Supreme Court of India
AFJAL IMAMversusSTATE OF BIHAR AND ORS.
- Citation
- 2011 INSC 315
- Decided
- 19 April 2011
- Disposal
- Case Partly allowed
- Bench
- M PANCHAL
Holding
Section 27 of the Bihar Municipal Act, 2007 is to be read down harmoniously with sections 25(4), 23(3), 21(3) and 21(4), so that ESC members vacate when the Mayor who nominated them ceases to hold office and the new Mayor may nominate his own members.
Summary
The case concerned the Bihar Municipal Act, 2007 and whether members of the Empowered Standing Committee (ESC) nominated by a Mayor must vacate when a new Mayor is elected after a no‑confidence motion. The appellant, newly elected Mayor Afjal Imam, sought to nominate his own seven councillors to the ESC, but the District Magistrate refused to administer the oath of secrecy, relying on a High Court decision that the nominations were a one‑time act. The Supreme Court examined the interplay of sections 21(3), 23(3), 25(4) and 27 of the Act, held that a literal reading of section 27 would create an anomalous situation and violate Article 14. Applying principles of harmonious construction and reading down, the Court declared that section 27 must be read subject to the other sections so that ESC members’ tenure is co‑terminous with the Mayor who nominated them. Consequently, the nominated members vacate upon the Mayor’s removal and the new Mayor may appoint his own members. The appeal was partly allowed, setting aside the High Court order and directing the District Magistrate to administer the oath to the appellant’s nominees.
Issues considered
- Whether the members of the Empowered Standing Committee nominated by a Mayor continue in office after a new Mayor is elected.
- Whether section 27 of the Bihar Municipal Act, 2007 is ultra vires Article 14 of the Constitution and section 21 of the Act.
- Whether section 27 can be saved by reading it down harmoniously with sections 25(4), 23(3), 21(3) and 21(4).
- Whether the newly elected Mayor has the authority to nominate new members to the ESC.
Legislation cited
- Bihar Municipal Act, 2007s. 21(3), s. 22, s. 23(3), s. 24, s. 25(4), s. 27, s. 28(1), s. 28(2), s. 57, s. 59
- Constitution of Indias. Article 14, s. Article 243R, s. Article 243U, s. Article 243W
Subjects
Municipal lawEmpowered Standing CommitteeMayorStatutory interpretationReading downArticle 14Co‑terminous tenureCollective responsibilityNo‑confidence motion
Judgment
(2011] 5 S.C.R. 771
AFJAL IMAM A
v.
STATE OF BIHAR AND ORS.
(Civil Appeal No. 2843 of 2011)
APRIL 19, 2011
B
(J.M. PANCHAL AND H.L. GOKHALE, JJ.]
Bihar Municipal Act, 2007:
ss. 23, 27 - Election of new Mayor when the vacancy c
arises in the office of Mayor - Power of newly elected Mayor
to nominate members of Empowered Standing Committee of
the Municipal Corporation - Held: If a vote of no confidence
is passed against the Mayor and a new Mayor is elected in
his place, the members of the Empowered Standing D
Committee nominated by erstwhile Mayor shall have to
. vacate their seats and the new Mayor will have the authority
to nominate· his nominees on the Committee - If the new
Mayor is not allowed to nominate his nominees on the
Committee, it is likely to result into a situation of conflict - In E
such situation, the new Mayor would be treated dissimilarly
with the earlier Mayor for no justifiable distinction - s.23(3)
does not say that the newly elected Mayor will not have the
powers of nominating the other members on the Committee
which is available to the Chief Councillor or Mayor uls.21(3)
- Thus, in fact, by stating that the nomination of the members F
on the Committee is a one time act, the respondents are
adding words in s.21(3) - Thus, in a way, they are supplying
the words 'only by the first Chief Councillor and not by his
successors in office' in place of 'the Chief Councillor' after the
words 'shall be nominated' in s.21(3) of the Act - Such a G
reading and resultant situation will be contrary to the basic
principle of parliamentary democracy, viz. that those in office
ought to be representative of and responsible to the House -
If, however, s.27 is read as it is, without being read in line with
771 H
772 SUPREME COURT REPORTS [2011] 5 S.C.R.
A and subject to ss. 25(4), 23(3) and 21 (3) of the Act, the
councillors nominated by the earlier Mayor will continue on
the Committee - This straight reading of s.27 would lead to
an anomalous situation - Such interpretation would make
s.27 ultra-vires Article 14 of the Constitution and contrary to
B the powers of Mayor u/s.21(3) - Therefore, s.27 should be
read down harmoniously with ss.25(4), 23 (3) and 21(3) of the
Act thereby, holding that the nominated members shall also
automatically vacate their office when the Mayor nominating
them is no longer in the office - This would clearly show that
c after the 74th Amendment to the Constitution, the
Municipalities are given wide ranging powers - The Municipal
Laws in other states demonstrate that wherever Mayor-in-
Counci/ system is adopted, the tenure of the members in the
Council is made co-terminus with that of the Mayor -
0 Municipalities - Interpretation of statutes - Reading down a
section to save it from being ultra vires - Constitution of India,
1950 - Articles 14, 243W
s.22 - Concept of 'Executive Power' and Article 14 -
Held: The term 'Executive Power' has been specifically used
E in s. 22 and s. 57 specifically uses the term 'Municipal
Governance' - The executive function comprises both the
determination of the policy as well as carrying it into execution
- Administrative law - Constitution of India, 1950 - Article 14.
F s.28(1) - Delegation of Powers - s.28(1) of the Act
provides for delegation of the powers and functions of the
Municipal Corporation to the Empowered Standing
Committee, and u/s. 28(2), the Committee may delegate its
powers and function to the Chief Councillor or to the Chief
G Municipal Officer.
ss.57 to 59 - Pnnciple of Collective responsibility- Held:
Empowered Standing Committee is expected to function on
the principle of collective responsibility - This element of
collective functioning is introduced in Municipal Governance
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 773
u/ss.57 and 59 of the Act - s.57(1) clearly uses the phrase A
'Municipal Governance' - Besides, questions about the
Municipal Administration can be asked to the Empowered
Standing Committee and any member of the Committee can
answer such questions - Apart from these provisions in the
Act, separate rules have been framed under s. 419 of the Act B
read with ss.22 and 63 thereof, to regulate the exercise of this
executive power under s. 22 of the Act - These rules are known
as Bihar Municipal Empowered Standing Committee Conduct
of Business Rules, 2010 - These rules make it clear that the
executive power vests in the Committee - Though the Mayor c
nominates the members of the Committee, the decisions of
the Committee are to be taken by majority, and the
Committee members. have to function on the basis of
collective responsibility - Bihar Municipal Empowered
Standing Committee Conduct of Business Rules, 2010- rr.6,
D
7, 10.
Empowered Standing Committee - Powers and duties -
Discussed.
Interpretation of statutes: E
Anomalous situation - Removal of anomaly - Held:
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
F
consolation in the thought that the law bristles with anomalies.
Harmonious construction - Held: It is a cardinal principle
of construction of a statute that effort should be made in
construing its provisions by avoiding a conflict and adopting
a harmonious construction - Bihar Municipal Act, 2007. G
The Bihar Municipal Act, 2007, like other Municipal
Acts, provided for the election of the Municipal
Councillors, the Mayor or Chief Councillor and the
H
774 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Deputy Mayor/Deputy Chief Councillor. It also provided
for an Empowered Standing Committee to exercise the
executive power of the Municipality. This Committee
consists of the Mayor, the Deputy Mayor and seven other
Councillors nominated by the Mayor/Chief Councillor
B under section 21 (3) of this Act. Section 27 of the Act
provides that the term of office of the Mayor/Chief
Councillor and the members of the Empowered Standing
Committee shall be co-terminous with the duration of
members of the Municipality. The Act provides for the
c removal of the Mayor/Chief Councillor and the Deputy
Mayor/Deputy Chief Councillor 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
0 Mayor/Chief Councillor when a vacancy arises in the
office of Mayor/Chief Councillor 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
E Committee in their place by the newly elected Mayor/
Chief Councillor, thereby leading to an anomalous
situation, namely that the Municipal Council will have a
new Mayor/Chief Councillor having the confidence of the
house, but the members on the Committee nominated by
F the previous Mayor/Chief Councillor who has lost the
confidence of the house will continue to remain on the
Committee.
The question which arose for consideration in the
G instant appeal was whether the members of the
Empowered Standing Committee nominated by a Mayor/
Chief Councillor continue in their office or vacate it by
implication, when a vacancy arises in the· post of a
Mayo.r/Chief Councillor either on account of death,
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 775
resignation, removal or otherwise, and when a new A
Mayor/Chief Councillor is elected in that vacancy. The
consequential question was whether section 27 of the
Bihar Municipal Act, 2007 should be read as it is and
without reference to other connected sections, meaning
thereby whether the members of the Empowered B
Standing Committee would continue to hold office (for the
entire period of the municipal bodyf even if the nominator
Mayor/Chief Councillor is no longer iri the office or,
whether such a reading of section 27 would tr'e~t a newly
elected Mayor dissimilarly, and, therefore, whether· c
section 27 of the Act is ultra vires the Constitution of India
and in that event, can it be saved by reading it down
harmoniously by implication in line with and subject to
sections 25(4), 23(3) and 21(3) of the Act, thereby holding·
that the term of nominated members shall be co-
0
terminous with the nominating Mayor, and they would
automatically vacate their office when the Mayor
nominating them is no longer in the office, and that the
newly elected Mayor/Chief Councillor wo4ld have the
authority to nominate seven members of his choice on
the Empowered Standing Committee. E
· Partly allowing the appeal, the Court
HELD: 1. By virtue of Section 22 of the Bihar
Municipal Act, 2007, the Executive power of the F
Municipality is to be exercised by the Empowered
Standing Committee, and in the case of a Municipal
Corporation, their committee consists of the Mayor, the .
