Ramesh
Mehta Vs. Sanwal Chand Singhvi & Ors [2004] Insc 302 (20 April 2004)
S.B.
Sinha.
With
Civil Appeal Nos. 6134-35, 6136, 8564 of 2002 And Civil Appeal No. 2393 of 2003
S.B. SINHA, J :
A
short but interesting question as regard application of principles of
interpretation of statute arises for consideration in this appeal.
The
State of Rajasthan enacted Rajasthan Municipalities
Act, 1959 (for short "the said Act"). Section 9 of the said Act
provides for composition of boards. The Board consists of elected members as
also members nominated by the State Government having special knowledge or
experience in municipality and the member of the House of People representing a
Constituency comprising wholly or partly the area of the municipality.
The
State made Rajasthan Municipalities (Motion of No- Confidence against Chairman/
Vice-Chairman) Rules, 1974 in exercise of its power conferred under Section 257
of the said Act. The rules inter alia lay down the procedure for removal of a
Chairman. Upon coming into force of the Constitution 74th Amendment in terms
whereof Article 243R was inserted, the provisions of the said Act were also
suitably amended. But the Rules were not amended.
Article
243R of the Constitution reads thus:
"243R.
COMPOSITION OF MUNICIPALITIES.
(1)
Save as provided in clause (2), all the seats in a Municipality shall be filled
by persons chosen by direct election from the territorial constituencies in the
Municipal area and for this purpose each Municipal area shall be divided into
territorial constituencies to be known as wards.
(2)
The Legislature of a State may, by law, provide-
(a) for
the representation in a Municipality of-
(i) persons
having special knowledge or experience in Municipal administration;
(ii) the
members of the House of the People and the members of the Legislative Assembly
of the State representing constituencies which comprise wholly or partly the
Municipal area;
(iii) the
members of the Council of States and the members of the Legislative Council of
the State registered as electors within tile 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 meetings of the Municipality;
(b) the
manner of election of the Chairperson of a Municipality." It is not in
dispute that in terms of proviso to Article 243R as also Section 9 of the
Rajasthan Municipalities Act, voting right has expressly not been granted to
the co-opted members.
But
the definition of the member or total number of members has not been amended
which are contained in Sections 3(15) and 3(36) of the Act which are as under:
"3(15)
'member' means any person who is lawfully a member of a board;"
"3(36)
'whole number' or 'total number' when used with reference to the members of a
board, means the total number of members holding office at the time." In
terms of the rules, a motion of 'No Confidence' in the Chairman must be carried
out by a 2-3rd majority of the whole number of members or if any meeting cannot
be held for want of quorum, such motion shall be deemed to have been lost.
A
right to contest election although arises under a statute but having regard to
the Constitution 74th Amendment Act, the interpretation thereof must be made
keeping in view the constitutional scheme. Democracy at the grass-root level
was sought to be introduced by reason of the said amendment in the
Constitution. Once the concept of a grass-root democracy is accepted, a
pragmatic and purposive meaning to the provisions of the Act must be assigned.
One of
the Constituency in question had merely 23 members out of whom two were
nominated members and one was the member of the Legislative Assembly. 15 votes
were cast in favour of the No Confidence Motion, still the appellant was not
found liable to be removed having regard to the definition of 'total number of
votes'.
The
'whole number of votes' whether should, in our opinion, be read as total number
of elected votes or total number of members as it patently appears from the
definition; is the question.
It is
accepted that the Rules have not been altered despite the fact that amendments
have been carried out in the Municipalities Act in the year 1994. All members
who were not elected members under the unamended provisions were treated as
elected members. Their rights were at par with them. The very fact that the
Constitution made a difference between an elected member and nominated member
in the matter of election and removal of a Chairman is suggestive of the fact
that now a new interpretation is called for. Nominated members are persons with
special knowledge in the subject.
They
are nominated so that they may render their advices properly to the members of
the Board which would enable it to run the municipal affairs efficiently. They
remain as member of the Board irrespective of the fact that as to who is the
person occupying the post or his political affinity.
