Delhi High Court
Jagjit Singh Rathor And Anr. vs Govt. Of Nct Delhi And Anr. on 20 November, 2001
Author: S.K. Mahajan
Bench: S.K. Mahajan
JUDGMENT
1. Since common question of law and facts are involved in these cases, they have been heard together and are being disposed of by this common order.
2. The short point involved in these cases is whether the tenure of the persons nominated to Municipal Corporation of Delhi (hereinafter referred to as the Corporation) under the provisions of Section 3(3)(b)(i) of the Delhi Municipal Corporation Act (hereinafter referred to as the Act) is co-terminus with the tenure of the Corporation or they hold office at the pleasure of the Administrator and can be removed any time. Another point which arises for consideration is whether on the issue of second notification under Section 3 (3)(b) (i) of the Act nominating ten persons to the Corporation, the earlier notification will automatically stand superseded. The facts giving rise to the present petitions in short are:
The Corporation is a body corporate constituted under the Delhi Municipal Corporation Act. The Corporation in terms of Section 3 of the Act is composed of the Councillors and some other persons mentioned in this Section are also nominated to the Corporation or are represented in the Corporation because of their representing particular constituencies. Section 3 of the Act reads as under :-
3. Establishment of the Corporation.-- (1) with effect from such date as the Central Government may, by notification in the Official Gazettee, appoint, there shall be a Corporation charged with the municipal Government of Delhi, to be known as the Municipal Corporation of Delhi.
(2) The Corporation shall be a body corporate with the name aforesaid having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and may by the said name sue and be sued.
(3)(a) The Corporation shall be composed of the councillors.
(b) the following persons shall be represented in the Corporation, namely :-
(i) ten persons, who are not less than 25 years of age and who have special knowledge or experience in municipal administration, to be nominated by the Administrator:
Provided that the persons nominated under this sub-clause shall not have the right to vote in the meetings of the Corporation;
(ii) members of the House of the People representing constituencies which comprise wholly or partly the area of the Corporation and the members of the Council of States registered as electors within the area of the Corporation;
(iii) as nearly as possible one-fifth of the members of the Legislative Assembly of the National Capital Territory of Delhi representing constituencies which comprise wholly or partly the area of the Corporation to be nominated by the Speaker of that Legislative Assembly, by rotation, every year:
Provided that while nominating such members, by rotation, the Speaker shall ensure that as far as possible all the members are given an opportunity of being represented in the Corporation at least once during the duration of the Corporation;
(iv) the Chairpersons of the Committees, if any, constituted under sections 39, 40 and 45, if they are not councillors.] (4) Councillors shall be chosen by direct election on the basis of adult suffrage from various wards into which Delhi shall be divided in accordance with the provisions of this Act [*****].
(5) The total number of councillors shall at the establishment of the Corporation be eighty; Provided that twelve out of the eighty seats of councillors shall be reserved for the members of the Scheduled Castes.
(6) Upon the completion of each census after the establishment of the Corporation the number of seats shall be on the basis of the population of Delhi as ascertained at that census and shall be determined by the Central Government by notification in the Official Gazette and the number of seats to be reserved for the members of the Schedule Castes shall, as nearly as may be, bear the same ratio to the total number of seats as the population of Scheduled Castes bears to the total population of Delhi.
Provided that the total number of seats shall in no case be more than one hundred and thirty-four or less than eighty:
Provided further that the determination of seats as aforesaid shall not affect the then composition of the Corporation until the expiry of the duration of the Corporation;
Provided also that for the first election to the Corporation to be immediately after the commencement of the Delhi Municipal Corporation (Amendment) Act, 1993, the provisional population figures of Delhi as published in relation to 1991 census shall be deemed to be the population of Delhi as ascertained in that census:
Provided also that the seats reserved for the Scheduled Castes may be allotted by rotation to different wards in such manner as the Central Government may, by order published in the Official Gazette, direct.] (7) Seats shall be reserved for women belonging to the Scheduled Castes, from among the seats reserved for the Scheduled Castes, the number of such seats being determined by the Central Government by order published in the Official Gazette which shall not be less than one-third of the total number of seats reserved for the Scheduled Castes.
