Rajasthan High Court - Jaipur
Municipal Board, Begun And Ors. vs State Of Rajasthan And Ors. on 3 August, 1989
Equivalent citations: AIR1991RAJ14, 1990(1)WLN64
ORDER
1. By this writ petition the petitioner seeks to quash the notification dated 1-5-87 Anx. 3 whereby the State Government appointed administrator in exercise of the power conferred under Section293-A of the Rajasthan Municipalities Act, 1959.
2. The ground of challenge inter alia, is that the impugned notification does not specify the period in the notification during which the appointment of the administrator shall continue. According to the petitioners the provision contained in Section 293-a is a mandatory provision. On the existence of the situations envisaged in Clauses (a) to (e) of Section 293-A, the State Government is empowered to appoint an administrator by notification in the official gazette for such period as may be specified in the notification and it may also, by like notification, curtail or extend the period of such appointment.
3. The petitioner has also sought a declaration that amendments made in Section 4(8)(b) and Section 11 of the Act by the Rajasthan Municipalities (Amendment & Validation) Act, 1987 (Act No. 9 of 1987) are unconstitutional and void. This prayer has rightly been not pressed and so we are not called upon to adjudicate the constitutionality of the amendments made in Section 4(8)(b) and Section 11 of the aforesaid Amendment Act.
4. The main question that arises for consideration in this writ petition is as to whether the requirement of prescribing the period in the notification is mandatory and imperative and whether in the absence thereof the notification is invalid and bad. For consideration of the above question and for facility of reference we read Section 293-A :
293-A. Power to appoint administrators in certain cases (1) Whenever--
(a) Any general elections to a board under this Act and the proceedings consequent thereon have been stayed by an order of a competent Court or authority; or
(b) the election of all the members or more than two-thirds of the total number of the members of a board has been declared by a competent court or authority to be void otherwise than in proceedings upon an election petition presented under Section 36, or
(c) the election of the first chariman of a newly constituted board has been stayed by an order of a competent court or authority; or
(d) the term or extended term of office of a board has expired and a new board has not been constituted in accordance with the provisions of this Act, or
(e) all the members or more than two-thirds of the total number of the members of a board have resigned, the State Government shall, by notification in the Official Gazette, appoint at administrator for such period as may be specified in the notification and may, by like notification, curtail or extend the period of such appointment.
(2) On the appointment of an administrator under Sub-section (1) all the powers and duties of the Board shall be exercised and performed by the administrator so appointed and he shall be deemed to be a duly constituted board for the purposes of this Act."
5. It would appear from the above provision how and in what manner the State Government is required to act for appointment of an administrator over a municipality in situations as contemplated in Clauses (a) to (e). The State Government is required to act for appointment of an administrator in the manner that it shall by notification in the official gazette appointing an administrator for such period as may be specified in the notification. Firstly the word 'shall' has been used which normally indicates the imperative character of the provision. It would also appear from the above provision that simultaneously with the use of the expression 'shall' expression 'may' has also been used in the following sentence. That shows that the subsequent notification for curtailment or extension of period which may be issued is in the discretion of the State Government. So the two expressions 'shall' and 'may' have been used in contradiction to each other and from that also the legislative intent can be gathered as to how the word 'shall' has to be interpreted and how the word 'may' has to be interpreted; whether they are required to be given imperative character or directive character.
6. This question may also be considered not only on the basis of the aforesaid ground of use of the two expressions simultaneously denoting the legislative intent but also with regard to the importance of the matter in respect of which the power may be exercised by the State Government. Section 293-A confers powers on the State Government for appointment of an administrator over the elected municipal board or municipal council. When elected municipal board is to be replaced by appointment of an administrator, then such a power can be exercised only in accordance with the provision conferring that power. As already stated above the power can be exercised by notification specifying the period and the power cannot be exercised without fulfilling the requirement of the period in the notification. It would appear that there should be an application of mind by the State Government for what period it wants to appoint an administrator over the municipal board. This application of mind should be there at the very time of issuing of notification for appointment of an administrator so that the electorate of the municipal board or the council may know for what period the administrator has been appointed.
