Abdulgani Abdulbhai Kureshi And Anr. vs State Of Gujarat And Anr. on 20 February, 1992

[Cites 52, Cited by 6]

Gujarat High Court

Abdulgani Abdulbhai Kureshi And Anr. vs State Of Gujarat And Anr. on 20 February, 1992

Equivalent citations: (1992)1GLR503

1. In this group of petitions, vires of Section 7A and Section 6(3) of the Bombay Provincial Municipal Corporations Act, 1949 ('the Act' for short) as applicable to the State of Gujarat have been brought in challenge. Alongwith the said challenge are raised alternative contentions centering round applicability of the said provisions to the four Municipal Corporations functioning under the Act. At the admission stage of these petitions, by consent of parties, petitions were treated as admitted and were heard finally.

2. In order to appreciate the contours of controversy centering round these questions, it is necessary to glance through a few background facts.

3. Background Facts: Four municial corporations concerned in these petitions are: (1) Ahmedabad Municipal Corporation, (2) Surat Municipal Corporation, (3) Baroda Municipal Corporation, and (4) Rajkot Municipal Corporation. They were reconstituted in the year 1987 under the provisions of the Act. As per Section 6(1) of the Act, terms of office of elected councillors expire at the end of five years if not extended for further period upto one year by the State of Gujarat in exercise of its powers under Section 6(1) subject to following the procedure laid down therein. It is not in dispute that terms of the councillors of the reconstituted corporations were to expire between 6th and 12th February, 1992 as five years' period would be over since the dates of first meetings of councillors elected in the general elections to these corporations held in 1987. It is also not in dispute that their terms are not extended uptil now by the State under Section 6(1) for a further period of one year and for that purpose, no procedure under the said provisions has been followed by the State of Gujarat. As per impugned Section 7A of the Act, on expiry of the terms of the councillors, State of Gujarat is enjoined to appoint administrators to take over charge of these corporations and the maximum period for which charge can be taken by the administrators would be two and half years within which elections for reconstituting these corporations have to be undertaken and completed by the State and other authorities under the Act. The petitioners some of whom are Mayors, Deputy Mayors and Chairman of standing committees of concerned corporations and others who are sitting councillors, tax payers and voters residing within the areas of concerned corporations have moved these petitions for appropriate reliefs against the State of Gujarat and the Municipal Commissioners of the concerned corporations for restraining them from resorting to Section 7A of the Act and from appointing administrators on the expiry of the terms of outgoing councillors of these Corporations. They have also sought mandamus or appropriate directions in the nature of mandamus against the concerned authorities calling upon them to initiate election process for reconstituting these Corporations and in the mean time it has to extend the terms of the councillors for a period of one year more or for permanently restraining the State of Gujarat from resorting to Section 7A and from appointing administrators of these Corporations till fresh elections to these Corporations are held. They have challenged vires of Section 7A of the Act both on the ground of legislative competence as well as on the ground that these provisions are violative of Article 14 of the Constitution. Their contention is that the State of Gujarat has extended the terms of Gram Panchayats and District Panchayats functioning under the Gujarat Panchayats Act, 1961 on the ground that figures for 1991 Census are not still ascertained and hence, it is not possible to demarcate the wards had to fix number of councillors for such Panchayats; while for the Corporations, they have held out a hostile treatment by not extending their terms though the ground put forward for not holding fresh elections to these Corporations is the same namely that population figures for 1991 Census are not still ascertained and it is not possible to demarcate the wards and to fix number of councillors for such wards. This has been done, according to the petitioners, with an oblique political motive as three of these Corporations are manned by rival political party, viz., Bhartiya Janta Party while the State Government comprises of minority Government of Gujarat Janta Dal supported by Congress party. Therefore, both factual and legal mala fides are alleged underlying the action of the State in not extending the terms of these Corporations for one year as per Section 6(1) of the Act. It is also contended that on the very ground that Census figures of 1991 are not available and hence election cannot be held for municipalities, the respondent-State has extended the terms of some of the municipalities like Unjha and Dabhoi while they have appointed Administrators under the Gujarat Municipalities Act for other municipalities similarly situated like Kalol and Borsad and in this connection, petitions are filed in this Court and the learned single Judge has entertained the petitions against non-extension of the terms of the concerned municipalities and has granted interim relief directing the State of Gujarat to grant extension to the councillors of these municipalities. Even though Letters Patent Appeals against these interim orders are admitted by this Court, the said circumstance is cited as an instance which according to the petitioners, shows that the State of Gujarat has acted arbitrarily and with oblique motive and has resorted to picking and choosing the local authorities for the purpose of granting and non-granting of extension.

4. This contentions are vehemently opposed by the learned Attorney General who appeared for the State of Gujarat and also by the learned Advocate General and others Counsel appearing for the respondent-Authorities. Two voters have also been joined at their requests as respondents in one of the petitions. They have toed the lines of petitioners and respondents respectively.

5. Before we deal with the rival contentions, it would be necessary to note the relevant statutory provisions operating in the field.

6. Legal Settings: The Act was enacted by the then Province of Bombay in the year 1949. The preamble of the Act shows that "whereas it is expedient to provide for the establishment of Municipal Corporations in the City of Ahmedabad and certain other cities with a view to ensure a better Municipal Government of the said cities. It is hereby enacted as follows". The impugned provisions of Sections 2 and 3 of the Gujarat Act 18 of 1984 by which amendments were made in Sub-section (3) of Section 6 and Section 7A was inserted were enacted by the Gujarat State Legislature in exercise of its legislative powers under Entry 5 of List II of Schedule VII of the Constitution. The said Constitution provision lays down as under:

Local Government, that is to say, the constitution and powers of Municipal Corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-Government or village administration.

7. So far as the relevant provisions of the Act are concerned, Section 5(1) provides that every Corporation, shall by the name of 'The Municipal Corporation of the City of...' be a body Corporate and have perpetual succession and a common seal and by such name may sue and be sued. Sub-section (2) thereof reads as under:

Each Corporation shall consist of such number of councillors elected at wards elections as the State Government may from time to time by notification in the Official Gazette, fix.

Sub-section (3) with its first proviso which is relevant for the present purpose reads as under:

(3) The State Government shall, from time to time, by notification in the Official Gazette, specify for each city the number and boundaries of the wards into which such city shall be divided for the purpose of the ward election of councillors and also specify, having regard to the population, the number of councillors to be elected for each ward:

Provided that no notification issued under Sub-section (2) or Sub-section (3) shall have effect except for the general elections held not less than six months next after the date thereof and for subsequent elections:

The word 'population' has been defined by Section 2 as under:

2. In this Act, unless there be something repugnant in the subject or context (45A) 'Population' in relation to city means the population thereof as ascertained at the last preceding Census.

The next relevant provision is Section 6. The said section with its subsections as it existed prior to inclusion of the impugned provisions by Act 18 of 1984 read as under:

6. (1) Councillors elected at general elections under this Act shall, subject to the provisions thereof, hold office for a term of five years which may be extended by the State Government by notification in the Official Gazette, to a term not exceeding in the aggregate six years for reasons which shall be stated in the notification:

Provided that, before such notification is published in the State Government shall invite and consider objections, if any, from persons entitled to vote at an election under this Act.

(2) The term of office of such councillors shall be deemed to commence on the date of the first meeting called by the Commissioner under the provision of the rules.

(3) The term of office of the outgoing councillors shall be deemed to extend to and expire with the day immediately preceding the date of such meeting.

Sub-section (3) of Section 6 was substituted by Gujarat Act 18 of 1984 and the new Sub-section (3) of Section 6 which is impugned in these petitions was inserted as under:

(3) The term of office of the outgoing Councillors shall be deemed to extend to and expire with the day immediately preceding the date on which an administrator is appointed under Clause (a) of Section 7A.

Then follows Section 7A which was introduced by the impugned Section 3 of Gujarat Act 18 of 1984. Section 7A reads as under:

Provision for appointment of Administrator after expiry of normal term of office of Councillors:

(1). Where the term of office of the councillors has expired, the State Government shall by order published in the Official Gazette direct that:

(a) Such person as may be appointed by the State Government from time to time shall be the administrator to manage the affairs of the Corporations, during the period from the date specified in the order upto the day immediately preceding the date of the meeting referred to in Sub-section (2) (referred to as 'the said period') in which the mayor is elected

(b) General election for reconstitution of the Corporation shall be held within such period not exceeding two and half years in the aggregate as may be specified in the order.

(2) During the said period, all the powers and duties of the Municipal Authorities (except the Municipal Commissioner and the Transport Manager) charged with carrying out the provisions of this Act and of the Corporation under any other law for the time being in force shall be exercised and performed by the Administrator.

(3) The Administrator may by an order in writing delegate any of the powers and duties to be exercised or performed by him under Sub-section (2) to any officer for the time being serving under the Corporation (4) The Administrator shall receive such remuneration from the Municipal Fund as the State Government may from time to time by general or special order determine.

Section 8 of the Act deals with qualifications of voters. As per Section 8(1)(b), amongst others, the concerned person must have attained the age of 18 years on the first day of January of the year for which the Municipal election roll is being prepared. The next important section is Section 14 which lays down that elections of councillors shall be held in accordance with the Rules. So far as rules are concerned, Section 453 provides that the Rules in the Schedule A as amended from time to time shall be deemed to be part of this Act. Schedule-A provides for Rules. Chapter 1 thereof deals with Election Rules. As per Rule 1(1), at least eight months before the term of office of the councillors elected at a general election is due to expire under Section 6, the Commissioner shall prepare and publish in accordance with Sub-rule (8), a list of persons appearing to be entitled to be enrolled in the municipal election roll as voters of wards. After providing for a detailed procedure as to how electoral rolls are prepared and for appeals and for revision of list for supplementary election rolls, the rule deals with election of councillors. As per Rule 7(1), the nomination of candidates for general ward elections of councillors shall be fixed by the Commissioner to take place on such days in the three months immediately preceding the date on which the term of office of the councillors elected at the last preceding general elections is due to expire under Section 6 as he shall think fit. As per Rule 8, fifteen days at least before the day fixed for the nomination of candidates for a ward election notice thereof shall be given by the Commissioner. Such notice shall be given by advertisement in the Official Gazette, and in the local newspapers and by posting placards in conspicuous places in the ward for which such election is to take place. After providing for nomination of candidates and details about deposits by the candidates, Rule 11 enjoins that when a ward election is contested, a poll shall be taken on such date, not less than twenty-one days after the day appointed for the nomination of candidates as the Commissioner may fix, and as per Sub-rule (2) thereof, at least three days before the day of the poll, the Commissioner shall cause the names of the persons validly nominated, with their respective abodes and descriptions, to be published in the Official Gazette and in the local newspapers. Rules 13 and 14 deal with actual procedure about voting in ward elections. Rule 33 deals with appointment of date, time and place for counting of votes. As per Rule 39, the result of every election shall be declared by fixing, as soon as may be after the election, in some conspicuous place in the Chief Municipal Office, a notice certifying the names of the persons, if any, elected and, in the case of a contested election, the number of votes recorded for each candidate under the signature of the Commissioner. Sub-rule (2) thereof provides that names of the persons elected to be councillors shall be published, as soon as may be, in the Official Gazette. As per Section 452, power is conferred on the State Government to supersede Corporation in case of incompetency, persistent default or excess or abuse of powers on the grounds laid down therein and also provides for consequences of such supersession, empowering the State Government to issue directions that during the period of supersession, all powers and duties of the Corporation, the Standing Committee and if necessary the members of the transport committee shall be exercised and performed by such person or persons as the State Government from time to time appoints in this behalf and that all councillors shall, as from the date of the order of supersession, vacate their office as such councillors.