(8) Seats shall be reserved for women, the number of such seats being determined by order published in the Official Gazette by the Central Government which shall not be less than the one-third of total number of seats other than those reserved for the Scheduled Castes:
Provided that such seats reserved for women shall be allotted by rotation to different wards in such manner as the Central Government may, by order published in the Official Gazette, direct in this behalf.]
3. A reading of the Act shows that the Corporation shall be composed of the Councillors. A perusal of Section 3(3) of the Act shows that the Corporation is composed of Councillors, however, under Clause (b) of sub-Section (3) of the Act, the Administrator can nominate ten persons who are not less than 25 years of age and who have special knowledge or experience in Municipal Administration to the Corporation. These persons, however, do not have the right to vote in the meetings of the Corporation. The Members of Lok Sabha representing constituencies which comprise wholly or partly the Municipal area and the members of the Rajya Sabha registered as electors within the Municipal area are also represented in the Corporation. Besides the aforesaid persons, as nearly as possible 1/5th of the Members of the Legislative Assembly of the National Capital Territory of Delhi representing constituencies which comprise wholly or partly the area of the Corporation to be nominated by the Speaker of the Legislative Assembly by rotation every year are also represented in the Corporation. The Chairpersons of the Committees constituted under Sections 39, 40 and 45are also represented in the Corporation provided, however, that such persons are not the Councillors. The total number of Councillors vary between 80 to 134. While the Councillors are elected by the electors in the elections to the Corporation, the Members of Lok Sabha and Rajya Sabha are represented in the Corporation because of Section 3(3)(b)(ii) of the Act. The Members of the Legislative Assembly are nominated by the Speaker by rotation every year. Ten persons who have special knowledge or experience in the Municipal Administration are, however, nominated by the Administrator. While the tenure of the Councillors and the Members of Lok Sabha and Rajya Sabha and the Members of Legislative Assembly who are represented in the Corporation is co-terminus with the tenure of the Corporation or with the tenure of their membership of the Lok Sabha or Rajya Sabha as the case may be, the Members of the Legislative Assembly are nominated to the Corporation by rotation every year and as nearly as possible 1/5th of the Members of the Assembly retire on the expiry of their period of membership.
The only persons whose tenure has not been specifically mentioned in Section 3 of the Act are those ten persons who have special knowledge or experience in Municipal Administration and are nominated by the Administrator.
4. Elections to elect the Councillors were held in February 1997. The term of the Corporation under Section 4of the Act is thus to last till February 2002. After the elections of the Councillors was held in February 1997, the Administrator by virtue of the powers vested in him under Section 3 (3)(b) (i) of the Act nominated on 29.8.1997, ten persons, including the petitioners, to be represented in the Corporation. One person out of the aforesaid ten persons nominated by the Administrator has since expired. It is the tenure of these persons that has to be determined by this Court in the present petition.
