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.
1
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.
Leave granted.
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 subclause (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 subclause 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 Constitution of India contains 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), 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-
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 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?
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 Committees, if any, at ward or other levels in
the Municipalities;
18
(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 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 circumscribed by express prohibition contained in
the Constitution itself and unless and until
there is any provision in the Constitution
expressly prohibiting legislation on the subject either absolutely or conditionally,
there is no fetter or limitation on the plenary powers which the State Legislature enjoys 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 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 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 Legislature had full competence to enact the impugned Act no matter whether such enactment
was contrary to the guarantee given, or the
obligation undertaken by the Dominion Government 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 Constitution, 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 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-
30
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 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 conflict between the two provisions;
(2) Whether Parliament intended
to lay down an exhaustive code in
respect of the subject-matter replacing the Act of the State Legislature and
(3) Whether the law made by Parliament 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, therefore, 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 contain inconsistent and irreconcilable provisions, so that they cannot stand together or operate in
the same field.
32
2. That there can be no repeal by
implication unless the inconsistency 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 collision with each other, no repugnancy results.
4. That where there is no inconsistency but a statute occupying
the same field seeks to create distinct and separate 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
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 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;
36
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 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 Constitution, the Legislature of a State may,
by law, make provision with respect to
all matters relating to, or in connection with, elections to the Municipalities.”
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 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
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 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
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 Constitution 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 unconstitutional, has opined that: (SCC pp.
725-26, para 59)
“59. It seems to us that classification which is made in Section
6-A on the basis of status in the
government service is not permissible 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 position, 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 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.
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 decisionmaking 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 investigation.”
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 interpreting constitutional provision in an expansive manner. But, it has its own limitations.
The interpretation has to have a base in the
Constitution. The Court cannot rewrite a constitutional 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 contention that a right to vote invariably carries 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 ballot e.g. in the case of election of the President of India and the Vice-President of India. ……………………………………….”
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 India does not contain any limitation to the effect 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 allocation of Reserved Seats in Municipal Borough 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 following rule shall be substituted,
namely:-
54
"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 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.
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 subsection (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 seatshall 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)