8. This is in short the relevant legal settings in the light of which the present controversy has to be resolved.

9. In the light of the rival contentions canvassed before us by the learned Counsel of the respective parties, the following points arise for our consideration (1) Whether the respondent-Authorities should be directed to start election process for reconstituting these concerned Corporations by taking appropriate steps under Sections 5(2) and (3) of the Act read with the relevant rules.

(2) Whether for the purpose of holding such fresh elections to these Corporations, the respondent-Authorities should be directed to go by the ascertained figures of population as per 1981 Census or whether they should be directed to take into consideration figures of 1991 Census as and when they are ascertained before holding such fresh elections.

(3) Whether on the facts and circumstances of the case, the respondent-State is entitled to invoke provisions of Section 7A of the Act.

(4) Whether the respondent-State before exercising powers under Section 7A is required to give hearing to the concerned Corporation and/or councillors likely to be affected by the said exercise.

(5) Whether the respondent-State can be and should be directed to extend the terms of the concerned Corporation under Section 6(1) of the Act.

(6) Whether Sections 7A and 6(3) are beyond the legislative competence of the State legislature and hence void.

(7) Whether the impugned provisions are violative of Article 14 of the Constitution and hence void.

(8) What final order?

Our answers to the above points are as under:

(1) In the affirmative.

(2) State Authorities should be directed to go by the ascertained figures of 1981 Census and they need not wait for availability of 1991 Census figures.

(3) In the negative.

(4) In the negative.

(5) In the present cases, Government can be directed to extend the terms of concerned Corporations, but in view of our decisions on other points and directions given in this judgment, concerning these points, it is not necessary to direct extension of terms under Section 6(1) of the Act.

(6) In the negative.

(7) In the negative.

(8) As per final order.

10. Discussion: We shall deal with the points Nos. 1 & 2 together as they can be conveniently dealt with together and as they are inter-connected. So far as these points are concerned, it would be profitable to have a look at the relevant statutory scheme holding the field. As per Section 5(1), a Municipal Corporation of the concerned State will be a body corporate and have perpetual succession and a common seal. For making such body corporate, councillors are to be elected so that local self-Government is available at grass-root level for all the cities. This is the thrust of Section 5(2). Such councillors are to be elected at ward election as laid down therein. As Section 6(1) enjoins, the terms of the councillors elected at general election under the Act, subject to the provisions of the Act is to be for five years and which term may be extended under Section 6(1) second part by the State Government by following the procedure laid down therein, subject to a ceiling of aggregate six years. Therefore, every five years, general ward elections are to be held so that old councillors can be replaced by new councillors and the voters can have effective right of franchise to be exercised once in five years. This is the essence and thrust of provisions of local self-Government flowing from the Act. When we turn to the relevant election rules which have to be pressed in service for election of councillors as laid down by Section 14, we find a well-knit time schedule provided by the legislature for the purposes of holding such ward elections. Relevant provisions of the rules clearly project a picture requiring the Commissioner to hold such elections by following the time schedule in such a manner that before expiry of the term of these councillors elected in last general elections, new body will be available for taking over from the old councillors. That is why the time schedule projected by Chapter I of the rules enjoins the Commissioner to start process for preparing electoral rolls at least eight months prior to the expiry of term of existing councillors. It is obvious that before that process is undertaken by the Commissioner, the State of Gujarat is also enjoined to undertake the exercise of fixing number of councillors to be elected at ward elections as per Sections 5(2) & 5(3) by demarcating wards and specifying number of councillors to be elected from each of such wards having regard to the population. After that exercise is undertaken by the State Government as provided by Sections 5(2) and 5(3), the concerned Commissioner can start the process for holding elections for the wards within the time schedule laid down by the Rules. It is easy to visualise that if eight months are required for the Commissioner to complete the election process under the Rules, the State Government will be required to complete its part of statutory obligation under Sections 5(2) and (3) at least within A Month Prior to the Aforesaid Eight Months which would be available to the Commissioner. Consequently, from a conjoint reading of Sections 5(2) and 5(3) and the concerned Rules, it becomes clear that the legislature has contemplated a period of about nine months prior to expiry of the term of the outgoing councillors elected at the last election within which the entire process for fresh elections to the corporation is to be completed by the concerned authorities. In the present case, the terms of these corporations were to expire between 6th and 12th February, 1992. Counting nine months backwards from this period, the process of holding fresh elections in the manner stated above, should have commenced at least nine months back, i.e., by May 1991 latest. It has to be noted that the statute nowhere prohibits the concerned Authorities from initiating process even earlier and that is the reason why the Commissioner of Surat Municipal Corporation had suggested as far back as in October 1990 to the State Authorities to initiate the process by using appropriate notification under Sections 5(2) and (3). Subsequently, similar requests appear to have been made by the Corporations as well, and it was enjoined upon the State Government to have responded by acting it according to the Statute latest by beginning of May 1991. So far as this duty cast on the State Government is concerned, it appears that the same was not discharged on the supposition that figures of 1991 Census were not available at the relevant time. So far as this stand is concerned, in our opinion, it is patently erroneous and misconceived, to say the least. A mere look at Section 2(45A) shows that whenever the State Government sits down to discharge its statutory obligation under Sections 5(2) and (3), it has to look at the figure of population as ascertained at the last preceding Census. If this statutory obligation had to be performed by the State Government, latest by May 1991, it is obvious that even though Census operations had started from January 1991 no figures of that Census could have been ascertained by May 1991. It is nobody's case that any such figures are ascertained. On the contrary, it is the stand of the State Govt, consistently before us and that appears to be the stand all throughout when it considered this question beginning from 2-1-1991 as the record shows, that population figures of last Census of 1991 are still not ascertained. The paper book furnished to us and to the learned Advocates of the petitioners by the learned Advocate General for the State showing details about processing of the file concerning these elections shows that earlier the State Government felt that these figures may be available by July 1991 but subsequently, it was felt that figures of population as per 1991 Census will not be available till October 1992. In the mean time, what we have got is a tabular statement of tentative figures as contained in the booklet called Provisional Population Totals issued by Director of Census Operations, Gujarat and on the basis of these figures, the tabular statement is given at Annexure 'L' to the supplementary affidavit-in-reply filed by the State Government before us. However, the learned Advocate General made it clear before us that till date, ascertained figures of population as per 1991 Census are not available with the State Government and at least SC/ST and women population figures are not available even on the basis of tentative estimate, and according to him, these figures may be available at the earliest by October 1992. For that purpose, he relied upon certain correspondence which ensued between the State Government on the one hand and the Director of Census Operations, Gujarat on the other. This correspondence was produced before us by way of additional supplementary affidavit. This correspondence shows that according to the Director of Census Operations, Gujarat, aforesaid breakup cannot be given till figures are officially published by the Registrar General of Census. New Delhi and that the work of scrutiny and tabulation of figures is in progress and that work is likely to be finished by October 1992 and thereafter final ascertained figures will be published by the Registrar General, New Delhi on the date appointed by him. I ill then, 1991 Census figures cannot be furnished. The letter dated 23-8-1991 clearly shows that even tabulation and verification of the population figures of 1991 will not be completed by October 1992 while publication of the ascertained figures would take still more time and, therefore, we can easily visualise that ascertained figures of 1991 Census will not be available to the State Govt, till the end of the year 1992. If this is the situation, we fail to appreciate how the State of Gujarat months back in 1991 could have taken the stand that because population figures for 1991 Census arc not ascertained, elections to these Corporations could not be held. Section 2(45A) clearly provides that for fixing number of councillors and earmarking of wards and wardwise boundaries, as per Sections 5(2)and(3), population figures as defined by Section 2(45A) have to be kept in view and that figures would be figures ascertained at the last preceding Census. It cannot be disputed that such ascertained figures of population as per last preceding Census would take us to the Census of 1981 and till fresh population figures of 1991 Census are ascertained and available on publication, old ascertained figures of 1981 would held the field and all elections to the Municipal Corporations under the Act have to be held as per 1981 Census figures. It is only after ascertained population figures of 1991 are available on publication that the State of Gujarat for general elections can legitimately contend that Sections 5(2) and (3) exercise and subsequent exercise for holding elections will have to be undertaken in the light of 1991 Census figures and it is only at that stage that 1991 figures can be said to have been available as ascertained figures of population. The learned Advocate General in this connection vehemently contended that when elections to these corporations were to be held in the end of 1991, the last preceding Census would be Census which had taken place prior to October 1991 and that would be 1991 Census and not 1981 and according to Section 2(45A) it is that Census which was holding the field. It is difficult to appreciate this contention for the simple reason that even though 1991 Census operations might have started and collection of data might have ended by March or April, 1991, even according to the Director of Census Operations, population figures of 1991 Census are not still tabulated or ascertained and they can be given only on publication in October 1992 or thereafter. Consequently, the ascertained figures of population are only of the year 1981 even till date and 1991 figures are not still ascertained and hence the State Government cannot legitimately go in search of such future ascertainment of these figures and on that ground can hold up election process which is enjoined upon the authorities under the Act to be pursued at appropriate time before existing terms of the corporations end. We, therefore, hold that the stand of the State Government in adopting the stance that it could not legitimately hold fresh elections to the corporations in the year 1991 and it was waiting for availability of ascertained population figures of 1991 Census cannot be countenanced. It appears that by some misconception of the correct legal position, the State Govt, completely bypassed the statutory requirements of Sections 5(2) and (3) read with Section 2(45A) and failed to discharge its statutory obligations at appropriate time. It is easy to visualise that if a voter had filed a writ petition before this Court in May 1991 calling upon the State to discharge its statutory obligations, by issuing relevant notifications as per Section 5(2), (3) read with relevant Rules, this Court would not have hesitation in granting such writ there and then. Unfortunately, no one came at that time, with the result that the State Govt, continued its inaction proceeding on a total misconception where its obligation and duties flowing from the statute and the result is that terms of these Corporations have run out. In this connection, it would be worthwhile to note a decision of Division Bench of this Court which one of us (S.B. Majmudar, J.) was a party, which considered the scheme of this very Act, in Vishnubhal Natverlal v. State [1980 (2)] XXI (2) GLR 189. In that case, general ward elections to this city were to be held in the year 1980. For that purpose, the State had issued a notification on 20-3-1980 under Section 5(2). This notification was issued on the basis of population figures of Census of 1971 which were ascertained and available. The petitioners before the High Court had contended that there was no such definition of population in the BPMC Act as was found in the Bombay Municipalities Act pinning down population figures to the ascertained figures of last Census and therefore it was open to the State Government to take into consideration the shift of population and its increase before exercising power under Section 5(2). this Court noted that as there was no provision like present Section 2(45A), it was incumbent upon the State Government, relying upon the principle of 'one man one vote' rule initiated by this Court in (Rameshchandra R. Patel v. Collector, Kheda) (1979) XX GLR 191, to adopt rational principle in the absence of any fetters and to demarcate the wards and to fix number of councillors on the basis of population of the ward and for that purpose, it would not necessarily mean that it must be population in case of a Municipal Corporation as determined at the last preceding Census particularly when those figures have become stale, unreal and out of date. Therefore, when mid-Census general elections are held, for determining population in an election ward for the purpose of allocation of seats, if there are obvious and discernible indications to determine what population it has, it will be unreal for the State Government to ignore them. With a view to getting over the difficulty felt on account of the judgment of this Court in 21 (2) GLR 189, that the legislature intervened and enacted Section 2(45A) by Gujarat Act 1 of 1981. It becomes, therefore, obvious that a situation which existed prior to insertion of definition of the word 'population' as per Section 2(45A) of the Act and which situation was analysed by this Court, was sought to be remedied and the legislature clearly indicated that even for this Act, while delimiting wards for the purpose of ward elections as per Sections 5(2) and (3), the State of Gujarat has to go by the available figures of population as ascertained at the last preceding Census. When this is the clear legislative mandate flowing from insertion of Section 2(45A) with a view to remedying the situation which otherwise would have prevailed as per 21(2) GLR 189, (supra), it would be too late in the day for the State-Govt. to contend now that it will still proceed, as if Section 2(45A) was not on the Statute Book, and would wait till figures of next Census are available, may be after one year or even more. In our view, in the face of Section 2(45A), such a stand is clearly unjustified and cannot be sustained. What is not ascertained in the year 1991 and till today cannot be made a ground for postponing elections on the supposition that in future at some point of time, may be, not in near future, such figures may be made available and then these elections can be held. If such a stand is accepted by the Government, such elections cannot be held at all at least till early part of 1994 as the learned Attorney General himself stated before us that it will require about one year and two months after these figures of 1991 Census are available some where in October 1992 and thereafter. Result would be that after the term of elected councillors is over, next general ward elections would be delayed for more than two years. Such type of elections holiday is not permitted or countenanced by the legislature. It would run counter to the principle of local self-Government for effecting which the State legislature has enacted this Act and that is precisely the reason why the legislature intervened after Vishnuprasad's case (supra) and enacted Section 2(45A) so that such type of election holiday can be avoided and the State would not be required to wait indefinitely in search of figures of future Census as and when they are available. We, therefore, hold that the State of Gujarat was clearly in error and failed to exercise its statutory obligations on the total misconception of the legal position when it failed to issue, latest by May 1991, notifications under Sections 5(2) and (3) of the Act. It is easy to visualise that if the State had discharged its statutory obligations at the relevant time, fresh elections to these corporations would have been over by December 1991 as all the Commissioners had moved in the matter well in time and requested the State to issue such notifications so that electoral rolls can be prepared and general elections could be held in time. If that had happened by January 1992, newly elected councillors would have been available to take over the reins of the corporations. Under these circumstances, we have no alternative but to direct the State to immediately start election process for all these corporations and to discharge its statutory obligations under Sections 5(2) and (3) on the basis of population figures of 1981 Census which would be last preceding Census at which such figures are ascertained and are available. On the principle of 'Better late than never', these directions are required to be given forthwith to avoid further unnecessary delay. In the light of statutory scheme of various provisions of the Act and the Rules, at least 9 months' time will be required before the elections are held for these corporations even according to the present order and consequently, while passing final order, we will issue appropriate direction, fixing time schedule for such elections.