He is
not concerned with election. He does not take part in it. A fortiorari he has
also not been assigned any role to play as regard removal of the Chairman or
Vice-Chairman.
The
interpretation clause in the said Act is prefaced with the expression
"unless otherwise requires by the context".
A
definition is not to be read in isolation. It must be read in the context of
the phrase which would define it.
It
should not be vague or ambiguous. The definition of words must be given a
meaningful application; where the context makes the definition given in the
interpretation clause inapplicable, the same meaning cannot be assigned.
[(2002) 1 SCC 589], one of us (V.N. Khare, CJI) stated that the definition
given in the interpretation clause having regard to the contents would not be
applicable. It was stated:
"8.A
bare perusal of Section 2 of the Act shows that it starts with the words
"in this Act, unless the context otherwise requires ....". Let us
find out whether in the context of the provisions of Section 64 of the Act the
defined meaning of the expression "management" can be assigned to the
word "management" in Section 64 of the Act.
In para
3 of the Regulation, the Essentiality Certificate is required to be given by
the State Government and permission to establish a new medical college is to be
given by the State Government under Section 64 of the Act.
If we
give the defined meaning to the expression "management" occurring in
Section 64 of the Act, it would mean the State Government is required to apply
to itself for grant of permission to set up a government medical college
through the University. Similarly it would also mean the State Government
applying to itself for grant of Essentiality Certificate under para 3 of the
Regulation. We are afraid the defined meaning of the expression
"management" cannot be assigned to the expression "management"
occurring in Section 64 of the Act. In the present case, the context does not
permit or requires to apply the defined meaning to the word
"management" occurring in Section 64 of the Act..." Examples are
galore when with a view to make a statute workable the court has corrected
obvious drafting errors.
The
court in suitable cases may add or omit or substitute words.
Others
[(2004) 3 SCC 297] it has been held that it is desirable to look into the
legislative history of the provisions of the Act for their interpretation.
A
subordinate or delegated legislation must also be read in a meaningful manner
so as to give effect to the provisions of the statute. In selecting the true
meaning of a word regard must be had to the consequences leading thereto. If
two constructions are possible to adopt, a meaning which would make the
provision workable and inconsonance with the statutory scheme should be
preferred.
In R.
vs. Secretary of State for the Home Department ex. p. Venables [(1998) AC 407],
one of the crucial issues was the length of time the applicants children who
had been convicted of murder and sentenced to be detained during Her Majesty's
pleasure should in fact be held. Keeping in view the welfare of the children
the majority held that the Secretary of the State was obliged to keep the
tariff period set under continuous review.
Insurance
Co. Ltd., Baroda [2004 (3) SCALE 546] a Bench of
this Court laid emphasis that the object underlying the statute is required to
be given effect to by applying the principles of purposive construction holding
:
"It
is now well-settled that for the purpose of interpretation of statute, same is
to be read in its entirety. The purport and object of the Act must be given its
full effect. [See High Court Mazdoor Panchayat & Ors. [JT 2003 (3) SC 50],
Indian Handicrafts Emporium and Others vs. Union
of India and Others [(2003) 7 SCC 589], Ameer
Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd. [JT 2003 (9) SC 109
= State of Tamil Nadu and Anr. [2004 (1) SCALE 224].
The object underlying the statute is required to be given effect to by applying
the principles of purposive construction." 3 SCC 199). [(2000) 1 SCC 432]
whereupon the learned counsel for the appellant placed strong reliance did not
address itself to any one of the questions referred to hereinbefore.
In
that case the rights were governed by a statute.
The
Act was amended in terms of the Constitutional scheme.
The
Legislature of U.P. was conscious of the consequences of such amendment. The vires
of the said amendment was not questioned.
In the
instant case, however, the procedure is laid down in the rules which still
remain unamended despite the fact that the Act had been amended in consonance
with Article 243R of the Constitution of India.
The said
decision in any event having been rendered by a 2-Judge Bench of this Court is
not binding on us.
Furthermore.
amendment in the legislation may not be decisive as regard the intention of the
legislature as to whether it intended to alter the entire law. The question
came to be considered upon insertion of Section 11-A of Industrial Disputes Act
by this Court in The Workmen of M/s.
