M. Pentiah & Ors Vs. Muddala
Veeramallappa & Ors  INSC 189 (7 November 1960)
CITATION: 1961 AIR 1107 1961 SCR (2) 295
CITATOR INFO :
R 1977 SC 536 (16) RF 1977 SC2328 (11) RF
1978 SC 548 (3) R 1982 SC 149 (223) R 1986 SC 137 (66) RF 1988 SC1060 (12) F
1990 SC 933 (14) F 1991 SC 101 (30) RF 1992 SC 1 (60) RF 1992 SC 573 (33)
Municipality--Committee constituted under old
Act continued by repealing Act--Term of office--Power--If can effect sale of
municipal land--Interpretation of statute--Power of Court--Hyderabad District
Municipalities Act, 1956 (Hyd. XVIII of 1956), ss. 16, 17, 18, 20, 32, 34, 35,
76, 77 and 320.
The respondents were the elected members of
the Vicarabad 296 Municipal Committee, constituted in 1953, under the Hyderabad
Municipal and Town Committees Act, 1951 That Act was repealed by s. 320 of the
Hyderabad District Municipalities Act, 1956, which came into force in 1956.
That section provided that the committee constituted under the repealed
enactment was to be deemed to have been constituted under the Act and the
members thereof should hold office till the first meeting of the committee was
called under S. 35 of the Act. No election was held under the new Act; the old
committee, which continued to function, after duly passing a resolution and
obtaining the necessary sanction from the Government, sold certain municipal
lands to third parties.
The appellants, who were rate-payers of the
said Municipality, moved the High Court for-the issue of a writ of quo warranto
challenging the said sales under Art. 226 of the Constitution. The High Court
dismissed the petition.
The contention of the appellants in this Court
was that the members of the said committee were functus officio on expiry of
three years from the commencement of the Act for s. 34 of the Act prescribed a
term of three years and S. 320 of the Act did not provide any definite term for
them. But if S.
34 was held to be inapplicable, neither could
the first general election under the Act, for which s. 16 of the Act was the
only provision, be held, nor could the first meeting of the committee called
under s. 35 of the Act and the result would be that the old committee would
Held, that the contention must be negatived.
The word 'committee' in s. 320 of the
Hyderabad District Municipalities Act, 1956, did not mean a committee elected
under the Act and the term of three years prescribed by s. 34 of the Act could
not, therefore, apply to it.
Construed in the light of well-recognised
principles of interpretation of statutes and the scheme as envisaged by ss. 16,
17, 18, 20, 32, 34, and 320 of the Act, s. 320 of the Act could be no more than
a transitory provision and it would be unreasonable to suggest that the
Legislature which repealed the earlier Act with the express intention of
constituting committees on broad-based democratic principles, intended to
perpetuate old committees constituted under the repealed Act.
Section 16(1) of the Act, properly construed,
was clearly inapplicable to the first general election under the Act and could
apply only to subsequent elections. So far as the first general election under
the Act was concerned, ss. 17 and 20 of the Act provided a self-contained and
integrated machinery there for independent of s. 16(1) of the Act.
Canada Sugar Refining Co. v. R.,  A.C.
735, referred to.
The Legislature in enacting the new Act
assumed and expected that the Government would, within a reasonable time issue
notifications for holding the first general election under S. 17 of the Act and
its failure to do so and thus implement the 297 Act, and not any inherent
inconsistency in the Act itself, prolonged the life of the old committee.
Since S. 77 of the Act expressly authorised
the Municipal Committee to sell municipal property subject to the conditions
specified therein, no prohibition could be implied from the provisions of s 76
of the Act and the impugned sales, effected in conformity with the conditions
precedent laid down by s. 77 of the Act, could not be said to be ultra vires
the powers of the committee.
Elizabeth Dowager Baroness Wenlock v. The
River Dee Company, (1885) 10 A.C. 354 and Attorney-General v. Fulhan Corporation,
(1921) 1 Ch. D. 440, considered.
Per Sarkar, J.-It is well settled that where
the language of a statute leads to manifest contradiction of the apparent
purpose of the enactment, as the language of s. 16(i) does in the present case,
the Court has the power so to read it as to carry out the obvious intention of
The intention of the Legislature in enacting
the new Act clearly was that elections should be held and committees
constituted under it.
Seaford Court Estates Ltd. v. Asher,  2
All E.R. 155, referred to.
Section 16(1) is the only section of the Act
which authorises the holding of a general election but, since the requirements
as to time in s. 16(i) of the Act could not apply to the first general
election, that section must be read to carry out the obvious intention of the
Legislature as if there was no such requirement in the case of the first
general election under the Act. Although this would not indicate when that
election was to be held, the obvious implication would be that it must be held
within a reasonable time of the commencement of the Act. Section 20 of the Act
does not authorise the holding of a general election.