11. We may mention one submission canvassed by Mr. Tanna appearing for the petitioner in one of the petitions. He submitted that as the learned ATTORNEY GENERAL HAD STATED IN the course of his argument that tentative figures of population for 1991 Census in the areas of these Corporations are available with the State, they may be taken as ascertained figures at the Census of 1991 and on that basis, the State can carry out exercise under Sections 5(2) and (3) of the Act. It is not possible to agree with this contention for the simple reason that that would open pandora's box. It would lead to tremendous anamoly and uncertainty and the situation would remain in the state of flux whenever the Census is either in progress or is partly concluded. It is the stand of the Director of Census and which is relied upon by the learned Advocate General that work of collecting Census figures is over but scrutiny and tabulation is in progress and final figures cannot be, supplied till this scrutiny is over and final figures are ascertained and duly published by the Census Authorities at Delhi and that is likely to be over in October 1992 or even some time thereafter. Thus, it cannot be said that tentative figures of population found in the booklet No. 1 which have been produced before us by way of supplementary affidavit of respondent No. 2 at Annexure '2' are ascertained figures of last preceding Census of 1991. Only ascertained population figures of last preceding Census available are of 1981 Census and these will be the figures on the basis of which concerned authorities have to act. In this connection, submission of the learned Advocate General may be noted. It was contended by him that Section 2(45A) provides for ascertained figures of population at the last preceding Census. That ascertainment has to be done by the Census authorities and Census authorities have given chronology of events that have happened during 1991 Census operations and they show that collection of Census figures was over on 7-3-1991. It is difficult to appreciate how these events can be of any use to the respondents, once a clear stand is taken by the Census authorities which is in correspondence with the State authorities that final and ascertained figures of 1991 Census cannot be given to the State authorities till October 1992 or till some time thereafter. Consequently, it must be held that only ascertained figures at the last preceding Census available at present would be 1981 figures. When the term 'population' is to be read alongwith Section 5(3) it becomes clear that these population figures are relevant for the purpose of delimiting of wards and fixing number of councillors especially in the light of SC/ST population as reflected by last Census as laid down in proviso 2 at Section 5(3)(2) and these figures must, therefore, be ascertained figures as per last preceding Census which would be 1981 figures. The learned Additional Advocate General had placed reliance on a decision of learned single Judge of this Court in Kumbhar Yakub v. Bhuj Municipality [1991 (2)] XXXII (2) GLR 755. The learned Judge in that case has taken the view that when Census operations are over and collection of figures is completed, then election process has to be in the light of figures of that last Census and figures of last preceding Census would be totally unrealistic and stale. It becomes clear that the aforesaid decision was rendered by the learned single Judge in the light of the provisions of Gujarat Municipalities Act and there also the short question before him was whether the Collector was justified in rotating seats of females ward-wise. Consequently, the aforesaid view on the population figures of last preceding Census is clearly obiter as para 29A of the judgment shows. Even that apart, in the light of clear language of the definition of the word 'population' as contained in the Gujarat Municipalities Act and which is pari materia with Section 2(45A) of the present Act, the obiter observations of the learned single Judge on this aspect cannot be accepted and it must be held, with respect, that the learned Judge was in error when he took that view. In this connection, it is also profitable to have a look at the decision of the Allahabad High Court reported in 7972 ALL. L. J. 390. Relying on pari materia provision in the U.P. Municipalities Act, defining the term 'population' on the same lines as we find in Section 2(45A), the learned Judges of the Allahabad High Court took the view that 'population' as ascertained at the last preceding Census would mean figures of the 'population' duly ascertained and published as without publication, it cannot be said that population figures were ascertained and had become final. We respectfully concur with the aforesaid view of the Allahabad High Court. It is also worth noting that delimiting of wards and fixing number of councillors as per Section 5(3) IS TO BE DONE IN THE LIGHT OF definition of term 'population' as found in Section 2(45A). Therefore, such delimitation has to be done in the light of population figures as ascertained at last preceding Census. These are statutory obligations creating corresponding statutory rights in favour of those for whose benefit provisions are enacted. It is now well settled that rights flowing from statutes dealing with elections are only statutory rights and impose corresponding statutory obligations. If the statute clearly indicates that delimiting of wards and fixation of number of councillors for general election will be required to be made in the light of ascertained population figures of the last preceding Census, no one can contend that ignoring these figures, authorities can go in search of figures of Census which may be ascertained in future and can indefinitely postpone elections to the wards only on the nebulous possibilities of having more number of councillors wardwise in distant future. Such type of legal rights and corresponding legal obligations do not flow from the scheme of the statute. It is also pertinent to note as seen earlier that after the decision of Division Bench of this Court in 21(2) GLR 189, (Vislmubhai's case) (supra), the legislature thought it fit to avoid uncertainly which may result in connection with exercise of delimitation of wards and fixation of councillors on the basis of current population and therefore introduced Section 2(45A) on the statute book by Gujarat Act 1 of 1980 so that election process can start without being postponed indefinitely by being connected with any nebulous possibility of future ascertainment of population ward-wise. An ordinance in this connection was promulgated by Gujarat Ordinance No. 19 of 1989 which was replaced by Act 1 of 1980. In the statement of objects and reasons for the said Ordinance, it has been clearly laid down that "in Special Civil Application No. 1209 of 1980 (Vishnubhai Natwarlal Patel and Ors. v. State of Gujarat and Anr.) the Gujarat High Court has held allocation of five seats as between Wadaj East and Wadaj West under Government notification, Panchayats, Housing and Urban Development Department No. KP-54-80-MPB-7178-93 5(80)-P dated 20th March, 1980 issued in exercise of the powers conferred by Sub-sections (2) and (3) of Section 5 of the Bombay Provincial Municipal Corporations Act, 1949 as arbitrary and not rational on the ground that such allocation was not on the basis of the population existing at the time of the notification. Since it is not possible for the Government to determine at the time of issue of such notification the population of various wards for the purpose of allocation of seats, the seats are allocated under the said notification to each ward according to the population ascertained at the last preceding Census. As the said Act does not provide any basis for allocation of seats to wards in a City, it is considered necessary to the said Act so as to provide for allocation of seats to Various wards in a City on the basis of population as ascertained at the last preceding Census..." Thus, introduction of Section 2(45A) on the Statute book was a remedial measure for avoiding uncertainty created by the decision of this Court in Vishnuprasad's case (supra) and to pin point population to the ascertained population figures of last preceding Census. This was in keeping with Panchayats Act and provisions of the Gujarat Municipalities Act. In this connection, it is profitable to have a look at Oxford Dictionary, Vol. I, page 483 which states the word ascertained to mean 'determined, discovered by investigation known'. It is obvious that ascertain figures must be final figures of population as declared by the Census of India and that can happen only on due publication and not before that.

12. The learned Advocates for the petitioners also invited our attention to a Division Bench judgment of this Court in Prahladbhai v. Modasa Panchayat (1981) 22 GLR 969 wherein the very phrase 'ascertained at last preceding Census' was examined in connection with the Gujarat Panchayats Act and it was held that these figures must be figures as ascertained and published at the last preceding Census. The learned Advocate General submitted that (1981) 22 GLR 969 ratio proceeds on a concession and an agreed formula. We do not find any such agreed formula therein. All that is stated is that it is agreed between the parties that population figures were ascertained at the last preceding Census. The said agreement was on figures of population as ascertained in a given Census. But the legal effect thereof as examined by the Division Bench is reflected by the ratio of the decision with which we respectfully concur. A similar view is also taken by the Bombay High Court in Writ Petition No. 4004 of 1991 decided on 21-10-1991. In this connection, we may note one additional contention. Mr. Vakil submitted that as per the first proviso to Sections 5(2), no such fresh notification may be required as notification issued under Sections 5(2) and (3) shall have effect for all general elections held six months thereafter and it will cover subsequent elections. The learned Advocate General and Mr. Desai were right when they contended that subsequent elections contemplated by the proviso will cover bye-elections and not subsequent general elections as the proviso makes a distinction between general elections and subsequent elections. Therefore, the conclusion is inevitable that for every general election, fresh exercise under Sections 5 (2) and (3) has to be undertaken by the State.

13. Before parting with these points, we may mention one contention canvassed by the learned Advocate General for the State. He submitted that the petitioners could have come earlier for such relief and they sat tight perhaps expecting extension of their terms and, therefore, belatedly, no such relief could be asked for much less can be given. It is difficult to appreciate this contention. It was the obligation of the State to issue notifications under Sections 5(2) and 5(3) latest by May 1991. It failed to discharge its statutory obligation and in the mean time, it is not the case of the respondents that any rights of any parties are adversely affected or that the State has changed its position to its detriment. It is also easy to visualise that the notings in the file which are produced before us by the respondents show that even the State had not taken any concrete decision not to extend the terms of these corporations till at least January 1992 as they were contemplating three possibilities, viz., (i) to extend the term; (ii) to hold elections and (iii) to appoint the administrators. Mr. Desai for the Surat Municipal Corporation was right when he contended that a close look at the notings shows that the Chief Minister who is the highest authority does not seem to have taken any decision at least till 31st January, 1992. On the contrary, the file shows that by 23-1-1992 the State had not taken any decision to appoint any administrator. If this is the stand of the State and if this is reflected by the relevant entries in the file, it is difficult to appreciate how the petitioners can be said to be guilty of any delay. Consequently, it must be held that the petitioners are not disentitled from claiming appropriate relief by way of mandamus against the State of Gujarat in the present petitions calling upon them to hold fresh elections.