5. By a notification dated 15.12.2000, the Administrator nominated ten persons other than those who were nominated by notification dated 29.8.1997 to be represented in the Municipal Corporation of Delhi in terms of the provisions of Section 3 (3)(b)(i) of the Act. This notification has been challenged by the petitioners on the ground of the same being ultra vires the powers of the Administrator and on the ground that for the term of one Corporation, the Administrator could exercise powers under Section 3 (3)(b)(i) of the Act only once and after a notification has once been issued nominating persons under the aforesaid Section, the Administrator could not nominate any other person in their place because the term of the said Members originally nominated was co-terminus with the tenure of the Corporation. The contention of the petitioners, therefore, is that the nominations made by the Administrator vide the notification dated 29.8.1997 would continue to hold the field till the tenure of the Corporation firstly for the reason that no other person could be appointed in their place and their tenure was co-terminus with the tenure of the Corporation and secondly the said notification has neither been withdrawn nor cancelled nor amended nor superseded. The submission is that with the issue of the second notification dated 15.12.2000, twenty persons stand nominated to the Corporation whereas under the Act only ten persons could be nominated. The first notification dated 29.8.1997 nominating ten persons to the Corporation including the petitioners reads as under:-
GOVERNMENT OF NATIONAL CAPITAL TERRItorY OF DELHI ( DEPARTMENT OF URBAN DEVELOPMENT ) VIKAS BHAWAN : NEW DELHI NOTIFICATION Dated the 29th August, 1997 No.F.13(27)/97/UD/Pt.-III/11023 - The Lieutenant Governor of the National Capital Territory of Delhi is pleased to nominate the following persons under the provisions of sub-clause (i) of clause (b) of sub-section (3) of the Delhi Municipal Corporation Act, 1957, as amended by the Delhi Municipal Corporation (Amendment) Act, 1993, who shall be represented in the Municipal Corporation of Delhi, namely -
SL.No. Name of the Persons
1. Capt. Surjan Singh Yadava
2. Sh. Jagjit Singh Rathor
3. Syed Mohd. Yaseen Nadeem
4. Shri Dharmendra Gupta
5. Dr.R.K.Dhawan
6. Smt. Kailash Rekhi
7. Shri Devi Singh Mann
8. Shri Rajendra Rajora
9. Capt. Ram Singh
10. Shri Prabodh Mahajan The above nominated persons shall not have the right to vote in the meetings of the said Corporation.
By Order and in the name of Lt.Governor of the National Capital Territory of Delhi.
6. The second notification by which the Administrator has purported to nominate ten more persons read as under :-
GOVERNMENT OF NATIONAL CAPITAL TERRItorY OF DELHI ( DEPARTMENT OF URBAN DEVELOPMENT ) VIKAS BHAWAN : NEW DELHI NOTIFICATION Dated the 15th December, 2000 No.F.13(27)/97/UD/Pt.-III/16541-50 - The Lieutenant Governor of the National Capital Territory of Delhi is pleased to nominate the following persons under the provisions of sub-clause (i) of clause (b) of sub-section (3) of the Delhi Municipal Corporation Act, 1957, as amended by the Delhi Municipal Corporation (Amendment) Act, 1993, who shall be represented in the Municipal Corporation of Delhi, namely -
SL.No. Name of the Persons
1. Mr.Rakesh Bhan G-16, NDSE Part-II New Delhi-49
2. Mr.Arnold James 11, Nimri Colony New Delhi-52
3. Master Rati Ram 586/41, Jor Bagh Tri Nagar, Delhi-35
4. Dr.Sarla Kaushik 4A/CC, Shamilar Bagh Delhi.
5. Mr.Mahinder Singh 2A, Bharat Nagar Near New Friends Colony New Delhi-65.
6. Dr.Ashok Chauhan D-4, East Vinod Nagar Delhi-91
7. Mr.Mukesh Tewari 184, Pratap Khand Vishwavikram Nagar Shahdara, Delhi-95
8. Abdul Sami Salmani A-II/181, 182, Sec-III Ambedkar Nagar New Delhi-110062
9. Mrs.Raj Sachdeva A-5, Amar Colony Lajpat Nagar-IV, New Delhi-110024
10. Mr.Fakir Chand Munde 9/4929, Gali No.5 Mohan Taj Nagar East Seelampur (Old), Delhi-31.
The above nominated persons shall not have the right to vote in the meetings of the said Corporation.
By Order and in the name of Lt.Governor of the National Capital Territory of Delhi.
7. The contention of the respondents, however, is that the Act is silent on the term for which the persons are nominated under Section 3 (3)(b) (i) of the Act and it is, therefore, to be inferred that these persons hold office during the pleasure of the Administrator and the Administrator is competent to effect change of nominee as and when deemed expedient by invoking his inherent powers.