Deputy Mayor and seven other Councillors under section
21 (2)(a) of the Act. These seven members are to be G
nominated under section 21 (3) of the Act by the Mayor
or the Chief Councillor from amongst the Councillors.
[Para 13] [794-D-E]
' '
2. Delegation of Powers: Section 28. (1) of the A~t
H
776 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 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 Councillor or to the Chief Municipal
B Officer. [Para 15) [795-B-C]
3. Collective responsibility: The Empowered
Standing Committee is expected to function on the
principle of collective responsibility. This element of
C collective functioning is introduced in Municipal
Governance under sections 57 and 59 of the Act. Under
section 57(1 ), a Councillor may, subject to the provisions
of sub-section (2), ask the Empowered Standing
Committee, questions on any matter relating to the
administration of the Municipality or municipal
D governance. Sub-section (2) of this section lays down the
conditions subject to which this right to ask the question
is to be exercised. Section 57(1) clearly uses the phrase
'Municipal Governance.' Besides, questions about the
Municipal Administration can be asked to the Empowered
E Standing Committee and any member of the Empowered
Standing Committee can answer such questions. Apart
from these provisions in the Act, separate rules have been
framed under Section 419 of the Act read with Sections
22 and 63 thereof, to regulate the exercise of this
F executive power under Section 22 of the Act. These rules
are known as Bihar Municipal Empowered Standing
Committee Conduct of Business Rules, 2010. Rule 6 of
these rules provides for the quorum of the meeting of the
committee, Rule 7 provides for the notice for the meeting,
G and the items to be taken up for consideration, and it
specifically lays down that except with the assent of the
majority of members present, no business other than
those included in the list shall be transacted in the
meeting. Rule 1O speaks about the executive power of the
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 777
Empowered Standing Committee. These rules make it A
clear that the executive power vests in the Empowered
Standing Committee. Though the Mayor nominates the
members of the Empowered Standing Committee, the
decisions of the Empowered Standing Committee are to
be taken by majority, and the committee members have B
to function on the basis of collective responsibility. [Paras
16, 17] [797-C-H; 798-A-H; 800-0-E]
Jagdish Singh v. State of Bihar 2009 (2) PLJR 394;
Jitendra Kumar Verma v. State of Bihar 2010 (3) PLJR 285 C
- overruled.
Sagufta Parween v. State of Bihar 2010 (2) PLJR 1072;
State of Jharkhand and Anr. v. Govind Singh 2005 (10) SCC
437=2004 (6) Suppl. SCR 651; Union of India and Another
v. Shardindu 2007 (6) SCC 276=2007 (6) SCR 1039 ; D
Satheedevi v. Prasanna and Anr. 2010 (5) SCC 622 = 2010
(6) SCR 657 -:- referred to.
4. The Municipalities are expected to render wide-
ranging functions. They are now enumerated in the E
Constitution. Article 243W lays down the powers of the
Municipalities to perform the functions that are listed in
Twelfth Schedule. [Para 25] [806-E-F]
5. The scheme of the Bihar Municipal Act, 2007: The
Act is a detailed Act running into 488 sections which are F
divided into VIII parts and 44 chapters and they govern
all the aspects of Municipal Governance and
Administration. Part I contains the preliminary provisions.
Part II deals with the Constitution of the Government of
the Municipal Bodies. Part Ill deals with the Financial G
Management of Municipalities. Part IV is on the Municipal
Revenue. Part V is on the Urban Environmental
Infrastructure and Services. Part VI deals with Urban
Environmental Management, Community Health and
Public Safety. Part VII deals with the Regulatory H
778 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Jurisdiction, and contains chapters on Development
Plans, Improvement, Public Streets, Buildings, Municipal
Licences, Vital Statistics, Disaster Management and
Industrial Townships. Lastly Part VIII deals with the
Powers, Procedures, Offences and Penalties. Thus, the
B Bihar Municipal Act is quite a comprehensive Act, and 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
c 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
0
House and there is no justifiable reason for making any
distinction. The fact that a councillor is elected as the
Mayor immediately after the general election to the
Municipality, and he nominates seven councillors on the
Empowered Standing Committee, cannot make this act
E of nomination as a one time act, nor does the enactment
say so. After a Mayor is removed under section 25(4) .of
the Act, a n~w Mayor is to be elected under section 23(3)
of the Act. This section does not say that the newly
elected Mayor will not have the powers of nominating the
F other members on the Empowered Standing Committee
which is available to the Chief Councillor or Mayor under
section 21(3) of the Act. Thus, in fact, by stating that the
nomination of the members on the Empowered Standing
Committee is a one time act, the respondents are adding
G words in section 21(3) of the Act. Thus, in a way, they are
supplying in section 21(3) the words 'only by the first
Chief Councillor and not by his successors in office' in
place of 'the Chief Councillor' after the words 'shall be
nominated' in section 21(3) of the Act. Such a reading and
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 779
resultant situation will be contrary to the basic principle A
of parliamentary democracy, viz. that those in office
ought to be representative of and responsible 'to the
House. Therefore, if the house has lost confidence in the
earlier Mayor, it is all the more necessary that the
members of the Empowered Standing Committee should B
be made to step down alongwith him and a newly elected
Mayor be permitted to have his nominees on the
Empowered Standing Committee. [Paras 26, 27) (808-F-
H; 809-A~H; 810-A-H; 811-B-C)
6. The concept of Executive Power and Article 14: C
The term executive power has been specifically used in
section 22 of the Act and section 57 specifically uses the
term Municipal Governance. The executive function
comprises both the determination of the policy as well as
carrying it into execution. The executive power of the D
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. ·Apart from the said resultant administrative E
difficulty, if a literal interpretation of section 27 is followed
alongwith adding words in section 21 (3) as pointed out,
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 F
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. (Paras
28, 29) (811-D-H; 812-A-D] G
Rai Sahib Ram Jawaya Kapur & Ors. v. The State of
=
Punjab AIR 1955 SC 549 1955 SCR 225; State of West
Bengal v. Anwar Ali Sarkar AIR 1952 SC 75 = 1952 SCR
284 - referred to.
H
780 SUPREME COURT REPORTS [2011] 5 S.C.R.
A 7.1. Removal of anomaly. When on a construction of
a statute, two views are possible, one which results in an
anomaly and the other not, it is duty of court to adopt the
latter and not the former, seeking consolation in the
thought that the law bristles with anomalies. [Para 31)
B (815-B; G-H; 816-A]
N. T. Veluswami Thevar v. G. Raja Nainar AIR 1959 SC
422 = 1959 Suppl. SCR 623 - relied on.
7.2. Making cross-reference to sections to read them
C harmoniously. One of the methods adopted in such
situations is to make cross-reference to the relevant
sections to read them harmoniously. [Para 33) [816-E-G]
Ramkissendas Dhanuka v. Satyacharan Lal AIR 1950
o PC 81- relied on.
7.3. Reading down a section to save it from being
ultra vires. The intention of the legislature as seen from
the provisions of the Act and the Rules is to have a
'Mayor-in-Council' who enjoys the confidence of the
E 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
F 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
G 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
H are not nominated by him. That was surely not the
AFJAL IMAM v. STATE OF BIHAR AND ORS. 781
intention of the legislature. Considering the powers A
which are available to the Empowered Standing
Committee, if the newly elected Mayor is not read a.s
having the power to nominate his nominees on the
Empowered Standing Committee, he will be treated
dissimilarly and such an interpretation will make section B
27 violative of Article 14 of the Constitution and contrary
to the powers of the Mayor under section 21(3) of the Act.
The only way, therefore, to save section 27 is to read it
down by implication, and to make it subject to sections
25(4), 23 (3) and 21 (3) of the Act, thereby, holding that the c
nominated members shall also automatically vacate their
office when the Mayor nominating them is no longer in
the office. Thus, the newly elected Mayor will also have
the authority to nominate seven members of his choice
on the Empowered Standing Committee. This would 0
clearly show 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 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 E
idea is that the Mayor should have the confidence of the
Executive Council or the Empowered Standing
Committee, as the case may be, apart from that of the
House. The members of the Empowered Standing
Committee are authorized to answer the questions on F
behalf of the Empowered Standing Committee under the
Bihar Municipal Act. Thus, there is an element of
collective responsibility. The Empowered Standing
Committee is supposed to function on the basis of the
principle of Democratic Governance in the sense that the G
decisions are to be taken by the majority. If the new Mayor
is not permitted to have his nominees on the Empowered
Standing ·committee, the collective functioning will be
under jeopardy. Thus, there is a clear omission in the
H
782 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Bihar Municipal Act, 2007 in this behalf. The interpretation
sought to be placed on section 27 by the respondents
requirf:1S addition of words in section 21(3) of the Act.