Salmon v. Duncombe, (1886) 11 App. Cas. 627,
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 387 of 1960.
Appeal by special leave from the judgment and
order dated February 12, 1960, of the Andhra Pradesh High Court, in Writ
Petition No. 5 of 1960.
P. A. Choudhuri and K. R. Choudhuri, for the
P. Ram Reddy, for respondents Nos. 1, 2 and 6
1960. November 7. The Judgment of
Gajendragadkar, Subha Rao, Wanchoo and,. Mudholkar, JJ., 38 298 was delivered
by Subba Rao, J. Sarkar, J., delivered a separate judgment.
SUBBA RAO J.-This appeal by special leave is directed
against the judgment of the High Court of Judicature at Hyderabad dismissing
the petition filed by the appellants under Art. 226 of the Constitution to
issue a writ of quo warranto against respondents 1 to 10 directing them to
exhibit an information as to the authority under which they are functioning as
members of the Vicarabad Municipal Committee and to restrain them from selling
certain plots of land belonging to the Municipality to third parties. Vicarabad
was originally situate in the Part B State of Hyderabad and is now in the State
of Andhra Pradesh. The Municipal Committee of Vicarabad was constituted under
the Hyderabad Municipal and Town Committees Act (XXVII of 1951).
In the year 1953 respondents 1 to 10 were
elected, and five others, who are not parties before us, were nominated, to
that Committee. On November 27, 1953, the Rajpramukh of the State of Hyderabad
published a notification under the relevant Acts in the Hyderabad Government
Gazette Extraordinary notifying the above persons as members of the said
Committee. Presumably with a view to democratize the local institutions in that
part of the country and to bring them on a par with those prevailing in the
neighbouring States, the Hyderabad District Municipalities Act, 1956 (XVIII of
1956), (hereinafter referred to as the Act), was passed by the Hyderabad _
Legislature and it received the assent of the President on August 9, 1956.
Under s. 320 of the Act the Hyderabad Municipal and Town Committees Act, 1951
(XXVII of 1951) and other connected Acts were repealed.
As a transitory measure, under the same
section any Committee constituted under the enactment so repealed was deemed to
have been constituted under the Act and the members of the said Committee were
to continue to hold office till the first meeting of the Committee was called
under s. 35 of the Act. Under that provision respondents 1 to 10 and the five
nominated members continued to function as members 299 of the Municipal
Committee. In or about the year 1958 the said Committee acquired land measuring
acres 15-7 guntas described as " Varad Raja Omar Bagh " for Rs.
18,000 for the purpose of establishing a grain market (gunj). For one reason or
other, the Municipal Committee was not in a position to construct the grain
market and run it departmentally. The Committee, therefore, after taking the
permission of the Government, resolved by a requisite majority to sell the said
land to third parties with a condition that the vendee or vendees should
construct a building or buildings for running a grain market. Thereafter the
Committee sold the land in different plots to third parties ; but the sale
deeds were not executed in view of the interim order made in the writ petition
by the High Court and subsequently in the appeal by this Court.
In the writ petition the appellants
contended, inter alia, that the respondents ceased to be members of the
Municipal Committee on the expiry of three years from the date the new Act came
into force and that, therefore, they had no right to sell the land, and that,
in any view, the sale made by the Committee of the property acquired for the
purpose of constructing a market was ultra vires the provisions of the Act. The
respondents contested the petition on various grounds. The learned Judges of
the High Court dismissed the petition with costs for the following reasons:
1. The old Committee will continue to
function till a new Committee comes into existence.
2. " Section 76 contemplates that
property vested in it under s. 72(f), 73 and 74 should be transferred only to
Government. Here, the transfer is not in favour of the Government. That apart
we are told that in this case sanction of the Government was obtained at every
stage. It cannot be predicated that the purpose for which the properties are being
disposed of is not for a, public purpose. It is not disputed that the
properties are being sold only to persons who are required to build grain
3. The act now opposed is not in any way in
conflict with the provisions of ss. 244, 245 and 247.
4. " It looks to us that the petitioners
lack in bona fides and that this petition is not conceived in the interests of
the public ".
The present appeal, as aforesaid, was filed
by special leave granted by this Court.
Mr. P. A. Chowdury, learned counsel for the
appellants, canvassed the correctness of the findings of the High Court.
His first argument may be summarized thus:
Under s. 320 of the Act any Committee constituted under the repealed enactment
shall be deemed to have been constituted under the Act and the members of the
said Committee shall continue to hold office till the first meeting of the
Committee is called under s. 35 of the Act. Under s. 35 of the Act, the first
meeting of the Committee shall not be held on a date prior to the date on which
the term of the outgoing members expires under s. 34. Section 34 of the Act
provides that the members shall hold office for a term of three years.
