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TMI Blog2011 (4) TMI 1534X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the term of office of the Mayor/Chief Councilor and the members of the Empowered Standing Committee shall be co-terminus with the duration of members of the Municipality. The Act provides for the removal of the Mayor/Chief Councilor and the Deputy Mayor/Deputy Chief Councilor under Section 25(4) of the Act by a vote of no confidence, which can be moved only after two years from taking over of the charge of the post. Section 23(3) of the Act provides for the election of a new Mayor/Chief Councilor when a vacancy arises in the office of Mayor/Chief Councilor on account of death, resignation, removal or otherwise. There is, however, no specific provision for the removal of the members of the Empowered Standing Committee appointed by the earlier Mayor or for nomination of new members on the Committee in their place by the newly elected Mayor/Chief Councilor, thereby leading to an anomalous situation, namely that the Municipal Council will have a new Mayor/Chief Councilor having the confidence of the house, but the members on the Committee nominated by the previous Mayor/Chief Councilor who has lost the confidence of the house will continue to remain on the committee. 3. Questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the post of Mayor arising out of the no confidence motion. Ultimately the petition was allowed. That decision was challenged in an appeal to the Division Bench of the Patna High Court, and the Division Bench set aside that order by its judgment dated 14.5.2010. Shri Sanjay Kumar challenged the decision of the Division Bench by filing Special Leave Petition No. 16578/2010. A prayer was made to this Court that the election to fill the vacancy should not be permitted. This Court did not grant that prayer, but vide its order dated 31.5.2010 directed that the subsequent election will be subject to the decision on this SLP. (It is relevant to place it on record at this stage that this Writ Petition came to be dismissed by this bench by its separate order passed on 3.2.2011). 6. In view of the order passed by this Court on 31.5.2010, a notice was given on 3.6.2010, and a meeting was accordingly convened on 14.7.2010 wherein the Appellant was elected as the Mayor of the Municipal Corporation. We are informed that the he obtained 44 votes and Shri Sanjay Kumar 18 votes, a third candidate 9 votes and 1 vote was rejected. The Appellant was given the oath of his office on the same day. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to an end the membership of the Empowered Standing Committee. The High Court therefore repelled the challenge to the constitutionality of Section 27 of the Act. This Division Bench rendered its decision on 14.11.2008 which is reported in 2009 (2) PLJR 394 in the case of Jagdish Singh v. State of Bihar. 8. It so transpired that in another Municipal Corporation, namely Gaya Municipal Corporation, the Mayor of the Municipal Corporation expired, and one Sagufta Parween was elected as a new Mayor in that vacancy. She wanted to nominate her nominees on the Empowered Standing Committee, but was not allowed to do so in view of the above referred Government Direction in Memo No. 6020 dated 18.12.2009, to the effect that notwithstanding the change of Mayor or Chief Councilor, the Empowered Standing Committee of the Municipal Corporation, as nominated earlier, would continue. Meaning thereby, that the Mayor/Chief Councilor newly elected would not have the power to nominate members of the Empowered Standing Committee of the Corporation in terms of Section 21(3) of the Municipal Act. Smt. Sagufta Parween challenged that Government Direction by filing CWJC No. 1067 of 2010 which was heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial Leave wherein the issues which are mentioned at the outset of this judgment have been raised for our consideration. 11. We have heard the learned Counsel for the Appellant as well as the counsel for the State of Bihar, Patna Municipal Corporation and the counsel for the intervening members of the Empowered Standing Committee who would be unseated if this appeal was to be allowed. We have also gone through the written submissions presented by them. 12. The relevant Sections of the Bihar Municipal Act, 2007 In this appeal we are concerned with the interrelation amongst Sections 21, 23, 25 and 27 of the Act. The sections of the Bihar Municipal Act relevant for our purposes are as follows: 2. Definition: (36) Empowered Standing Committee means the Empowered Standing Committee referred to in Section 21. Section 21. Constitution of Empowered Standing Committee of Municipality . (1) In every Municipality there shall be an Empowered Standing Committee. (2) The Empowered Standing Committee shall consist of- (a) in the case of a Municipal Corporation, the Mayor, the Deputy Mayor, and seven other Councillors; (b) in the case of a Class 'A' or Clas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be a Councilor. (2) The Chief Councilor may resign his office by writing under his hand addressed to the Divisional Commissioner and Deputy Chief Councilor may resign his office by writing under his hand addressed to the Chief Councilor. (3) Every resignation under Sub-section (2) shall take effect on the expiry of seven days from the date of such resignation, unless within the said period of seven days he withdraws such resignation by writing under his hand addressed to the Divisional Commissioner or the Chief