8. It is admitted case of the parties that the Act is silent about the term for which the persons are nominated under Section 3 (3)(b) (i) of the Act. The contention of learned counsel for the petitioner is that the powers under Section 3(3)(b)(i) can be exercised only once and unless a different intention appears in the Act, the tenure of such nominated persons will be co-terminus with the tenure of the Corporation and they, therefore, could not be removed or superseded before the expiry of the term of the Corporation. It is submitted that intention of the legislature while adding Section 3 (3)(b) (i) was the continuity of the House and this could never have been the intention that these ten persons could be removed at any time by the Administrator nor the alleged nomination of the ten more persons will result in the automatic removal of the petitioners and the persons who were nominated by the notification of 1997.
9. Counsel for the respondent in support of his contention that the Administrator (Lt.Governor) could any time issue the second Notification and supersede the first Notification has relied upon the provisions of Sections 16 and 21 of the General Clauses Act. It is contended that under Sections 16 of the General Clauses Act where, by any Central Act or Regulation, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make the appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power. Under Section 21 of the said Act where, by any Act, or Regulation, a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power exercisable in the like manner and subject to the like sanction and conditions, if any, to add, to amend, vary or rescind any notifications, orders, rules or bye-laws so issued. Contention, therefore, is that unless a different intention is expressed by the statute, the power to create includes the power to destroy and also the power to alter what is created. It is submitted that power to rescind the notification is inherent in the power to issue the notification without any limitations or conditions. It is submitted that in the absence of any statutory rule or order, the administrator could in view of Sections 16 and 21 of the General Clauses Act supersede or rescind the earlier notification and appoint other persons in place of the persons already appointed by issue of a fresh notification. It is submitted that the petitioners are not Councillors within the meaning of Section 3 of the Act and different persons nominated or appointed to represent the Corporation can have different rights. A person who has been elected has different rights from the rights of the persons who have been nominated as they are neither Members of the Corporation nor the Councillors and they are only in the capacity of Advisers being experts in municipal matters. It is submitted that status of the person makes all the difference about his tenure in the corporation. It is further submitted that even if in the second notification, it is not mentioned that the same was in supersession of the earlier notification, the rule of implied repeal will apply. A person issuing the second notification is presumed to know about the first Notification and immediately the second notification is issued, the first notification will stand superseded. For this reliance has been placed upon the judgment of the Supreme Court reported as State of Orissa and another Versus M/s M.A.Tulloch and Company and Ratan Lal Adukia Vs UOI .
10. In State of Orissa Versus M.A.Tulloch (supra), the Supreme Court has held that the entire theory underlying implied repeal is that there was no need for the later enactment to state in express terms that the earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word "repeal" in the later statute. As the legislative intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is founded, there can be no incongruity in attributing to the later legislation the same intent which Section 6 presumes where the word "repeal" is expressly used. So far as the statutory construction is concerned, it is one of the cardinal principles of law that there is no distinction or difference between an express provision and a provision which is necessarily implied , for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation, without even any reference to the Act intended to be repealed, for once legislative competence to effect a repeal is posited, it matters little whether this is done expressly or inferentially or by the enactment of repugnant legislation. It is, therefore, contended by learned counsel for the petitioner that since the Administrator has nominated ten persons to be represented in the Corporation, there is clearly an intention to supersede the earlier notification and it would make no difference if the second notification does not make any mention about the same having been issued in supersession of the earlier notification.
