TaxTMI 
TaxTMI 
2021 (2) TMI 1400
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.....e., Civil Appeal (arising out of SLP(C) No. 24950 of 2015-Parmar Samantsinh Umedsinh vs. State of Gujarat & Ors.). The abovesaid appeal has been filed against the judgment of Gujarat High Court dated 29.07.2015 in Special Civil Application No. 12084 of 2015 dismissing the writ petition following an earlier Division Bench judgment dated 13.08.2010 in Pankajsinh Waghela v. State Election Commission through Election Commissioner & others. The writ petition was filed by the appellant herein challenging the vires of Section 5(3) (iii)(a) and Section 29A of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter referred to as "Act, 1949") and other statutory provisions including Rules framed thereunder and the notifications. In the writ petition following reliefs were claimed: "(A) Issue a writ of declaration, declaring that: a) Section 5(3)(iii)(a) and 29A of the Gujarat Provincial Municipal Corporation Act, 1949 and b) Sections 2 and 3 of the Gujarat Local Authorities Laws (Amendment) Act, 2009 as being ultra vires the Constitution of India as it violates one member one ward mandate. (B) Issue a writ of declaration, declaring that Rule ....
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....has been allowed. In the writ petition Clauses (3), (4) and (5) of Ordinance No. 3 of 2015 promulgated by the Governor of Gujarat were under challenge. A mandamus was also sought seeking a direction to the State Election Commission to declare the dates of holding Elections of Panchayats in the State of Gujarat forthwith. On 03.10.2015 on the same date when Ordinance No. 3 of 2015 was issued by which Section 7A of the Gujarat Provincial Municipal Corporations Act, 1949, Section 8A of Gujarat Municipalities Act, 1963 and Section 257 of the Gujarat Panchayats Act, 1993 have been substituted an order was issued by the State Election Commission that the Elections of 6 Municipal Corporations, 53 Municipalities, 3 newly constituted Munipalities, 23 Taluka Panchayats and 31 District Panchayats which were to be held in October/November, 2015 were decided not to be held at present. The Division Bench had disposed of the writ petition by recording its conclusion in paragraph 72 which was to the following effect: "72. In view of the above observations and discussions, the following conclusions:- (a) Section 15(1) of the Gujarat Panchayats Act inserted by Ordinance No. 2 of 20....
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....)(a) and 29A, Rule 4 and Rule 5 of Rules, 1994 as amended in 2015 has also been challenged. Notification dated 04.12.2015 as well as 15.01.2015 was also sought to be challenged including challenge to Sections 2 and 3 of the Gujarat Local Authorities Laws (Amendment) Act, 2009. By order of this Court dated 25.08.2020 the writ petition has been tagged with Civil Appeal arising out of SLP(C) No. 24950/2015. 9. We have heard Shri Kapil Sibal, learned senior counsel and Shri Harin P. Raval, learned senior counsel appearing in the first appeal and writ petition for the appellants and petitioner. 10. We have heard Shri Maninder Singh, learned senior counsel appearing for the appellant in the appeal filed by the State Election Commission. Shri Tushar Mehta, learned Solicitor General and Ms. Manisha Lavkumar, learned senior counsel have been heard for the State of Gujarat. 11. Shri Kapil Sibal has led the arguments on behalf of the appellants in the first matter. Referring to provisions of Article 243R and 243S of the Constitution of India, Shri Sibal submits that the constitutional scheme does not permit multi member representation from a Ward in the Municipal Corporation/Municipa....