Councilor, as the case may be. (4) The Chief Councilor/Deputy Chief Councilor may be removed from office by a resolution carried by a majority of the whole number of councillors holding office for the time being at a special meeting to be called for this purpose in the manner prescribed, upon a requisition made in writing by not less than one-third of the total number of Councillors, and the procedure for the conduct of business in the special meeting shall be such as may be prescribed: Provided that a no confidence motion shall not be brought against the Chief Councilor/Deputy Chief Councilor within a period of two years of taking over the charge of the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed by Section 488 of the Bihar Municipal Act, 2007). It is material to note that under Section 36 of the repealed Act, the principal committee of the Municipal Corporation was known merely as the 'Standing Committee', and the members of the Standing Committee were directly elected under Section 37 of the Act by the full house of the Municipal Corporation, and their tenure was for two years. They were not nominated by the Mayor. Under the present Act, they are nominated by the Mayor. Now, the principal committee of the Municipal Corporation is known as the 'Empowered Standing Committee' under Section 22 of the Act. 15. Delegation of Powers Section 28(1) of the present Act provides for delegation of the powers and functions of the Municipal Corporation to the Empowered Standing Committee, and under Section 28(2), the Empowered Standing Committee may delegate its powers and function to the Chief Councilor or to the Chief Municipal Officer. This Section 28 reads as follows: 28. Delegation of Powers and Functions.- (1) The Municipality may, by resolution, delegate, subject to such conditions as may be specified in the resolution, any of its powers or fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee questions on any matter relating to the administration of the Municipality or municipal governance, and all such questions shall be addressed to the Empowered Standing Committee and shall be answered either by the Chief Councilor or by any other member of the Empowered Standing Committee. (emphasis supplied) In continuation of this Section 57, Section 59 provides for asking for a statement from the Empowered Standing Committee on any urgent matter relating to administration of the Municipality. This section reads as follows: 59. Asking for statement from Empowered Standing Committee.(1) Any Councilor may ask for a statement from the Empowered Standing Committee on an urgent matter relating to the administration of the Municipality by giving notice to the Municipal Secretary at least one hour before the commencement of the meeting of the Municipality on any day. (2) The Chief Councilor or a member of the Empowered Standing Committee may either make a brief statement on the same day or fix a date for making such statement. (3) Not more than two such matters shall be raised at the same meeting and, in the event of more than two matters being raised priority sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shall contain the following- (a) items relating to the establishment as per provision of the Act, which includes appointments promotions, benefits, transfers, disciplinary actions etc. of the employees of the Municipality. items relating to the collection of taxes and fees. (b) items relating to the financial position of the Municipality. (c) development activities undertaken and to be undertaken by the Municipal body. (d) items necessary for effective implementation of the provision of the Act. Provided that all items are to be placed before the committee by the Chief Municipal officer and shall be in the form of memorandum which will include the subjects, the status and the proposal to be approved by the committee. A separate sheet is to be attached under the signature of the Chief Municipal officer specifying the period by which the proposal approved by the committee shall be implemented. (4) The Empowered Standing Committee shall not discuss and pass a resolution in (a) any matter/issue which is against the rules, laws and directives of the State Government. (b) any issue which is sub-judice in any court of law and which may affect the interest of Mun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though there is no difference in the position of the newly elected Mayor and the earlier Mayor, if literal interpretation is accepted, the newly elected Mayor will be treated dis-similarly as against the earlier elected Mayor, and the entire municipal governance will come under strain. He therefore submits that Section 27 is ultra-vires Section 21 of the Act and Article 14 of the Constitution of India. Section 27 should therefore be either struck down, or if it is to be saved, it should be read down harmoniously with Sections 25(4), 23(3) and 21(3) of the Act. 19. Submissions on behalf of the Respondents: The counsel for the Respondents, on the other hand, submit that as held by different benches of the Patna High Court, the appointment of the members of the Empowered Standing Committee is a one time Act. A statutory provision should be read as it is, and the court should not add anything to the statute. They submit that the municipal administration is supposed to be run on a non-political basis, and it is immaterial that another Mayor is elected in place of the previous one, since all of the councillors are supposed to work harmoniously with each other for the benefit