11. In Ratan Lal Adukia Versus Union of India the Court was considering the question whether Section 80 of the Railways Act is a complete, self- contained, exhaustive code in regard to the place of suing respecting suits constituting a special law for such suits and whether the legislative intent thus was that plaintiff must institutes suits only in the Courts mentioned in Section 80 of the Railways Act for enforcement of claims for compensation against the Railways and by necessary implication, the operation of provisions of Section 20 of the Code of Civil Procedure and Section 18 of the Presidency Small Cause Courts Act, 1882 stood excluded. Dealing with this question the Court held that the doctrine of implied repeal is based on the postulate that the legislature which is presumed to know the existing state of the law did not intend to create any confusion by retaining conflicting provisions. Courts in applying this doctrine are supposed merely to give effect to the legislative intent by examining the object and scope of the two enactments. But in a conceivable case, the very existence of two provisions may by itself, and without more, lead to an inference of mutual irreconcilibity if the later set of provisions is by itself a complete code with respect to the same matter. In such a case the actual detailed comparison of the two sets of provisions may not be necessary. It is, therefore, the contention of learned counsel for the respondents that since the existence of both the notifications will lead to an inference of mutual irreconcilibity, the earlier notification would be deemed to have been impliedly repealed or superseded immediately on the issue of the subsequent notification and the Administrator was not required to expressly use the term that the second notification was in supersession of the earlier notification.
12. The judgments referred to by learned counsel for the respondents and the provisions of Section 16 and 21 of the General Clauses Act have to be applied to the facts of each case. The question in the present case is whether a different intention appears in Section 3 (3)(b) (i) of the Act so as to prohibit the Administrator to issue a second notification during the term of the Corporation. Can it be said that the intention of the legislature was that the Administrator could use his powers to issue notifications as many time as he likes or the intention was that the power can be exercised only once after the House has been constituted with the elections of Councillors. Can it be said that the Administrator can issue a second notification superseding the earlier notification say after one day or one week of nominating ten persons and then supersede the second notification again by issuing a third notification and do so as many times as he likes. The Court is also to examine whether the persons who have been nominated to be represented in the Corporation were so nominated at the pleasure of the Administrator and the Administrator has the power to remove them as and when he likes.
13. The provisions of Section 3 (3)(b) (i) of the Act do not indicate that the persons who are nominated under that Section will be represented in the Corporation during the pleasure of the Administrator. Even the notification nominating the petitioners does not specify that the said persons will be represented in the corporation till further orders. In such a situation, can it be said that the Administrator had the power to issue another notification superseding the nomination of the persons appointed by the earlier notification. In my opinion, the answer has to be in the negative. The reliance by learned counsel for the respondent on the judgments reported as Om Narain Agarwal Vs Nagar Palika, Shahjanhanpur and Ghanshyam Singh Versus Union of India are wholly misplaced as they do not apply to the facts of the present case.
14. In Om Narain Agarwal Vs Nagar Palika, Shahjanhanpur (supra) the facts were that one Smt.Sarla Devi under the first proviso to Section 9 of the United Provinces Municipalities Act, 1916, was nominated by the State Government as the woman Member of the Shahjahanpur Municipal Board in January 1989. The first proviso to Section 9 of the United Provinces Municipalities Act, 1916 provided for nomination of only one woman member of the Municipal Board by the State Government. Further, there was no provision permitting the State Government to cancel the nomination of such member at its pleasure. As already mentioned Smt.Sarla Devi was nominated under the first proviso to the Section 9 of 1916 Act. By U.P. Ordinance No.2 of 1990, later on succeeded by Ordinance No.8 of 1990 and eventually replaced by U.P. Act 19 of 1990, the aforesaid first proviso to Section 9 of the Act was substituted by another provision which made provision for the nominations of two women members by the Sate Government. Further, a fourth proviso was also added to Section 9 of the Act which provided that the nomination of the aforesaid two members was at the pleasure of the State Government. The Ordinance No.2 of 1990 was promulgated on 