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....nstitution has to be advanced. Shri Sibal submits that words occurring in the Constitution should be read in their ordinary, natural and grammatical meaning. Wordings of Article 243S(4) would mean adding words to the plain language and intent to Article 243S(4) of the Constitution of India. 14. It is submitted that singular cannot be read plural in Article 243S. Applicability of the General Clauses Act is restricted to the interpretation of the Constitution of India by Article 367 itself. One of the submissions of Shri Sibal is that Draft Rules for Amendment of Delimitation Rules, 1994 were issued on 27.11.2014 inviting objections within 30 days of the publication of Draft Rules, 1994. However, before expiry of 30 days notification was issued on 04.12.2014 which is not in accordance with law. 15. Shri Sibal submits that the Municipal Laws which are prevalent in 28 States provide for one representation from one Ward whereas Municipal Laws in Gujarat provide for multi member Ward. It is submitted that in the Municipal Laws of Bombay which provide for multi member Ward now in 2019 it has reverted back to one member representation. 16. Shri Harin P. Raval adopting the argument....
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....ion does not provide for any thematic mode and manner, the election to Lok Sabha and Rajya Sabha is entirely different. In Lok Sabha members are elected by direct Election whereas in Rajya Sabha members are elected by indirect Election. There is complete different mode of election of President of India. Even in Parliament there is no thematic schematic. 19. The power of competent Legislature, i.e., State Legislature in the light of enabling provisions provided in the Constitution with regard to framing of laws concerning Legislature cannot be whittled down by way of restrictive interpretation as contended by the appellants. The State Legislature in federal set up specially in the matter of local Government are to enable enough seats to adopt the reservation based on local body. 20. The overarching scheme of Article 243D and 243T is to ensure the fair representation of social diversity in the composition of elected local bodies so as to contribute 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. Lear....
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....o. 159 of 1991 was introduced in the Lok Sabha for inserting new Part IXA. The Bill, which was published in the gazette on 16.09.1991, contains the Statement of Objects and Reasons for insertion of Part IXA in the Constitution. Paragraph 3(b) of the Statement of Objects and Reasons provides as follows:- "3. XXXXXXXXXXXXX b) composition of Municipalities, which will be decided by the Legislature of a State, having the following features: (i) persons to be chosen by direct election; (ii) representation of Chairpersons of Committees, if any, at ward or other levels in the Municipalities; (iii) representation of persons having special knowledge or experience of Municipal Administration in Municipalities (without voting rights); XXXXXXXXXXXXXXXX" 25. The provisions of Part IXA of the Constitution, which are relevant for the present case are Articles 243P, 243R, 243S, 243ZA and 243ZG, which shall be noticed hereinafter. The appellant has also laid challenge to Section 5(3)(iii) sub-clause(a) of the Act, 1949, which is to the following effect:- "5. XXXXXXXXXXXXXXXXXXXX (3) Where general election is to be held immed....
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....Backward Classes) and one seat shall remain unreserved. The remaining third seat may be reserved, depending upon the requirement of reservation as notified by the State Government under Section 5 of the said Act." 28. Another rule challenged before us is the Gujarat Municipal Wards Committees Functions, Duties, Territorial Areas and Procedure for Transaction of Business Rules, 2007. Rule 2(b) provides:- "2(b) "Chairperson" means the persons elected by the members of the Wards Committee as the Chairperson of that Committee;" 29. The notifications issued in exercise of powers under Section 5(3) as well as the Rules, 1994 have also been challenged. The ambit and scope of legislative power of the State being under consideration, we need to first notice the rules of interpretation of a legislative entry. 30. It is well settled that legislative entries as contained in Lists under Seventh Schedule of the Constitution have not to be read in a narrow or restricted manner and each general word occurring in the entries should be held to extend to all ancillary or subsidiary matters, which can fairly and reasonably be said to be comprehended in it. In construing an entry in a....
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....he Constitution itself. In paragraphs 12 and 13 following was laid down:- "12. .......................The legislative competence of the State Legislature can only be circumscribed by express prohibition contained in the Constitution itself and unless and until there is any provision in the Constitution expressly prohibiting legislation on the subject either absolutely or conditionally, there is no fetter or limitation on the plenary powers which the State Legislature enjoys to legislate on the topics enumerated in the Lists 2 and 3 of the Seventh Schedule to the Constitution. 13. The fetter or limitation upon the legislative power of the State Legislature which had plenary powers of legislation within the ambit of the legislative heads specified in the Lists 2 and 3 of the Seventh Schedule to the Constitution could only be imposed by the Constitution itself and not by any obligation which had been undertaken by either the Dominion Government or the Province of Bombay or even the State of Bombay. Under Article 246 the State Legislature was invested with the power to legislate on the topics enumerated in Lists 2 and 3 of the Seventh Schedule to the Constitution and ....