Even after adding the necessary words, the result will be
incongruous to a democratic functioning in as much as
B the nomination on the Empowered Standing Committee
will be a one time act and the newly elected Mayor will
be at the mercy of the other members of the Empowered
Standing Committee. Such a reading will be also be·
contrary to section 21 of the Act and the newly elected
c Mayor .will be treated dissimilarly as against the earlier
elected Mayor for no justifiable reason. Thereby section
27 will be ultra vires to Article 14 of the Constitution. The
legislature cannot be attributed such an intent. On the
other hand, reading section 27 by making a cross-
D reference and making the same subject to sections 25 (4),
23 (3), 21 (3) and 21 (4) will lead to a harmonious
functioning of the Municipal Corporation and will also
save the section from being ultra vires Article 14. The
judgment of the Divis.ion Bench of the Patna High Court
E in Jagdish Singh V. State of Bihar and that of the full
bench of that Court in Jitendra Kumar V. State of Bihar
do not lay down the correct legal position and are
overruled. Impugned judgment and order passed by the
Division Bench of the High Court is set aside. The said
writ petition filed by the appellant herein stands allowed
F in part. Section 27 of the Bihar Municipal Act 2007, shall
be read down harmoniously with and subject to sections
25(4), 23(3), 21 (3) and 21 (4) of the Act. The respondent
no.3, the District Magistrate, Patna, Bihar is consequently
directed to administer the oath of secrecy under Section
G 24 of the Act to the seven Municipal Councillors
nominated by the appellant to the Empowered Standing
Committee. The appellant as well as the members of the
Empowered Standing Committee shall be entitled to
exercise all the powers as the Mayor and the members
H of the Empowered Standing Committee as provided in
AFJAL IMAM v. STATE OF BIHAR AND ORS: 783
the Bihar Municipal Act, 2007, in accordance with law. A
[Paras 35, 37-39] [819-C-H; 820-A-C; 821-E-H; 822-A-H;
823-A-B] " '
'·
Durgesh Sharma v. Jayshree 2008 (9) SCC 648 = 2008
(13) SCR 1056; 20th Century Finance Corpn. •Ltd. v. State B
of Maharashtra 2000 (6) SCC 12 = 2000 (1) Suppl. SCR 120
- relied on.
Reserve Bank of India v. Peerless Corp. 1987 (1) SCC.
424=1987 (2) SCR 1 ; Union of India v. Filip Tiago De Gama,
1990 (1) SCC 277= 1989 (2) Suppl. SCR 336; Anwar c
Hasan Khan v. Mohd. Shafi and others 2001 (8) SCC 540;
S. V. Kondeakar v. V.M. Deshpande AIR 1972 SC 878 = 1972
(2) SCR 965, referred to.
Case Law Reference: D
2009 (2) PLJR 394 overruled Paras 7, 38
2010 (2) PLJR 1072 referred to Para 8
2010 (3) PLJR 285 overruled Paras 9, 38
E
2004 (6) Suppl. SCR 651 referred to Para 22
2007 (6) SCR 1039 referred to Para 23
2010 (6) SCR 657 referred to Para 24
1955 SCR 225 referred to Para 28 F
1952 SCR 284 referred to Para 29
1987 (2) SCR 1 referred to Para 30
1989 (2) Suppl. SCR 336 referred to Para 30 G
2001 (8) sec 540 referred to Para 30
1959 Suppl. SCR 623 relied on Para 31
1972 (2) SCR 965 referred to Para 32
H
784 SUPREME COURT REPORTS [2011) 5 S.C.R.
A AIR 1950 PC 81 relied on Para 33
2008 (13) SCR 1056 relied on Para 34
2000 (1) Suppl. SCR 120 relied on Para 36
B CIVIL APPEAL JURISDICTION : Civil Appeal No. 2843 of
2011. .
From the Judgment and Order dated 08.07.2010 of the
High Court of Judicature at Patna in CWJC No. 9981 of 2010.
c S.B.K. Mangalam, Rajesh Anand, Ashutosh Pande,
Madhumita Singh and Abhay Kumar for the Appellant.
Santosh Mishra, Gopal Singh, Manish Kumar, Chandan
Kumar, Santosh Kumar Tripathi and Neeraj Shekhar for the
D Respondents.
The Judgment of the Court was delivered by
GOKHALE J. 1. Leave granted.
By the order passed by us on April 1, 2011, we had
E allowed this appeal. We had, further, observed that we will
indicate our reasons by a separate judgment. We do so herein.
2. The Bihar Municipal Act, 2007, like other Municipal Acts,
provides for the election of the Municipal Councillors, the Mayor
F or Chief Councillor and the Deputy Mayor/Deputy Chief
Councillor. It also provides for an Empowered Standing
Committee to exercise the executive power of the Municipality.
This committee is supposed to consist of the Mayor, the Deputy
Mayor and seven other Councillors nominated by the Mayor/
G Chief Councillor under section 21 (3) of this Act. Section 27 of
this Act provides that the term of office of the Mayor/Chief
Councillor and the members of the Empowered Standing
Committee shall be co-terminous with the duration of members
of the Municipality. The Act provides for the removal of the
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 785
[H.L. GOKHALE, J.]
Mayor/Chief Councillor and the Deputy Mayor/Deputy Chief A
Councillor 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 Councillor when
a vacancy arises in the office of Mayor/Chief Councillor on B
account of death, resignatiop, 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 c
Councillor, thereby leading to an anomalous situation, namely
that the Municipal Council will have a new Mayor/Chief
Councillor having the confidence of the house, but the members
on the .Committee nominated by the previous Mayor/Chief
Councillor who has lost the confidence of the house will continue 0
to remain on the committee.
3. Questions of Law arising in this appeal
A question, therefore, arises as to whether the members
of the Empowered Standing Committee nominated by a Mayor/ E
Chief Councillor continue in their office or vacate it by
implication, when a vacancy arises in the post of a Mayor/Chief
Councillor either on account of death, resignation, removal or
otherwise, and when a new Mayor/Chief Councillor is elected
in that vacancy. This appeal raises the consequential question F
as to whether section 27 of the Act should be read as it is and ·
without reference to other connected sections, meaning thereby
whether the members of the Empowered Standing Committee
will continue to hold office (for the entire period of the municipal
body) even if the nominator Mayor/Chief Councillor is no longer G
in the office? Or, whether such a reading of section 27 treats a
newly elected Mayor dissimilarly, and therefore, whether section
27 of the Act is ultra vires the Constitution of India? In that event,
can it be saved by reading it down harmoniously by implication
in line with and subject to sections 25 (4), 23 (3) and 21 (3) of H
786 SUPREME COURT REPORTS (2011] 5 S.C.R.
A the Act, thereby holding that the term of nominated members
shall be co-terminous with the nominating Mayor, and they will
automatically vacate their office when the Mayor nominating
them is no longer in the office, and that the newly elected
Mayor/Chief Councillor will have the authority to nominate seven
B members of his choice on the Empowered Standing
Committee?
. 4. Facts leading to this appeal:-
The Election to the Patna Municipal Corporation was held
C sometime in May/June, 2007. The Municipal Corporation has
72 members. After the election of the Municipal Corporation,
the councillors elected one Shri Sanjay Kumar as the Mayor
and one Shri Santosh Mehta as the Deputy Mayor. Two years
later, no confidence motions were moved against both of them
D on 13.6.2009, and were passed on 14.7.2009. As far as the
motion against the Mayor is concerned, we are informed that
42 members voted in favour thereof and 28 opposed it. One
member is reported to have remained absent being in jail, and
one had died.
E
5. The above referred Sanjay Kumar challenged the
decision on the no confidence motion by filing a Writ Petition
bearing No. 8603 of 2009. A Learned Single Judge of the
Patna High Court who heard the petition, initially granted a stay
on the fresh election being held to fill the vacancy in the post of.
F 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
G Division ·Bench by filing Special Leave Petition No. 16578/
2010. A prayer was made to this Court that the election to fiil
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.
H (It is relevant to place it on record at this stage that this Writ
AFJAL IMAM v. STATE OF BIHAR AND ORS. 787
[H.L. GOKHALE, J.)
Petition came to be dismissed by this bench by its separate A
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
8
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 saine day.. On his
election, he nominated 7 councillors to be the members of the C
Empowered Standing Committee of the Municipal Corporation
as per the provision of section 21 (3) of the Bihar Municipal
Act. He requested the District Magistrate (D.M.) of Patna to
give them oath of secrecy as per section 21 (4) read with
section 24 of the Act, but the D.M. declined to do so, in view
of the decision of a Full Bench of the Patna High Court dated D
11.5.2010 in LPA No.618 of 2010 holding that such nomination
by the Mayor is only a one time Act. In that decision, the Full
Bench had upleld the Govt. Memo No.6020 dated 12.12.2009
to the effect that notwithstanding change of Mayor/Chief
Cou11cillor, the Empowered Standing Committee as nominated E
earlier shall continue.