Therefore, the term of the members of the
Committee deemed to have been constituted under s. 320 is three years from the
date on which the Act came into force. If the term fixed Under s. 34 does not
apply to the members of the said Committee, the result will be that the said
members will continue to hold office indefinitely, for the first meeting of the
Committee could not be legally convened under the Act as s. 16 which enables
the Collector to do so imposes a duty on him to hold a general election within
three months before the expiry of the term of office of the members of the
Committee as specified in s. 34, and, as no definite term has been prescribed
for the members of the Committee under s. 320, the election machinery fails,
with the result that the members of the " deemed " Committee would
continue to be members of the said Committee indefinitely. On this interpretation
learned counsel contends that the section would be void for the following
reasons: (1) s. 320(1)(a) of the Act would be ultra vires the powers of the
State Legislature under Art. 246 of the Constitution, read with entry 5, List
II, VII Schedule; (2) the said section deprives the appellants of the right to
equality and protection of the laws guaranteed under Art. 14 301 of the
Constitution; (3) s. 320 would be void also as inconsistent with the entire
scheme of the provisions of the Act.
Let us first test the validity of the
construction of s. 320 of the Act suggested by the learned counsel. The
material part of s. 320 reads:
" (1) The Hyderabad Municipal and Town
Committees Act, 1951, (XXVII of 1951)........................ (is) hereby
repealed ; provided that:(a) any Committee constituted under the enactment so
repealed (hereinafter referred to in this section as the said Committee) shall
be deemed to have been constituted under this Act, and Members of the said
Committee shall continue to hold office till the first meeting of the Committee
is called under section 35;".
The terms of the section are clear and do not
lend any scope for argument. The section makes a distinction between the "
said" Committee and the Committee elected under the. Act and says, "
Members of the said Committee shall continue to hold office till the first
meeting of the Committee is called under s. 35 ". Though the word "
Committee" is defined in s. 2(5) to mean a Municipal or Town Committee
established or deemed to be established under the Act, that definition must
give way if there is anything repugnant in the subject or context. As the
section makes a clear distinction between the " said " Committee and
the Committee elected under the Act, in the context, the Committee in s.
320 cannot mean the Committee elected under
the Act. The term fixed for the members of the Committee constituted under the
Act cannot apply to the members of the Committee deemed to have been
constituted under the Act. Section 32 which provides for the culminating stage
of the process of election under the Act says that the names of all members
finally elected to any Committee shall be forthwith published in the official
Gazette. Section 34 prescribes the term of office of the members so elected.
Under it, " except as is otherwise provided in this Act, members shall
hold office for a term of three years." Section 320(1)(a) provides a
different term for the 302 members of the Committee deemed to have been
constituted under the Act. Thereunder, the term is fixed not by any number of
years but by the happening of an event. The Committee constituted under s. 320
clearly falls under the exception. But it is suggested that the exception
refers only to s. 28 where under a member of a, Committee ceases to be one by a
supervening disqualification. Firstly, this section does not fix a term but
only imposes a disqualification on the basis of a term fixed under s. 34;
secondly, assuming that the said section also
fixes a term, the exception may as well cover both the deviations from the
normal rule. That apart, sub-s. (2) of s. 34 dispels any doubt that may arise
on the construction of sub-section (1) of the section. Under sub-s. (2), the
term of office of such members shall be deemed to commence on the date of the
first meeting called by the Collector under s. 35. Section 35 directs the
Collector to call a meeting after giving at least five clear days notice within
thirty days from the date of the publication of the names of members under s.
This provision clearly indicates that the
members of the Committee mentioned in s. 34 are only the members elected under
the Act and not members of tile Committee deemed to have been elected under the
Act, for, in the case of the latter Committee, no publication under s. 32 is
provided for and therefore the provisions of s. 35 cannot apply to them.
It is, therefore, manifest that the term
prescribed in s. 34 cannot apply to a member of the deemed " Committee.
Let us now see whether this interpretation
would necessarily lead us to hold that the members of the " deemed "
Committee under s. 320(1)(a) would have an indefinite duration. This result, it
is suggested, would flow from a correct interpretation of the relevant
provisions of s. 16 of the Act. The judgment of the High Court does not
disclose that any argument was addressed before that Court on the basis of s.
16 of the Act. But we allowed the learned counsel to raise the point as in
effect it is only a link in the chain of his argument to persuade us to hold in
his favour on the construction of s. 320.
303 Before we consider this argument in some
detail, it will be convenient at this stage to notice some of the well
established rules of Construction which would help us to steer clear of the
complications created by the Act.