14. We may note one contention canvassed by the learned Advocates for the petitioners. It was submitted that the State can be said to be actuated by legal and factual mala fides in not holding elections and was virtually waiting for the creation of a situation wherein Section 7A could be resorted to and councillors could be displaced by administrators as out of four corporations, three corporations are manned by rival party, viz., Bhartiya Janta Party. In our view, this contention is too far-fetched to be accepted. As noted earlier, the State appears to have been observed by a genuine misconception of legal position that it had to wait for availability of 1991 Census figures and this is the only reason why it had uniformly adopted policy of not holding elections in any of these corporations, out of four corporations, at least in one corporation of Baroda, Congress Party which is supporting minority Government at State level is in majority, even there uniform policy was followed of not holding election and even bye-election to ward No. 14 was refused by the State only on this ground. Not only that, but even in Panchayats which are manned by minority party that is forming the Government at State level and by its supporting Congress (I) Party, being in majority, uniform policy is followed of not holding elections, till 1991 Census figures are available. It is, therefore, merely a case of misconception of legal position rather than of any factual or legal mala fides on the part of the State. Therefore, the aforesaid contention of the learned Advocates for the petitioners stands rejected.

15. We may mention in this connection one submission made by the learned Advocate General for the respondents. Inviting our attention to Articles 81 and 170 of the Constitution, it was submitted that for elections to the House of People and Legislative Assemblies, the Constitution had provided that the expression 'population' means the population as ascertained at the last preceding Census of which the relevant figures have been published. It was submitted that Section 2(45A) stops short by defining 'population' to mean 'population' as ascertained at the last preceding Census, but does not mention that such figures must be published. In our view, this distinction is without any real difference. It is true that the constitutional dictionary provides as aforesaid while publication of figures is not mentioned in Section 2(45A) but ascertained figures at the last preceding Census have to be final figures and even before actual publication takes place, figures must be ascertained and for the purpose of ascertaining figures at the Census, normal mode available and followed by the concerned authorities under the Census Act is the mode of publishing these figures. Thereafter only, they would attain finality and certainty and can be said to have been ascertained. It is, therefore, not possible to accept the aforesaid submission of the learned Advocate General. On the contrary, it may be mentioned that even the Constitution provides by way of proviso to Articles 81(3) as well as proviso to the Explanation to Sub-Article (2) of Article 170 that 'Reference in this explanation to the last preceding Census of which the relevant figures have been published shall, until the relevant figures for the first Census taken after the year 2000 have been published, be construed as a reference to the 1971 Census'. This shows that even the Constitution makers thought of freezing the last Census figures as per 1971 Census for three decades that is upto 2000 for Parliament and Assembly elections. If this is contemplated by the Constitution for elections to these apex bodies at State level and Union level, it would be in the fitness of things to have local elections as per fixed population figures of the last Census where figures are ascertained and that would not affect the democratic process of elections at local self-Government level if that was not affected even by freezing of population figures for 3 decades for elections at the State and Union levels. All that would happen is that number of councillors to be fixed wardwise may remain at a reduced figures as compared to the higher figures of councillors worked out as per additional population that may have grown after the last Census so far as right of franchise is concerned new voters would naturally exercise their right of franchise as electrol rolls will have to be made upto date as per Chapter I of the Rules for every general election. Only number of councillors, if at all, may get increased, as and when latest figures of last preceding Census are available and till that time, number of councillors as ascertained on the basis of population of last Census of 1981 would remain in operation. This has nothing to do with the effective exercise of. franchise by voters on the one hand and for formation of local self-Government in its true spirit on the other.

16. We may also mention in this connection that the learned Advocate General was right when he submitted that when elections are to be held under the Act and the Rules after the term is over, strict time table evolved by Rule 1 onwards may not be applicable as the exercise is not being done at least eight months prior to the expiry of the term which has already expired and, therefore, these Rules have to be substantially complied with in such situations. On a combined reading of the relevant Rules, it is clear that what is contemplated by the Rules is that election should be held within eight months. Starting of process of preparing electoral rolls must necessarily begin 8 months prior to expiry of the terms. In cases where such provision may not strictly apply with reference to the context of situation, still, rules will get substantially complied with if fresh elections even after expiry of term of the councillors arc held as far as possible within at least eight months of issuance of requisite preliminary notification under Sections 5(2) and (3) by the State. It is also pertinent to note that there is ample play available both to the Corporation under Section 453 and to the State Govt, under Section 454 to amend these Rules to make them amenable to cater to the changed circumstances and situations that may hold the field at the relevant time.

17. For all these reasons, points Nos. 1 and 2 are answered as under: Point No. 1 is answered in the affirmative while point No. 2 is answered by holding that State Authorities should be directed to had elections on the basis of ascertained figures of 1981 Census and they need not wait for availability of 1991 Census figures.

18. Point No. 3: So far as this point is concerned, we may note that Section 7A(1) provides that where the term of office of the councillors has expired, the State Govt, may direct appointment of an administrator to manage the affairs of the Corporation during the period from the date specified in the order upto the date immediately preceding the date of the meeting referred to in Sub-section (2) of Section 6 in which the Mayor is appointed and further direct general election for reconstitution of the Corporation within such period not exceeding two and half years in the aggregate as may be specified in the order. The learned Advocate General rightly contended that Clauses (a) and (b) of Sub-section (1) of Section 7A are cumulative and that order appointing administrator must conform to both these provisions once this position is clear, it becomes obvious that Section 7A(1) can be pressed in service if both the conditions precedent exist (1) term of Office of councillors should have expired and (2) order appointing administrator should be passed at a stage where general ward elections are still not held and it may not be possible to hold them for a maximum period of 2 1/2 years. Only in such eventualities, power under Section 7A(1) can be exercised. Therefore, when the State thinks that general ward elections to these Corporations for reconstituting them are not likely to be held upto a maximum period of 2 1/2 years and that term of the office of the councillors has expired, then only such order can be passed. We have held while deciding points Nos. 1 and 2 above, that general elections for reconstituting the Corporations could be held and could have been held in the year 1991 itself and there was no need to wait even for a month much less upto 2 1/2 years after the expiry of the term of councillors, the conditions precedent enjoined by Section 7A(1)(b) obviously was not existing at any point of time so far as elections of these Corporations went. Not only that, but once we are issuing, by the present judgment, directions to the respondent-State to hold general elections even though belatedly, within the time schedule which will be fixed in this judgment, there would remain no occasion for the State to fall back upon Section 7A(1)(b) or for that matter even Sub-clause (a) of that provision. For the purpose of discussion on this point, we assume that the first condition that the term of office of councillors has expired exists, as there is a hot debate on the question whether Section 7A(1) can be pressed in service without undertaking exercise of extending the term of councillors as per Section 6(1) second p Article That question will be dealt with hereafter. But even assuming that normal term of five years having expired, the State can legitimately fall back upon Section 7A(1), no order can be passed thereunder as second condition precedent enjoined by Section 7A(1)(b) is not attracted at any point of time for the present four Corporations either in the recent past or in future. Hence, there will remain no occasion to fall back upon provisions of Section 7A and to appoint administrators for these Corporations at the present stage. Therefore, the State will have to be permanently restrained from falling back upon Section 7A(1) and from appointing administrators for these Corporations till fresh general elections are held as directed by us in the present judgment. Our answer to point No. 3 is in the negative.

19. Point No. 4: So far as this point is concerned, it may be mentioned that Mr. Desai by amendment to the petition, had inserted this contention. His submission was that as administrator is to be appointed under Section 7A and he would displace the councillors, hearing was required to be given to the councillors before any such order could be passed. This contention is to be stated to be rejected. It may be mentioned that this point at the stage of argument was not seriously pressed before us. It is obvious that Section 7A can be legitimately pressed in service by the State only if the first condition precedent that the term of councillors had expired applies. The term of councillors will stand exhausted at the expiry of five years as per Section 6(1) Unless it is extended for a maximum period of one year as laid down in the second part thereof. If this is not done, normal term will expire at the end of five years. It is thereafter that the State can fail back upon Section 7A. By that time, the outgoing councillors would have already completed their term and only incoming councillors by fresh election would be expected to come in and resume the local self-Government activities. In the mean time, if administrator is to be appointed under Section 7A which provision operates automatically once the term of outgoing councillors expires, and once the required conditions precedent are satisfied, we fail to appreciate how outgoing councillors can demand any hearing. Initial mandate of the voters which brought them to the precincts of the Corporation was for five years and it has expired. It is true that such councillors had locus standi to get further extension upto one year if the State thought it fit to extend in proper cases, the said term, but till that was done, councillors would cease to be councillors at the expiry of five years and even after the period of extension is over, they would be out of saddle and it is thereafter that Section 7A can apply. At that stage, they have to fall back upon the historical fact that they were once councillors. Consequently, at that stage, they cannot insist that they should be heard before administrator can be appointed. Point No. 4 is, therefore, answered in the negative.

20. Point No. 5: So far as this point is concerned, Section 6(1) has to be scrutinised little carefully. It is true that as provided therein, the councillors elected at general elections under this Act shall hold office for a term of five years but this will be subjected to the provisions of the Act, meaning thereby other provisions of the Act. The learned Advocate General submitted that other provisions of the Act would include Section 7A. Mr. Vakil for the petitioners and other Counsel for the petitioners on the other hand submitted that in juxtaposition in which the words 'subject to the provisions thereof occur, the other provisions only relating to the term of office of the councillors would be relevant. That Section 7A by its very opening words will start applying after the term is over and consequently that provision has nothing to do with the topic of term of councillors as dealt with by Section 6(1). We find considerable substance in this submission of Mr. Vakil. Section 7A starts where Section 6(1) ends. Consequently, the phrase 'subject to the provisions thereof as found in Section 6(1) would bring in other provisions of the Act which deal with term of the councillors. Such provisions are found in Sub-section (2) of Section 6 and Sub-section (3) and also in Sections 10 and 11 dealing with disqualifications of councillors and Section 452A which deals with supersession of Corporations. Sub-section (2) of Section 6 deals with starting point of term of office of the elected councillors which is laid down to be five years under Sub-section (1) and indicates its starting point. The terminus of the term is to be found out by a conjoint reading of Sections 6(1) and 6(3). Even though the term is five years, it is deemed to be extended by thurst of Section 6(3) UPTO AND HAS TO expire with the eventuality contemplated by the Sub-section. Thus, Sub-sections (2) and (3) of Section 6 have direct impact on the regulation of the term of office of councillors. Sections 10 and 11 deal with disqualifications of councillors which will require them to be removed before completion of normal term of office. Next provision which is relevant in this behalf is Section 452A which deals with supersession of existing councillors on the ground of misconducts etc. If this section is pressed in service in a given case, then the existing term of the councillors would get curtailed. These are the relevant provisions which have impact on the regulation of term of councillors. They are contemplated by the phrase 'subject to the provisions thereof as employed in Section 6(1). In no case, Section 7A can be brought in by taking aid of the said phrase as tried to be submitted by the learned Advocate General. Coming to the main Section 6(1) it becomes obvious that normal term of councillors is five years, but the State Government is empowered to extend the said term by following the procedure laid down therein. However, the legislature has put up the ceiling of aggregate six years in all, beyond which such term cannot be extended. The learned Addl. Advocate General, submitted that second part of Section 6(1) imposes a legislative duty on the State and is not an administrative function. He stated that it was either delegated legislation or conditional legislation. This contention is ex-fade without any substance. It is now well settled that legislature while enacting a statute may leave to its delegate, a play to fill up certain ancillary gaps left out by the legislature while enacting it so that the statute can be made completely effective and operative in the light of circumstances and situations which may come into existence later on or which may not be in contemplation of the legislature at the time of enacting the legislation. If such a play is left to the delegate and if an obligation is cast in connection with exercise of that power conferred by the legislature itself while enacting the statute, it would be a case of delegated legislation provided the delegation is not excessive and does not amount to total effacement of legislative power. On the other hand, if the legislation is complete in itself but it is left to the delegate to bring in force the said legislation, at appropriate lime or place, it would be a case of conditional legislation. This is well settled since decades. We may usefully refer to a decision of the Supreme Court on this point. The Constitution Bench of the Supreme Court in Hamdard Dawakhana v. Union of India , succinctly brought out this distinction as under :

The distinction between conditional legislation and delegated legislation is this, that in the former the delegate's power is that of determining when a legislative declared rule of conduct shall become effective and the latter involves delegation of rule making power which constitutionally may be exercised by the administrative agent This means that the legislature having laid down the broad principles of its policy in the legislation can then leave the details to be supplied by the administrative authority In other words by delegated legislation the delegate completes the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation is exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it is to extend.