7. The facts leading to the decision of the Full
Bench:- ·
F,
A similar problem had arisen in another Municipal
·Corporation of Bihar, viz. Ara Municipal Corporation. One
Jagdish Singh who was elected as a councillor of Ara Municipal
Corporation, filed a Writ Petition bearing CWJC NO. 9380 of
2008 to challenge the constitutional validity of the above
referred section 27, on the ground that although there was a G
provision for the removal of the Chief Councillor (or Mayor) in
section 25 of the Act, there was no similar provision for removal . ·
of the members of the Empowered Standing Committee. Once
the councillors were nominated to the Empowered Standing
Committee, they continued to be members of that committee : . H
788 SUPREME COURT REPORTS [2011] 5 S.C.R.
A so long as they remained councillors. There was a lack of any
provision for removal of members of the Empowered Standing
Committee, and the members of such committee had been
given unguided and unbridled power. The Division Bench
negated that contention by holding that a member of the
9 Municipal Council, if he is nominated as a member of the
Empowered Standing Committee, can either be recalled under
section 17 of the Act, or if he incurs disqualification for holding
the post as a member, and an order of removal for such
disqualification is passed under section 18 (2), his membership
c of the Empowered Standing Committee ipso facto comes to
an end. The bench, therefore observed:-
"ln this view of the matter, even if there was no specific
provision for removal of the members of the Empowered
Standing Committee, there is enough mechanism under
D the Act, 2007 that cessation of membership to the
municipality automatically brings to an end the membership
of the Empowered Standing Committee".
The High Court therefore repelled the challenge to the
E constitutionality of Section 27 of the Act. This Division Bench
rendered its decision on 14.11.2008 which is reported in 2009
(2) PLJR at page 394 in the case of Jagdish Singh v. State of
Bihar.
8. It so transpired that in another Municipal Corporation,
F 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
G Direction in Memo No. 6020 dated 18.12.2009, to the effect
that notwithstanding the change of Mayor or Chief Councillor,
the Empowered Standing Committee of the Municipal
Corporation, as nominated earlier, would continue. Meaning
thereby, that the Mayor/Chief Councillor newly elected would not
H have the power to nominate members of the Empowered
AF JAL IMAM v. STATE OF BIHAR AND 'ORS. · 7'89
[H.L. GOKHALE, J.]
Standing Committee of the Corporation in terms of section 21 A
(3) of the Municipal Act. Smt. Sagufta Parween challenged that
Government Direction by filing CWJC No. 1067 of 201 Owhich
was heard by a Single Judge, who held that the aforesaid
Government Direction was contrary to the statutory provisions
and the statutory scheme. The Learned Single Judge therefore, B
c;illowed the Writ Petition and directed that the necessary
consequences will according.ly follow. This Judgment :of the
Learned Single Judge dated 23.2.2010 is' reported in 2010 (2)
PLJR at page 1072. '
9. Being aggrieved by this judgment of the Singl~ Judge, . C
one Jitendra ·Kumar Verma and others filed LPA 'No. 618 of
. 2010. When this LPA came up before a Division Bench, it took
· note of the above referred· Division Bench decision· rendered
in Jagdis/J Singh vs. The State of Bihar & Ors. (Supra), and
thought it appropriate that the matter should be heard by a D
larger Bench. That LPA, therefore, came to be decided by a
Full Bench. The Full Bench in its decision dated 11.5.2010
followed· the decision of the Division Bench in the case of
Jagdish Singh (Supra), and held in paragraph 19 of its
judgment reported·in 2010 (3) PLJR 285 that the appointment E
of the members of the Empowered Standing Committee was
a one time act. The full bench therefore allowed the appeal and
set aside the order passed by the learned Single Judge.
10. On this background, after the appellant in the present F
appeal was elected as the Mayor of Patna, he nominated his
nominees on the Empowered Standing Committee. However,
the D.M., Patna declined to administer the oath of office to
them. The appellant therefore filed Writ Petition bearing No.
9981 of 2010 for a declaration that section 27 of the Act is ultra G
vires to the provisions of the Constituti~ of India and to section
21 of the Act, and alternatively to read do.wn section ?7 of the
act. The appellant also prayed for a Writ of Mandamus
commanding the respondent D.M., Patna to administer oath of
office to those nominees. The Division Bench which decided
H
790 SUPREME COURT REPORTS [2011) 5 S.C.R.
A the petition, noted in its order that the petition had sought to
challenge the constitutional validity of section 27 of the Bihar
Municipal Act, 2007 for being contrary to section 21 of that Act.
It, however, noted that the matters at issue were squarely
covered by the decision of the Full Bench in Jitendra Kumar
B Vs. State of Bihar (Supra). The bench, therefore, passed an
order dated 8.7.2010 that for the reasons recorded by the Full
Bench, this petition was dismissed in limine. This order is being
challenged in this Appeal by Special Leave wherein the issues
which are mentioned at the outset of this judgment have been
c 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
D 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
E
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:-
F "2. Definition:-
(36) "Empowered Standing Committee" means the
Empowered Standing Committee referred to in Section 21.
Section 21. Constitution of Empowered Standing
G Committee of Municipality. (1) In every Municipality there
shall be an Empowered Standing Committee.
(2) The Empowered Standing Committee shall consist of-
H (a) in the case of a Municipal Corporation, the
AFJAL IMAM v. STATE OF BIHAR AND ORS. 791
[H.L. GOKHALE, J.]
Mayor, the Deputy Mayor, and seven other A
Councillors;
(b) in the case of a Class 'A' or Class 'B' Municipal
Council, the Municipal Chairperson, the Municipal
Vice Chairperson, and five other Councillors;
B
(c) in the case of a Class 'C' Municipal Council, the
Municipal Chairperson, the Municipal Vice-
Chairperson, and three other Councillors; and
(d) in the case of a Nagar Panchayat, the Municipal c
President, the Municipal Vice-President, and three
other Councillors.
(3) The other members of the Empowered Standing
Committee shall be nominated by the Chief Councillor from D
among the Councillors elected under sub section (1) of
section 12 within a period of seven days of his entering
office.
(4) The other members of the Empowered Standing
Committee shall assume charge after taking the oath of E
secrecy under section 24.
(5) The Chief Councillor shall be the presiding officer of
the Empowered Standing Committee.
(6) The manner of transaction of business of the F
Empowered Standing Committee shall be such as may be
prescribed.
(7) The Empowered Standing Committee shall be
collectively responsible to the Municipal Corporation or the G
Municipal Council or the Nagar Panchayat, as the case
may be.
Section 22. Executive power of Municipality to be
exercised by Empowered Standing Committee. - H
792 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Subject to the provisions of this Act and the rules and the
regulations made there under, the executive power of a
Municipality shall be exercised by the Empowered
.
Standing Committee .
Section 23. Election of Chief Councillor and Deputy
B
Chief Councillor. - (1) The Councillors shall, in the first
meeting under section 35,. elect in accordance with such
procedure as may be prescribed from amongst the
Councillors to be the Chief Councillor and Deputy Chief
Councillor who shall assume office forthwith after taking the
c oath of secrecy under section 24.
(2) If the Councillors fail to elect a Chief Councillor under
sub-section (1 ), the State Government shall appoint by
name one of the Councillors to be the Chief Councillor.
D
(3) In the case of any casual vacancy in the office of the
Chief Councillor caused by death, resignation, removal or
otherwise, the Councillors shall, in accordance with such
procedure as may be prescribed, elect one of the
Councillors to fill up the vacancy.
E
Section 25; Removal of Chief Councillor/Deputy
Chief Councillor. ~ (1) The Chief Councillor/Deputy Chief
Councillor shall cease to hold office as such if he ceases
to be a Councillor.
F
(2) The Chief Councillor may resign his office by writing
under his hand addressed to the Divisional Commissioner
and Deputy Chief Councillor may resign his office by
writing under his hand addressed to the Chief Councillor.
G (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
H Councillor, as the case may be.
AFJAL IMAM v. STATE OF BIHAR AND ORS. 793
[H.L. GOKHALE, J.]
(4) The Chief Councillor/Deputy Chief Councillor may be A
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 prescriQed., upon a requisition
made in writing by not less than one-third of the total B
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 Councillor/Deputy Chief
c
Councillor within a period of two years of taking over the
charge of the post:
Provided further that a no confidence motion shall not
be brought again within one year of the first no confidence D
motion:
Provided further also that no confidence motion shall
not be brought within the residual period of six months of
the municipality.
E
(5) "Without prejudice to the provisions· under this Act, if,
in opinion of the Divisional Commissioner having territorial
jurisdiction over the Municipality the Chief Councillor/
Deputy Chief Councillor absents himself without sufficient
cause for more than three consecutive meetings or sittings F
or willfully omits or refuses to perform his duties and
functions under this Act, or is found to be guilty of
misconduct in the discharge of his duties or becomes
physically or mentally incapacitated for performing his
duties or is absconding being an accused in a criminal G
case for more than six months, the Divisional
Commissioner may, after giving the Chief Councillor/
Deputy Chief Councillor a reasonable opportunity for
explanation, by order, remove such Chief Councillor from .
~re; H
794 SUPREME COURT REPORTS [2011] 5 S.C.R.
A (6) The Chief Councillor/Deputy Chief Councillor so
removed shall not be eligible for re-election as Chief
Councillor/Deputy Chief Councillor or Councillor during the
remaining term of office of such Municipality.
Appeal shall lie before the State Government against
B
the order of the Divisional Commissioner."
Section 27. The term office of the Chief Councillor
and the members of Empowered Standing
Committee.- The term of office of the Chief Councillor and
c the members of Empowered Standing Committee shall be
coterminous with the duration of members of the
Municipality."
