Karnataka High Court
Smt K G Geetha Rudresh vs The State Of Karnataka on 23 February, 2015
Equivalent citations: AIR 2015 KARNATAKA 92, 2015 (2) AIR KANT HCR 527 (2015) 2 KCCR 1670, (2015) 2 KCCR 1670
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
-: 1 :-
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF FEBRUARY, 2015
BEFORE
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT PETITION NO.57265/2014 (LB-ELE)
BETWEEN:
SMT.K.G.GEETHA RUDRESH,
W/O RUDRESH,
AGED ABOUT 40 YEARS,
MAYOR OF THE TUMKUR CORPORATION,
R/A. TPK 10TH CROSS,
SAPTHAGERI EXTENSION,
TUMKUR-572102. ... PETITIONER
(BY SRI: JAYAKUMAR.S.PATIL, Sr. ADV. FOR SRI.A.MOHAMMED
TAHIR, ADV.)
AND:
1.THE STATE OF KARNATAKA,
DEPARTMENT OF URBAN DEVELOPMENT,
VIKASASOUDHA, BANGALORE.
REP. BY ITS URBAN SECRETARY
TO GOVERNMENT.
2.REGIONAL COMMISSIONER,
BANGALORE DIVISION,
BANGALORE.
3.TUMKUR CITY CORPORATION,
TUMKUR,
REP. BY ITS COMMISSIONER.
4.T.R.NAGARAJU,
S/O RAMANNA,
AGED ABOUT 40 YEARS,
WARD NO.7, KRISHNANAGAR,
TUMKUR.
5.INDRAKUMAR,
S/O T.K.THIMMAIAH,
AGED ABOUT 45 YEARS,
-: 2 :-
WARD NO.1, LINGAPURA,
TUMKUR.
6.VENKATAPPA.E.,
S/O VEERANNA,
AGED ABOUT 49 YEARS,
WARD NO.2, ANTARASANNAHALLI,
TUMKUR.
7.B.S.NAGESH,
(BAVIKATTANAGANNA),
S/O SHAMBHASHIVAIAH,
AGED ABOUT 52 YEARS,
WARD NO.4, CHIKKAPETE,
TUMKUR.
8.T.H.VASUDEV,
S/O T.V.HULLURAIAH,
AGED ABOUT 52 YEARS,
WARD NO.5, SHIRAMANAGARA,
TUMKUR.
9.RAJANNA,
S/O LATE CHIKKAYALLAPPA,
AGED ABOUT 55 YEARS,
WARD NO.6, DIBBURU RASTE,
BEHIND OLD CHECK POST,
TUMKUR.
10.VENKATESH.M.N.,
S/O NARASAIAH,
AGED ABOUT 45 YEARS,
WARD NO.11, MAELKOTE,
TUMKUR.
11.T.S.KARUNARADHYA (KIRAN),
S/O R.SHIVARUDRADHYA,
AGED ABOUT 42 YEARS,
WARD NO.15, 2ND CROSS,
M.C.COLONY, TUMKUR.
12.RAMAKRISHNA
(SANCHURI TAILORE)
S/O LATE HANUMANTHAIAH,
AGED ABOUT 54 YEARS,
WARD NO.16, B.M.ESTATE,
TUMKUR.
-: 3 :-
13.T.H.BALAKRISHNA,
S/O T.V.HULIARAIAH,
AGED ABOUT 46 YEARS,
WARD NO.19, HOSABADAVANE,
SRIRAMANAGARA, TUMKUR.
14.T.C.HANUMANTHARAYAPPA (H.R.)
S/O LATE CHIKKAHANUMAIHA,
AGED ABOUT 56 YEARS,
WARD NO.20, N.R.COLONY,
BELLAGUMBARASTE, TUMKUR.
15.LALITHA,
W/O RAVISH,
AGED ABOUT 30 YEARS,
WARD NO.21, HANUMANTHAPURA,
TUMKUR.
16.H.RAVIKUMAR,
S/O H.HANUMANTHARAYAPPA,
AGED ABOUT 36 YEARS,
WARD NO.22, BEHIND CHOWDESHWARI
TEMPLE BATAWADI, TUMKUR.
17.MARIGANGAIAH,
S/O HUNNAIAH,
AGED ABOUT 44 YEARS,
WARD NO.23, PUTTASHAMAIANAPALYA,
SHIRAGETE TUMKUR.
18.P.B.VIJAYA RUDRESH,
W/O T.K.RUDRESH KUMAR,
AGED ABOUT 34 YEARS,
WARD NO.25, 5TH MAIN CROSS,
SIDDAGANGABADAWANE,
TUMKUR.
19.H.P.MANJULA,
W/O NIRANJANA MURTHY,
AGED ABOUT 40 YEARS,
WARD NO.26, 5TH CROSS,
ASHOKANAGAR, TUMKUR.
20.M.H.JAYALAKSHMI,
W/O T.G.NARASIMHARAJA,
AGED ABOUT 40 YEARS,
WARD NO.27,
SIDDALINGAYANAPALLYA,
-: 4 :-
BEHIND M.A.R.P. QUARTERS,
TUMKUR.
21.M.R.JAYALAKSHMI,
W/O VENKATESH,
AGED ABOUT 34 YEARS,
WARD NO.28,
KEMPEGOWDA MAIN ROAD,
OPP: S.S.I.OLD GATE,
SARASWATHIPURAM,
TUMKUR.
22.JAYAMMA,
W/O T.C.JANARDHAN,
AGED ABOUT 39 YEARS,
WARD NO.31, 4TH CROSS,
JAYANAGAR WEST,
TUMKUR.