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....amendment. Thus, Part IXA of the Constitution categorically contemplated that any law made by State Legislature, which is inconsistent with the provisions of Part IXA shall cease to operate on the expiration of one year or till amended or repealed by a competent Legislature, whichever is earlier. The Constitution provisions, thus, mandates that any law of the State, which is inconsistent, cannot continue. Thus, this limitation shall also govern any law made after enforcement of Constitution (Seventy-fourth Amendment) Act. Thus, a law, which is inconsistent with Part IXA cannot be framed by the State Legislature. 37. Explaining the expression "inconsistent", this Court in Basti Sugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Anr., (1979) 2 SCC 88where following was laid down in paragraph 23:- "23. ..........................................."Inconsistent", according to Black's Legal Dictionary, means "mutually repugnant or contradictory; contrary, the one to the other so that both cannot stand, but the acceptance or establishment of the one implies the abrogation or abandonment of the other"..........................." 38. One of the meanings of expression "inc....
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....be considered when the law made by the Parliament and the law made by the State Legislature occupies the same field. This Court quoted with approval three tests as referred by Nicholas in his Australian Constitution and one test referred by Isaacs, J. in paragraphs 27 and 28 of the judgment, which are to the following effect:- "27. Nicholas in his Australian Constitution, 2nd Ed., p. 303, refers to three tests of inconsistency or repugnancy:- (1) There may be inconsistency in the actual terms of the competing statutes (R. v. Brisbane Licensing Court, [1920] 28 CLR 23). (2) Though there may be no direct conflict, a State law may be inoperative because the Commonwealth law, or the award of the Commonwealth Court, is intended to be a complete exhaustive code (Clyde Engineering Co. Ltd. v. Cowburn, [1926] 37 CLR 466). (3) Even in the absence of intention, a conflict may arise when both State and Commonwealth seek to exercise their powers over the same subject-matter (Victoria v. Commonwealth, [1937] 58 CLR 618; Wenn v. AttorneyGeneral (Vict.), [1948] 77 CLR 84) 28. Isaacs, J. in Clyde Engineering Company, Limited v. Cowburn [(1926) 37 CLR 46....
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....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 statute occupying the same field seeks to create distinct and separate offences, no question of repugnancy arises and both the statutes continue to operate in the same field." 43. Thakkar, J. speaking for himself and Fazal Ali, J. in M/s. Ram Chandra Mawa Lal, Varanasi and Ors. Vs. State of Uttar Pradesh and Ors., 1984 (Supp.) SCC 28 had occasion to elaborately consider the principles to determine inconsistency between two Statutes. The principles were stated in following words in paragraph 47:- 47. ...................................The principle may be stated thus. The Centre and the State both cannot speak on the same channel a....
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....y" 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:- "243R. Composition of Municipalities- (1) Save as provided in Clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide - (a) for the representation in a Municipality of - i. persons having special knowledge or experience in Municipal administration; ii. the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; iii. the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; iv. the Chairpersons of the Committees constituted under Clause (5) of Article 243S: Pro....