Maxwell " On the Interpretation of
Statutes", 10th Edn., says at p. 7 thus:
".............. if the choice is between
two interpretations, the narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a construction which would reduce
the legislation to futility and should rather accept the bolder construction
based on the view that Parliament would legislate only for the purpose of
bringing about an effective result." It is said in Craies on Statute Law,
5th Edn., at p. 82-Manifest absurdity or futility, palpable injustice, or
absurd inconvenience or anomaly to be avoided.') Lord Davey in Canada Sugar
Refining Co. v. R. provides another useful guide of correct perspective to such
a problem in the following words:
" Every clause of a statute should be
construed with reference to the context and the other clauses of the Act, so
as, so far as possible, to make a consistent enactment of the whole statute or
series of statutes relating to the subject-matter." To appreciate the
problem presented and to give an adequate answer to the same, it would be
necessary and convenient to notice the scheme of the Act as reflected in the
relevant sections, namely, ss. 16, 17, 18, 20, 32, 34 and 320. The said scheme
of the Act may be stated thus: Under the Act, there are general elections and
elections to casual vacancies. The general elections may be in regard to the
first election after the Act came into force or to the subsequent elections
under the Act. Section 5 imposes a duty on the Government to constitute a
Municipal Committee for each town and notify the date when it shall come into
existence. Section 17 enjoins on the Government to issue a notification calling
upon all the constituencies to elect members in accordance (1)  A.C. 735.
304 with the provisions of the, Act on or
before such date or dates as may be specified in the said notification. Section
16 imposes a duty upon the Collector to hold a general election in the manner
prescribed within three months before the expiry of the term of office of the
members of the Committee as specified in s. 34 of the Act. Sub-section (2) of
s. 16 provides for a bye-election for filling up of a casual vacancy. Section
18 enables the Collector with the approval of the Government to designate or
nominate a Returning Officer. Section 19 imposes a duty upon such an officer to
do all such acts and things as may be necessary for effectually conducting the
election in the manner provided by the Act and the rules made there under.
Section 20 authorizes the Collector to issue a notification in the Official
Gazette appointing the dates for making nominations, for the scrutiny of
nominations, for the withdrawal of candidatures and for the holding of the
After the elections are held in the manner
prescribed, the names of all the members finally elected to any Committee shall
be published in the Official Gazette. Except as otherwise provided in the Act,
s. 34 prescribes the term of three years for a member so elected. As a
transitory provision till such an election is held, s. 320 says that the
members of the previous Committee constituted under the earlier Act shall be
deemed to be constituted under the Act and the members thereof shall hold
office till the first meeting of the Committee is called under s. 35 of the
It is clear from the aforesaid provisions
that the Government notifies the dates calling upon all the constituencies to
elect the members before such date or dates prescribed; the Collector holds the
election and fixes the dates for the various stages of the process of election
; the Returning Officer appointed by the Collector does all acts and things
necessary for effectually conducting the election.
On the general scheme of the Act we do not
see any legal objection to the Collector holding the first elections under the
Act. The legal obstacle for such a course is sought to be raised on the wording
of s. 16(1).
305 Every general election requisite for the
purpose of this Act shall be held by the Collector in the manner prescribed
within three months before the expiry of the term of office of the members of
the Committee as specified in section 34." The argument is that the
Collector's power to hold a general election is confined to s. 16(1) and, as in
the case of the members of the Committee deemed to have been constituted under
the Act the second limb of the section cannot apply and as the Collector's
power is limited by the second limb of the section, the Collector has no power
to hold the first general election under the Act. If this interpretation be
accepted, the Act would become a dead-letter and-the obvious intention of the
Legislature would be defeated. Such a construction cannot be accepted except in
cases of absolute intractability of the language used.
While the Legislature repealed the earlier
Act with an express intention to constitute new Committees on broad based
democratic principles, by this interpretation the Committee under the old Act
perpetuates itself indefinitely.
In our view, s. 16(1) does not have any such
Section 16(1) may be read along with the
aforesaid other relevant provisions of the Act. If so read, it would be clear
that it could not apply to the first election after the Act came into force,
but should be confined to subsequent elections. So far as the first general
election is concerned, there is a self-contained and integrated machinery for
holding the election without in any way calling in aid the provisions of s.
16(1). Section 17 applies to all elections, that is, general as well as by-elections.
It applies to the first general election as well as subsequent general
elections. The proviso to that section says that for the purpose of holding
elections under sub-s. (1) of s. 16 no such notification shall be issued at any
time earlier than four months before the expiry of the term of office of the
members of the Committee as specified in s. 34. The proviso can be given full
meaning, for it provides only for a case covered by s. 16(1) and, as the first
general election is outside the scope of s. 16(1), 39 306 it also falls outside
the scope of the proviso to S. 17.