23.T.RAVIKUMAR (DELTA),
S/O LATE JAYARAMEGOWDA,
AGED ABOUT 48 YEARS,
WARD NO.32, 2ND CROSS,
GOKULA BADAVANE,
KYATHESANDRA, TUMKUR.
24.LOKESH.G.H.,
S/O HANUMANTHAPPA,
AGED ABOUT 39 YEARS,
WARD NO.35,
DEVARAYAPATNA KASABA HOBLI,
TUMKUR. ... RESPONDENTS
(BY SRI: A.G.SHIVANNA, A.A.G. & SRI.Y.D.HARSHA, A.G.A. FOR
R-1 & R-2, SRI.A.NAGARAJAPPA, ADV. FOR R3, SRI.ASHOK
HARANAHALLI, Sr.COUNSEL FOR SRI.SUBRAMANYA.R. FOR R-4
TO R-24)
*****
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE COMMUNICATION DATED 06.12.2014 VIDE ANNEX-F
ISSUED BY R-1 & R-2.
THE JUDGMENT IN THIS PETITION HAVING BEEN
RESERVED ON 31/01/2015 AND IT BEING LISTED FOR
PRONOUNCEMENT TODAY, COURT PRONOUNCED THE
FOLLOWING:
-: 5 :-
ORDER
This writ petition raises a short but interesting question.
2. The petitioner, who is functioning as the Mayor of Tumkur City Corporation, has assailed Communication dated 06/12/2014, issued by respondent Nos.1 and 2 (Annexure "F" to the writ petition). By that Communication, it has been stated that reckoning 20/12/2013, as the date on which Tumkur City Corporation was established, within one year from that date, elections to the post of Mayor have and Deputy Mayor have to take place. A direction has been issued to the second respondent to conduct elections to the said posts. According to the petitioner, her term of office as Mayor is for a period of 2 ½ years from the date of her election as President of the erstwhile Tumkur Municipality dated 17/09/2013 or in the alternative, the term of office of a Mayor of the third respondent - Corporation would expire on 05/02/2015 i.e., the date when the first -: 6 :- meeting of the third respondent - Corporation was held subsequent to it being declared as a Corporation.
3. The facts in a nut-shell are that petitioner was elected as a Councillor of the erstwhile Tumkur Municipality on 07/03/2013, for a period of five years and she was elected as its President on 17/09/2013 and one Smt.Dhanalakshmi, was elected as Vice- President of Tumkur Municipality, under the provisions of the Karnataka Municipalities (President and Vice- President) Election Rules, 1965. The term of office of the President and Vice-President of the Municipality is 2 ½ years from the date of the first meeting, which was held on 17/09/2013. When the matter stood thus, first respondent issued a Notification on 20/12/2013, declaring Tumkur as a smaller urban area. In fact, it had already been specified as a City Municipal Council Area by Notification dated 10/10/1995. In exercise of the powers conferred under Section 3 r/w Section 503 of the Karnataka Municipal Corporations Act, 1976 (hereinafter, referred to as "the Act"), the Governor of -: 7 :- Karnataka, declared the City Municipal Area of Tumkur in Schedule-A and the limits which were specified in Schedule-B of the notification dated 20/12/2013 as larger urban area with effect from that date and it was further deemed to be a City Municipal Corporation. Thus, under Notification dated 20/12/2013 a Corporation was established in the name and style of the Corporation of the City of Tumkur (Annexure "C" to the writ petition).
4. According to petitioner, on the issuance of Notification dated 20/12/2013, she has functioned as a Mayor of the third respondent - Corporation. That the first meeting of the Corporation was held on 05/02/2014 and from that date, she would have a term of one year and therefore, the impugned Communication proposing to hold elections by 20/12/2014, is illegal. It is further contended that by virtue of the proviso to sub-section (4) of Section 503 of the Act, constitution of the Corporation by holding elections under sub-section (4) would not arise and -: 8 :- therefore, the term of office of Mayor must be reckoned from the date of the first meeting of the Corporation i.e., on 05/02/2014 and hence, the impugned Communication could not have directed for holding of elections to the post of Mayor and Deputy Mayor on or before 20/12/2014. It is in the aforesaid circumstances that the petitioner has assailed Communication dated 06/12/2014 and has sought the aforesaid declaration.
5. Statement of objection has been filed by the State Government, admitting that Tumkur City Municipality was upgraded into a City Corporation with effect from 20/12/2013 and under sub-section (3) of Section 503 of the Act, the President and Vice- President of the erstwhile City Municipal Council of Tumkur became Mayor and Deputy Mayor of the Tumkur City Corporation from the date of declaration i.e., 20/12/2013 and from that date onwards, the term of the Mayor and the Deputy Mayor has to be reckoned as one year, in which event, the period -: 9 :- would have come to an end on 20/12/2014.
Therefore, the impugned Communication was rightly issued to hold elections to those posts prior to that date. This is because under sub-section (2) of Section 10 of the Act, the Mayor or the Deputy Mayor would hold office for a period of one year from the date of elections (which is at the first meeting after the constitution of the Corporation). Therefore, petitioner is estopped from contending that her term of office is on par with that of the President of the City Municipal Council i.e., for 2 ½ years or it is one year from the date of the first meeting. Thus, petitioner cannot claim that the term of office of the Mayor is 2 ½ years from the date on which she was elected as the President of the erstwhile Tumkur Municipality or one year from the date of the first meeting of the Corporation, which was held on 05/02/2014. Under the circumstances, the State has sought dismissal of the writ petition.