13. As seen from section 22 above, the Executive power
D of the Municipality is to be exercised by the 'Empowered'
Standing Committee, and in the case of a Municipal
Corporation, their committee consists of the Mayor, the Deputy
Mayor and seven other Councillors under section 21 (2) (a) of
the Act. These seven members are to be nominated under
E section 21 (3) of the Act by the Mayor or the Chief Councillor
from amongst the Councillors.
14. Changes brought in by the Present Act
It would be relevant to refer to the other connected
F provisions to enable us to d.ecide the question of law which is
raised in this appeal. As far as Patna Municipal Corporation
is concerned, it was earlier governed under the Patna Municipal
Corporation Act, 1951 (which has been repealed by section
488 of the Bihar Municipal Act, 2007). It is material to note that
G 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
H was for two years. They were not nominated by the Mayor.
AFJAL IMAM v. STATE OF BIHAR AND ORS. 795
[H.L. GOKHALE, J.]
Under the present Act, they are nominated by the Mayor. Now, A
the principal committee of the Municipal Corporation is known
as the 'Empowered Standing Committee' under section 22 of
the Act.
15. Delegation of Powers
B
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 Councillor or to the Chief Municipal Officer. C
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 D
powers or functions to the Empowered Standing
Committee.
(2) The Empowered Standing Committee may, by order
in writing, delegate, subject to such conditions .as may be
specified in the order, any of its powers or functions to the E
Chief Councillor or to the Chief Municipal Officer.
(3) Subject to such standing orders as may be made by
the Empowered Standing Committee in this behalf -
(a) the Chief Councillor may, by order, delegate, F
subject to such conditions as may be specified in
the order, any of his powers or functions to the
Deputy Chief Councillor or the Chief Municipal
Officer;
G
(b) the Chief Municipal Officer may, by order,
delegate, subject to such conditions as may be
specified in the order, any of his powers or
functions, excluding the powers or functions under
sub-section (2) of section 354 or section 365, to any H
796 SUPREME COURT REPORTS [2011] 5 S.C.R.
A officer or other employee of the Municipality; and
(c) any officer of the Municipality, other than the
Chief Municipal Officer, may, by order, delegate,.
subject to such conditions as may be specified in
the order, any of his powers or functions to any other
B officer subordinate to him.
(4) Notwithstanding anything contained in this section, the
Empowered Standing Committee, the Chief Councillor, the .
Chief Municipal Officer, or the other officer referred to in
c clause (C) of sub-section (3), shall not delegate -
(a) any of its or his powers or functions delegated
to it or him under this section, or
(b) such of its or his powers or functions as may be
D specified by regulations."
16. Collective responsibility
The Empowered Standing Committee is expected to
E . function on the principle of collective responsibility. This element
of collective functioning is introduced in Municipal Governance
under sections 57 and 59 of the Act. Under section 57 (1 ), A
Councillor may, subject to the provisions of sub-section (2), ask
the Empowered Standing Committee, questions on any matter
relating to the administration of the Municipality or municipal
F governance. Sub-section (2) of this section lays down the
conditions subject to which this right to ask the question is to
be exercised. This section is divided into six sub-sections,
though for our purpose it is section 57 (1) which is relevant
which reads as follows:-
G
"57. Right of Councillors to ask questions. - (1) A
Councillor may, subject to the provisions of sub-section
(2), ask the Empowered Standing Committee questions
on any matter relating to the administration of the
H Municipality or municipal governance, and all such
. AFJAL IMAM v. STATE OF BIHAR AND ORS. 797
[H.L. GOKHALE, J.]
questions shall be addressed to the Empowered A
Standing Committee arid shall be answered either by
the Chief Councillor or by any other member of the
. Empowered Standing Committee."
(emphasiS' ,supplied) 8
In continuation of this Section 57, Section 59 provides for asking
for a st;itementfrom the Empowered Standing Committe'e on
any urgent matter relating to administration of the Municipality:
This section reads as follows: .
c
"59. Asking for statement from Empowered Standing
Committee. - (1) Any Councillor may ask for a statement·.
from the Empowe'red Standing Committee on an urgent
matter relating to the administration of the Municipality by
giving notice to the Municipal Secretary at least one hour· o
before the commencement of the meeting of the
Municipality on any day.
(2) The Chief Councillor or a member of the
Empowered Standing Committee may either make a
brief statement on the same day or fix a date for E
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 shall be given to the matters F
which are, in the opinion of the Chief Councillor, more
urgent and important.
(4) There shall be no debate on such statement at
the time it is made."
G
As has been seen, section 57 (1) clearly uses the phrase
'Municipal Governance.' Besides, as seen from these
provisions, questions about the Municipal Administration can
be asked to the' Empowered Standing Committee and any
H
798 SUPREME COURT REPORTS [2011) 5 S.C.R.
A member of the Empowered Standing Committee can answer
such questions.
17. Relevant provisions of the Bihar Municipal
Empowered Standing Committee Conduct of Business
Rules, 2010
8
(i) Apart from these provisions in the Act, separate rules
have been framed under Section 419 of the Act read with
Sections 22 and 63 thereof, to regulate the exercise of this
executive power under Section 22 of the Act,. These rules are
C known as Bihar Municipal Empowered Standing
Committee Conduct of Business Rules, 2010. Rule 6 of
these rules provides for the quorum of the meeting of the
committee, Rule 7 provides for the notice for the meeting, and
the items to be taken up for consideration, and it specifically
D lays down that except with the assent of the majority of
members present, no business other than those included in the
list shall be transacted in the meeting. Rule 7 reads as follows:-
"7. The notice for the meeting shall be issued by the
Chief Municipal Officer with the approval of the Chairman,
E
at least four days before the date of the meeting, but in
case of an emergency meeting the notice may be issued
at least 48 hours before the meeting, The Chief Municipal
officer shall send to each member of the committee at least
24 hours previous to the meeting; a list of business as
F approved by the Chairman. Except with the assent of the
majority of members present, no business other than those
included in the list shall be transacted in the meeting."
(ii) Rule 10 of these rules speaks about the executive
G power of the Empowered Standing Committee. This rule
reads as follows:-
"10. The Executive Powers of the Municipality shall vest
in the Empowered Standing Committee. Executive
Powers shall be used collectively.
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 799
[H.L. GOKHALE, J.]
Provided that administrative control on the Staffs of A
Municipality shall vest in Chief Executive Officer/Executive
Office. Resolution shall be passed in the light of orders/
directions issued time to time by State Government.
Officially brought agenda shall contain the following-
8
(a) items relating to the establishment as per provision
of the Act, which includes appointments
promotions, benefits, transfers, disciplinary actions
etc. of the empldyees of the Municipality.
c
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 D
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 E
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 F
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 · G
(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
H
800 SUPREME COURT REPORTS [2011] 5 S.C.R.
A which may affect the interest of Municipality
adversely.
(5) All issues passed by the committee shall be
placed before the Municipality in its next meeting."
B (iii) Rule .14 lays down that the business of the committee
will be decided by majority and this rule reads as follows:-
"14. All business which may come before the
Committee at any meeting shall be decided by the majority
c of the members present by voting at the meeting and in
case of equality of votes, the Chairman shall have a
second or casting vote." ·
These rules make it clear that the executive power
vests in the Empowered Standing Committee. Though the
D Mayor nominates the members of the Empowered
Standing Committee, the decisions of the Empowered
Standing Committee are to be taken by majority, and the
committee members have to function on the basis of
collective responsibility.
E
18. Submissions on behalf of the appellant
The counsel for the appellant therefore submits that
consequently if a vote of no confidence is passed against the
F Mayor and a new Mayor is elected in his place, it should be
read by implication that the members of the Empowered
Standing Committee nominated by him shall vacate their seats
and the new Mayor will have the authority to nominate his
nominees on the committee. Otherwise, the new Mayor will not
be able to function in unison with the other members on the
G committee. On the other hand, if section 27 is read as it is,
without being read in line with and subject to sections 25 (4),
23 (3) and 21 (3) of the Act, the councillors nominated by the
earlier Mayor will continue on the Empowered Standing
Committee. Thus, although the Mayor will be one who will have
H the confidence of the House, the other members of the
AFJAL IMAM v. STATE OF BIHAR AND ORS. 801
[H.L. GOKHALE, J.]
Empowered Standing Committee will be those who have been A
nominated by the earlier Mayor who has lost confidence of the
House. The functioning on the basis of collective responsibility
will be difficult. There is a clear possibility of a conflict between
the new Mayor and the other members of the Empowered
Standing Committee, and the new Mayor who is elected by the B
House will not be able to carry the municipal governance as
per the desire of the House, since his proposals could be
opposed by the members of the Empowered Standing
Committee who are nominated by the erstwhile Mayor. This
straight reading of section 27 thus leads to an anomalous c
position. The counsel for the appellant submits that although
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
0
come , under . strain. He therefore submits that section 27 is ultra-
vires se9tion 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.
E
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 F
Committee is a one time Act. A statutory provision should be
read as itis, 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 G
for the benefit of all the citizens ..
20. Reference to the provisions in Municipal Laws of
other States
H
802 SUPREME COURT REPORTS [2011] 5 S.C.R.
A The respondents submit that the Local Government is a
subject in the State List under the Constitution of the India
(being entry No.5 in list II of the Seventh Schedule
thereof) and it is for the State Government concerned to make
necessary statutory provisions. The provisions as enacted
B should be given due respect.