Thus when the delegate is given the power of making rules and regulations in order to fill in the details to carry out and subserves the purposes of the legislation the manner in which the requirements of the statute are to be met and the rights therein created to be enjoyed it is an exercise of delegated legislation. But when the legislation is complete in itself and the legislature has itself made the law and the only function left to the delegate is to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation.

It is easy to visualise that by empowering the State to extend the term of councillor of a corporation and laying down maximum six years in aggregate in this connection, the legislature had not conferred and rule making power on the delegate nor did it confer upon the delegate power to fix time and place of operation of Section 6(1). Therefore, second part of Section 6(1) is not an example either of delegated legislation or of conditional legislation. It only gives power of administrative nature to the State Authority to extend the term of councillors in a given set of circumstances. It has to be kept in view that difference between a legislative act and an administrative act is well laid down. In exercise of administrative power administrative authority lays down a course to be followed in given set of circumstances while the delegate which exercises legislative functions lays down a rule of conduct which will be binding to all concerned who are Within the sweep of such exercise and it would apply uniformly. It becomes obvious that five years' term is fixed for all councillors of all the Corporations covered by the Act. But when it comes to extension upto one more year in aggregate, the State Authority in circumstances requiring such extension, in a particular case, may exercise power in respect of one Corporation and may legitimately not exercise power for other Corporation if such circumstances do not exist for other Corporation. It is not as if that once extension is given, it would uniformly apply to councillors of all the Corporations of the cities covered by the Act. Therefore, it can never be branded as a legislative function. It would remain in the realm of administrative function of the State, so far as such extension contemplated by second part of Section 6(1) goes. In this connection, it is profitable to have a look at the decision of the Supreme Court in Union of India v. Cynamide India Limited Chinnappa Reddy, J. speaking for the Supreme Court has made the following pertinent observations in para 7 of the report:

The third observation we wish to make is price fixation is more in the nature of a legislative activity than any other. It is true that with the proliferation of delegated legislation there is a tendency for the line between legislation and administration to vanish into an illusion. Administrative quasi-judicial decision stand to merge in legislative activity and conversely, legislative activity tends to fade into and present an appearance of an administrative or quasi-judicial activity. Any attempt to draw a distinct line between legislative and administrative functions, it has been said, is 'difficult in theory and impossible in practice'. Though difficult, it is necessary that the line must some times be drawn as different legal rights and consequences may ensue. The distinction between the two has usually been expressed as one between general and the particular'. A legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an administrative act is the making and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of policy. Legislation is the process of formulating a general rule of conduct without reference to particular cases and usually operating in future; administration is the process of performing particular acts, of issuing particular orders or of making decisions which apply general rules to particular cases'. It has also been said Rule making is normally directed toward the formulation of requirements having general application to all members of a broadly identifiable class' while 'an adjudication, on the other hand, applies to specific individuals or situations.' But, this is only a broad distinction, not necessarily always true. Administration and administrative adjudication may also be of general application and there may be legislation of particular application only. That is not ruled out. Again, adjudication determines past and present factors and declares rights and liabilities while legislation indicates the future course of action. Adjudication is determinative of the past and the present while legislation is indicative of the future. The object of the rule, the reach of its application, the rights and obligations arising out of it, its form, the manner of its promulgation are some factors which may help in drawing the line between legislative and non-legislative acts.

In view of this settled position, this contention of the learned Advocate General cannot be accepted. Reliance placed by him on the decision of the Supreme Court in 1989 (3) JT 157 cannot be of any avail for the simple reason that in that case, the Supreme Court was concerned with the question whether exercise of functions by the Maharashtra State under Section 3(2) of the Act constituting any other local area to be part of a city is legislative function or an administrative function, That function was held to be a legislative function. It becomes obvious that by exercise of such functions, the entire Act is made applicable by the State as a delegate to the entire area once a notification is issued in exercise of powers under Section 3(2). The Act uniformly will apply to all concerned who are residing in that area. It is, therefore, held to be an exercise of delegated legislative power. Such is not the situation so far as Section 6(1) second part is concerned. On the contrary, once the Act applies to the area, Section 6(1) second part gets automatically applied by virtue of the area being already constituted as a city. Thereafter no legislative function is left but administrative functions are left to the concerned authorities who are clothed with powers and duties flowing from various statutory provisions laid down therein.

21. We may now true to the main question posed for our consideration. It is true that Section 6(1) second part leaves it to the State Govt, to extend the term of office of councillors upto aggregate of six years beyond five years by following procedure laid down therein. It is also true that once State exercises that power and if it is found that procedure laid down is not followed or power is wrongly exercised the same can be challenged on the touch stone of Article 14, but we cannot agree with the learned Advocate General that if there are no reasons for extension and if the State does not want to extend the term, the matter ends and it can straightway resort to Section 7A. On a mere look at second part of Section 6(1), no doubt is left that the legislature has clothed the State Govt, not only with power but a public duty to extend the term of office of councillors if situation so demands. It is not an absolute arbitrary power which can be exercised or its exercise can be refused even if circumstances require such exercise. It does nut depend upon caprice, or whim of the State Govt, to decide in its supreme discretion whether to extend the term or not even though the circumstances demand to the contrary. In this connection, it would be useful to refer to the decision of the Supreme Court in State of Ultar Pradesh v. Jogendra Singh . In that case, while interpreting the word 'may' the Supreme Court held that:

The word 'may' generally does not mean 'must' or 'shall'. But it is well settled that the word 'may' is capable of meaning 'must' or shall' in the light of the context. Where a discretion is conferred upon a public authority coupled with an obligation, the word 'may' which denotes discretion should be construed to mean a command. Sometimes, the legislature uses the word 'may' out of deference to the high status of the authority on whom the power and the obligation are intended to be conferred and imposed.

22. Consequently, even though it is mentioned in second part of Section 6(1) that the term of five years may be extended by the State Government by notification in the Official Gazette to a term not exceeding in the aggregate six years for reasons to be stated in the notification, it was implied that if the circumstances so require, the State Government shall extend the term accordingly. Therefore, the contention of the learned Advocate General that under that provision, the State can act but the State is not bound to act if it does not want to extend, cannot be countenanced. It is true as the learned Advocate General submitted that if there are no reasons to extend, the State may not extend. But it is obvious that no reasons, mean no valid or cogent reasons to extend, but if there are cogent and valid reasons for extension, the State cannot refuse to exercise its power inspite of duty enjoined on it under second part of Section 6(1). The submissions of the learned Attorney General and the learned Advocate General that if the State has reason to appoint administrator under Section 7A on the expiry of normal term of five years, there will be no reason for extension and if there are no reasons, they are not required to be stated or demonstrated, cannot be accepted for the simple reason that when Section 6(1) second part imposes a power coupled with duty on the state to extend the term of councillor if the circumstances require, reasons for non-extension must be valid and cogent, why such duty flowing from the power is not exercised. It is easy to visualise that in a given case, the State may not extend the term of councillors because such councillors belonged to rival party. If it is found that inaction on the part of the Stale was based on such stand, then it would not stand scrutiny of the Court and the Court would be entitled to direct the State to perform its duty as reasons for non-performance would be found to be totally extraneous and irrelevant leaving aside the question of mala fides. We may note in this connection that before enactment of Section 7A, Section 6(1) was differently worded and after the expiry of normal term under Section 6(1), in the absence of extension, by deeming provision of Section 6(3) then existing term of outgoing councillors by virtue of legal fiction was made co-terminus with entry of incoming councillors as per Sub-section (2) read with the then existing Section 6(3). The legislature has changed the settings of this provision by enacting Section 7A and by curtailing the term of deeming fiction under Section 6(3) regarding continuance of the term of outgoing councillors by linking it with appointment of administrator on which appointment deemed fiction of such extension would terminate. When such a situation is envisaged by the legislature, it casts on the State under Section 6(1) second part, a duty more imperative than usual. Reason is obvious. If such duty is not performed by adopting a cavalior attitude and by merely seeking to exercise 7A power, a situation may arise where the administrator who cannot be appointed in law would get in and would displace elected councillors who would have otherwise rightfully occupied their offices during the extended term if extension was legally permissible and granted. It is, therefore, not possible to agree with the contention of the learned Advocate General that moment normal term of councillors expires, it is the absolute discretion of the State whether to extend the term under Section 6(1) second part or to fall back upon Section 7A and bring in an administrator. If it is the absolute discretion, as submitted by the learned Advocate General then Section 7A itself would be on shifting sands and it will be difficult to upheld the legislative competence of the said provision as it would introduce an arbitrary gap in the smooth transition of local self-Govemment from one set of elected representatives to the other. Such transition was possible when Section 6(3) stood in unamended form. Once this is given a go-bye, there is a possibility of an outsider-administrator walking in not only as a genuine stop gap arrangement but as a substitute for local self-Government foisted on the population of the city and who may deprive them of their franchise for a period if not indefinite, for a period of at least upto two and half years. Therefore, in order to sustain it, we will have to read it down by holding that Section 7A though giving an option to the State to appoint a administrator in a given contingency can be resorted to as a second alternative only when alternative under Section 6(1) second part is not legally permissible to the State. IF it is permissible, then it must be resorted in the first instance and only failing such extension that the State Government can turn its gaze towards Section 7A and only then Section 7A can be confined to its proper place and can start giving signals as a genuine stop gap arrangement and not as a substitute for local self-Government. But this will also be subject to applicability of both the conditions precedent as contemplated by Section 7A(1) as indicated by us earlier. In this connection, we may usefully refer to two decisions of the Supreme Court. In the case of Narendra v. Manikrao , the Supreme Court speaking through Krishna Iyer, J., had an occasion to consider the constitutional philosophy underlying the Representation of Peoples Act and need to have regular elections under the said provisions. At page 2175, in para 7, it was observed:

Election to local bodies and vesting of powers in units of self-Government are part of the Directive principles of State policy (Article 40 of the Constitution) and, in a sense, homage to the Father of the Nation standing as he did for participative democracy through decentralisation of power. Unfortunately, after holding elections to the Bidar Board and making people believe that they have elected the administrative representatives at the lowest levels, the State Government did not bring to life the local board even long after the High Court had disposed of the challenges to the elections in June 1972. A Government, under on Constitution must scrupulously and energetically implement the principles fundamental to the governance of the country as mandated by Article 37 and if even after holding election of development boards are allowed to remain moribund for failure to notify the curtailment of the administrator's term, this neglect almost amounts to dereliction of the constitutional duty. We are unhappy to make this observation but power to the people, which is the soul of a republic stands subverted if decentralisation and devolution desiderated in Article 40 of the Constitution is ignored by executive in action even after holding election to the floor level ADMINISTRATIVE BODIES. The devolutionary distance to ideological Rajghat from power jeolous State capitals is unwillingly long indeed especially in view of the familiar spectable of long years of failure to hold elections to local bodies, supersession aplenty of local self-Government units and gross inaction even-in issuing simple notifications without which elected bodies remain still born. "We, the people" is not constitutional mantra but are the power holders of INDIA from the panchayat upward.