15.2.1990. Soon after the promulgation of this Ordinance, general notification was issued by the State Government on 19th February, 1990 cancelling the nominations of women members in several Municipal Boards in Uttar Pradesh including the Shahajahanpur Municipal Board. The nomination of Smt.Sarla Devi also stood cancelled. On 19.4.1990, the State Government nominated two women, namely, Smt.Abida and Hazra Khatoon as members of the Board under the fourth proviso to Section 9 of the Act. On 2.8.1991, the State Government in exercise of its powers under the fourth proviso to Section 9 of the Act issued notification cancelling the nominations of Smt.Abida and Hazra Khatoon and in their place nominated Smt.Shyama Devi and Smt.Baijanti Devi as two women members of the Board. Writ petition was filed in the High Court challenging not only the constitutional validity of the fourth proviso to Section 9 of the Act but also the notification dated 2.8.1991 whereby the nominations of Smt.Abida and Hazra Khatoon were cancelled and in their place Smt.Shyama Devi and Smt.Baijanti Devi were nominated. Another writ petition was filed by Smt.Abida and Hazra Khatoon challenging the cancellation of their nominations and nominating Smt.Shyama Devi and Smt.Baijanti Devi in their place. While these writ petitions were pending, a Division Bench of the Allahabad High Court in another writ petition relating to certain other Nagar Palika upheld the constitutional validity of the fourth proviso to Section 9 of the Act and also upheld the notifications issued by the State Government under the said provision. However, another Division Bench of the Allahabad High Court while deciding another Writ Petition, held that fourth proviso to Section 9 was arbitrary, unreasonable, unconstitutional and invalid and any notification issued there under cancelling the nomination of any woman member of the Board and nominating a new member was invalid. The writ petitions filed by Smt.Abida and Smt.Hazra Khatoon and by Mohd.Iqbal etc were also decided on 13.11.91 and the fourth proviso to Section 9 of the Act was held to be arbitrary, unreasonable, unconstitutional and invalid and the notification removing Smt.Abida and Smt.Hazra Khatoon were quashed. The matter was then taken to the Supreme Court by way of a Special Leave Petition. The Supreme Court on these facts held that they were not impressed with the reasoning given by the High Court that the fourth proviso to Section 9 of the Act in any manner deprived fundamental right of equality as enshrined in Article 14 of the Constitution. The Supreme Court held that it was well-established that the right of equality enshrined under Article 14 of the Constitution applied to equals and not to unequals. It was also held by the Supreme Court that the nominated members of the Board fall in a different class and cannot claim equality with the elected members and they were also not impressed with the arguments that there would be a constant fear of removal at the will of the State Government and the same was bound to demoralise the nominated members in the discharge of their duties as a member of the Board. The Court did not find any justification for drawing such an inference, inasmuch as, such contingency usually arises only with the change of the ruling party in the Government. It was held that even in the case of the highest functionaries in the Government like the Governors, the Ministers, the Attorney General and the Auditor General discharge their duties efficiently, though removable at the pleasure of the competent authority under the law, and it cannot be said that they were bound to demoralise or remain under a constant fear of removal and as such do not discharge their functions in a proper manner during the period they remain in the office. Consequently, the Supreme Court allowed the appeals and upheld the notifications issued under the Fourth proviso to Section 9 of the U.P. Act.
15. A perusal of this judgment clearly shows that the Court in that case was considering the provisions of the Fourth proviso to Section 9 of the U.P.Act which provided that a member nominated under that Section, whether before or after 15.2.1990, was to hold office during the pleasure of the Government, but not beyond the term of the Board. The Court was, therefore, of the view that if the members were to hold office during the pleasure of the State Government there could not be any embargo on the powers of the Government to remove such members and nominate other persons as members of the Board under Section 9 of the Act. This judgment, therefore, in my view will not be applicable to the facts of the present case, inasmuch as, Section 3 (3)
(b) (i) does not in any way prescribes that the persons who are nominated to be represented in the Corporation will hold office either during the pleasure of the Government or during the pleasure of the Administrator. While interpreting the provisions of the Act, the Court will not add words in the Section to mean that persons nominated under Section 3 will hold office during the pleasure of the Administrator.
