Parmar Samantsinh Umedsinh and Others v. State of Gujarat & Ors.
ASHOK BHUSHAN, J.
1. Leave granted.
2. The civil appeals and writ petition, being tagged, all three matters
have been heard together.
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 thr ough
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 fol lowing
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 Authoritie s 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 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
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
vires the Constitution of India and/or Gujarat Local Authori ties
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 pleas ed 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 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 Ci ty and
Allocation of Reserved Seats) Rules, 1994 were challenged and we re
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 pet ition
Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated by the
103
Governor of 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 Elec tions 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 petit ion by
recording its conclusion in paragraph 72 which was to the f ollowing
effect:
“72.In view of the above observations and discussions, the following
conclusions:-
(a) Section 15(1) of the Gujarat Panchayats Act inser ted by
Ordinance No.2 of 2015 is read down in a manner that the Election
Commissioner must initiate the process of election at l east 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 meet ing
and assume the power by replacing the outgoing elected body. If
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
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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
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
to initiate process of holding the election of the local b odies
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 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 amende d 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 (Ame ndment)
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 Ge neral 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
105
scheme does not permit multi member representation from a W ard in
the Municipal Corporation/Municipality. Shri Sibal submits that Article
243S sub-clause (3) and sub-clause (4) uses expression “a member and
the member”, which indicates that from one Ward there can only be one
member in the Municipality. Similarly, Section 29A sub-clause 2 of the
Act, 1949 is inconsistent with Article 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 r ule 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 constituenc y. 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 i mpugned
provisions and notifications are in contravention o f 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 to make laws with regard to representa tion in a
Municipality and also composition and territorial a rea 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 consis tency
while interpreting the provisions of Part IXA of the Constitu tion. 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 exc lusive
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 submi ts that a
holistic schematic interpretation of the Constitution has to be advanced.
Shri Sibal submits that words occurring in the Constituti on should be
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
read in their ordinary, natural and grammatical meaning. Wor dings of
Article 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 i n Article
243S. Applicability of the General Clauses Act is res tricted 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 wherea s
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 inte rpretation shall
apply. He submits that Section 29A of Act, 1949 is inconsist ent with
Article 243S of the Constitution. Shri Raval further submits that without
reference to notification dated 27.11.2014, the not ification 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 M ehta submits
that an Act can be challenged on the grounds of (1) substantiv e ultra
vires, i.e, competence; (2) procedural ultra vires; (3) ul tra vires and
arbitrariness and (4) runs contrary to the constitutional provis ions. He
submits that under Entry 5 List II of Seventh Schedule of the Constitution,
“the State Legislature is competent to legislate local on Gove rnments.
Shri Tushar Mehta submits that the expression “the member ” used in
sub-clause (4) of Article 243S is used in reference to the Chairp erson.
Article 243S does not contain any provision that there shall be only one
member for one Ward. He submits that Article 243S deals with constitution
and composition of Wards Committees and the provisions therein have
to be confined to constitution and composition of Wards Committee s
and cannot be read in reference to constitution and compositi on of a
Municipality. He submits that the constitutional provision of Article 243T
contemplates reservation of seats for the Scheduled Cast es and the
107
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 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 appellant s. 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 learned counsel for the parti es
following questions arise for consideration:
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
(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 t he
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 ultra
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 wel l 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 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.
109
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 t he
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 knowled ge or
experience of Municipal Administration in Municipalities (without
voting rights);
XXXXXXXXXXXXXXXX”
25. The provisions of Part IXA of the Constitution, which ar e
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 Offi cial
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”
26. Section 29A of the Act, 1949, which is also under challenge, is
to the following effect:-
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
“29A. Composition of Wards Committee.- (1) Where
the population of the City is three lakhs or more, there s hall be
constituted by the Municipal Corporation, Subject to the rules made
by the State Government Wards Committee or Committe es
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 bein g
appointed, and for being a member of the Wards Committee , if
under the provisions of this Act or any other law for the t ime
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 th e
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 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
111
one seat shall remain unreserved. The remaining third seat m ay
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 Municipa l
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;”
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 consi deration,
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 re ad 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, t he 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 676 where the principles for interpretation
of a legislative entry 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 Constituti on”.
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:-
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
“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 Art icles 245
and 246 together, it is abundantly clear that the legislative power to be
exercised by the Parliament and the State Legislatures a s enumerated
in List I, List II and List III of Seventh Schedule are subject to the
provisions of the Constitution. Thus, when the Constitution expressly or
impliedly contains a limitation in exercise of legislative power, the legislative
power is subject to such Constitution limitations. 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 t he 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 Legislatu re
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
113
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 t o enact
legislation within its legislative competence was plenar y. 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 t o
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 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 plac ed 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 th erein.