(i) Thus the respondents point out that different States have
made different provisions in this behalf. In the neighbouring
State of West Bengal under the system of 'Mayor-in-council'
under the Howrah Muncipal Corporation Act, 1980 and
C Calcutta Municipal Corporation Act, 1980, the Mayor is
elected by the corporators but the Deputy Mayor and the
council members are nominated by the Mayor urider section 6
(2) of the Howrah Act and section 8 (2) of the Calcutta Act.
Under section 7 (d) of the Howrah Act and section 9 (d) and
D (e) of the Calcutta Act, members of the Mayor-in-council have
to vacate their seats when a newly elected Mayor enters into
the office in place of the earlier Mayor. The Mayor has the power
to remove the Council member/Deputy Mayor under section 7
(c) oftheHowrah Act and section 9(c) of the Calcutta Act. The
E West Bengal Municipal Corporation Act, 2006 applies to
corporations other than Howrah and Calcutta in the State of
West Bengal. It also creates a 'Mayor-in-Council' system and
under section 41 of the Act, the executive power of the
corporation vests in the Mayor-in-Council. The Deputy Mayor
F and members of the council are nominated by the Mayor under
section 19 (2) of the Act and their tenure is co-terminous with
that of the Mayor under section 20 (d) of the Act.
(ii) Similar is the provision in Madhya Pradesh under
G section 37 of the Madhya Pradesh Municipal Corporation
Act, 1956 (the section in the present form is since 1998
Amendment). The Mayor, who is elected by the Councillors
from amongst themselves, nominates his Mayor-in-Council
members. Section 37 (3) provides that the members shall hold
H office during the pleasure of the Mayor. Section 37 (8) provides
AFJAL IMAM v. STATE OF BIHAR AND ORS. 803
[H.L. GOKHALE, J.]
that the new Mayor (i.e., elected after the office of the Mayor is A
declared vacant) has the choice to continue the old Council
members or appoint new members in their place.
(iii) The same is the effect and import of section 70 (in
place since the 1998 Amendment) of the M.P. and
8
Chattisgarh 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 C
provision for an Executive Council similar to the Empowered
Standing Committee. The tenure of the members of the
Executive Council is co-terminous with that of the Chairman
under section 21 (d) of Mizoram Municipalities Act, 2007.
D
(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-terminous with the term of the
Chairperson during whose period they are elected. The E
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 F
be the provision in this behalf, and in its wisdom the Bihar
Legislature had not made the term of the councillors co-
terminous with that of the Mayor, and it should be read as it is.
21. In this connection, it is material to note that by the 74th G
Amendment to the Constitution of India, the Municipalities have
been given a status under the Constitution. Part IX A has been
introduced concerning the Municipalities and their powers and
functions are laid down under the Twelfth Schedule of the
Constitution. Article 243R provides for the composition of the H
804 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Municipalities, and the same is to be done by the Legislature
of a State by law. Article 243R (2) (b) provides for the manner
of election of the Chairperson of a Municipality. Article 243$
provides for the constitution and composition of the Wards
Committees, and sub-article (5) thereof provides for constitution
B of Committees in addition to the Wards Committees. Article
243U assures the Municipalities a term of five years. Thus, it
is true that it is for the State Legislature to make necessary
provisions concerning the municipal administration. However,
the enactments of different States relied upon by the
c respondents, in fact, point out that whenever the Mayor-in-
Council or on analogous pattern is adopted, the term of the
members on the Council or the Standing Committee is co-
terminous with that of the Mayor or the Chairperson.
22. The respondents submitted that the approach of the
D appellant amounted to legislation and should not be permitted.
They relied upon various judgments to submit that the court is
expected to interpret the law and not legislate. Firstly, they relied
upon the judgment of this Court in State of Jharkhand and Anr.
Vs. Govind Singh, reported in 2005 (10) SCC 437, which was
E a case under Forest Act, 1927. The High Court had read into
sections 52 (3) of the Act, the power to direct release of seized
vehicles on payment of fine in lieu of confiscation, when there
was no such specific provision in the statute. This Court held
that casus omissus cannot be readily inferred by the Court
F except in the case of clear necessity and when reason for it is
found in the four corners of the statute itself. The decision was
rendered in view of the facts of the case and the relevant
provisions of the Forest Act 1927, and while so doing, the court
did make it clear that if literal construction of a particular clause
G leads to manifestly absurd or anomalous results, a literal
interpration may not be preferred. 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:-
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 805
[H.L. GOKHALE, J.]
"Two principles of construction - one relating to A
casus omissus and the other .in regard to reading the
statute as a whole - appear to be well settled. U.nder 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 B
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 c
on a particular provision makes a consistent enactment of
the whole statute. This would b~ 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 D
unreasonable result", said Danckwerts, L.J. in Artemiou v.
Procopiou 18 (All ER p. 544 I), "is not to be imputed to a
statute if there is some other construction available".
Where to apply words literally would "defeat the obvious
intention of the legislation and produce a wholly
unreasonable result", we must "do some violence to the E
words" and so achieve that obvious intention and produce
a rational construction. [Per Lord Reid in Luke v. IRC
where at AC p. 577 (All ER p. 664 I) he also observed:
"This is not a new problem, though our standard of drafting
is such that it rarely emerges.]" F
23. The respondents relied upon the judgment in Union of
India and Another Vs. Shardindu, reported in 2007 (6) SCC
276, wherein this Court set aside the premature repatriation of
-the respondent to his parent cadre. The appointment of the G
respondent in that case was a tenure appointment under a
statute, and it was contented on behalf of the appellant that
same is governed under the 'Doctrine of Pleasure' available
under the Constitution. In that context, this Court laid down that
when it was an appointment under a statute as against a H
806 SUPREME COURT REPORTS [2011) 5 S.C.R.
A constitutional appointment, the court could not bring in such
concept, and could not supply the omission under the statute.
The judgment will have to be read in that context.
24. The respondents then relied upon the judgment of this
Court in Satheedevi Vs. Prasanna and Anr. reported in 2010
B (5) SCC 622 to submit that the intention of the legislature must
be read in the words used by the legislature itself. It was
submitted that if words that are used are capable of one
construction it was not open to courts to adopt any other
hypothetical construction on the grounds that it is more
C consistent with the alleged object and policy of the Act. It is
however, material to note that in paragraph 12 thereof this
judgment also accepts that when the words used in the statute
are capable of two constructions, the question of giving effect
._ to the policy or object of the act can legitimately arise.
0
25. Consideration
Constitutional Provisions concerning the Muni-
cipalities
E Before we deal with the rival submissions, we may note
that the Municipalities are expected to render wide-ranging
functions. They have now been enumerated in the Constitution.
Article 243W lays down the powers of the Municipalities to
perform the functions that are listed in Twelfth Schedule It
F reads as follows:-
"243W. Powers, authority and responsibilities of
Municipalities, etc. - Subject to the provisions of
this Constitution, the Legislature of a State may, by law,
G 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
H contain provisions for the devolution of powers and
AFJAL IMAM v. STATE OF BIHAR AND ORS. .807
[H.L GOKHALE, J.]
responsibilities upon Municipalities, subject to such A
conditions as may be specified therein, with
respect to-
(i) the preparation of plans for economic
development and social justice;
B
(ii) the performance .. of functions and the
implementation of schemes as may be entrusted to
them including those h1 relation to the matters listed
in the Ty/elfth Schedule;
c
(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." D
Twelfth Schedule reads as follows:-
TWELFTH SCHEDULE
[Article 243W] E
1. Urban planning including town planning.
2. Regulation of land-use and construction of
buildings.
F
3. Planning. for economic and social development.
4. Roads and bridges.
5. Water su'pply for domestic, industrial and,
commercial purposes.· G
6. Public health, sanitation conservancy and solid
waste management.
; ·,\
7. Fire services.
H
808 SUPREME COURT REPORTS (2011) 5 S.C.R.
A 8. Urban forestry, protection of the environment and
promotion of ecological aspects.
9. Safeguarding the interests of weaker sections of
society, including the handicapped and mentally
retarded.
B
10. Slum improvement and upgradation.
11. Urban poverty alleviation.
12. Provision of urban amenities and facilities such as
c parks, gardens, playgrounds.
13. Promotion of cultural, educational and aesthetic
aspects.
o_ 14. Burials and burial grounds; cremations, cremation
grounds and electric crematoriums.
15. Cattle ponds; prevention of cruelty to animals.
16. Vital statistics including registration of births and
E deaths.
17. Public amenities including street lighting, parking
lots, bus stops and public conveniences.
18. Regulation of slaughter houses and tanneries.
F
26. The scheme of the Bihar Municipal Act, 2007
The provisions of the Bihar Municipal Act, 2007 will have
to be looked into on this background. The Act is a detailed Act
G running into 488 sections which are divided into VIII parts and
44 chapters and they govern all the aspects of Municipal
Governaoce and Administration. Part I contains the_preliminary
provisions. Part II deals with the-Constitution of the Government
of the Municipal Bodies some of which provisions we have
H already referred to namely those contained in Sections 21 to
AFJAL IMAM v. STATE OF BIHAR AND ORS. 809
[H.L. GOKHALE, J.]
59. Part Ill deals with the Financial Management of A
Municipalities. Part IV is on the Municipal Revenue. Part V is
on the Urban Environmental Infrastructure and Services which
contains the following chapters.