-: 10 :-
6. An application for impleadment was filed by some of the members of the Corporation, which was allowed and they have been impleaded as respondent Nos.4 to 24.
7. During the pendency of the writ petition, an application for amendment was filed by the petitioner and the amendment has also been allowed. In the application for amendment, it has been averred that the petitioner is entitled to continue as Mayor of the third respondent - Corporation, till the holding of fresh elections and in prayer (b), it has been sought that the term of the petitioner as the Mayor of third respondent - Corporation, is coterminous till the holding of fresh elections and that her term would expire only on 17/03/2016, if it is reckoned as 2 ½ years from the date of her election as President of erstwhile Tumkur City Municipal Council.
8. Based on the aforesaid pleadings, learned senior counsel and counsel for the respective parties have made their submissions.
-: 11 :-
9. Learned senior counsel appearing for the petitioner initially drew my attention to the chronology of dates and events. He stated that the erstwhile City Municipal Council of Tumkur was constituted on 07/03/2013 when the elections were held to the Municipality. That the petitioner was elected as President of the Municipality in the first meeting held on 17/09/2013. That if the Municipality had continued, then she would have had a term of 2 ½ years from that date. When the matter stood thus, third respondent - Corporation was established on 20/12/2013. By virtue of sub-section (3) of Section 503 of the Act, the petitioner continued to function as Mayor but the first meeting of the Corporation was held on 05/02/2014. In the circumstances and having regard to the proviso to sub-section (4) of Section 503 of the Act, the term of office of the Mayor is 2 ½ years from 17/09/2013 on which date, the petitioner was elected as the President of the erstwhile Municipality. In fact, the contention was that there is no time limit fixed under the Act with regard to the term of Mayor -: 12 :- or Deputy Mayor when a Municipality is upgraded into a Corporation. However, having regard to the provisions of the Karnataka Municipalities Act, 1964 (hereinafter, referred to as "the 1964 Act"), it could be held that the term of office of the Mayor of the Corporation consequent on its upgradation is 2½ years from the date of the elections of the Mayor under the provisions of the 1964 Act and if the same is applied to the instant case, then it would be up to 17/03/2016. Alternatively, it was submitted that the date of the first meeting of the third respondent - Corporation subsequent to its declaration was held on 05/02/2014 in which event, the term of office of the Mayor is one year from that date i.e., up to 05/02/2015 and therefore, the holding of elections on or before 20/12/2014 did not arise and therefore the impugned communication may be quashed.
10. During the course of submission, reference was made to proviso to sub-section (4) of Section 503 of the Act and it was contended that as the proviso is -: 13 :- applicable to the present case, inasmuch as the elections to the erstwhile Tumkur City Municipality was held within one year from the date of its declaration as a "Corporation", then in that case, the term of office of the Mayor must be reckoned to be one year from the date of insertion of the proviso, by way of an amendment to the Act, in which case, the term of office of the Mayor would be one year from 28/02/2014.
11. Under the circumstances, learned senior counsel appearing for the petitioner contended that impugned Communication dated 06/12/2014 may be quashed and if at all elections held during the pendency of this writ petition to the post of Mayor and Deputy Mayor have to be given effect to, it could only be on completion of the term of office of the petitioner as a Mayor.
12. Learned senior counsel appearing for respondent Nos.4 to 24, who are the members of the Corporation, in contrast, contended that under sub- -: 14 :- section (2) of Section 503 of the Act, once a City Municipal Area is declared to be a larger urban area under sub-section (1) of Section 503, the City Municipal Council becomes a "Corporation" under sub- section (1) of Section 503 with effect from the date of declaration. That sub-section (3) of Section 503 is a transitory provision inasmuch as it envisages that with the date of declaration to any area as a larger urban area, the body functioning as a City Municipal Council under the 1964 Act, immediately before the date of the said declaration in respect of the said area shall be a body competent to exercise powers and perform duties as a "Corporation". The Councillors of the City Municipal Council shall become Councillors of the Corporation. The President of the City Municipal Council shall become Mayor of the Corporation discharging duties and perform functions as Mayor under the Act and so also the Vice-President shall become Deputy Mayor. That on the declaration of a Municipality into a Corporation, the Councillors and the Mayor and Deputy Mayor, by operation of law, -: 15 :- function under the provisions of the Act. It is with effect from the date of declaration and therefore, the concept of holding elections in the first meeting to be held after the declaration of the Corporation is alien having regard to the provisions of the Act. It was therefore, contended that the first respondent rightly reckoned the term of office of the Mayor to be one year from 20/12/2013 when the erstwhile Tumkur Municipality was declared to be a Municipal Corporation and therefore, elections to the post of Mayor and Deputy Mayor had to be held prior to 20/12/2014 and that there is no merit in this writ petition and the same may be dismissed.
13. Reliance has also been placed on a decision of the Hon'ble Supreme Court reported in case of Afjal Imam v. State of Bihar and others [(2011) 5 SCC 729], with reference to interpretation of statutes.
