entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers which the State Legislature enjoys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. 13. The fetter or limitation upon the legislative 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 Dominion 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 enumerated 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 provisions of the Constitution. The Constitution itself laid down the fetters or limitations on this power e.g. in Article 303 or Article 286(2). But unless and until the court came to the conclusion that the Constitution itself had expressly prohibited legislation on the subject either absolutely or conditionally the power of the State Legislature to enact legislation within its legislative c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terms of the competing statutes (R. v. Brisbane Licensing Court, [1920] 28 CLR 23). (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete 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 Commonwealth seek to exercise their powers over the same subject-matter (Victoria v. Commonwealth, [1937] 58 CLR 618; Wenn v. AttorneyGeneral (Vict.), [1948] 77 CLR 84) 28. Isaacs, J. in Clyde Engineering Company, Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down one test of inconsistency as conclusive: "If, however, a competent legislature expressly or implicitly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where an- other Legislature assumes to enter to any extent 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offences, no question of repugnancy arises and both the statutes continue to operate 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s having special knowledge or experience in Municipal 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 Municipal 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 Committees 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; b. the manner of election of the Chairperson 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, make provision with respect to - a. the composition and the territorial area of a Wards Committee; 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 representing that ward in the Municipality; 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 member of a Municipality representing a ward". It is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 multimember 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations 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 corrupt public servants and punishing such persons is a necessary mandate of the PC Act, 1988. It is difficult 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 differently because one happens to be a junior officer and the other, a senior decision maker. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id 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. 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 India does not contain any limitation to the effect that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 6 of the said Act. (2) While determining the 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 women by rotation in the general elections to be held after coming into force of the Delimitation of Wards and Allocation of Reserved Seats in Municipal Borough (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. 68. This Court in Kasambhai F. Ghanchi vs. Chandubhai D. Rajput and others, (1998) 1 SCC 285, had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Government. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b-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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 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, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