Chapter 21 on Private Sector Participation Agreement 8
and Assignment of Other Agencies,
Chapter 22 on Water-supply,
Chapter 23 on Drainage and Sewerage,
c
Chapter 24 on other provisions relating to Water-supply,
Drainage and Sewerage,
Chapter 25 on Solid Wastes,
Chapter 26 on Communication Systems which deals with D
the public streets and street lighting,
Chapter 27 on Markets, Commercial Infrastructure and
Slaughter Houses.
Part VI deals with Urban Environmental Management, E
Community Health and Public Safety. ·
Chapter 28 is on local agenda for Urban Environmental
Management,
Chapter 29 on Environmental Sanitation and Community
F
Health,
Chapter 30 on restraint of infection,
Chapter 31 on disposal of the dead, G
· 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 H
810 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Streets, Buildings, Municipal Licences, Vital Statistics,
Disaster Management and Industrial Townships.
Lastly Part VIII deals with the Powers, Procedures,
Offences and Penalties.
B 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
C 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
D 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 councillor is elected as the Mayor
immediately after the general election to the Municipality, and
he nominates seven councillors on the Empowered Standing
E Committee, cannot make this act of nomination as a one time
act, nor does the enactment say so. After a Mayor is removed
under section 25 (4) of the Act, a new Mayor is to be elected
under section 23 (3) of the Act. This section does not say that
the newly elected Mayor will not have the powers of nominating
F the other members on the Empowered Standing Committee
which is available to the Chief Councillor or Mayor under section
21 (3) of the Act. Thus, in fact, by stating that the nomination of
the members on the Empowered Standing Committee is a one
time act, the respondents are adding words in section 21 (3)
G of the Act. Thus, in a way, they are supplying in section 21 (3)
the words 'only by the first Chief Councillor and not by his
successors in office' in place of 'the Chief Councillor' after
the words 'shall be nominated' in section 21 (3) of the Act.
Thus, they want section 21 (3) to read as follows:-
H "(3) The other members of the Empowered Standing
AFJAL IMAM v. STATE OF BIHAR AND ORS. 811
[H.L. GOKHALE, J.]
· Committee shall be nominated 'only by the first Chief A
Councillor and not by his successors in office' from
among the Councillors elected under su.b sect.ion (1) of
section 12 within a period of seven days of his entering
office."
B
Such a reading and resultant situation will be contrary to
the basic principle of parliamentary democracy, viz. that those
in office ought to be representative of and responsible to the
House. Therefore, if the house has lost confidence in the earlier
Mayor, it is all the more necessary that the members of the
Empowered Standing Committee should be made to step down C
alongwith him and a newly elected Mayor be permitted to have
his nominees on the Empowered Standing Committee.
28. The concept of Executive Power and Article 14
D
As seen above, the term executive power has been
specifically used in section 22 of the Act and section 57
specifically uses the term Municipal Governance. The concept
of executive power has been read widely by Constitution
Bench of this Court way back in Rai Sahib Ram Jawaya E
Kapur & Ors. Vs. The State of Punjab, reported in [AIR
1955 SC 549), wherein this court has observed:-
·· "12. It may not be possible to frame an exhaustive
deffnition of what executive functions means a·nd implies.
Ordinarily the executive power connotes the residue of F
governmental functions that remain after legislative and
judicialfunctions are taken away ......
13. .. ... The executive function comprises both the
determination of the policy as well as carrying it into G
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
H
812 SUPREME COURT REPORTS. [2011] 5 S.C.R.
A 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,
8
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
C 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 Vs. Anwar Ali Sarkar,
reported in [AIR 1952 SC 75]. In that matter, in his leading
judgment, B.K. Mukherjea, J. (as he then was) observed in
D para 46 as follows- ·
...... "If a legislation is discriminatory and discriminates
one person or class of persons against others similarly
situated and denies to the former the privileges that are
E enjoyed by the latter, it cannot but be regarded as
"hostile" in the sense that it affects injuriously the interests
of that person or class. Of course, if one's interests are
not at all affected by a particular piece of legislation, he
may have no right to complain. But if it is established that
F the person complaining has been discriminated against
as a resuit of legislation and denied equal privileges with
others occupying the same position. I do not think that it
is incumbent upon him, before he can claim relief on the
basis of his fundamental rights, to assert and prove that ·
in making the law, the legislature was actuated by a
G
hostile or inimical intention against a particular person
or class."
30. The correct approach towards interpretation
H What should be then the approach towards interpreting the
AFJAL IMAM v. STATE OF BIHAR AND ORS. 813
[H.L. GOKHALE, J.]
provisions in such a situation? Guidance can be had from three A
passages quoted herein below:-
(a) In Reserve Bank of India Vs. Peerless Corp. reported
=
in [AIR 1987 SC 1023) 1987 (1) SCC 424, 0. Chinnappa
Reddy, J. has observed as follows (in para 33):-
8
"33. Interpretation must depend on the text and the
context. They are the bases of interpretation. One may well
say if the text is the texture, context is what gives.the colour.
Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation C
. match the contextual. A statute is best interpreted when we
know why it was enacted. With this knowledge, the statute
.must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word. by.word. If
a statute is looked at, in the context of its enactment, with D
the glasses of the statute-maker, provided by such context,
its scheme; the sections, clauses, phrases and words may
take colour and appear different than when the statute is
looked at without the glasses provided by the context. With
these glasses we mustlook at the Act as a whole and E
discover what each section, each clause, each phrase and
each word is meant and designed to say as to fit into the
scheme of the entire Act. No part of a statute and no word
Lof a statute can be construed in isolation. Statutes have
to be construed so that every word has a place and F
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 G
construction." (emphasis supplied)
(b) In Union of India Vs. Filip Tiago De Gama, reported
in 1990 (1) SCC 277, K. Jagannatha Shetty, J. observed as
follows (in para 16) :-
H
814 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 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
B 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. Eisner1) Learned Hand, J., was
equally emphatic when he said: "Statutes should be
c construed, not as theorems of Euclid, but with some
imagination of the purposes which lie behind them."
(Lenigh Valley Coal Co. v. Yensavage 2)."
(1 245 us 428,425 (1918)
D 2 218 FR 547, 553)
(emphasis supplied)
(c) In Anwar Hasan Khan Vs. Mohd. Shafi and others
reported in 2001 (8) SCC 540, R.P. Sethi, J. quoted the above
E paragraph in Filip Tiago De Gama with approval prior whereto
he observed as follows (in para 8):-
"8. It is settled that for interpreting a particular
provision of an Act, the import and effect of the meaning
F of the words and phrases used in the statute have to be
gathered from the text, the nature of the subject-matter and
the purpose and intention of the statute. It is a cardinal
principle of construction of a statute that effort should be
made in construing its provisions by avoiding a conflict
G and adopting a harmonious construction. The statute or
rules made thereunder should be read as a whole and one
provision should be construed with reference to the other
provision to make the provision consistent with the object
sought to be achieved. The well-known principle of
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 815
[H.L. GOKHAlE, J.)
. harmonious construction is that effect should. be given to A
all the provisions and a construction that reduces one of
the provisions to a "dead letter" is not harmonious
construction. "
(emphasi!; supplied)
B
31. Removal of anomaly
· This rule of harmonious construction has been adopted by
this Court from time to time. In N. T. Veluswami Thevar Vs. G.
Raja Nainar reported in [AIR 1959 SC 422), a bench of three c
Judges of this Court, (consisting of T.l. Venkatarama Aiyer,
P.B. Gajendragadkar and A.K. Sarkar JJ.) was dealing with a
matter concerning the election to the legislative Assembly of
the then State of Madras held in the year 1957. In this case
arising under the Representation of the People Act, 1951, the D
Supreme Court held that if the Returning Officer had rejected
a nomination paper of a candidate on one disqualification, it
was open for the Election Tribunal to find the rejection proper
on some other ground of disqualification which may not have
been raised before the Returning Officer. It was pointed out that E
if this construction is not placed on section 100 (1) (c) of the
Act, the result will be anomalous in that if the decision under
section 36(6) of the Returning Officer on the objection on which
he rejected the nomination paper is held to be bad, the Tribunal
will have no option but to set aside the electi9n under section
100(1) (c) even though the candidate was disqualified and his
F
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 G
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
H
816 SUPREME COURT REPORTS [2011) 5 S.C.R.
A latter and not the former, seeking consolation in the
thought that the law bristles with anomalies.".....
(emphasis supplied)
32. In S. V. Kondeakar Vs. V.M. Deshpande, reported in
B [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
C 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 the section. This
conclusion was reached on the ground that only such
proceedings fall under section 446 (1) which could
D appropriately be dealt with by the winding up court under
section 446 (2). The Court held in para 7 of the judgment for
the bench /.D. Dua, J. observed as follows:-
"lt would lead to anomalous consequences if the winding
up court were to be held empowered to transfer the assessment
E proceeding to itself and assess the company to income-tax."
33. Making cross-reference to sections to read them
harmoniously
F One of the methods adopted in such situations is to make
cross-reference t6 the relevant sections to read them
harmoniously. Thus, way back in Ramkissendas Dhanuka Vs.