16. In Ghanshyam Singh Versus Union of India also the Court was concerned with the nomination of Ghanshyam Singh to the Board of Directors of Indian Farmers Fertilizer Co-operative Society Limited (IFFCO) under bye-laws Nos.33 and 34. The notification made by the Government under the aforesaid bye-law was not for a fixed period but was "valid until further orders." By a subsequent notification, the Government appointed one Mr.Satbir Singh Kadiyan in place of Mr.Ghanshyam Singh. His appointment was "also till further orders." Ghanshyam Singh challenged his removal as also the appointment of Satbir Singh Kadiyan by way of a writ petition in the High Court. Dealing with this question, the Court noted the provisions of Section 41 of the Multi State Co-operative Societies Act as also bye-laws No.33 framed by the Society. Section 41 of the Multi State Co-operative Societies Act, 1984 provided that where the Central Government or the State Government had subscribed to the share capital of a multi state co-operative society, it shall have the right to nominate on the Board of the Society such number of persons as may be prescribed. It further provided that the bye-laws of a Multi State Co-operative Society may provide for the nomination of persons in excess of the limits prescribed under the aforesaid provision and the person nominated under that Section shall hold office "during the pleasure of the Government by which he has been nominated." While making nomination under bye-laws no.33 read with Section 41 of the aforesaid Act, the Government nominated Mr.Ghanshyam Singh and his appointment was "till further orders." It was held that the initial nomination of the petitioner in that case and for that matter nomination of any official or non-official on the Board of Directors was at the will of the Government and the Government had inherent power to revoke the same as per Section 16 of the General Clauses Act. The Court on those facts held that an elected office which is held at pleasure, the holder can be removed at will without showing any cause unless there was a provision in the rules or bye-laws laying down that he could be removed only for a cause. The Court in that case did also observe that even in the absence of sub-Section 3 of Section 41 of the Act which provided that nomination under that Section was during the pleasure of the Government, a nomination "till further orders" was liable to be removed under Section 41(1) itself and the Government was vested with inherent powers to do so but this observation, in my view, will not be of any assistance to the petitioner as the Court in that case was dealing with the removal of a person who was nominated under Section 41 of the Act to hold office during the pleasure of the Government by which he had been nominated and the letter of nomination itself mentioned that the nomination was "till further orders." It was in these circumstances that the Court held that the Government which had nominated the persons had the power to revoke the nomination. The judgment in that case, in my opinion, was given in view of the provisions contained in Section 41(3) of the Multi Sate Co-operative Societies Act and in view of the letter of appointment clearly having mentioned that the nominee was to hold office "till further orders." As already stated by me above in the present case neither the nomination is till further orders nor Section 3 of the Act states that the nomination is during the pleasure or will or the Government. In my view, therefore, none of the judgments cited by the respondent will be applicable to the facts of the present case.
17. In a case reported as State of M.P. Versus Ajay Singh the Court was dealing with the provisions of Commission of Enquiry Act. Under Section 3 of that Act, the appropriate Government may, if it was of the opinion that it was necessary so to do, appoint a Commission of enquiry for the purpose of making an enquiry into any definite matter of public importance and performing such functions and within such time as may be specified in the notification and the Commission so appointed shall make the enquiry and perform the functions accordingly. Under sub-Section (3) of Section 3 of the said Act, the appropriate Government may, at any stage of an enquiry, by the Commission fill any vacancy which may have arisen in the office of a Member of the Commission (whether constituted of one or more than one Member). Under Section 8A of the Act where during the course of an enquiry before a Commission, a change had taken place in the constitution of Commission by reason of any vacancy having been filled or by any other reason, it shall not be necessary for the Commission to commence the enquiry afresh and the enquiry may be continued from the stage at which the change took place. It also provided that where the Commission consisted of two or more members it may act in the absence of the Chairman or any other member or any vacancy amongst its members. The Court while interpreting these provisions held that there was nothing in any of the provisions of Section 3 of the Act to suggest that the Government had the power to reconstitute the Commission after its appointment by replacing the existing sole member with another person. It was held that sub-Section (3) of Section 3 deals only with the power of the Government to fill any vacancy which may have arisen since the constitution of the Commission but the question of replacement of a member appointed initially was beyond its scope. It was held that if the scheme of the enactment gave such wide power to reconstitute a Commission after its initial constitution and permitted replacement of the existing member of a Commission with another person sans sub Section (3) of Section 3, the power to fill any vacancy was not required to be provided separately and expressly. It was held that the power to rescind any notification conferred generally in Section 21 of the General Clauses Act was inapplicable in the scheme of Commission of Inquiry Act which expressly provided for the exercise of this power in relation to a Commission constituted under Section 3 of the Act. It held that the scheme of the Commission of Inquiry Act clearly indicated that Section 21 of the General Clauses Act could not be invoked to reconstitute the Commission constituted under Section 3 of the Act in a manner other than that expressly provided in the Commission of the Inquiry Act. There being no express power given by the Act to the appropriate Government to reconstitute the "Commission of Inquiry" constituted under Section 3 of the Act by replacement or substitution of its sole member and the existence of any such power being negatived by clear implication, no such power can be exercised by the appropriate Government.