Under s. 17, therefore, the Government, in
respect of the first general election, calls upon all the constituencies to
elect members before the date or dates fixed by it. Under s. 20, the Collector
fixes the dates for the various stages of the election. The Returning Officer
does all the acts and things necessary for conducting the election and when the
election process is completed, the names of the members elected are published.
All these can be done without reference to s. 16(1), for the Collector is also
empowered under s. 20 to hold the elections. In this view, there cannot be any
legal difficulty for conducting the first election, after the Act came into
force. If so, the term of the members of the Committee deemed to have been
elected would come to an end when the first meeting of the Committee was called
under s. 35. The Legislature in enacting the law not only assumed but also
expected that the Government would issue the requisite notification under s. 17
of the Act within a reasonable time from the date when the Act came into force.
The scheme of the Act should be judged on that basis; if so judged, the
sections disclose an integrated scheme giving s. 320 a transitory character.
It is conceded by learned counsel that if s.
320(1)(a) is constructed in the manner we do, the other points particularised
above do not arise for consideration.
Before leaving this part of the case we must
observe that the difficulty is created not by the provisions of the Act but by
the fact of the Government not proceeding under s. 17 of the Act within a
reasonable time from the date on which the Act came into force. This is a
typical case of the legislative intention being obstructed or deflected by the
inaction of the executive.
Mr. Ram Reddy, learned counsel for the
respondents, states that there are many good reasons why the Government did not
implement the Act. There may be many such reasons, but when the Legislature
made an Act in 1956, with a view to democratize municipal administration in
that part of the country so as to bring it on a par with that obtaining in
other 307 States, it is no answer to say that the Government had good reasons
for not implementing the Act. If the Government had any such reasons, that
might be an occasion for moving the Legislature to repeal the Act or to amend
it. If the affected parties had filed a writ of mandamus in time, this
situation could have been avoided ; but it was not done. We hope and trust that
the Government would take immediate steps to hold elections to the Municipal
Committee so that the body constituted as early as 1953, under a different Act
could be replaced by an elected body under the Act.
Even so, learned counsel for the appellants
contends that the Municipal Committee had no power to sell the land acquired by
it for constructing a market. To appreciate this contention it would be
convenient to notice the relevant provisions of the Act. Under s. 72(f) all
land or other property transferred to the Committee by the Government or the
District Board or acquired by gift, purchase, or otherwise for local purposes
shall vest in and be under the control of the Committee. Section 73 enables the
Government, in consultation with the Committee, to direct that any property,
movable or immovable, which is vested in it, shall vest in such Committee.
Section 74 empowers the Government on the request of the Committee to acquire
any land for the purposes of the Act. Under s. 76, the Committee may, with the
sanction of the Government, transfer to the Government any property vested in
the Committee under ss. 72(f), 73 and 74, but not so as to affect any trust or
public right subject to which the property is held. Learned counsel contends
that, as the land was acquired by the Committee for the construction of a
market, the Committee has power to transfer the same to the Government only
subject to the conditions laid down in s.
76, and that it has no power to sell the land
to third parties. This argument ignores the express intention of s. 77 of the
Act. Section 77 says:
" Subject to such exceptions as the
Government may by general or special order direct, no Committee shall transfer
any immovable property except in pursuance of a resolution passed at a meeting
by a 308 majority of not less than two-third of the whole number of members and
in accordance with rules made under this Act, and no Committee shall transfer
any property which has been vested in it by the Government except with the
sanction of the Government:
Provided that nothing in this section shall
apply to leases of immovable property for a term not exceeding three years
This section confers on the Committee an
express power couched in a negative form. Negative words are clearly
prohibitory and are ordinarily used as a legislative device to make a statute
imperative. If the section is recast in an affirmative form, it reads to the
effect that the Committee shall have power to transfer any immovable property,
if the conditions laid down under the section are complied with. The conditions
laid down are: (1) there shall be a resolution passed at a meeting by a
majority of not less than two-third of the whole number of members of the
Committee; (2) it shall be in accordance with the rules made under the Act; (3)
in the case of a property vested in it by the Government, the transfer can be
made only with the sanction of the Government; and (4) the sale is not exempted
by the Government, by general or special order, from the operation of s. 77 of
the Act. It is not disputed that the relevant conditions have been complied
with in the present case. If so, the power of the Committee to alienate the
property cannot be questioned.
Learned counsel contends that the provisions
of s. 76 govern the situation and that s. 77 may apply only to a property
vested in the Committee under provisions other than those of ss. 72(f), 73 and
74, and that further, if a wider interpretation was given to s. 77, while under
s. 76 the transfer in favour of the Government would be subject to a trust or
public right, under s. 77 it would be free from it if it was transferred to a
private party. The first objection has no force, as there are no sections other
than ss. 72, 73 and 74 where under the Government vests property in a
Committee. The second objection also has no merits, for the trust or public
right-mentioned in s. 76 309 does not appear to relate to the purpose for which
the property is purchased but to the trust or public right existing over the
property so alienated by the Committee.