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....ting to be made under Article 243ZA shall not be called in question in any Court; b. ........." 51. Article 243ZG(a) used two expressions: "any law relating to the delimitation of constituencies or the allotment of seats to such constituencies" may be read as allotment of more than one seat to one constituency but it can be said that the above provision also do not provide that in one constituency, there may be more than one seats. 52. Now, we turn to Article 243S, which is sheet anchor of the argument of Shri Kapil Sibal, learned senior counsel. Article 243S deals with Constitution and Composition of Wards Committees. Article 243S is as follows:- "243S Constitution and composition of Wards Committees, etc.- (1) There shall be constituted Wards Committees, consisting of one or more Wards, within the territorial area of a Municipality having a population of three lakhs or more. (2) The Legislature of a State may, by law, make provision with respect to - a. the composition and the territorial area of a Wards Committee; b. the manner in which the seats in a Wards Committee shall be filled. (3) A member of a Municipality repre....
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....rticle 243S. Article 243S(4) is a provision indicating as to who shall be the Chairperson of Wards Committee. Sub-article(4) says that where Wards committee consists of one ward, the when it consists of two or more wards, one of the members representing such wards in the Municipality elected by the members of the Wards Committee. Shri Sibal submits that sub-article(4) of Article 243S uses the expression "the member" which means that with regard to one Ward only one member has to represent in the Municipality and in case of multi-member Ward, no election is contemplated to elect Chairperson with regard to one Ward and election is contemplated to elect one person only when there are two or more Wards. It is true that under sub-article (4) (a), in case of one Ward member representing that Ward shall be the Chairperson. 55. We may now examine, if there are multi-members in one ward, whether Constitutional provisions of Article 243S(4) are breached when Chairperson is to be elected. The requirement is that member representing the Ward shall be the Chairperson of the Committee and if there are more than one members and one member out of multimember Ward is elected as Chairperson, the ....
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....n Bench, speaking through R.M. Lodha, C.J., while declaring Section 6-A of the Delhi Special Police Establishment Act, 1946, which was inserted by Act 45 of 2003, as unconstitutional, has opined that: (SCC pp. 725-26, para 59) "59. It seems to us that classification which is made in Section 6-A on the basis of status in the government service is not permissible under Article 14 as it defeats the purpose of finding prima facie truth into the allegations of graft, which amount to an offence under the PC Act, 1988. Can there be sound differentiation between corrupt public servants based on their status? Surely not, because irrespective of their status or position, corrupt public servants are corrupters of public power. The corrupt public servants, whether high or low, are birds of the same feather and must be confronted with the process of investigation and inquiry equally. Based on the position or status in service, no distinction can be made between public servants against whom there are allegations amounting to an offence under the PC Act, 1988." And thereafter, the larger Bench further said: (SCC p. 726, para 60) "60. Corruption is an enemy of the nation....
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.... of election of the President of India and the Vice-President of India. .............................................." 58. In paragraph 72, the Court rejected the submission of petitioner that while interpreting the words "advise of the Prime Minister" a prohibition to think of a person as a Minister, if charges have been framed against him cannot be inferred. In paragraph 72, following has been laid down:- "72. Thus analysed, it is not possible to accept the submission of Mr Dwivedi that while interpreting the words "advice of the Prime Minister" it can legitimately be inferred that there is a prohibition to think of a person as a Minister if charges have been framed against him in respect of heinous and serious offences including corruption cases under the criminal law. 59. We have analysed the provisions of Article 243R, 243S and have come to the definite conclusion that no limitation in Article 243S can be found of which contains any prohibition of having more than one member for a Ward. 60. Next judgment relied by Shri Kapil Sibal is Chief Justice of Andhra Pradesh and Others Vs. L.V.A. Dixitulu and Ors., (1979) 2 SCC 34. In the above case, this Court has re....
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....there has to be express or implied limitation, which may prohibit the State Legislature to make a law providing for multi-member Ward. 62. Another judgment relied by Shri Sibal is M.T. Khan and Ors. Vs. Govt. of A.P. and Ors., (2004) 2 SCC 267. This Court in the above case had occasion to consider Articles 165 and 367 of the Constitution. Article 367 provides that the General Clauses Act could be applied in dealing with interpretation unless the context otherwise requires. This Court held that the Advocate General referred to in Article 165 cannot be read in plural sense. The Advocate General discharges the constitutional functions and if more than one person is appointed to discharge the constitutional functions, different Advocate Generals may act differently, resulting in a chaos. The office of Advocate General is a public office, hence, Additional Advocate General appointed by the State cannot be said to have been appointed under Article 165 but that appointment has to be traced to the source of the State's power under Article 162 of the Constitution of India. No exception can be taken to the preposition as laid down by this Court in the above judgment. Similarly, in Karnata....