In the case of Tehsildar Hingcmghat v. Deorao , the Supreme Court considering the scheme of Bombay Village Panchayats Act, 1950 laid down in para 5 of the report as under:

It would thus be seen that the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the panchayat should be held before the expiry of their term as provided in Sub-section (1) of Section 27 or within the term extended under Section 28 also lends support to this view. But the term of office of members under Section 27 in express language is subject to the other provisions of the Act because the expression used in Sub-section (1) is "save as otherwise provided in this Act". The office of the members of the panchayat is not to remain vacant and therefore Sub-section (2) of Section 28 by a deeming provision extends the terms of the office of the outgoing members to the day before the meeting called and held in accordance with Sub-section (1). Since the fresh election held in 1966 was set aside and no meeting was held, the term of the office of the respondents, the outgoing members, stood extended and did not expire until the day before the holding of the meeting of the duly elected members.

It becomes, thereafter, obvious on a conjoint reading of Sections 6(1) and 7A, that once election cannot be held before expiry of normal term of five years, and a contingency arises for the State to decide whether to extend the term or to follow the procedure of Section 7A, in the first instance, the State must consider whether there is cogent reason to extend or whether there is any cogent reason not to extend the term and after that exercise is undertaken and a decision is rendered in this connection that State can fall back upon, in the last resort and as a last alternative, Section 7A. In the facts of the present case, it has to be found out whether there were any valid reasons for the State not to extend the term of these councillors and to fall back upon alternative of having resort to Section 7A. The case of the State is that general ward elections could not be held within time laid down by Chapter I before the term expired as 1991 Census figures were not available. For the purpose of the present discussion, we will assume that the said stand was justified, though as we have shown earlier, that the said stand was totally misconceived and unwarranted. But even assuming that it was a valid ground, for not holding the elections within time, a stage was reached for the State to take an informed decision whether in that eventuality, term of sitting councillors should be extended for a term of one year to the maximum or to fall back upon appointment of administrator under Section 7A. The State has to show as to why it failed to discharge its duty enjoined under Section 6(1) and why it preferred to appoint administrator instead of having elected representatives to continue for one more year to the maximum which is permissible under the Statute and which would further and make effective carrying on of local self-Govt. and would not introduce on the other hand, through administrator, local State Government as it is obvious that administrator would be an officer appointed by the State Government. Relevant materia' in this case in that connection can be divided into two parts: (1) stand of the State of Gujarat in the affidavit-in-reply and further affidavit, and (2) stand emanating from the notings in the file copy of which was made available for our scrutiny and which is made part of the record. So far as affidavits-in-reply are concerned, the stand taken by the State for invoking Section 7A meaning thereby for not resorting to extension provision of Section 6(1) is based on two reasons: (1) as 1991 Census figures were not available, elections could not be held in time, and (2) bill was introduced in August, 1991 in the State Assembly providing for adopting electoral rolls of Legislative Assembly and Parliament for the purpose of municipal elections. So far as the file is concerned, two more reasons are discernible: (1) For extension, Govt, has to invite objections from the voters. That would take some time. (2) Even if extension is given, as 1991 Census figures are not likely to be available till October 1992 and general elections cannot be held on that basis for substantial period even after February 1993 even if extension is granted for one year, after February 1993, administrator will have to be appointed and. therefore, why not appoint administrator from the beginning? The learned Advocate General submitted that if there is one good ground for not granting extension, matter must end and Court cannot weight various grounds as appellate authority and substitute its own decision on the point. To that extent, he is right. However, the question is whether any of the aforesaid grounds can stands scrutiny for a moment or can be treated to be at all a relevant grounds for the purpose of deciding whether extension should be given or not. It becomes obvious that first two grounds have nothing to do with the question of extension. In fact, these are grounds which have brought the State and these Corporations to a stage where the question arises whether term should be extended or administrator should be appointed. Even assuming that first two grounds are valid, they only indicate that elections could not be held within time. But this is precisely the reason why a need has arisen for taking an informed decision by the State as to whether to extend the term or to appoint administrator. It may be stated that for the very same ground, elections could not be held for Village Panchayats and some of the Municipalities and because 1991 Census figures were not available their terms were extended by the State Government. It is true that these extensions are given under different Acts and some extra consideration like drought situation had prevailed. But the fact remains that for Gram Panchayats and Municipalities which are also working at grass root level of local self-Governments, for the very reason that their elections could not be held in time, the State Government thought it fit to extend their terms. We are not giving any more importance to the submission that these panchayats were manned by Congress Party which is supporting the minority Govt. But even leaving aside this aspect, the fact remains that this very ground prompted the State Govt, to extend the terms of Gram Panchayats and some Municipalities, but so far as the Municipal Corporations are concerned, the State had a second thought and it failed to extend the terms and seeks to appoint administrators for all the Corporations. It is, therefore, held that the first two grounds are totally irrelevant for deciding the question whether term of the councillors should be extended or not under Section 6(1) second p Article So far as additional two grounds emanating from the notings in the file are concerned, they are equally irrelevant. Law itself has prescribed the procedure for inviting objections from voters if the State has to extend the term. No time limit is laid down under Section 6(1) for calling for such objections and for deciding them. Thus, it has to be done within reasonable time before the term of councillors expires. Equally, there is no duty cast on the State to abide by the objections if any and to refuse to extend the term. In other words, even though voters or some of them object to such extension, the State in its discretion can extend the term as objections are not binding on the State. We assume with the learned Advocate General that the objections that are to be invited by notification under Section 6(1) are to the proposed extension and reasons for extension may be given only in notification. But even then, these objections could not have taken such long time as envisaged in the file showing that it would be a valid ground for refusing to extend the term and refusing to exercise the power conferred on it. So far as the last ground is concerned, it is equally on a weak footing. If according to the State, future elections are to take place after a long time and even after extended time, if appointment of administrator has to be resorted to even then, if elections could not be given and if 7A is a stops gap arrangement, effort has to be made to narrow down the gap between outgoing councillors and incoming councillors as much as possible, it is not as if that such gap, however, narrow it may be, next year, should be permitted to be widened this year. Such a ground, to say the least, is totally de hors the provisions of the Act and is absolutely arbitrary and irrational. Thus, all the four grounds or reasons put forward by the State for our consideration for non-extension of term of councillors are found to be invalid, irrational and extraneous. Consequently, the conclusion becomes inevitable that the State of Gujarat has refused to exercise its power coupled with duty in connection with extension of term of these Corporations in an arbitrary manner and its inaction is based on irrelevant and extraneous grounds.

This conclusion of ours would have justified us in issuing mandamus to the State to extend the term of these Corporations for legally permissible one year. There would have been no occasion to restrict the extension to any lesser period as according to the State, even after one year, elections are not possible. Therefore, it was a case for full-fledged extension for one year. Hence, our conclusion is that the State of Gujarat on the facts fo these cases can be directed to extend the term of these corporations for full one year in exercise of its power coupled with duty under Section 6(1).

23. However, the moot question is whether this conclusion of ours will require us to issue such mandamus. As we have already held while deciding earlier points that the State of Gujarat on the facts of these cases cannot fall back upon Section 7A, as per Section 6(3) sitting councillors will get deemed extension of their term which will extend to and can expire under Section 6(3) only when administrators are available. As the administrators are kept out of picture till fresh elections are held, on the operation of Section 6(3) first part, the sitting councillors will continue and their term will be deemed to have been extended. This extension will come to an end only when newly elected councillors take over and Mayor is elected in the first meeting and Section 6(2) contingency comes into picture. Newly elected councillors would then walk in and the present councillors will have to walkout, but that would be the effect of conjoint reading of Sections 6(1), 6(2) and 6(3) first p Article The next question that arises is when the outgoing councillors' term, gets deemed extension under Section 6(3), they can function as full-fledged councillors or not. The learned Advocate General in this connection placed strong reliance on a decision of the Division Bench of the Bombay High Court in Kaalkar & Co. v. Gulamshafi 64 BLR 557, and submitted that they can function only during the deemed extension period for discharging routine functions and cannot take any policy decisions as they are not the councillors whose term is extended by the State under second part of Section 6(1). It is not possible to agree with this contention. The above decision was rendered in connection with provisions of the Bombay Municipal Boroughs Act which contained Section 19. The said Section laid down that:

19(2). On the expiry of the term of office of Municipality the President and Vice-president shall continue to carry on the current administrative duties of their offices until such time as a new President and a Vice-president shall have been elected and shall have taken over charge of their duties.

Such a provision is not found in the present Act. Consequently, the ratio of decision of the said D.B. cannot be pressed in service. In the present case, once the term of councillors is deemed to have been extended as per Section 6(3), deemed extension will continue till it is superimposed by arrival of new councillors who would walk in the place and stead of outgoing councillors as per Sections 6(1) and (2). Till that contingency occurs, the term of outgoing councillors is deemed to continue for all purposes and they would be full-fleged councillors and their functions cannot be confined to routine functions and they would not be prohibited from taking policy decisions as tried to be submitted by the learned Advocate General. In fact, this very view was taken by the Full Bench of the Bombay High Court in Vidarbha Nagarpalika Parishad v. State wherein Madhav Reddy, C.J., speaking for the Full Bench considered a parallel if not pari materia scheme of the Maharashtra Municipalities Act, 1965 Section 48A where it provided for appointment of an administrator even during the extended term of councillors and Section 40 provided that normal term of councillors shall be for five years with a proviso that extension for one year be allowed by the State. It is true that under Sub-section (3) of Section 40 it was provided that notwithstanding anything contained in Sub-section (1) and (2), the term of office of the outgoing councillors shall be deemed to extend to and expire with the day immediately, preceding the date of such meeting of the new councillors. As we have shown earlier, present Section 6(3) first part about deemed extension runs parallel to Section 40(3) examined by the Full Bench, and expiry of the said deemed extension by arrival of the administrator being out of picture, in the facts of the present case, deemed extension of outgoing councillors would continue till the eventualities contemplated by Section 6(1) read with Section 6(2) would occur. In Vidarbha Municipality case (supra), similar contention was raised that during the deemed extension of term of councillors as per Section 40(3), the councillors could discharge only routine duties and could not take policy decision. This contention was rightly repelled by the Full Bench and following pertinent observations were made:

When a fiction is sought to be created by the statute, it is obligatory to assume a situation which actually does not exist but the legislaturt requires for the purpose of the Act to be deemed to exist. When the legislature says that the term shall be deemed to extend, that fiction is created and in the absence of the words restricting the scope and ambit of this fiction, it operates for all intents and purposes. If during the term of office envisaged under Sub-section (1) of Section 40 any decision could be taken, all such decisions could be taken during the term which the councillors get by virtue of the deeming provision in Sub-section (3) of Section 40. In State of Bombay v. Pandurang . the Supreme Court held:

'When a statute enacts that some thing shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and not bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion.' In H.H. Advani v. State of Maharashtra , the Supreme Court held that the meaning to be attached to the word "deemed" must depend upon the context in which it is used and cited the observations made in St. Aubyn v. Attorney General 1951 (2) ALL ER 473, (at p. 498) as under:

'The word "deemed" is used a great deal in modern legislation. Sometimes it is used to impose for the purpose of a statute an artificial construction for a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes, it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.' To our mind, in the context of Section 40 of the Act the word 'deemed' occurring in Sub-section (3) of Section 40 leads to the conclusion that although in fact there is no extension of the term under any notification issued by the Government by virtue of Sub-section (3) of Section 40, it is deemed to be extended and if the councillors have a right to continue in office by virtue of Sub-section (1) of Section 40 for a period of five years or fur the extended period as specified in the notification subject to maximum of six years in the aggregate, they have a right to continue in office for the term envisaged by Sub-section (3) of Section 40. That is what a Division Bench of this Court in Municipal Council, Malkopur v. State of Maharashtra has held dealing with Section 313 of the Act under which the State Government is empowered to appoint an administrator if in its opinion the council, inter alia is not competent to perform the duties imposed upon it by or under the Act or any other law for the time being in force or persistently makes default in the performance of such duties. Dealing with the contention that the right of the councillors is affected by exercise of the power vested in the Government under Section 313 of the Act, the Court observed ...the term of the councillors under Section 40 of the Act is five years, it may be extended by the State Government under exceptional circumstances. The term of office of the councillors commences on the day of the meeting held after the general election to elect the President under Sub-section (2) of Section 40. Notwithstanding the provisions of Sub-sections (1) and (2) of the said section, the term of office of the outgoing councillors is deemed to be extended to and expired with the day immediately preceding the date of such meeting. Apparently, therefore, the existing councillors are entitled to continue in office under the statute till the new councillors are elected. Though, therefore, the initial term of the councillors has expired, they are entitled to continue in office.

