Santokchand Kanaiyalal Jain Vs.
Bhusaval Borough Municipality & Ors [1965] INSC 174 (2 September 1965)
02/09/1965 SUBBARAO, K.
SUBBARAO, K.
MUDHOLKAR, J.R.
BACHAWAT, R.S.
CITATION: 1966 AIR 1358 1966 SCR (1) 695
ACT:
Municipalities-President elected by
Municipality for residue of its terms-Normal term of municipality as provided
in s.
25 of Bombay Municipal Borough Act four
years-Term of municipality extended beyond four years by s. 3 of Maharashtra
Municipality (Postponement of General Elections Unification of Municipal laws)
Act, 1964-Effect of such extension on term of President-Second proviso to s. 19
of Municipal Boroughs Act whether attracted.
HEADNOTE:
The appellant was elected President of the
Bhusaval Borough Municipality in Bombay State in July 1964. On the same day the
Municipality passed a resolution to the effect that the term of office of the
President would be "the residue of the term of office of the
municipality". The four years' term of the municipality as provided in s.
25 of the Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was due to
expire on February 17, 1965. However in the meanwhile the Maharashtra
Municipalities (Postponement of General Elections Pending Unification of
Municipal Laws Act, 1964 was passed, and under s. 3 thereof the term of the
councillors of the municipality was by fiction extended to December 31, 1965.
The Collector of the area on the assumption that the term of the President
ending on February 17, 1965, issued notice for a fresh election in March 1965.
The appellant filed an application under
Arts. 226 and 227 of the Constitution and contended that as the term of office
of the municipality had been extended up to December 31, 1965 he was entitled
to be President till that date under the resolution passed by the Municipality.
The High Court -,.-jetted the contention. The appellant, with a certificate of
fitness granted by the High Court, came to this Court.
The short question in the appeal was whether
the expression "the residue of the municipality" in the resolution of
the municipality meant the residue of the municipality that would have been if
the Maharashtra Act had not been passed or whether it should be interpreted in
the context of the extended term provided by the Maharashtra Act. On behalf of
the appellant it was argued that the appellant would get the extended term
provided by the Maharashtra Act, because in effect it was an extension under
the Act within the meaning of the second proviso to s. 19 of the Act or in any
event he got the benefit because the Maharashtra Act in effect amended s. 25 of
the Act with the result that 'residue' of the 'term' was extended to December
31, 1965.
HELD : (i) The impact of s. 3 of the
Maharashtra Act on the provisions of the Municipal Boroughs Act is that it not
only extends the term prescribed under s. 25 of the Act but also the term
extended under s. 25 or under any other section of the Act. If that was the
legal effect of the Maharahtra Act, the second proviso to s. 19 was not
attracted to the instant case as there was no order or notification issued
under s. 25 or any other relevant section of the Act extending the term of the
Councillors fixed under s. 25 of the Act. Therefore for the present purpose the
second proviso to s. 19 had to be left out of consideration and the problem had
696 to be approached on the basis of the fiction that the term of the
Councillors prescribed under s. 25 of the Act was extended up to December 31,
1965. [699 G-700 A] (ii) The intention of the municipality could be gathered
only from the tances statutory or otherwise existing at the time when the
resolution was passed and on the express terms of the said resolution.
The second proviso to s. 19 contemplates the
extension of the term of office of the Municipality under the Act. It was
therefore not possible to predicate that at the time the resolution was passed
the municipality could not have contemplated a situation when the term of the
Municipality would be extended under the provisions of the Act. Moreover from
the Statement of objects underlying the issuance of the Ordinance which
culminated in the Maharashtra Act it appeared that the question of extension of
the term of the municipalities in the State was under serious consideration
even in July 1963. Indeed on or about July 18, 1964 when the term of the
President was extended, the municipality passed a resolution recommending that
the term of the Municipality be extended beyond 4 years. It was therefore clear
that on the basis of the statutory and other circumstances obtaining at the
time the extension was made, the councillors clearly expected that the term of
the municipality would be or could be extended and with that knowledge they
passed the resolution fixing the term of the President for the residue of the
term of the Municipality;
the intention appeared to be that the term of
the President should syncbronise with the life of the municipality existing or
extended as the case may be. [700 B- 701 D] The order of the High Court was
therefore not correct and had to be set aside.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 481 of 1965.
Appeal from the judgment and order, dated
April 30, 1965, of the Bombay High Court in Special Civil Application No. 447
of 1965.
C. B. Agarwala, S. N. Prasad, J. B.
Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant.