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....ct of elections; (iii) ensuring timely elections in the case of supersession; and (iv) providing adequate representations for the weaker sections like Scheduled Castes, Scheduled Tribes and women." 66. Article 243T of the Constitution of India included in Part IXA, provides for reservation of seats. The provision in the Constitution for providing reservation of seats is a provision for empowering the women, Scheduled Castes and Scheduled Tribes. The Gujarat Delimitation of Wards and Allocation of Reserved Seats in Municipal Borough Rules, 1994 has been amended by Amendment Rules, 2015. Clauses 2 and 3 of which provide as follows: "2. In the Delimitation of Wards and allocation of Reserved Seats in Municipal Borough Rules, 1994 (hereinafter referred to the "the said rules"), in rule 4, for the word "three", the word "four" shall be substituted. 3. In the said rules, for rule 5, the following rule shall be substituted, namely:- "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 allo....
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....can be made. By the Rules, 1994 as amended in 2015 now the voice of weaker sections can be felt from every Ward which clearly enhances of presence and participation of weaker sections and does not, in any manner, negate the empowerment of weaker sections. We, thus, do not find any substance in the above submission of Shri Sibal. 70. We answer Question No. 3 in the following manner: Having more than one representation from a Ward in no manner negates the empowerment of weaker sections rather it increases the empowerment of weaker sections. Question No. 4 71. The submission of Shri Sibal is that before expiry of 30 days from the date of publication of notification dated 27.11.2014, the notification has been issued on 04.12.2014 itself which is illegal. He submits that notification dated 04.12.2014 has been issued without considering the objection which was contemplated to be filed within 30 days. The notification dated 27.11.2014 as well as notification dated 04.12.2014 has been brought on record as Annexure P-1 and Annexure P-2 to the paper book. It is useful to notice the notification dated 27.11.2014 along with draft notification which is to the following effect: "NOTI....
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.... the number of seats evenly then after such division the remaining one seat, or (b)if in case only one seat is required to be reserved for any of the reserved categories, then, such seatshall first be allocated to a male candidate and then a woman by rotation in the general elections to be held after coming into force of the Delimitation of Wards and Allocation of Reserved Seats (Amendment) Rules, 2014." 4. In the said rules, in rule 8, for the words, brackets and figures "recognized for the purposes of Representation of Peoples Act, 1951 (43 of 1951)", the words "registered with the State Election Commission" shall be substituted. By order and in the name of the Governor of Gujarat, (Ashoksinh Parmar) Deputy Secretary to Government." 72. A perusal of the above notification indicates that the said notification was a draft notification to amend the Delimitation of Wards and Allocation of Reserved Seats (Amendment) Rules, 2014 wherein Rule 4, for the word "three", the word "four" was sought to be substituted. 73. The notification dated 04.12.2014 has been issued in exercise of powers conferred by sub-clause (a) of clause (iii) of sub-section (3)....
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....hich Nine(9) Seats shall be reserved for women belonging to Backward Classes; (iv) Ninety-six (96) Seats shall be reserved for the women (including the number of seats reserved for the women belonging to Scheduled Castes, Scheduled Tribes and the Backward Classes referred to as above). By order and in name of the Governor of Gujarat. (Ashoksinh Parmar) Deputy Secretary to Government." 74. A bare perusal of the notification dated 04.12.2014 indicates that the said notification is not in reference to the notification dated 27.11.2014 rather the said notification was issued regarding determination of number of Wards and Councillors' seats reserved for Scheduled 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, ....