14. Learned Addl. Advocate General contended that in the instant case, proviso to sub-section (4) of -: 16 :- Section 503 of the Act applies. In fact, sub-section (4) is also in a way, a transitory provision as is sub- section (3) of Section 503 of the Act. Sub-section (4) of Section 503 states that a Corporation shall be duly constituted for the larger urban area under the provisions of the Act, within a period of six months from the date of declaration and from the date of the first meeting of the Corporation as so constituted. The body exercising powers and performing duties of the Corporation shall stand dissolved. He stated that where the conditions stated in the proviso to sub- section (4) of Section 503 are applicable, then the members of the smaller urban area or the City Municipal Council shall continue to be members of the larger urban area of the Corporation till completion of their term so elected and a Corporation shall be constituted by treating the said elected members as Councillors of the Corporation under Section 7 of the Act. Elaborating the said submission, he contended that where the proviso applies, elections need not be held to the Corporation and that the Councillors of the -: 17 :- erstwhile City Municipal Council would continue to be members of the Corporation till their term as Councillors of the said Municipal Council would come to an end, in which event, the Corporation is constituted by treating the elected members as Councillors under Section 7 of the Act. He therefore contended that in the instant case, as the elections to the Tumkur City Municipality was held on 07/03/2013, which was less than one year from the date of the declaration of the Tumkur Municipal Corporation i.e., on 20/12/2013, the need to have elections to the Corporation did not arise in terms of sub-section (4) of Section 503 i.e., within a period of six months from the date of declaration of the Corporation. Thus, the Corporation was constituted under Section 7 of the Act from the date of declaration of the Corporation and the term of office of the Councillors of the Corporation would be five years from the date of their elections as members of the erstwhile Tumkur City Municipal Council and that of the Mayor, would be one year from the date of declaration or constitution of the -: 18 :- Corporation i.e., one year from 20/12/2013. He therefore contended that the impugned Communication would not call for interference and that there is no merit in the writ petition.
15. In reply, learned senior counsel appearing for the petitioner contended that when the third respondent - Corporation was declared to be a Municipal Corporation, proviso to sub-section (4) of Section 503 of the Act had not yet been inserted. In fact, it was enforced only from 28/02/2014. Under the circumstances, 28/02/2014 may be considered to be the starting point for the applicability of the proviso in the case of the third respondent - Corporation, in which event also, the impugned Notification dated 06/12/2014 would have to be quashed and it has to be held that the petitioner has a term of one year with effect from 28/02/2014 up to 28/02/2015.
16. Having heard learned senior counsel for the respective parties and learned Addl. Advocate General -: 19 :- for the State, following points would arise for my consideration:-
1) When a City Municipal Council is declared to be a larger urban area under the Act and when the proviso to sub-section (4) of Section 503 of the Act applies, then what would be the term of office of the Mayor (and Deputy Mayor)?
2) Having regard to answer given to Point No.1, whether the petitioner is entitled to any relief in the writ petition?
17. The admitted facts of the case are that erstwhile Tumkur City Municipality was reconstituted on 07/03/2013. In the first meeting of the Council, i.e., on 17/09/2013, petitioner was elected as the President of the Council. When the matter stood thus, the Governor of the State by exercising power under Section 3 of the Act, declared by Notification that Tumkur City Municipality is constituted as larger urban area. Subsequent to the declaration of the larger urban area, Tumkur Municipal Corporation came into existence. Under the provisions of the 1964 Act, the -: 20 :- term of office of the members of the Council is five years from the date appointed for the first meeting of the council and that of the President and Vice- President of the Municipality is 30 months or 2½ years from the date of their election. Petitioner, who was functioning as President of the erstwhile Tumkur Municipality, when the Governor on 20/12/2013 declared the area coming under the jurisdiction of the Municipality i.e., the Tumkur City Municipal Area into a larger urban area. As a result, under sub-section (3) of Section 503 of the Act, the body functioning as Tumkur City Municipal Council became a Corporation for the larger urban area. The Councillors of the City Municipal Council holding office immediately before the date of declaration became the Councillors of the Tumkur City Corporation. The President and Vice- President of the City Municipal Council became the Mayor and Deputy Mayor of the Corporation.
18. Therefore, with effect from the date of declaration of any area as larger urban area by virtue -: 21 :- of clauses (a), (b) and (c) of sub-section (3) of Section 503, a body functioning as a City Municipal Council gets transformed into a Corporation and accordingly, the Councillors of the Municipal Council would become Corporators and the President and Vice-President of the Municipal Council as Mayor and Deputy Mayor of the Corporation. This is by operation of law and clauses (a), (b) and (c) to sub-section (3) of Section 503 is a transitory provision, which has been made so as to avoid a vacuum in the body corporate once a smaller urban area or City Municipal Area is declared into a larger urban area and until it is constituted as a Municipal Corporation. The operation of these transitory provisions is only for a period of six months as under sub-section (4) of Section 503, it is envisaged that a Corporation has to be duly constituted for the larger urban area, within a period of six months from the date of declaration under sub- section (1) of Section 503 of the Act i.e., by holding elections. But where the proviso to sub-section (4) of Section 503 of the Act applies, holding of elections to -: 22 :- the newly established Corporation does not arise and a Corporation automatically gets constituted under Section 7 of the Act. The proviso states that the term of office of the Councillors or Corporators in such a situation is coterminous with their term as members of erstwhile City Municipality. But the term of office of the Mayor and Deputy Mayor is not stipulated in the proviso. It is in this context that the controversy has arisen in the instant case, pursuant to the impugned Communication dated 06/12/2014.
19. In order to appreciate the arguments of the respective counsel, it is necessary to extract the following relevant provisions of the Act and analyze the same in the context of the present controversy:-
Section 10(2) of the Karnataka Municipal Corporations Act, 1976 reads as under:-
"10. Mayor and Deputy Mayor:-
X X X -: 23 :- Section 10(2) :- The Mayor or the Deputy Mayor shall hold office, for one year from the date of his elections and shall, notwithstanding the expiry of the said period, continue in office till his successor is elected, provided that in the meantime he does not cease to be a Councillor."