No doubt, as observed in Mohamad Maqbool's case AIR 1982 Bom. 312) these observations were made in the context of the contention raised on behalf of the State Government that the writs petition did not servive and "had become in fructuous in view of the subsequent enactments and events referred to in the additional affidavit". Still, the observations are not obiter. In that case also, the term of the councillors had already come to an end and was extended because of the postponement of the general election and the term of the Administrator was also extended. In view of the subsequent enactments and postponement of election and the Maharashtra Municipal Councils and Municipal Corporations (Postponements of Elections During the Emergency) Act, 1975, the question was required to be answered. The contention was in view of the subsequent enactments and events the petition had become infruetuous It was therefore necessary to decide whether the elected councillors had a right to continue in office. We are, therefore, unable to agree with the observations made by the Division Bench in Mohincd Maqbool's case that 'there was nothing in the observations of the Division Bench in Malkapur Municipal Council's case AIR 1977 Pom. 44) to conclude that the term of the councillors automatically stands extended under Sub-section (3 of Section 40 of the Act even in cases where the general elections to elect fresh councillors are not held' and that 'the reliance upon the deciiiion of the Division Bench in Malkapur Municipal Council's case is misconceived'.

9. Some what similar piovisions occurring in Sections 27 and 28 of the Bombay Village Panchayats Act, 1958 (3 of 1959) which are in part materia with the provisions contained in Section 40 of the Act, came up for consideration before the Supreme Court in Tehsildar Hinganghat v. Deorao. and the Court held the scheme of the Act is that ordinarily and generally fresh election for filling up the office of the members of the Panchayat should be held before the expiry of their term as provided in Sub-section (1) of Section 27 or within the term extended under Sub-section (2). The proviso to Sub-section (I) of Section 28 also lands support to this view. But the term of office of members under Section 27 in express language is subject to the other provisions of the Act because the expression used in Sub-section (1) is 'save as provided in this Act'. The office of the members of the Panchayat is not to remain vacant and, therefore, Sub-section (2) of Section 28 by a deeming provision extends the term of the office of the outgoing members to the day before the meeting called and held in accordance with Sub-section (1).

In that case, since the fresh election held in 1966 was set aside and no meeting was held, the Court declared:

...the term of the office of the respondents, the outgoing members, stood extended and did not expire until the day before the holding of the meeting of the duly elected members.

The dicta of the Supreme Court laid down in the context of the Bombay Village Panchayats Act fully supports the view we have taken above.

The argument of the learned Advocate General was that what Section 6(3) provides for is for conceptional continuity of the term of outgoing councillors by deeming provision but they cannot be said to be councillors for all purposes. That view has been repelled by the aforesaid two decisions of the Supreme Court relied upon by the Full Bench of the Bombay High Court. The Full Bench has also distinguished the earlier decision of the Division Bench of the Bombay High Court in Malkapur's case (supra). We respectfully concur with the reasoning of the Full Bench of Bombay High Court. It is, therefore, held that outgoing councillors in the absence of entry of administrator in the field will continue to enjoy deemed extension of their term till duly elected councillors take over as per Section 6(1) read with Section 6(2) and they will be treated to be full-fledged councillors entitled to exercise all the powers and discharge all the duties as such as duly elected councillors under the Act and they will be entitled to take all decisions including policy decisions within legally permissible limits laid down by the Act.

Once this conclusion is reached, it becomes obvious that there will be no need to issue any mandamus to the State for extending the term of councillors for one more year so that within that time, elections are completed as per the present order. But for that, we would have certainly directed by a writ of mandamus such extension, as in our view, there is no valid reason for non-extension of this term. Our answer to point No. 5 is, therefore, that such extension of term under Section 6(1) second part can be granted and normally it would have been granted but on the facts and circumstances of the present case, as discussed hereinabove, we do not grant such extension. If such extension was required to be granted and we had granted the same, then in that eventuality, the difficulty envisaged by the learned additional Advocate General that our writ would have become futile would obviously pale into insignificance for obvious reasons. The procedure to be followed of inviting objections from voters as enjoined by Section 6(1) in case of extension would apply to the decision of the State if it chooses to extend the term prior to its expiry. Once that stage has gone and once extension is found to be necessary by an order of the Court, it is not necessary to put the clock back and resort to a flash back of the situation and to visualise as to what could have happened in past and what procedure should have been followed. Even otherwise, objections if any, would not have been binding on the State as seen earlier. Hence, there would have been no question of prejudging of objections and pre-empting the decision of the State. That would have remained pertinent and germane if this exercise was undertaken prior to expiry of the term but not thereafter.

24. As seen earlier on a conjoint reading of Sections 5(2) and (3) with relevant rules, Section 14 and Section 6(1), it becomes imperative for the State to hold elections before the term expires and if for reasons beyond its control and for no fault of it, such elections cannot be held, then only, the State must pose before it the question whether there are any valid reasons for non-extension of the term and if no such valid reasons for non-extension exist, the State must extend the term under Section 6(1). So that the gap during which administrator can work can be narrowed down as for as possible and during the extended time, all efforts must be made to hold elections and in case, such efforts fail on account of factors beyond the control of the State, then only last stage would be reached in the career of the Corporation and the State would then have to fall back upon the last alternative of invoking Section 7A and then only Section 7A would serve the real purpose of genuine stop gap arrangement and not otherwise. Before parting with this discussion, we may mention one submission of the learned Advocate General. He submitted that all that Section 6(1) second part requires is that there may be positive reasons for extension available to the State and then only it can resort to that exercise. But when there is no positive reason for extension, the State should not go in search of alternative reasons for extension and can straightway fall back upon Section 7A. It is not possible to countenance this submission. Section 6(1) second part can be validly pressed in service by the State when there are positive reasons for extension and there are no negative reasons for non-extension, but if there are positive reasons for extension and there may be negative reasons for non-extension, then only the State can legitimately say that it was not able to perform its duty of extension in such a fact situation and could fall back upon Section 7A. In fact as rightly submitted by Mr. Vakil for the petitioners, there is nothing like negative reasons. Reasons are always positive. They may be reasons for extension or for non-extension. WHAT are loosely described as negative reasons are really reasons for non-extension. It is easy to visualise such negative reasons which can legitimately provide for non-extension of the outgoing councillors when elections cannot be held within the time. By way of examples, we may mention them as under

(1) Councillors might have misconducted themselves and there may be existing circumstances analogous to these enumerated by Section 452A. If such grounds exist, during the five years' term, Corporation could have been superseded. If they exist at the end of the term, it would be legitimate ground for the State to refuse extension to such councillors.

(2) It may not be possible to allow elected body to continue due to external aggression like war or internal disturbances like grave law and order situation making it impossible for the elected body to continue.

(3) Elected body may not be able to function due to natural calamities like earth quake confined to the given area.

(4) Elected body may not be available any further like wholesale resignations of all the councillors or sudden death of all of them by natural calamity etc. Certain other reasons of similar type have been visualised by the Full Bench of the Bombay High Court in Vidarbhu case (supra) which may be usefully referred to at this stage. The Bombay High Court was concerned with Section 40(1) of the Maharashtra Municipalities Act, 1965 which was more drastic in character as compared to Section 6(1) second part, so far as extension of term was concerned. It provided:

Save as otherwise provided by this Act, councillors, elected at a general election, shall hold office for a term of five years which may be extended by the State Government in exceptional circumstances by notification in the Official Gazette, to a term not exceeding in the aggregate six years for reasons which shall be stated in such notification.

(Emphasis supplied) When we compare this provision with Section 6(1) second part so far as the present Act is concerned, we do not find such fetter on the part of the State while ordering extension and still in that light, the Full Bench laid down in para 17 certain circumstances under which extension may not be given and which may require as changed circumstances, appointment of administrator under Section 48A:

May be law and order situation is such that the councillors elected are unable to meet and manage the affairs of the council, may be there is an external threat or internal unrest in which it is not expedient to continue the elected body and it is necessary to have an administrator to head the council, may be out of the total number of elected councillors several have resigned and vacated their offices or the vacancies may have occurred otherwise and the minimum number of councillors to contribute a quorum is not available to transact the business, may be, even though all are present the squabbles among the councillors are such that no business could be transacted or the council is otherwise unable to function effectively. These are only some of the situations that are illustrative; many more could be visualised.

These are negative circumstances in which extension may not be possible and would not be granted. Such type of negative reasons must exist either singly or collectively which will entitle the State to form an opinion not to extend the term of concerned councillors and such reasons may be available in connection with some of the corporations and not necessarily for all the corporations. No such grounds have existed in the present case, as discussed earlier. Therefore, there is no legitimate reason for the state to sit tight on the question of extension of term of councillors and a case is made out for such extension which unfortunately was not considered at proper time and in proper light. It is not possible to agree with the illustration submitted by the learned Advocate General as under Section 6(1) second part may visualise a situation where:

(1) Term is over, elections are possible and there are no other circumstances then elections must be held.

(2) Term is over, election is possible, circumstances require postponement of election. Election could not be held, in such case, either administrator or extension is the choice of the State (3) When term is over, election procedure is not over and therefore election could not be held till expiry of the term. There is choice either to appoint administrator or to extend the term.

In our view, the conjoint reading of Section 6(1) both parts and Section 7A does not confer any such absolute choice for the State Government as submitted by the learned Advocate General. On the contrary, as discussed earlier, the scheme points out to the contrary.

25. The learned Advocate General was right when he contended that there is no constitutional right of any of the councillors to claim any extension. However, it cannot be gainsaid that if there is any statutory obligation on the part of the State to extend the term of office of councillors if valid reasons exist, corresponding right naturally arises in favour of the concerned councillors to demand such extension and compliance with such statutory obligation. In our view, on reading second part of Section 6(1) which imposes a statutory duty flowing from the power available to the State in a given contingency to extend the term of councillors, three categories of situation can easily be visualised (1) If there are valid reasons for extension and if there are no valid and legal reasons for non-extension, then extension of the term of councillors becomes a statutory duty of the State and if that duty is arbitrarily not exercised, Court can compel the State to carry out such legal duty after following necessary procedure as required by law.

(2) If there are valid reasons for extension of the term of councillors but there also exist valid reason or reasons for not granting extension, then, State cannot be compelled to grant extension of the term if it decides not to extend the term.

(3) If there are no valid reasons for extending term of councillors, then, irrespective of the fact whether there are any valid reasons for non-extension or such valid reasons for non-extension are absent, State will be justified in not extending the term of councillors and it cannot be compelled to extend the term in such circumstances.