of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the M.P. and Chhattisgarh Municipalities Act, 1961. Section 70 deals with President-in-Council of the Municipal Council and is in pari materia with Section 37 of the Madhya Pradesh Municipal Corporation Act, 1956. (iv) In the Mizoram Municipalities Act, 2007, there is a provision for an Executive Council similar to the Empowered Standing Committee. The tenure of the members of the Executive Council is co-terminus with that of the Chairman under Section 21(d) of Mizoram Municipalities Act, 2007. (v) Somewhat similar are the provisions under Sections 52, 64 and 66 of the Goa Municipalities Act 1968. Under Section 66(1) of the Act, the term of office of the members of the Standing Committee is co-terminus with the term of the Chairperson during whose period they are elected. The Chairperson of the Municipal Council and the members of the Standing Committee under that Act are, however, elected by the Councillors, and not nominated by the Chairperson. (vi) It is therefore, submitted by the Respondents that it is for a State Legislature to lay down the law as to what should be the provision in this behalf, and in its wisdom the Bihar Legislature had not made the term of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The proposition of law laid down in this case, is thus quite clear and does not help the Respondents. In para 21 of the judgment this Court (per Arijit Pasayat, J) observed as follows: Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the legislature. An intention to produce an unreasonable result , said Danckwerts, L.J. in Artemiou v. Procopiou18 (All ER p. 544 I), is not to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipalities, etc. - Subject to the provisions of this Constitution, the Legislature of a State may, by law, endow - (a) the Municipalities with such powers and authority as may be necessary to enable them to function as institutions of self-government and such law may contain provisions for the devolution of powers and responsibilities upon Municipalities, subject to such conditions as may be specified therein, with respect to- (i) the preparation of plans for economic development and social justice; (ii) the performance of functions and the implementation of schemes as may be entrusted to them including those in relation to the matters listed in the Twelfth Schedule; (b) the Committees with such powers and authority as may be necessary to enable them to carry out the responsibilities conferred upon them including those in relation to the matters listed in the Twelfth Schedule. Twelfth Schedule reads as follows: TWELFTH SCHEDULE [Article 243W] 1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, indust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 on disposal of the dead, Chapter 32 on Urban Forestry, Parks, Gardens, Trees and Playgrounds. Part VII deals with the Regulatory Jurisdiction, and contains chapters on Development Plans, Improvement, Public Streets, Buildings, Municipal Licenses, Vital Statistics, Disaster Management and Industrial Townships. Lastly Part VIII deals with the Powers, Procedures, Offences and Penalties. 27. Thus, it will be seen that the Bihar Municipal Act is quite a comprehensive Act, and as noted earlier the executive powers of the Municipality are vested in the Empowered Standing Committee under Section 22 of the Act. The members of this Empowered Standing Committee are nominated by the Mayor. After a Mayor is removed, and another Mayor is elected in his place, if the new Mayor is not allowed to nominate his nominees on the Empowered Standing Committee, it is likely to result into a situation of conflict. This is apart from the fact that the new Mayor will be treated dissimilarly with the earlier Mayor, although both of them are elected by the same full House and there is no justifiable reason for making any distinction. The fact that a councilor is elected as the Mayor immediately a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... residue of governmental functions that remain after legislative and judicial functions are taken away.... 13. ...The executive function comprises both the determination of the policy as well as carrying it into execution.... This being the breadth of the executive power of the Empowered Standing Committee, the newly elected Mayor will not be able to exercise the same effectively and the entire municipal governance will come in jeopardy, if the other members on the Committee are not his nominees. 29. Apart from the aforesaid resultant administrative difficulty, if a literal interpretation of Section 27 is followed alongwith adding words in Section 21(3) as pointed out above, the newly elected Mayor will be treated dissimilarly for no justifiable distinction. In that case, as against the earlier elected Mayor he will not permitted to have his nominees on the Empowered Standing Committee. A literal interpretation of Section 27 of the Act will clearly bring it in conflict with Section 21(3) of the Act, and will also be violative of Article 14 of the Constitution of India as held by the Constitution Bench of this Court way back in State of West Bengal v. Anwar Ali Sarkar, repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court construed the expression Prize Chit in Srinivasa and we find no reason to depart from the Court's construction. (emphasis supplied) (b) In Union of India v. Filip Tiago De Gama, reported in 1990 (1) SCC 277, K. Jagannatha Shetty, J. observed as follows (in para 16): 16. The paramount object in statutory interpretation is to discover