X X X
"Section 503:- Declaration of city
municipal area as a larger urban area
under this Act.-
(1) Subject to the provisions of
Section 3, the Governor may declare by
notification that any municipal area for which a city municipal council is constituted under the Karnataka Municipalities Act, 1964 (Karnataka Act 22 of 1964) shall with effect from the date to be specified in such notification to be a larger urban area specified under Section 3 of this Act.
(2) The provisions of the Karnataka Municipalities Act, 1964 applicable to such city municipal area shall not apply to any local area declared as a larger urban area -: 24 :- under sub-section(1) with effect from the date specified in the declaration:
Provided that any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law or form made or issued or imposed under the said Act in respect of such city municipal area which were in force as applicable immediately before the date specified under sub-section (1) shall continue in force and be deemed to have been made, issued or imposed under the provisions of this Act unless and until it is superseded by any appointment, notification, notice, tax, order, scheme, licence, permission, rule, bye-law or form made or issued or imposed under this Act.
(3) With effect from the date of declaration of any area as a larger urban area under sub-section (1), the following consequences shall ensue, namely:-
(a) the body functioning as a city Municipal Council under the Karnataka Municipalities Act, 1964 immediately before the date of the said declaration in respect -: 25 :- of the said area shall become a body competent to exercise the powers and perform the duties conferred by the provisions of the Act on a Corporation in respect of the said area until a Corporation is duly constituted for the area within the jurisdiction of such body under the provisions of this Act;
(b) the Councillors of the city Municipal Council holding office as such immediately before the said date shall become Councillors of the Corporation;
(c) the president of the said city Municipal Council shall become the Mayor of the Corporation and discharge duties and perform functions of the Mayor under this Act and the vice-president of the said city Municipal Council shall become the Deputy Mayor of the said Corporation under this Act;
1(cc) Where, under the provisions of section 315 or Section 316 of the Karnataka Municipalities Act, 1964 either an administrator or an officer has been appointed, to exercise the powers and -: 26 :- perform the duties of the municipal council, then, such administrator or officer shall be deemed to be an administrator appointed under Section 99. The Advisory council, if any, appointed to advise and assist the Administrator appointed under Section 315 of the Karnataka Municipalities Act, 1964 shall be deemed to be an Advisory Committee appointed under sub-section (6) of Section 99.
(4) A Corporation shall be duly constituted for the larger urban area under this Act within a period of six months from the date of declaration referred to in sub-
section (1) and from the date of first meeting of the Corporation as so constituted the body exercising the powers and performing the duties of the Corporation shall stand dissolved."
"Provided that where the larger urban area so constituted does not have any newly added area and the elections to such smaller urban area was held within one year before the date of declaration of Larger urban area, the elections to such larger urban area for constitution of a -: 27 :- corporation need not to be held till the completion of the term of members of smaller urban area so elected (irrespective of whether City Municipal Council was constituted or not) and the members of smaller urban area shall continue to be members of the larger urban area corporation to be constituted till the completion of their term so elected and a corporation shall be constituted by treating the said elected members as councilors of the corporation under Section 7."
20. Chapter III of the Act deals with Municipal Authorities. Section 6 states that a Corporation is one of the Municipal Authorities, apart from the Standing Committees and the Commissioner. The constitution of the Corporation is envisaged under Section 7. The constitution of the Corporation is by elections as well as by nomination on the basis of reservation of seats. Section 8 deals with the term of office of Councillors, who are elected which is, five years. But where the Councillors are nominated by the Government under clause (b) of sub-section (1) of Section 7, it is subject -: 28 :- to the pleasure of the Government, five years. The term of office of the Councillors would commence from the date appointed for the first meeting of the Corporation. Section 10 deals with elections to the post of Mayor and Deputy Mayor. Sub-section (2) of Section 10 states that Mayor and Deputy Mayor shall hold office for one year from the date of their election and shall, notwithstanding the expiry of the said period, continue in office till their successors are elected, provided in the meantime they does not cease to be Councillors. Thus, when a Corporation is constituted, the aforesaid provisions would apply. More so, when a constitution of a Corporation takes place where it is already in existence.
21. But when a new Corporation is established for the first time, then under Section 3 of the Act, the Governor has to specify by notification such areas to be a part of larger urban area. The areas specified as a larger urban area is deemed to be a City and a Corporation is established for the said City. The -: 29 :- Corporation so established is a body corporate. The declaration of a City Municipal Area as a larger urban area under the Act is envisaged under sub-section (1) of Section 503 of the Act. Under sub-section (1) of Section 503, the Governor is empowered to declare by notification that any Municipal Area for which a City Municipal Council is constituted, shall with effect from the date to be specified in such notification, be a larger urban area, specified under sub-section (3) of the Act. Once such a declaration is made, the provisions of the 1964 Act applicable to any City Municipal Area cease to apply with effect from the date specified in the declaration. However, all acts done under the provisions of the 1964 Act, shall continue to be in force and deemed to have been taken under the provisions of the Act, unless and until it is superseded by any action taken under the provisions of the Act.