S. V. Gupte, Solicitor-General, and B. R. G.
K. Achar, for respondent Nos. 2 to 4.
The Judgment of the Court was delivered by
Subba Rao J. This appeal by certificate raises the question of the true construction
of the provisions of ss. 19 and 25 of the Bombay Municipal Borough Act, 1925
(Bom. Act 18 of 1925), hereinafter called the Act, read with s. 3 of the
Maharashtra Municipalities (Postponement of General Elections Pending
Unification of Municipal Laws) Act, 1964, hereinafter called the Maharashtra
Act.
The facts lie in a small compass. The last
general election of the, members of the Bhusaval Borough Municipality was held
697 under the provisions of the Act in the year 1960. The first general meeting
thereafter was held on February 18, 1961.
Under the provisions of s. 25 of the Act. in
the normal course the life of the Municipality would have expired on February
17, 1965; but, under s. 3 of the Maharashtra Act the term of the Councillors of
the Municipality was, by fiction, extended to and inclusive of December 31,
1965. On July 18, 1964, the appellant was elected the President of the
Municipality; and on the same day the Municipality passed a resolution to the
effect that the term of the office of the President shall be "the residue
of the term of office of the Municipality". On the assumption that the
term of the President expired on February 17, 1965, the Collector of Jalgaon
issued a notice on March 2, 1965, calling for a meeting of the Municipality on
March 15, 1965, for electing a new President. Thereafter, the appellant filed
an application under Arts. 226 and 227 of the Constitution in the High Court of
Maharashtra for the issue of an appropriate order setting aside the notice
issued by the Collector. There the appellant contended that, as the term of
office of the Municipality had been extended by the Maharashtra Act up to
December 31, 1965, he was entitled to continue in office as President till that
date. A Division Bench of the said High Court rejected that contention and
dismissed the petition. Hence the appeal.
The short question in the appeal is whether
the expression "the residue of the Municipality" in the resolution of
the Municipality, dated July 18, 1964, means the residue of the Municipality
that would have been if the Maharashtra Act had not been passed or whether it
should be interpreted in the context of the extended term provided by the
Maharashtra Act.
Mr. Agarwala, learned counsel for the
appellant, contended that the appellant would get the extended term provided in
the Maharashtra Act, because in effect it was an "extension" under
the Act within the meaning of the second proviso to s. 19 of the Act or in any
event he got the benefit because the Maharashtra Act in effect amended s. 25 of
the Act, with the result the "residue" of the "term" was
extended to December 31, 1965.
The learned Solicitor-General, on the other
hand, argued that the second proviso to s. 19 of the Act had no application,
for it dealt only with an extension by notification or otherwise under the
provisions of the Act and the statutory extension given by the Maharashtra Act
could not possibly be an extension under the Act; that even if the Maharashtra
Act had the effect of amending s. 25 of the Act with the result that the life
of the 698 members of the Municipality was extended by the amendment of the Act
itself, it would not help the appellant as the scope of the resolution passed
by the Municipality should be construed on the basis of the circumstances existing
at the time the resolution was passed, i.e., previous to the election of the
President, and at that time the councillors of the Municipality could have only
passed the resolution fixing the term of the President during the residue of
the life the Municipality had at that time : to put it in other words, the
intention of the Councillors, who passed the resolution, could be gathered only
from the circumstances, statutory or otherwise, existing at the time the
resolution was passed.
The problem presented from different angles
by the learned counsel can only be solved on a true interpretation of the said
provisions. It will, therefore, be convenient at this stage to read the
relevant provisions.
Section 19 of the Act :
(1) Save as otherwise provided in this Act a
president or vice-president, shall hold his office for such term, not less than
one year or not less than the residue of the term of office of the
municipality, whichever is less and not exceeding four years, as the
municipality shall, previous to the election of the president or vice president
determine, or until the expiry within the said term of his term of office, as
councillor, but shall be eligible for reelection :
Provided that..............
Provided further that where the term of
office of a municipality :Is extended under this Act to a term not exceeding in
the aggregate five years the president and vice-president holding offices
immediately before the date with effect from which such term is extended shall
continue to hold their respective offices until the date on which the term so
extended expires.
Section 25 of the Act :
(1) Councillors nominated or elected at a
general election under this Act, shall, save as otherwise provided in this Act,
hold office for a term of four years, extensible by order of the State
Government to a term not exceeding in the aggregate five years, if on any
occasion the State Government shall think fit, for 699 reasons which shall be
notified together with the order in the Official Gazette so to extend the same
Section 3 of the Maharashtra Act Postponement of municipal elections.- Not with-
standing anything in any Act by or under which any municipality is constituted
or established,- (a) (b) the term or extended term of office, of the
Councillors or members of a municipality, who were in office on the date of the
commencement of the Ordinance (and whose term or extended term will expire
before the 31st day of December 1965), shall be deemed to be extended to and
inclusive of the 31st day of December 1965.