what the legislature intended. This intention is primarily to be ascertained from the text of enactment in question. That does not mean the text is to be construed merely as a piece of prose, without reference to its nature or purpose. A statute is neither a literary text nor a divine revelation. Words are certainly not crystals, transparent and unchanged as Mr. Justice Holmes has wisely and properly warned. (Towne v. Eisner 245 US 428,425 (1918)) Learned Hand, J., was equally emphatic when he said: Statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but to set aside the election under Section 100(1) (c) even though the candidate was disqualified and his nomination paper was rightly rejected. In holding so, Venkatarama Aiyer, J. observed as follows in para 13: ...It is no doubt true that if on its true construction, a statute leads to anomalous results, the Courts have no option but to give effect to it and leave it to the Legislature to amend and alter the law. But when on a construction of a statute, two views are possible, one which results in an anomaly and the other not, it is our duty to adopt the latter and not the former, seeking consolation in the thought that the law bristles with anomalies.... (emphasis supplied) 32. In S.V. Kondeakar v. V.M. Deshpande, reported in AIR 1972 SC 878, a Constitution Bench of this Court was concerned with the construction of Section 446(1) of the Companies Act, 1956 which provides that when a winding up order has been made or the official liquidator has been appointed, no suit or legal proceedings shall be commenced or continued against the company except with the leave of the court, the Supreme Court held that assessment proceedings under the Income-tax Act do not fall within ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 either by implying in the former some such opening words as subject to Article 126 or implying in the latter some such opening words as notwithstanding anything containing in Article 109. 34. Reading a section subject to another to realize the real intent of the two provisions Recently this Court was concerned with the anomaly between Section 23(3) of the Code of civil Procedure and Section 25 thereof as substituted by the Act No. 104 of 1976 in Durgesh Sharma v. Jayshree reported in 2008 (9) SCC 648. The amending Act did not delete or omit Section 23(3) of the Code which provided that where several Courts having the jurisdiction are subordinate to different High Courts, the application for transfer shall be made to the High Court within the local limits of whose jurisdiction the court in which the suit is brought is situate. Section 25 as substituted empowered the Supreme Court to transfer any suit, appeal or other proceedings from one High Court to another High Court or from one civil Court in a State to any other civil Court in another State through the Country. The scope of amended Section 25 is very wide and plenary and extensive powers have been conferred on thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... confidence of the Municipal House. The Empowered Standing Committee along with him is vested with the executive power and is expected to run the municipal governance. There is no reason to treat the subsequently elected Mayor differently, and deny him the right to nominate his nominees on the Empowered Standing Committee which right is available to the duly elected Mayor under Section 21(3) of the Act. Except for the fact that the person who is elected as the Mayor after the no confidence motion is passed against the first Mayor, is elected subsequent to the first Mayor, there is no ground to classify the subsequent Mayor differently from the first Mayor. The view canvassed by the Respondents would lead to a conflict between the newly elected Mayor and the other members of the Empowered Standing Committee if they are not nominated by him. That was surely not the intention of the legislature. Considering the powers which are available to the Empowered Standing Committee, if the newly elected Mayor is not read as having the power to nominate his nominees on the Empowered Standing Committee, he will be treated dissimilarly and such an interpretation will make Section 27 violative of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We are, therefore, of the view that since the explanation has not been amended in conformity with Section 8A of the Act, the explanation to Section 2(10) of the Maharashtra Act transgresses the limits of legislative power conferred on the State Legislature under Entry 54 of List II and we, thus, instead of striking it down, direct that the explanation to Section 2(10) of the Act shall be read down to this effect that it would not be applicable to the transactions of transfer of right to use any goods if such deemed sale is (i) an outside sale; (ii) sale in course of the import of the goods into or export of the goods out of the territory of India; and (iii) an inter-State sale. 37. Conclusions The above overview clearly shows that after the 74th Amendment to the Constitution, the Municipalities are strengthened and they are given wide ranging powers. The Municipal Laws in other states which we have seen clearly demonstrate that wherever Mayor-in-Council system is adopted, the tenure of the members in the Council is made co-terminus with that of the Mayor. The idea is that the Mayor should have the confidence of the Executive Council or the Empowered Standing Committee, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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