18. It is thus clear that the Court has to see the scheme of the Act and if the scheme of the Act envisages the continuity of the Members and does not give any power to the Government or the Administrator to nominate other persons in place of the persons already nominated, Section 21 and 16 of the General Clauses Act cannot be resorted to by the respondents as existence of such power is negative by clear implication.
19. Section 3(3)(b)(i) of the DMC Act is almost parimateria with Article 80 of the Constitution of India except that the persons nominated under the Act have no right to vote. Under Article 80 of the Constitution, the President in accordance with Clause 3 of the said Article has the power to nominate 12 Members to the Council of States. Under Clause 3 of Article 80, the Members to be nominated by the President shall consist of persons having special knowledge or practical experience in respect of such matters, namely, literature, science, arts and social service. Once a Member is nominated to the Council of States by the President under Article 80 of the Constitution of India, he cannot be removed from the Council except in accordance with the provisions of the Constitution. Provisions of Section 3(3)(b)(i) of the DMC Act being similar to the provisions of Article 80 of the Constitution, in my view, the Administrator cannot remove the person nominated under Section 3(3)(b)(i) of the Act, in the exercise of its inherent powers unless a specific power has been given to the Administrator by the Delhi Municipal Corporation Act to nominate other persons in place of the persons who had already been nominated to be represented under Section 3 of the Act. There is nothing in the DMC Act to suggest that the persons so nominated hold their office at the pleasure of the Administrator nor their nomination was till further orders and the provisions of Articles 16 and 21 of the Act will, therefore, have no applicability to Section 3 of the Act. The scheme of the Delhi Municipal Corporation Act does not suggest that the Administrator has the power to replace the Members who had been nominated by issuing another notification superseding the earlier notification. In my considered opinion, the tenure of the Members nominated under Section 3 of the Act is co-terminus with the tenure of the Corporation. In my opinion, it was never the intention of the legislature that the Administrator can exercise the powers at his own pleasure so as to change the nomination at any time he likes. The intention of the legislature is clear that the Corporation should continue not only with the elected Councillors but also with the persons nominated by the Administrator and other persons who are represented by virtue of their being Members of either the House of People or the Legislative Assembly. Wherever, the legislature intended a person to hold office at the pleasure of the Government it has so provided in the various statutes. Even in the Constitution under Article 76 and 156, the Attorney General and the Governor hold their office during the pleasure of the President and the President, therefore, can remove them in accordance with the provisions of the Constitution. The legislature in the case of the Delhi Municipal Corporation Act having not provided that the persons nominated under Section 3(3)(b)(i) would hold office during the pleasure of the Administrator, the Administrator cannot usurp such powers by removing such persons and nominating other persons in their place.
20. In my view, therefore, the issue of the notification dated 15.12.2000 purported to be in exercise of powers under Section 3 (3) (b) (i) of the Act was clearly illegal and ultra vires the powers of the Administrator. I, accordingly, allow this writ petition and quash the notification dated 15.12.2000 issued by respondent No.2.