The
Management and Others [AIR 1973 SC 1227] wheretobefore this Court noticed its
earlier judgment wherein it was held that in a case of no enquiry or defective
enquiry it would be permissible for the employer to lead evidence before the
industrial Tribunal or the Labour court, as the case may be, as regard
misconduct allegedly committed by a workman.
Section
11A of the Industrial Disputes Act which was introduced on 15.12.1971 reads
thus:
"11-A.
Powers of Labour Courts, Tribunals and National Tribunals to give appropriate
relief in case of discharge or dismissal of workmen.- Where an industrial
dispute relating to the discharge or dismissal of a workmen has been referred
to a Labour Court Tribunal or National Tribunal for adjudication and in the
course of the adjudication proceedings, the Labour Court, Tribunal or National
Tribunal, as the case may be, is satisfied that the order of discharge or
dismissal was not justified, it may, by its award, set aside the order of
discharge or dismissal and direct reinstatement of the workmen on such terms
and conditions, if any, as it thinks fit, or give such other relief to the
workmen including the award of any lesser punishment in lieu of discharge or
dismissal as the circumstances of the case may require: Provided that in any
proceeding under this section the Labour Court, Tribunal or National Tribunal,
as the case may be, shall rely only on the materials on record and shall not
take any fresh evidence in relation to the matter." [Underlining is mine
for emphasis] In view the said provisions, a contention was raised that the
jurisdiction of the Tribunal was limited to consider the merit of the matter
only from the records of the disciplinary proceedings. Repelling the said
contention this Court held:
"...Another
aspect to be borne in mind will be that there has been a long chain of
decisions of this Court, referred to exhaustively earlier, laying down various
principles in relation to adjudication of disputes by industrial Courts arising
out of orders of discharge or dismissal. Therefore it will have to be found
from the words of the section whether it has altered the entire law, as laid
down by the decisions, and if so, whether there is a clear expression of that
intention in the language of the section." The Court held that the
Tribunal is clothed with the power to reappraise evidence in the domestic
enquiry and satisfy itself whether the said evidence relied on by an employer
established the misconduct alleged against a workman or not but despite the
purported limitation of the tribunal's jurisdiction not to bring on its records
any new material, it was held:
"33.
If there has been no enquiry held by the employer or if the enquiry is held to
be defective, it is open to the employer even now to adduce evidence for the
first time before the Tribunal justifying the order of discharge or dismissal.
We are not inclined to accept the contention on behalf of the workmen that the
right of the employer to adduce evidence before the Tribunal for the first time
recognised by this Court in its various decisions, has been taken away. There
is no indication in the section that the said right has been abrogated. If the
intention of the legislature was to do away with such a right, which has been recognised
over a long period of years, as will be noticed by the decisions referred to
earlier, the section would have been differently worded. Admittedly there are
no express words to that effect, and there is no indication that the section
has impliedly changed the law in that respect. Therefore, the position is that
even now the employer is entitled to adduce evidence for the first time before
the Tribunal even if he had held no enquiry or the enquiry held by him is found
to be defective. Of course, an opportunity will have to be given to the workman
to lead evidence contra." [emphasis supplied] The decisions of the courts
as regard right of participation of the member who was an elected or who had a
right equal to that of an elected member had been taken notice of by Brother Kapadia,
J. The said decisions are pointers to the fact that only elected members and
those who are to be treated at par were entitled to participate in a proceeding
initiated for removal of the Chairman of the Municipality.
By
reason of the amendment in the Constitution and consequent amendment by the
State Legislature in the Rajasthan Municipalities Act, however, no indication
has been given that by reason thereof a special right is sought to be created
in the nominated members although they would not participate in such a
proceedings and would not have any voting right either at the election of the
Chairman or in the proceedings for his removal.
We,
therefore, are of the opinion that the rules which were made in the year 1974
having not been amended; with a view to give an effective and proper meaning
must be construed to mean that only members with voting right are entitled to
participate in that proceedings and not the nominated members.
With
these additional reasons, I entirely agree with the opinion of Brother Kapadia,
J.
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