7. Besides that if any such power is exercised then the authority, on which the power is conferred is required to exercise that power in that very manner as provided in the law and it cannot be exercised in any other manner. This means that if we apply this rule to the provision conferring power on the State Government for appointment of an administrator, it would mean that the State Government can exercise this power of appointment of administrator by notification only by specifying the period in the said notification and not otherwise. For all these aforesaid reasons we are of the opinion that in the impugned notification the power has not been exercised in the manner provided in the aforesaid provision and the said provision of the period to be specified in the notification is mandatory.
8. Mr. J.P. Joshi, learned additional Advocate General submitted that it was not necessary for the State Government to specify the period as the State Government is under an obligation to hold election within a period of two years as provided under Section 23 after the appointment of an administrator. It is true that the proviso to Sub-section (1) of Section 23 lays down that when the term of board is not extended further under Section 11 and an administrator is appointed under Section 293-A, the State Government may by order direct from time to time the postponement of general election of a board or boards for such period or periods which shall not in the aggregate exceed two years. The government is under an obligation . under this provision to hold elections and the period or periods for which the administrator can be appointed shall not in aggregate exceed two years but that does not mean that the Government is not required to specify the period in the notification for appointment of an administrator. The provision contained in Section 293-A has to be read independently for the exercise of the power under Section 293-A and not along with the proviso contained in Section 23. It is not necessary that the appointment of an administrator may be for two years the period may be much less than two years. It may be four months, six months, nine months, and twelve months. The outer limit for election is given under the proviso to Section 23. That does not mean that the outer limit of two years can be given initially in the notification which may be issued by the Government under Section 293-A. The notification has to be issued in the light of the provision of Section 293-A itself and looking to the nature of the provision as considered above, it was obligatory for the State Government to have provided the period of appointment of administrator in the notification.
9. Counsel for the petitioner has referred to a case in which there was a requirement for specifying the period. The decision is Shri Rangaswami, The Textile Commr. v. The Sagar Textile Mills (P) Ltd., AIR 1977 SC 1516. Their Lordships of the Supreme Court considered the constructions of the words 'may' and 'shall' are thereafter having regard to the purposes of the relevant empowerment and its impact on those who are likely to be affected by the exercise of the power, and held the provision as mandatory. It was observed that the directions of the kind envisaged by Clause 20 are influenced and justified by exigencies which render it imperative that the directions be reviewed from time to time. That becomes feasible only if the directions are limited expressly to a determinate period of time at the end of which a fresh review of facts and circumstances becames obligatory. It was also observed that the manufacturers must know, in order that they may organize their business in their own interest as well as in the interest of the community at large as to how long any particular embargo is going to be operative. The present case is also parallel to the said decision. Here as welt after prescribing the period, the government is required to consider whether that period should be extended or should be curtailed and the electorate should also know, how long the administrator will continue over the board.
10. Reference has also been made by the learned counsel for the petitioner to a decision of the Supreme Court in Govind Lal Chaggan Lal v. The Agriculture Produce Market Committee, AIR 1976 SC 263. It has been observed in that case as under :--
"The governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations. In other words, the use of the word 'shall' or 'may' is not conclusive on the question whether the particular requirement of law is mandatory or directory. But the circumstances that the legislature has used a language of compulsive force is always of great relevance and in the absence of anything contrary in the context indicating that a permissive interpretation is permissible, the statute ought to be construed as peremptory."
11. If the provision of Section 293-A is considered in the light of the principles of interpretation as enunciated by the Supreme Court in the aforesaid decision we are clearly of the opinion that the provision regarding appointment of administrator in Section 293-A is imperative with regard to specifying of the period of the notification and the same conclusion is further reached considering the manner in which the power is required to be exercised and for which reliance has been placed by the counsel for the petitioner on AIR 1964 SC 358, AIR 1984 SC 500, AIR 1974 SC 1573 (Sic) and AIR 1986 SC2160. In these authorities it has been laid down that when power is conferred on any authority to be exercised in a particular manner, then that power has to be exercised in that manner alone and not in any other manner. Thus considering the matter from all aspects as dealt with above we are of the opinion that non-specifying of the period in the impugned notification renders the notification invalid and bad and is liable to be quashed.
12. Accordingly, the writ petition is partly allowed to the extent that the impugned notification Annex. 3 dated 1-5-87 is quashed.