22. As already noted, under sub-clauses (a),
(b) and (c) of sub-section (3) of Section 503, the body -: 30 :- functioning as a City Municipal Council under the 1964 Act, immediately before the date of declaration shall become a body competent to function as a Corporation and the Councillors of the City Municipal Council shall become Councillors of the Corporation and the President and Vice-President of the said Municipal Council shall discharge duties and perform functions as the Mayor and Deputy Mayor of the Corporation. This transitory provision is however, only for a period of six months as under sub-section (4) of Section 503 of the Act, within a period of six months from the date of declaration made under sub-section (1) of Section 503 of the Act, the Corporation has to be duly constituted, which means, it has to be constituted in terms of Section 7 of the Act, by holding of elections and by nominations to be made by the State Government. Thereafter, from the date of the first meeting of the Corporation so constituted, the body exercising powers and performing duties of the Corporation i.e., under the transitory provisions of clauses (a), (b) and (c) of sub-section (3) of Section -: 31 :- 503, shall stand dissolved on the date of the 1st meeting of the duly constituted Corporation. The proviso to sub-section (4) of Section 503 has been in force since 28/02/2014. The proviso applies under the following two contingencies:-
(1) where the larger urban area constituted under sub-section (1) of Section 503 does not have any newly added area and;
(2) when the elections to the smaller urban area was held within one year prior to the date of declaration of the larger urban area then, in such a case, the elections to a larger urban area for constitution of a Corporation need not be held till the completion of the term of members of the smaller urban area so elected.
This is irrespective of the fact whether the City Municipal Council was constituted or not.
23. The completion of the term of members of the smaller urban area, who have become members of -: 32 :- the larger urban area shall be till the completion of their term so elected as members of the smaller urban area. In other words, when the proviso to sub-section (4) of Section 503 applies, the need to hold elections does not arise and the members of the erstwhile Municipality would continue to be members of the Corporation and it is deemed that a Corporation has been constituted under Section 7 of the Act, in which event, on account of the deeming provision, the term of office of the Councillors as members of the Corporation would be till their term of office as Councillors of the erstwhile Municipality ended. Therefore, in such a situation, the term of office of the Councillors of the Corporation would be reckoned from the date their term begun as members of the Municipality i.e., under Section 18 of the 1964 Act.
24. Thus, when the proviso applies, the term of office of the Councillors of the Corporation has been envisaged but the term of office of Mayor and Deputy Mayor in such a situation has not been adverted to in -: 33 :- the proviso. It is on account of the absence of the term of office of the Mayor and Deputy Mayor being stipulated under the proviso that the present controversy has arisen.
25. At this stage, it is relevant for this Court to consider the application of the doctrine of casus omissus, which states that 'a matter which should have been, but has not been provided for in a statute cannot be supplied by Courts, as to do so will be legislation and not construction' (as per PRINCIPLES OF STATUTORY INTERPRETATION, Justice G.P Singh (ed.), 67 (1966, 12th edn.). This maxim is best explained by Lord Denning in Seaford Court Estates Ltd. v. Asher, [(1949) 2 All ER 155], as follows:-
"When a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament and then he must supplement the written words so as to give 'force and life' to the intention of the Legislature. A judge should ask himself the question how, if the -: 34 :- makers of the Act had themselves come across this ruck in the texture of it, they would have straightened it out? He must then do as they would have done. A judge must not alter the material of which the Act is woven, but he can and should iron out the creases."
26. No doubt, in the instant case, as far as third respondent - Corporation is concerned, the proviso applies. But while interpreting the provisions of the Act, one cannot take into consideration the facts of the present case. The interpretation of statute has to be made objectively having regard to the scheme of the Act and the interplay of the various provisions touching upon the proviso and once an interpretation is given to the proviso, the applicability to the case of the petitioner vis-à-vis, the third respondent - Corporation has to be considered.
27. Thus, from the aforesaid narration, what emerges is two distinct aspects: First, is establishment of a Corporation and the second, is constitution of a -: 35 :- Corporation. Establishment of a Corporation is under Section 3 r/w sub-section (1) of Section 503 of the Act i.e., when a smaller urban area is declared to be a larger urban area and the consequences flowing from the declaration of the larger urban area. As already noted, one of the important consequence flowing from the declaration of any area as a larger urban area under sub-section (1) of Section 503 of the Act is the transformation of the body functioning as the City Municipal Council into a Corporation and the Councillors of the City Municipal Council holding office as Councillors of the Corporation and President and Vice-President of the said Municipal Council, holding office as Mayor and Deputy Mayor of the Corporation. This is a consequence not by 'an act in law' but 'an act of law'. It is by virtue of the operation of law and not by any action taken under the provisions of the Act. On the other hand, constitution of a Corporation for the larger urban area is an act in law i.e., by holding elections and by nominations made by the State Government.
-: 36 :-
28. Under sub-section (4) of Section 503, it is stipulated that a Corporation must be constituted for the larger urban area under the Act, within a period of six months from the date of declaration. Therefore, the transitory provisions under sub-section (3) of Section 503 are applicable only for a period of six months from the date of declaration and within a period of six months, a Corporation has to be constituted for larger urban area under the provisions of the Act namely, under Section 7 of the Act, in which event, constitution of the Corporation is by holding elections and by nomination of the Councillors, as provided under the statute. But the Legislature in its wisdom thought that when the Municipal Area or a City Municipal Area has been constituted under the provisions of the 1964 Act within a year from the date of declaration of the larger urban area and where the larger urban area does not have any newly added area, then in such an event, it is not necessary to once again constitute a Corporation by holding -: 37 :- elections under Section 7 of the Act. Thus, proviso to sub-section (4) of Section 503 also incorporates a fiction and is in a way a transitory provision, so as to avoid holding elections to the Corporation when the conditions mentioned therein are applicable. The effect of the applicability of the proviso is to constitute a Corporation under Section 7 of the Act by a fiction of law and without holding elections.