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 e xpress
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 commencem ent of the
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
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 constitutional amendment. Thus,
Part IXA of the Constitution categorically contemplated th at any law
made by State Legislature, which is inconsistent with the provisions of
Part IXA shall cease to operate on the expiration of one y ear 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 88 where 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 t he 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 reli ed 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
115
regarding the fact that the dominant Legislature allowed the subordinate
Legislature to operate in the same field paripasu the State Act and there
will be no inconsistency when the State Act and Cen tral Act are
supplemental to each other. Things are inconsistent when they c annot
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 Legislatur e 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 r econcile 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 Commoditi es Act,
1955. It was held by this Court that repugnancy falls to be c onsidered
when the law made by the Parliament and the law made by the State
Legislature occupies the same field. This Court quoted with a pproval
three tests as referred by Nicholas in his Australian Constitution and one
test referred by Isaacs, J. in paragraphs 27 and 28 of the j udgment,
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 t he
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 comp lete
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]
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
58 CLR 618; Wenn v. Attorney-General (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 compet ent
legislature expressly or implicitly evinces its intention to cover the
whole field, that is a conclusive test of inconsistency where another
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 wa s 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 the se
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:-
“(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 tw o
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
117
(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.
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 statu te
occupying the same field seeks to create distinct and sep arate
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 ha s 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 anoth er
Constitution Bench judgment in K.T. Plantation Private Limited and
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
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 ful ly
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 wou ld
arise if there is a direct conflict between the two provisions and
the law made by Parliament and the law made by the Sta te
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 S C
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], Hoechs t
Pharmaceuticals Ltd. v. State of Bihar [(1983) 4 SC C 45],
LingappaPochannaAppelwar v. State of Maharashtra [(1985) 1
SCC 479] and Vijay Kumar Sharma v. State of Karnataka [(1990)
2 SCC 562].”
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 appl y 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 Articl e
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 Municipalities. Article
243R deals with composition of Municipalities, which is as follows:-
119
“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 terri torial
constituencies in the Municipal area and for this purpose e ach
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;
b. the manner of election of the Chairperson of a
Municipality.”
49. Sub-article(1) of Article 243R contains two constituti onal
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-art icle (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-a rticle(2) of
Article 243R does not deal with seats in the Municipalities, which shall
be filed up by persons chosen by direct election. Article 24 3ZA 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:-
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
“243ZA Elections to the Municipalities—
XXXXXXXXXXXXXX
(2) Subject to the provisions of the Constitution, the Legislature
of a State may, by law, make provision with respect to a ll
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 Artic le 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 delimitatio n of
constituencies 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 o f 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
121
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 War ds
Committee;
b. the manner in which the seats in a Wards Committee shall
be filled.
(3) A member of a Municipality representing a ward withi n 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 th e
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 g reat
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 submitted that the expression “a member” clearly means
that only one member shall represent a ward. He further sub mits that
sub-article (4) sub-clause(a) uses the expression “ the member
representing that ward” which again reinforces that one war d 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 s hall be a
member of the Ward Committee. Thus, constitutional requirement or
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
limitation engrafted in sub-article(3) is that a member of the Municipality
representing a Ward shall be a member of the Ward Commi ttee. 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 sub-article(3) of Article 243S cannot
be read to mean that it mandates that from one Ward more t han one
members cannot be made representatives. In cases, where t here 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. Arti cle
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 me ans that
with regard to one Ward only one member has to repres ent in the
Municipality and in case of multi-member Ward, no e lection is
contemplated to elect Chairperson with regard to one Ward and election
is contemplated to elect one person only when there are t wo or more
Wards. It is true that under sub-article (4)(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 o ne
ward, whether Constitutional provisions of Article 243S(4) are breached
when Chairperson is to be elected. The requirement is that member
representing the Ward shall be the Chairperson of the Committee and if
there are more than one members and one member out of multi-member
Ward is elected as Chairperson, the provision of Article 243S(4) shall be
applied. When the constitutional provisions under Article 243S(4)(a) does
not provide for election for electing Chairperson in case of a multi-
member Ward, the same is supplemented by the State legislation. In the
present case, we have noticed that Rule 2(b) of Rules, 2007, w hich
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,
123
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 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 conclusi on 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 not inconsistent with provisions of
Article 243S.
56. Now, we come to the cases, which have been relied by Sh ri
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 Polic e
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? Sur ely
not, because irrespective of their status or position, corrupt public
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
servants are corrupters of public power. The corrup t 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 jus tify the
classification which has been made in Section 6-A because t he
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 t o 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 imp ortance.
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 be cause
one happens to be a junior officer and the other, a senior decision
maker.