SCHEDULE (See section 2)
2. The Bombay Municipal Boroughs Act, 1925
(Bom. XVIII of 1925).
The combined effect of these two Acts may be
stated thus Under s. 25 of the Act the term of the Councillors of the
Municipality is 4 years. It may be extended by the State Government to a term
not exceeding in the aggregate five years. If the term is so extended by the
Government in the manner prescribed by s. 25 of the Act, under the second
proviso to s. 19 of the Act the term of the President also is automatically
extended to the date on which the term so extended expires. The expression
" under this Act" in the second proviso to s. 19 of the Act certainly
attracts the extension of the term of the councillors under s. 25, as it is an
extension under the Act. The impact of s. 3 of the Maharashtra Act on the
provisions of the Act is that it not only extends the term prescribed under s.
25 of the Act but also the term extended under s. 25 or under any other section
of the Act. If that be the legal effect of s. 3 of the Maharashtra Act, the
second proviso is not attracted to the instant case, as there was no order or
notification issued under s. 25 or any other relevant section of the Act
extending the term of the councillors fixed under s. 25 of the Act. Therefore
for the present purpose we leave out of consideration the second proviso to s.
19 and approach the problem on the basis of the fiction that the term of the
700 councillors prescribed under s. 25 of the Act was extended up to December
31, 1965. If that be so, the next question is whether on July 18, 1964, when
the Municipal councillors passed a resolution to the effect that the term of
office of the appellant shall be the residue of the Municipality, their
intention was that his term should extend only up to February 17, 1965, i.e.,
the date when the term of the Municipal councillors would have expired but for
the statutory extension given by the Maharashtra Act. The intention of the
Municipality can be gathered only from the circumstances, statutory or
otherwise existing at the time when the resolution was passed and on the
express terms of the said resolution. Under s. 19 of the Act, the Municipality
can fix the term of office of the President between one and four years, except
when the residue of the term of the Municipality is less than one year. But the
second proviso to s. 19 also contemplates the extension of the term of office
of the Municipality under the provisions of the Act. It is, therefore, not
possible to predicate that at the time the resolution was passed the
Municipality could not have contemplated a situation when the term of the
Municipality would be extended under the provisions of the Act. With the
knowledge of such a possible extension, when the members used the elastic
expression "residue", it is not reasonable to attribute to them the
intention that they meant only the residue of the term available to them at
that time. If that was their intention they would have prescribed a definite
date on which the term of the President would expire. That apart, there is
sufficient material on the record which indicates that the councillors
designedly used the word "residue" instead of fixing a precise date.
It appears that it was in the contemplation of the councillors at the time of
the election of the President that there was a possibility of the term of the
Municipality being extended. In the Statement of Objects underlying the
issuance of the Ordinance which culminated in the Maharashtra Act, it was
observed as follows "In July, 1963, Government appointed a Committee for
the purpose of considering the question of unification of the four Municipal
Acts which are at present in force in the State. As substantial changes are
envisaged in the unified municipal law, it is considered expedient that the
advantages of the new and uniform pattern of administration should be available
to all those municipalities concerned simultaneously with the holding of
general election in accordance with the pro- visions of the unified law.
Consequently, the Munici- 701 parties that are elected or may be elected under
the existing Acts may be short-lived, and the time, energy and expenditure
incurred on holding any more general elections would be wasteful. It has,
therefore, be-on decided to postpone the general elections to such muni- cipalities
from the promulgation of the Ordinance until the 31st of December, 1965, by
which time the new unified municipal law is expected to be enacted." This
indicates that the question of extension of the term of the municipalities was
under serious consideration even in July 1963. Indeed, on or about July 18,
1964, when the term of the President of the Municipality was extended, the
Municipality passed a resolution recommending that the term of the Municipality
be extended beyond 4 years. It is, therefore, clear that -on the basis of
statutory and other circumstances obtaining at the time the extension was made,
the councillors clearly expected that the term of the Municipality would be or
could be extended and with that knowledge they passed the resolution fixing the
term of the President for the residue of the term of the Municipality;
the intention appears to be that the term of
the President should synchronize with the life of the Municipality existing or
extended, as the case may be.
In our view, therefore, the order of the High
Court is not correct and the same is set aside. A writ will issue prohibiting
the Collector from holding the election of the President of the Municipality of
the Bhusaval Borough till December 31, 1965.
The controversy arose because the relevant
provisions are not free from ambiguity. We, therefore, think that this is a fit
case where the parties may be directed to bear their own costs; throughout.
Appeal allowed.
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