29. Thus, when the conditions mentioned under the proviso to sub-section (4) of Section 503 applies, the Councillors of the erstwhile City Municipal Area are constituted as Councillors of the Corporation. Once they become the Councillors of the Corporation, the period or their term of office has to be also stated. Under the proviso, it states that the period of their office shall be the term for which they were elected as members of the erstwhile smaller urban area or Municipality i.e., five years from the date they were so elected to the smaller urban area or Municipality. So, while envisaging the term of office or the Councillors -: 38 :- of a Corporation under the proviso, reference has been made to term of office of the Councillors under the provisions of the 1964 Act. But when it comes to the term of office of the Mayor and the Deputy Mayor, the proviso is silent on that aspect of the matter. In such a situation, the question that now arises is as to how to determine the term of office of a Mayor and Deputy Mayor when the proviso to sub-section (4) of Section 503 of the Act applies.
30. Under the provisions of the 1964 Act, the office of the term of the President and Vice-President is 30 months from the date of their election. But under the provisions of the Act, the term of office of the Mayor and Deputy Mayor is one year from the date of elections as Mayor and Deputy Mayor. But when the proviso to sub-section (4) of Section 503 applies, no election is contemplated under the provisions of the Act, neither is there any reference to the 1964 Act, when it comes to the term of office of the Mayor and Deputy Mayor. In such an event, one -: 39 :- cannot straight away hold that the term of Mayor and Deputy Mayor must be in terms of the 1964 Act, as has been contended on behalf of the petitioner as the proviso does not contemplate legislation by reference or by incorporation, when it concerns the term of office of Mayor or Deputy Mayor. On the other hand, in the absence of the stipulation of term of office of Mayor and Deputy Mayor, when the proviso applies would not mean that no term of office is envisaged when it is vis-à-vis the post of Mayor and Deputy Mayor, as contended by learned senior counsel for the petitioner.
31. Therefore, the term of office of Mayor and Deputy Mayor when the proviso applies has to be discerned having regard to the scheme of the Act. When sub-section (4) of Section 503 is applied, then the Corporation is constituted under Section 7 of the Act. The term of office of the Mayor and Deputy Mayor so elected at the first meeting, after election of the Councillors is one year from the date of their election -: 40 :- [sub-section (2) of Section 10]. If the same is to be read into the proviso then, would it be one year from the date of constitution of the Corporation under the proviso? When the proviso applies and the need to hold an election under sub-section (4) does not arise then, the constitution of the Corporation is with effect from the date of declaration under sub-section (1) of Section 503 of the Act, as on that date itself, it would be known as to whether sub-section (4) of Section 503 would apply or not i.e., a Corporation has to be constituted within six months from the date of declaration or the proviso to sub-section (4) would apply in which case, the need to constitute a Corporation by holding election would not arise and the Corporation would be constituted by operation of law by treating the elected members of the erstwhile smaller urban area as members of the Corporation under Section 7 of the Act. Thus, when the proviso to sub-section (4) of Section 503 applies, the date of declaration of the larger urban area under sub-section (1) of Section 503 of the Act, is the date of -: 41 :- constitution of the Corporation under Section 7 of the Act. If the Corporation is constituted under Section 7 of the Act then, Mayor and Deputy Mayor have to be elected at the first meeting after the constitution of the Corporation under Section 7. Thus if, elections were to be to the post of Mayor and Deputy Mayor, at the first meeting of the Corporation so constituted, then their term of office would be one year from the date of their election [Section 10(1) r/w Section 10(2) of the Act]. But no election to the office of Mayor and Deputy Mayor is envisaged under the proviso. Therefore, contention of learned Addl. Advocate General that the term of office of the Mayor has to be one year from the date of the declaration and constitution of the Corporation under the proviso cannot also be accepted.
32. The term of office of the Councillors of a Corporation is five years, which is to commence on the date appointed for the first meeting of the Corporation. This is stipulated in Section 8 of the Act. -: 42 :- But when the proviso to sub-section (4) of Section 503 applies, the aforesaid stipulation does not apply, as it is five years from the date of their election to erstwhile Municipality. However, proviso does not speak about the term of office of the Mayor and Deputy Mayor or for that matter about the election to the office the Mayor or Deputy Mayor or even with regard to the continuation of the President and Vice- President of the smaller urban area as Mayor and Deputy Mayor under the Act. Consequently, the date to be reckoned with reference to the term of office of the Mayor and Deputy Mayor is not envisaged under the proviso. But, when once the Corporation is constituted under Section 7 of the Act in terms of the proviso, the first meeting of the Corporation has to be held and even if no elections to the post of Mayor and Deputy Mayor are envisaged under the proviso, the term of office of the Mayor and Deputy Mayor would be one year from the date of first meeting. Thus, when the proviso applies, while, the term of office of the Councillors of the Corporation is till completion of -: 43 :- their term as members of the erstwhile municipality, as far as Mayor and Deputy Mayor are concerned, their term of office is one year from the date of first meeting of the Corporation. Thus, under the proviso, where no election is envisaged and the constitution of the Corporation takes place on the date of the declaration, the term of office of the Mayor and Deputy Mayor has to be reckoned from the date of the first meeting and not from the date of the declaration. Even in circumstances where sub-section (4) of Section 503 were to apply, the Mayor and Deputy Mayor would have been elected in the first meeting of the Corporation. Also, under the proviso, though the Corporation is constituted under Section 7 on the date of declaration of the larger urban area, on that date, the body constituted under clause (a) of sub-section (3) of Section 503 would not be dissolved but it would be dissolved only on the date of the first meeting of the Corporation after its constitution. This becomes clear on a reading of the second part of sub-section (4) of Section 503. If the proviso is not applicable and -: 44 :- election takes place within the specified period of six months, then from the date of the first meeting of the newly constituted Corporation, the body exercising powers and performing duties of the Corporation [under clause (a) of sub-section (3)] would stand dissolved. Similarly, when the proviso applies, though the body is constituted under Section 7 of the Act, on the date of declaration of the Corporation, it would not be fully functional till the date appointed for the first meeting of the Corporation. Even when the proviso applies, till the date of the first meeting of the Corporation, the transitory provisions namely, clause (a), (b) and (c) of sub-section (3) of Section 503 would be still applicable. In fact, when the Mayor convenes first meeting, it is not after constitution of the Corporation but under the transitory provisions referred to above, it is only after convening of the first meeting with the newly constituted corporation would start functioning. Once the first meeting of the Corporation takes place after the constitution of the Corporation under the proviso, the Councillors who have been continued -: 45 :- under the proviso would become Councillors of the Corporation and the Mayor and Deputy Mayor would function as that of the newly constituted Corporation and the body that was functioning under clause (a) of sub-section (3) of Section 503, would get dissolved. In which event, the term of office of the Mayor and Deputy Mayor would be one year from the date of the first meeting of the Corporation. Thus, as there is no need to hold elections while constituting a Corporation under Section 7 when the proviso applies similarly, there is no need to hold elections to the post of Mayor and Deputy Mayor in the first meeting of the Corporation. The President and the Vice-President of the erstwhile Municipality who continued under sub- section 3 of Section 503 would continue to hold office as Mayor and Deputy Mayor in the newly constituted Corporation, but for a period of one year from the date of the first meeting.