Further the proviso to s. 77, which says,
" nothing in this section shall apply to leases of immovable property for
a term not exceeding three years ", indicates that the main section
applies also to the property vested in the Committee under the previous
section, for it exempts from the operation of the operative part of s. 77
leases for a term not exceeding three years in respect of properties covered by
the preceding section and other sections. This interpretation need not cause
any apprehension that a Committee may squander away the municipal property, for
s. 77 is hedged in by four conditions and the conditions afford sufficient
guarantee against improper and improvident alienations.
In this context learned counsel for the
appellants invoked the doctrine of law that an action of a statutory
corporation may be ultra vires its powers without being illegal and also the
principle that when a statute confers an express power, a power inconsistent
with that expressly given cannot be implied. It is not necessary to consider
all the decisions cited, as learned counsel for the respondents does not
canvass the correctness of the said principles. It would, therefore, be
sufficient to notice two of the decisions cited at the Bar. The decision in
Elizabeth Dowager Baroness Wenlock v. The River Dee Company (1) is relied upon
in support of the proposition that when a corporation is authorised to do an
act subject to certain conditions, it must be deemed to have been prohibited to
do the said act except in accordance with the provisions of that Act which
confers the authority on it. Where by Act 14 & 15 Viet. a company was
empowered to borrow at interest for the purposes of the concerned Acts, subject
to certain conditions, it was held that the company was prohibited by the said
Act from borrowing except in accordance with the provisions of that Act. Strong
reliance is placed on the decision in Attorney-General v. Fulham Corporation
(1) (1885) 10 A.C. 354.
(2) (1921) 1 Ch.D. 440.
310 There, in exercise of the powers
conferred under the Baths and Wash-houses Acts the Metropolitan Borough of
Fulham propounded a scheme in substitution of an earlier one whereunder it
installed a wash-house to which persons resorted for washing their clothes
bringing their own wash materials and utilised the facilities offered by the
municipality on payment of the prescribed charges. Sarjant, J., held that the
object of the legislation was to provide for persons who became customers
facilities for doing their own washing, but the scheme provided for washing by
the municipality itself and that, therefore, it was ultra vires the statute. In
coming to that conclusion the learned Judge, after considering an earlier
decision on the subject, applied the following principle to the facts of the
case before him :
" That recognises that in every case it
is for a corporation of this kind to show that it has affirmatively an
authority to do particular acts; but that in applying that principle, the rule
is not to be applied too narrowly, and the corporation is entitled to do not
only that which is expressly authorised but that which is reasonably incidental
to or consequential upon that which is in terms authorized." The principle
so stated is unobjectionable.
The correctness of these principles also need
not be canvassed, for the construction we have placed on the provisions of the
Act does not run counter to any of these principles. We have held that s. 77
confers an express power on the Municipal Committee to sell property subject to
the conditions mentioned therein. Therefore, the impugned sales are not ultra
vires the powers of the Committee. In view of the said express power, no
prohibition can be implied from the provisions of s. 76.
Learned counsel further contends that the
statutory power can be exercised only for the purposes sanctioned by the
statute, that the sales of the acquired land to private persons were not for
one of such purposes, and that, therefore, they were void. The principle that a
statutory body can only function within the statute is unexcecutionable; but
the 311 Legislature can confer a power on a statutory corporation to sell its
land is equally uncontestable. In this case we have held that the statute
conferred such a power on the Municipal Committee, subject to stringent
limitations. Many situations can be visualized when such a sale would be
necessary and would be to the benefit of the corporation. of course the price
fetched by such sales can only be utilised for the purposes sanctioned by the
The last point raised is that the learned
Judges of the High Court were not justified in holding on the materials placed
before them that the appellants lacked bona fides and that the petition filed
by them was not conceived in the interests of the public. We do not find any
material on the record to sustain this finding. Indeed, but for the
petitioner-appellants the extraordinary situation created by the inaction of
the Government in the matter of implementing the Act, affecting thereby the
municipal administration of all the districts in Telangana area, might not have
been brought to light. We cannot describe the action of the appellants either
mala fide or frivolous.
In the result, the appeal fails and is
dismissed but, in the circumstances, without costs.