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 pub lic
servant from exemption from equal treatment. The dec ision-
making power does not segregate corrupt officers into two classes
as they are common crimedoers and have to be tracked down by
the same process of inquiry and 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 doct rine has its own
limitations. Interpretation has to have a base in the Consti tution. The
relevant observations made in Paragraph 71 are as follows:-
125
“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 C ourt
cannot rewrite a constitutional provision. In this context, we may
fruitfully refer to Kuldip Nayar case [Kuldip Nayar v. Union o f
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 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 Pri me 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 offence s
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 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 a nd 67
following has been laid down:-
“66. The primary principle of interpretation is that a
Constitutional or statutory provision should be con strued
“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
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
and plain and thus by itself proclaims the legislative in tent in
unequivocal terms, the same must be given effect to, regardl ess
of the consequences that may follow. But if the words used in the
provision are imprecise, protean or evocative or can reasona bly
bear meanings more than one, the Rule of strict grammatica l
construction ceases to be a sure guide to reach at the real
legislative intent. In such a case, in order to ascertain th e true
meaning of the terms and phrases employed, it is legitimat e for
the Court to go beyond the and literal confines of the provisi on
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 i n
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, 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 preliminar y 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 an d 367 of the
Constitution. Article 367 provides that the General Clauses Act could be
applied in dealing with interpretation unless the context otherwise requires.
This Court held that the Advocate General referred to in Articl e 165
127
cannot be read in plural sense. The Advocate General discharge s the
constitutional functions and if more than one person is appointe d 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 1 65 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 tak en 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 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 Article s
243R and 243S of the Constitution.
Question No.3
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 Ca stes and
Scheduled Tribes shall not be able to effectively espouse t he cause of
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
weaker sections. The Statement of Objects and Reasons of the Bill
No.159 of 1991 which was introduced in the Lok Sabha for inserti ng
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 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 D elimitation
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 wor d
“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 consider ation
the requirement of reservation as provided under Section 6 of the
said Act.
129
(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 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 sp ecified
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, Backwa rd
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 we aker
sections is to empower the weaker sections, i.e., women, Sc heduled
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 su bscribe to
the submission of Shri Sibal that when there are only one representation
from one Ward only then empowerment of weaker sections can be made.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
By the Rules, 1994 as amended in 2015 now the voice of weaker sections
can be felt from every Ward which clearly enhances of pr esence 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 il legal. He
submits that notification dated 04.12.2014 has been issue d without
considering the objection which was contemplated to be filed within 30
days. The notification dated 27.11.2014 as well as notification dat ed
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 noti fication 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.
2Any objection or suggestion which may be received by the
Additional Chief Secretary to the Government of Gujarat, Urban
131
Development and Urban Housing Department, Sachivalaya,
Gandhinagar, from any person with respect to the sai d draft
notification before the expiry of the aforesaid period wi ll be
considered by the Government.
DRAFT NOTIFICATION
No. KV/184 of 2014/MISC/102014/5640/P:- In exercise of the
powers conferred by sub-section (1) of section 456 read with
section 5 of the Gujarat Provincial Municipal Corporations Act,
1949 (Born. LIX of 1949), the Government of Gujarat hereby
makes the following rules further to amend the Delimitation of
Wards and Allocation of Reserved Seats Rules, 1994, namely:-
1. These rules may be called the Delimitation of Wards and
Allocation of Reserved Seats (Amendment) Rules, 2014.
2. In the Delimitation of Wards and Allocation of Reserved
Seats Rules, 1994 (hereinafter referred to as “the said rules”),
in rule 4, for the word “three”, the word “four” shall b e
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 number of seats to be reserved
for the different reserved categories as provided in sub-
rule (1),-
(a) if it is not feasible to exactly divide the number of
seats evenly then after such division the remaining one
seat, or
(b) if in case only one seat is required to be reserved for
any of the reserved categories, then, such seat-
shall first be allocated to a male candidate and then a woman by
rotation in the general elections to be held after coming into force
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
of the Delimitation of Wards and Allocation of Reserved S eats
(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 the said
notification was a draft notification to amend the Delimitation of Wards
and Allocation of Reserved Seats (Amendment) Rules, 2014 where in
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 Classe s and
Women for the Ahmedabad Municipal Corporation.
133
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 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.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
(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 notif ication dated
27.11.2014 rather the said notification was issued regarding determination
of number of Wards and Councillors’ seats reserved for Scheduled 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 27.11.2 014, 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 issu ed which
specifically mentioned that objections and suggestions in pursuance of
draft have been considered by the Government. We, thus, do not f ind
any infirmity in the above notification.
135
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 erro r 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 o f 2015
and the Writ Petition (C)No.786 of 2020. Hence, the civil appeal and
writ petition are 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 h as
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 this appeal.
Thus, the appeal is dismissed as having become infructuous.
Ankit Gyan Appeals disposed of.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]