Satyacharan Lal, reported in [AIR 1950 PC 81], the Privy
Council was faced with such a situation in a case arising under
G the Companies Act, 1913. One of the Articles of Association
i.e. 109 of the Company concerned prescribed a maximum of
four and a minimum of three directors without any qualifying
words. Another Article i.e. 126 authorised the company in a
general meeting from time to time to increase or reduce the
H number of directors subject to the provisions of section 83A(1)
AFJAL IMAM v. STATE OF BIHAR AND ORS. 817
[H.L. GOKHALE, J.]
and to alter their qualification and change'the order of rotation A
of the increased or reduced number. The question was whether
the power of the company by ordinary resoh.Jtion to "increase
or reduce" the number of directors conferred by Article 126was
only exercisable within the limits set by the maximum and the
minimum prescribed by Article 109, and whether a special B
resolution altering Art. 109 was required to increase the number
of directors beyond the prescribed maximum. After considering
the relevant Articles, the Privy Council held that Articles 126 and
109 were two textually inconsistent provisions. The proposition
that emerges from the judgment is that it is permissible to read c
words such as "subject to" etc. in order to reconcile two
apparently inconsistent provisions. To reconcile Article 109 with
Article 126 and to give effective content to them, it was
necessary to imply words such as "subject to". The Court
therefore, observed in paragraph 5 as follows:- 0
"The omission to make such cross-references as
may be required to reconcile· two textually inconsistent
provisions is a common defect of draftsmanship. There is
thus no insuperable difficulty in reconciling Article 109 with
Article 126 either by implying in the former some such E
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 realise the F
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 Vs. Jayshree reported in 2008 (9) SCC G
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 H
818 SUPREME COURT REPORTS [2011) 5 S.C.R.
A 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
B is very wide and plenary and extensive powers have been
conferred on this Court as it stands now. In the case of Durgesh
Sharma versus Jayshree (supra), this Court held that section
23 must be read subject to section 25 and even if the High
Court had the power to transfer a case from one State to
c another, that must be taken to have been withdrawn from
1.1.1997 when the Amending Act of 1976 came into force. The
Amending Act had failed to delete section 23 (3) and therefore
this Court had to make it clear that section 23 (3) will be subject
to section 25 of the Act. In para 55 of the judgment, C.K.
Thakker, J. held as follows:-
0
"lt is no doubt true that even when section 25 in the
present form was substituted by the Amendment Act of
1976, sub-section (3) of Section 23 of the Code has
neither been deleted nor amended. That, however, is not
E relevant. Since in our considered view, Section 23 is
merely a procedural provision, no order of transfer can be
made under the said provision. If the case is covered by
section 25 of the Code, it is only that section which will
apply for both the purposes, namely, for the purpose of
F making application and also for the purpose of effecting
transfer. On the contrary, reading of sub-section (3) of
section 23 of the Code in the manner suggested by the
learned counsel for the respondent wife would result in
allowing inroad and encroachment on the power of this
G Court not intended by Parliament. Section 23, therefore,
in our considered view, must be read subject to Section
25 of the Code." ....... .
(emphasis supplied)
H
AFJAL IMAM v. STATE OF BIHAR AND ORS. 819
[H.L. GOKHALE, J.]
Thereafter in para 57 of that judgment the 9ourt gave a A
declaration as follows:-
" .... We hold that a High Court has no power,
authority or jurisdiction to transfer a case, appeal or other
proceedings pending in a court subordinate to it to any 8
court subordinate to another High Court in purported
exercise of power under sub-section (3) of Section 23 of
the Code and it is only this Court which can exercise the
said authority under section 25 of the Code ...... " ·
35. Reading down a section to save it from being ultra C
vires
We have noted that the view canvassed by the
respondents that the nomination of the members on the
Empowered Standing Committee is a one time act, is possible o
only if the wqrds are added in section 21 · (3) of the Act as
point~d out above. The intention of the legislature as seen from
the provisions of the Act and the Rules is to have a 'Mayor-in-
Council' who enjoys the confidence of the Municipal House. The
Empowered Standing Committee along with him is vested with
E
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 F
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 G
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 H
820 SUPREME COURT REPORTS [2011) 5 S.C.R.
A the Empowered Standing Committee, he will be treated
dissimilarly and such an interpretation will make section 27
violative of Article 14 of the Constitution and contrary to the
powers of the Mayor under section 21(3) of the Act. The only
way, therefore, to save section 27 is to read it down by
B · implication, and to make it subject to sections 25 (4), 23 (3)
and 21 (3) of the Act, thereby, holding that the nominated
members shall also automatically vacate their office when the
Mayor nominating them is no longer in the office. Thus, the
newly elected Mayor will also have the authority to nominate
c seven members of his choice on the Empowered Standing
Committee.
36. This has been the approach adopted by this Court in
similar cases for instance by the Constitution Bench in 20th
Century Finance Corpn. Ltd. Vs State of Maharashtra,
D reported in 2000 (6) SCC 12. Amongst others, in that matter
the Constitution Bench was. concerned with the Maharashtra
Sales Tax on the Transfer of the Right to use any Goods for any
Purpose Act, 1985. Explanation to section 2(10) of that Act
deemed the transfer of right to use any goods to have occurred
E in the State of Maharashtra if the goods were located within
the State at the time of their use, irrespective of the place where
agreement of such transfer of the right is made and therefore
included deemed sales (i) which are in the course of inter-State
trade and commerce; (ii) sales outside the State of
F Maharashtra; and (iii) sales which occasioned import of goods
into India. Section 3 laid down that subject to the provisions
contained in the Act and Rules, tax shall be leviable on the
turnover of sales and therefore turnover necessarily has to
include outside sale and sale in the course of inter-State trade
G and commerce and sales which occasioned import of goods.
Although Section 8-A of the Act provided that nothing in this
Act would be deemed to impose or authorize imposition of any
tax on a sale outside the State or in the course of the import or
export or inter-state trade or commerce but the explanation has
H not been amended accordingly. There is a provision for .
AFJAL IMf.M v. STATE OF BIHAR AND ORS. 821
[H.L. GOKHALE, J.]
exemption of turnover related to goods in respect of which tax A
has already been paid under the Bombay Sales Tax Act, 1952,
but there is no prqvision that such exemption would be available
in case of goods which have suffered sales tax under the other
Sales Tax Laws. In the circumstances, this Court held as follows
in para 38 (per V.N. Khare, J (as he then was) speaking for B
the majority on the bench):- .
"We are, therefore, of the view that since the explanation
has not been amended in conformity with Section 8~A of
the Act, the explanation to Section 2(10) of the
Maharashtra· Act transgresses the limits of legislative C
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(1 O) of the Act shall be read
down to this effect that it would not be applicable to the
transactions oftransfeir of rightto use any goods if such · D
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 !erritory of India; and (iii) an inter-State sale."
37. Conclusions E
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
F
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 the case may be, apart
.from that of the House. The members of the Empowered G
Standing Committee are authorized to answer the questions
on behalf of the Empowered Standing Committee under the
Bihar Municipal Act. Thus, there is an element of collective
responsibility. The Empowered Standing Committee is
supposed to function on the basis of the principle of Democratic H
'822 SUPREME COURT REPORTS [2011] 5 S.C.R.
A Governance in the sense that the decisions are to be taken by
the majority. If the new. Mayor is not permitted to have his
nominees on the Empowered Standing Committee, the
collective functioning will be under jeopardy. Thus, there is a
clear omission in the Bihar Municipal Act, 2007 in this behalf.
B
38. As noted above, the interpretation sought to be placed
on section 27 by the respondents requires addition of words
in section 21 (3) of the Act. Even after adding the necessary
words, the result will be incongruous to a democratic
C functioning in as much as the nomination on the Empowered
Standing Committee will be a one time act and the newly
elected Mayor will be at the mercy of the other members of the
Empowered Standing Committee. Such a reading will be also
be contrary to section 21 of the Act and the newly elected Mayor
will be treated dissimilarly as against the earlier elected Mayor
D for no justifiable reason. Thereby section 27 will be ultra vires
to Article 14 ofthe Constitution. The legislature cannot be
attributed such an intent. On the other hand, reading section 27
by making a cross-reference and making the same subject to
sections 25 (4), 23 (3), 21 (3) and 21 (4) will lead to a
E harmonious functioning of the Municipal Corporation and will
also save the section from being ultra vires Article 14. The
judgment of the Division Bench of the Patna High Court in
Jagdish Singh Vs. State of Bihar (supra) and that of the full
bench of that Court in Jitendra Kumar Vs. State of Bihar (supra)
F do not lay down the correct legal position and are overruled.
39. In the circumstances, we allow this appeal. Impugned
judgment and order passed by the Division Bench of the Patna
High Court in Writ Petition bearing No. CWJC 9981/2010,
G dated 8th July, 2010, is set aside. The said writ petition filed
by the appellant herein stands allowed in part. Section 27 of
the Bihar Municipal Act 2007, shall be read down harmoniously
with and subject to sections 25 (4), 23 (3), 21 (3) and 21 (4) of
the said Act. The respondent no.3, the District Magistrate,
H Patna, Bihar is consequently directed to administer the oath of
AFJAL IMAM v. STATE OF BIHAR AND ORS. 823
[H.L. GOKHALE, J.]
secrecy under Section 24 of the Act to the seven Municipal A
Councillors nominated by the appellant to the Empowered
Standing Committee. The appellant as well as the members
of the Empowered Standing Committee shall be entitled to
exercise all the powers as the Mayor and the members of the
Empowered Standing Committee as provided in the Bihar B
Municipal Act, 2007, in accordance with law.
40. Parties will bear their own costs of the proceedings.
D.G. Appeal Partly allowed.
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