SARKAR, J.-The first question is whether the
first ten respondents are still members of the Municipal Committee of
Vicarabad. These persons had been elected to the Committee in the elections
held in 1953 under the Hyderabad Municipal and Town Commit tees Act, 1951
(Hyderabad Act XXVII of 1951), hereafter called the repealed Act. That Act was
repealed by the Hyderabad District Municipalities Act (Hyderabad Act XVIII of
1956), hereafter called the new Act, which came into force in August 1956. The
appellants, who are rate-payers of the Municipality, contend that on a proper
reading of the new Act, it must be held that these ten respondents have ceased
to be members of the Committee, and they seek a writ of quo warranto against
Section 320 of the new Act provides that any
Committee constituted under the repealed Act shall be deemed to have been
constituted under the new Act 312 and its members shall continue to hold office
till the first meeting of the Committee is called under s. 35 of the new Act.
The ten respondents contend that as admittedly the meeting under s. 35 has not
been called, their term of office has not yet expired.
Now s. 35, so far as is material, provides
that the first meeting of the Committee shall be called by the Collector within
thirty days of the date of publication of the names of members under s. 32.
Section 32 states that the names of members finally elected to any Committee
shall be forthwith published in the official Gazette. It is quite clear,
therefore, that the Committee mentioned in this section, is a Committee
constituted by an election held under the new Act. It would follow that the
meeting contemplated in s. 35 is a meeting of a Committee constituted by an
election held under the new Act. The provisions of that section put this beyond
In order, therefore, that a meeting of the
Committee contemplated in s. 35 may be held, there has first to be an election
under the new Act to constitute the Committee. No such election has yet been
held. It is the provision concerning election in the new Act that has given
rise to the difficulty that arises in this case. Section 16, sub-s.
(1), gives the power to hold the general
elections. It is in these words:
Every general election requisite for the
purpose of this Act shall be held by the Collector in the manner prescribed
within three months before the expiry of the term of office of the members of
the Committee as specified in section 34 ".
Section 34 in substance states that except as
other. wise provided members of the Committee shall hold office for a term of
three years and that term of office shall be deemed to commence on the date of
the first meeting called under s. 35. It would therefore appear that the
members whose term of office is sought to be specified by s. 34 are members
elected under the new Act, for their term is to commence on the date that they
first meet under s. 35 and as earlier stated, the meeting under s. 35 is a
meeting of members elected under the new Act.
313 The contention for the appellants is that
if a. 34 is construed in the way mentioned above, the first general election
under the new Act cannot be held under s. 16, for an election can be held under
that section only within three months before the expiry of the term of office
of members elected under the new Act and in the case of first election there
are ex hypothesi, no such members. It is said that as there is no other
provision in the new Act for holding a general election, the Act would then
become unworkable, for if the first general election cannot be held no
subsequent election can be held either., The result, it is contended, is that
the Committee elected under the repealed Act would continue for ever by virtue
of s. 320. Such a situation, it is said, could not have been intended by the
new Act. It is therefore suggested that s. 34 should be construed as specifying
a term of office of three years from the commencement of the new Act for
members elected under the repealed Act who are under s. 320, to be deemed to form
a Committee constituted under the new Act. If s. 34 is so construed, then the
first general election under the new Act can properly be held under s. 16. It
is on this basis that the appellants contend that the ten respondents' term of
office expired in August, 1959, and they are in possession of the office now
without any warrant.
There is no doubt that the Act raises some
difficulty. It was certainly not intended that the members elected to the
Committee under the repealed Act should be given a permanent tenure of office
nor that there would be no elections under the new Act. Yet such a result would
appear to follow if the language used in the new Act is strictly and literally
interpreted. It is however well established that " Where the language of a
statute, in its ordinary meaning and grammatical construction, leads to a
manifest contradiction of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or in justice, presumably not intended, a
construction may be put upon it which modifies the meaning of the words, and
even the structure of the sentence..................
40 314 Where the main object and intention of
a statute are clear, it must not be reduced to a nullity by the draftsman's
unskilfulness or ignorance of the law, except in a case of necessity, or the
absolute intractability of the language used. Nevertheless, the courts are very
reluctant to substitute words in a Statute, or to add words to it, and it has
been said that they will only do so where there is a repugnancy to good
Bense.": see Maxwell on Statutes (10th ed.) p. 229. In Seaford Court
Estates Ltd. v. Asher (1), Denning, L. J., said, " when a defect appears a
judge cannot simply fold his hands and blame the draftsman. He must set to work
on the constructive task of finding the intention of Parliament..............
and then he must supplement the written word so as to give " force and
life " to the intention of the legislature............... A judge should
ask himself the question how, if the makers of the Act had themselves come
across this ruck in the texture of it, they would have straightened it out ? He
must then do as they would have done. A judge must not alter the material of
which the Act is woven, but he can and should iron out the creases." I conceive
it my duty, therefore, so to read the new Act, unless I am prevented by the
intractability of the language used, as to make it carry out the obvious
intention of the legislature. Now there does not seem to be the slightest doubt
that the intention of the makers of the new Act was that there should be
elections held under it and that the Municipal Committees should be constituted
by such elections to run the administration of the municipalities. The sections
to which I have so far referred and the other provisions of the new Act make
this perfectly plain. Thus s. 5 provides for the establishment of municipal
committees and s. 8 states that the committees shall consist of a certain
number of elected members. The other sections show that the Committees shall
have charge of the administration of the municipalities for the benefit of the
dwellers within them. It is plain (1)  2 All E.R. 155 ,164.