33. Therefore, Point No.1 can be answered by holding that term of office of the Mayor and Deputy -: 46 :- Mayor when proviso to sub-section (4) of Section 503 of the Act applies, is not with reference to the term of office of the President and Vice-President, as envisaged under the provisions of the 1964 Act. Nor is it from the date of declaration of the larger urban area on which date, the Corporation is constituted. On the other hand, the term of office would be one year from the date of the first meeting after the constitution of the Corporation. This is in line with sub-section (2) of Section 10 of the Act. Accordingly point No.1 is answered.
Re: Point No.2:
34. If the aforesaid reasoning is applied insofar as the third respondent - Corporation is concerned then, the term of office of the petitioner as a Mayor would be one year from 05/02/2014. As on that date, the first meeting was held in which event, by 05/02/2015, election to the post of Mayor and Deputy Mayor had to be held.
-: 47 :-
35. In the circumstances, Communication dated 06/12/2014 Annexure "F" has to be quashed as the election could not have been held prior to 20/12/2013. That Communication reckons one year term of the Mayor and Deputy Mayor from 20/12/2013 i.e., the date of declaration which cannot be so, in view of the answer given to Point No.1. Hence, Communication dated 06/12/2014 Annexure "F", is liable to be quashed and is quashed.
36. During the pendency of this matter, it was brought to my notice that elections were notified to be held on 13/01/2015 and ultimately, they were held on 22/01/2015. By interim order dated 20/01/2015, it was ordered that the elected candidate shall not assume office till 28/01/2015 and the said order was extended up to 31/01/2015 on which date the arguments were concluded and the matter was reserved for orders.
37. Thus, the elections have been held prior to 05/02/2015 and as the term of office of the petitioner -: 48 :- as Mayor has come to an end on 05/02/2015, the elected candidate is deemed to have assumed charge of his office from 05/02/2015.
38. In this context, one other argument made by learned counsel for petitioner needs to be addressed. He contended that since the proviso to sub-section (4) of Section 503 was incorporated only on 28/02/2014, petitioner's term would have to be reckoned one year from that date. Though the proviso was inserted to the Act on 28/02/2014, when considered in terms of the facts of the case, it was within the period of six months from the date of declaration of the third respondent - Corporation. The declaration was made on 20/12/2013 and within six months, elections had to be held i.e., by 20/06/2014. But it is within the period of that six months that the proviso was inserted. If the proviso had not applied, then the elections would have been held to the third respondent - Corporation by 20/06/2014, in which event, the Mayor and Deputy Mayor would have been -: 49 :- elected on its constitution, in the first meeting of the Corporation as envisaged under Section 10 of the Act. Then, the term of office of the Mayor and Deputy Mayor would have been one year from the date of election. But in view of the proviso being applicable to the third respondent - Corporation and the need to hold elections to the post of Councillors as well as to the Mayor and Deputy Mayor not having arisen and the Corporation being constituted under Section 7 of the Act on the date of declaration of the larger urban area of the third respondent - Corporation, the date of the first meeting of the Corporation so constituted under the proviso would have to be the date from which the period of one year of the term of office of the Mayor and Deputy Mayor has to be reckoned. As the date of the first meeting of the Corporation was held on 05/02/2014 in the instant case, which was also within the period of six months from the date of declaration, the subsequent amendment made to the Act by insertion of the proviso would not make any difference to the case of the third respondent. In fact, -: 50 :- the operation of the proviso must be made applicable to all cases where the declaration of the Corporation was within six months from the date of the enforcement of the proviso. Thus, where the election to the Municipality were held within one year prior to the date of declaration of the larger urban area then, in all those cases, the proviso would be applicable, provided the declaration was within a period of six months prior to the date of the enforcement of the proviso.
39. In the result, the writ petition is disposed by quashing Annexure-F and holding that the term of office of the petitioner as Mayor of the third respondent - Corporation is from 05/02/2014 to 04/02/2015. The term of office of the new Mayor shall be deemed to commence from 05/02/2015. However, all decisions taken and acts done by the petitioner from 05/02/2015 till today, shall remain undisturbed, unless the said acts and decisions taken are set aside or altered in accordance with law. -: 51 :-
40. Writ petition is disposed in the aforesaid terms.
41. Parties to bear their respective costs.
Sd/-
JUDGE.
*mvs