351 that the entire object of the new Act
would fail if no general election could be held under it.
The question then is, How should the Act be
read so as to make it possible to hold general elections under it ? I agree
with the learned advocate for the appellants that the only section in the new
Act providing for general elections being held, is s. 16(1). In my view, s. 20
does not authorise the holding of any general election; it only provides for a
notification of the date on which the poll shall, if necessary, be taken. There
is no doubt that under s. 16(1) the second and all subsequent general elections
can be held ; in regard to such general elections, no difficulty is created by
the language of the section. It would be curious if s. 20 also provided for
general elections, for then there would be two provisions in the Act
authorising general elections other than the first. Then I find hat all the
sections referring to general elections refer to such elections being held
under s. 16(1) and not under s. 20.
Thus s. 31 provides that if at a general
election held under s. 16, no member is elected, a fresh election shall be
It would follow that if in an election under
s. 20, assuming that that section authorises an election, no member is elected,
no fresh election can be held. There would be no reason to make this
distinction between elections held under s. 16 and under s. 20. Again the
proviso to s. 17 requires a certain notification to be issued within a
prescribed time for holding elections under s. 16(1). If an election can be
held under s. 20, no such notification need be issued for there is no provision
requiring it. This could not have been intended. For all these reasons it seems
to me that s. 20 does not confer any power to hold any election.
I have earlier said that the suggestion for
the appellants is that the best way out of the difficulty is to read s. 34 as
specifying a term of office of three years commencing from the coming into
force of the new Act, for the members elected under the repealed Act who are to
be deemed under s.
320 to be a committee constituted under the
new Act. It seems to me that this is not a correct solution of the problem.
First, 316 the object of continuing the members elected under the repealed Act
in office is clearly to have, what may be called a caretaker committee to do
the work of the Municipality till a committee is constituted by election under
the new Act. It could not have been intended that the committee of the members
elected under the repealed Act would function for three years after the new Act
has come into operation nor that such members would have the same term of
office as members elected under the new Act.
Secondly, I do not find the language used in
s. 34 sufficiently tractable to cover by any alteration, a member elected under
the repealed Act. To meet the suggestion of the appellants, a new provision
would have really to be enacted and added to s. 34 and this I do not think is
permissible. It would be necessary to add to the section a provision that in
the case of members elected under the old Act the term of office of three years
would start running from the commencement of the new Act, a provision which is
wholly absent in the section as it stands. Lastly, so read, s. 34 would come
into conflict with s. 320 which expressly provides that the term of office of
the members elected under the repealed Act would continue till the first
meeting of the committee constituted under the new Act is held under s. 35.
This portion of s. 320 would have to be completely struck out.
It seems to me that the real solution of the
difficulty lies in construing s. 16(1) so as to authorise the holding of the
first general election under it and remove the absurdity of there being no
provision directing the first general election to be held. Now that section
applies to ,every general election requisite for the purpose of this Act."
It therefore applies to the first and all other general elections. The clear
intention hence is that the first general election will also be held under this
But such election cannot be held within the
time mentioned therein for that time has to be calculated from the expiry of
the term of office of the Committee elected under the Act and in the case of
the first general election under the new Act, there is no such Committee. The
requirement 317 as to time cannot apply to the first general election. The
section has therefore to be read as if there was no such requirement in the
case of the first general election. It will have to be read with the addition
of the words " provided that every general election excepting the first
general election shall be held " between the words " prescribed
" and " within ". That would 'carry out the intention of the
legislature and do the least violence to the language used. So read, there
would be clear power under the Act to hold the first general meeting. There
would of course then be no indication as to when this election is to be held
but that would only mean that it has to be held within a reasonable time of the
commencement of the new Act.
The course suggested by me is not without the
support of precedents. Thus in Salmon v. Duncombe (1), the Judicial Committee
in construing a statute omitted from it the words " as if such natural
born subject resided in England " because the retention of those words
would have prevented the person contemplated getting full power to dispose of
his immovable property by his will which it was held, the object of the statute
was, he should get.
With regard to the other point argued in this
.appeal, namely, whether the Municipal Committee even if properly constituted,
has power to sell the land mentioned in the petition, I agree, for the reasons
mentioned in the judgment delivered by the majority of the members of the
bench, that it has such power and have nothing to add.
The appeal therefore fails.
(1) (1886) 11 App. Cas. 627.