26. We may mention at this stage that reading Section 6(1) first part with statutory scheme of Rules in Chapter I of Schedule, it becomes a mandatory duty of the concerned authorities to see to it that fresh general elections are held for the Corporations and incoming Corporators having fresh mandate from the voters are available before normal term of old councillors expires. If for any reasons beyond the control of the State and other authorities, such elections cannot be held, within the time schedule enjoined by the legislature, then such a situation would project a valid ground for the State to claim to exercise its statutory power-cum-duty under the second part of Section 6(1) and to extend the term of councillors. Mr. Thakkar in support of one of the petitions was right when he contended that power coupled with duty entrusted to the State authorities under Section 6(1) by legislature is an enabling provision for the State and consequent upon exercise of such power of extension is the extension of term of councillors. In our fact is an obligation of the State to complete election process for reconstituting Corporations within normal term of old councillors. If this is not done, then it would be justified in extending the term so that within the extended term of maximum one year, fresh elections are held and smooth transition takes place for one set of representatives of voters to the next set and it is precisely for this purpose that power of extension coupled with duty is conferred on the State by the legislature. When such situation arises, then a case is made out for the State to extend the term of concerned councillors. But even apart from that, there may be other unforeseen circumstances wherein it may not be possible for the State authorities despite their best efforts to hold elections within the time schedule, or to complete the same. Under such circumstances, it would be legitimate exercise of power coupled with duty to direct extension of term of councillors. In doing so, the State would not be conferring any bounty on the elected corporators but would be discharging its own statutory obligation for carrying out the mandate of the legislature and for fructufying the very purpose of local self-Government which is king pin of the entire Act. If valid reasons exist for extension, the State would be enjoined by thurst of Section 6(1) to extend the term and the word 'may' as employed by second part of Section 6(1) in those eventualities shall have to be read as 'shall'. But still, there may be situations where despite there being such valid reasons for extension, there may be valid reason or reasons for non-extension. We have mentioned illustrations in this connection in the earlier part of this judgment. On the facts of the present case, we do not find any such valid reason or reasons for non-extension of term of councillors. No such ground is even whispered by the State in its affidavit-in-reply. For the purpose of this discussion, we will assume that there was a valid reason for extension as elections could not be held as according to the State, figures of 1991 Census were not available in time. Even assuming it to be so, it would be a valid ground for the State for extension of the term rather than it being a ground for non-extension. In fact, this is the reason which has appealed to the State for extending terms of all the Gram Panchayats and Nagar Panchayats and some of the Municipalities as stated earlier. Consequently, in our opinion, the present case would fall in category (1). As shown earlier, we would have been justified in issuing a writ of mandamus directing the State of extend the term of there Corporations for one year and within which time to complete election process as directed herein, but for the reason which we have given for not issuing such mandamus. Reliance placed by the learned Advocate General and the learned Additional Advocate General on the decision in AIR 1968 Delhi 30 is also not of any avail for the simple reason that even though as held in that decision, elected councillors may have tendency to stick on, as we have discussed above, no situation of this type prevails in these cases. On the contrary record reveals that the concerned Corporations through Commissioners and even by passing resolutions, were crying at roof tops requesting the State to hold elections within time. That clearly contra-indicates their alleged tendency to any how stick to the chairs and to avoid facing electorate.

27. Reliance placed by the learned Advocates of the respondents on decision of one of us S.B. Majmudar, J., in Special Civil Application No. 6155 of 1988 decided on 6-10-1988 cannot render any assistance to them for the simple reason that in that case interim order was passed and though it was a speaking order, it proceeded on the fact situation of that case. When the fact situation in the present case is entirely different, the said interim order cannot advance the case of the respondents. Similarly reliance placed on decision of M.B. Shah, J., in Special Civil Application No. 5811 of 1991 decided on 15-10-1991 and decision of L.P.A. Bench which dismissed the appeal against that decision in L.P.A. No. 307 of 1991 decided by R.C. Mankad, Acting C.J. and J.N. Bhatt, J. on 19-10-1991 is equally of no assistance to the respondents as those decisions were rendered in the context of different facts situations with which we are not concerned. Similarly, the observations of A.P. Ravani, J. in Special Civil Application No. 3145 of 1990 are also found to have been confined to the facts situations in that case. It is true that the learned Judge has observed that extension provision is an enabling provision for the authorities and does not confer any right for extension. But on the construction of Section 6(1) in the light of the situation which has emerged on the record of these cases, the said observations would strictly not apply. We may also make it clear that we do not hold that councillors have an absolute right of extension. All that we observe is that once situation mandates the State to extend the term of councillors, as there are valid reasons for such extension, and no valid reason for non-extension, the State would be bound to consider the case for extension and it would be its duty to extend. If it does not do so, the Court will compel the State to grant extension and as a consequence, right to occupy elected seats for the extended term would ensue to the councillors as a logical corollary being a legal effect of such extension. Under these circumstances, the submission of the learned Advocate General that Section 6(1) does not impose a duty on the State but it is a function of the State would pale into insignificance.

28. The learned Advocate General next contended that we have to construe these provisions in the light of well settled principle of construction, viz.

(1) True intention of legislature has to be culled out from the language of the statute.

(2) Statute has to be read as a whole in its context and settings.

(3) Statute has to be read to make it effective and workable and there is presumption of constitutionality.

(4) All definitions in the statute have to be read according to context.

(5) Legal fiction should not be extended beyond the field for which it was aimed and statutory illustration cannot govern the construction. Even keeping all these rules of interpretation in view, as we have already discussed earlier, a conjoint reading of Sections 6(1), 6(3) and 7A clearly leads to the conclusion that in proper cases, where elections cannot be held within time, the State has a statutory duty to first consider whether extension is possible in time. When it is legally not possible, then only it can fall back as a last resort and as a second alternative, on Section 7A for appointing administrator and not otherwise. At this stage, we may also refer to one argument of Mr. Vakil. It was submitted that local self-Government envisaged by Entry V of List 2 of Schedule VII can exist at rural, semi-urban and urban levels and at all these levels. Governments are local self-Governments at grass roots whether they are Panchayats or Municipalities or Corporations, as the case may be, and therefore, arguments of the other side that extension of panchayats had proceeded on its own facts and cannot be ipso facto brought into picture while considering the question of extention of term of councillors in Corporations cannot be sustained. We find considerable force in the said contention. It becomes obvious that in all statutes governing local self-Governments at different levels, if elections within normal period are not possible, extension would become almost a rule unless extentions are ruled out on cogent and valid reasons as discussed above. Administrators can follow to fill up only genuine not stop-gaps when one elected body could not be continued and another elected body is still not in sight and to fill up such gaps during the tenure of local self-Government that administrators may legitimately walk in. But effort must be made to see that such gaps are narrowed down as far as possible. Extension of terms of duly elected councillors is one of such methods to narrow down these gaps. If this aspect is not kept in view, result would be that all such stop-gap arrangement would result into stop election arrangement. This is not contemplated by the statute enacted in exercise of powers under Entry V, of Schedule VII of List II of the Constitution. The learned Advocates for the petitioners were right when they contended that provision like Section 7A are emergency provisions and was creature of emergency, but that cannot be utilised for creating artificial emergency.

29. Mr. Tanna next contended that the notings in the file produced by the learned Advocate General clearly show that non-extension was resorted to for collateral purpose. It is difficult for us to agree with this proposition as it appears that all throughout the State authorities were labouring under a misconception about correct legal position in connection with ascetainment of population figures. They seem to have acted bona fide on such misconception. It cannot be said to be for any collateral purpose or mala fide purpose as submitted by Mr. Tanna.

30. We may mention one contention of the learned Advocate General. He submitted that Section 7A deals with reconstitution of Corporation and similarly Section 452A deals with re-establishment of corporation, meaning there by earlier corporation comes to end and excepting conceptual continuity of the Corporations, erstwhile corporators themselves have no role to play and they have to walk out. It is difficult to appreciate this distinction drawn by the learned Advocate General whether erstwhile corporators legally go out or not or can their term be extended or not, are questions whose correct answer would result into either future reconstitution of the corporation or its re-establishment. But that has nothing to do with the moot question as aforesaid. As a result of this discussion, point No. 5 will have to be answered as aforesaid.

31. Point No. 6: So far as this point is concerned, if cannot be disputed that this legislation falls within Entry V of List II of Schedule VII and, therefore, it is a legislation for establishment of Municipal Corporation for electing local self-Government and for carrying out its ancillary purposes. Once Section 7A is read down in the manner discussed by us earlier, it becomes obvious that after term of elected councillors is over and if there are no valid reasons for extension and on the contrary, there arc valid reasons for non-extension of the term, and if elections cannot be held in the mean time for no fault of the State and for circumstances beyond its control, then only Section 7A can be pressed in service and it will be a genuine stop-gap arrangement of emergent nature. Provision for such type of arrangement can be said to be ancillary to the main purpose of the legislation that is providing for local self-Government. As already discussed above, if any other view is taken for applicability of Section 7A and if it is submitted that Section 7A can be resorted to in absolute discretion of the State whenever it likes, after the term is over and without making any effort for extension, then in that eventuality, Section 7A would create an artificial hiatus in the smooth transition of duly elected representatives and there would be unnecessary and artificial gaps in the formation and continuance of local self-Government and to that extent Section 78A would project outside the protective umbrella of Entry V. But on the construction of the section as shown earlier, this section can be confined in its proper place and once so read, it would certainly be covered within that umbrella. We must, therefore, hold that Section 7A and therefore logically Section 6(3) are not beyond the legislative competence of the State legislature. It is now well settled that entries in the legislative list must be liberally construed. In M/s. Ujagar Prints v. Union of India it has been laid down by the Constitution Bench as under (at page No. 580 para 48 of GLR):

Entries to the legislative lists are not sources of the legislative power but are merely topics or fields of legislation and must receive a liberal construction inspired by a broad and generous spirit and not in narrow pedantic sense. The expression 'with respect to' in Article 246 brings in the doctrine of 'pith and substance' in the understanding of the exertion of the legislative power and wherever the question of legislative competence is raised the test is whether the legislation, looked at as a whole, is substantially 'with respect to' the particular topic of legislation. If the legislation has a substantial and not merely a remote connection with the entry, the matter may well be taken to be legislation on the topic.

So construed, Entry V of list II of Schedule VII would certainly cover such provision providing for stop-gap arrangement when between the outgoing body of elected councillors and incoming councillors there is indefinite gap about availability of local self-Government and that gap has to be filled in to make working of local self-Government more functional and effective. We may mention that a Division Bench of the Bombay High Court in Mohmed Maqbool v. State , upheld similar provisions in the Maharashtra Municipalities Act, 1965 for appointment of administrator when old body could not continue and new body was not available. In para 12 of the report, it has been laid down as under:

Fixation of a term of the councillor or grant of extension in such term and withdrawal of such extension are matters which are so closely connected with the constitution and powers of the local Government that we have no hesitation whatsoever in concluding that the State legislature was perfectly competent in enacting Section 48A of the Act.

The present Section 7AB also falls in the same lines and cannot be faulted on the touch stone of legislative competence. Point No. 6 is therefore answered in the negative.

32. Point No. 7: So far as this point is concerned, it stands on even a weaker footing. Section 7A on its own language is peremptory in nature. Once it is validly invoked by the State in situations which we have indicated above, and once it is found that the general election to the corporations arc not possible in near future and there is nothing to fall back upon so far as outgoing councillors are concerned, in order to avoid hiatus and vacuum in the administration of local self-Government, the State is enjoined and duty bound to appoint administrator in such circumstances. No option is left to the State under these circumstances to pick and choose. Consequently, that provision if and when it is attracted will operate almost automatically of its own and will take in its sweep all the councillors of a given Corporation and all the Corporations similarly situated. No option would be left for the State to pick and choose. Therefore, by itself, Section 7A cannot be faulted on the ground that it will work arbitrarily or in a discriminatory fashion or would violate Article 14. Realising this situation, Mr. Vakil submitted that if this section is read with Section 6(1), then it is possible that the State may pick and choose some Corporations for extention of term of its councillors while leaving out others similarly situated and may engineer a situation wherein it can be effectively urged that no choice is left with the State but to appoint administrator for such Corporation as the term of councillors has expired and to that extent, section may become arbitrary. It is difficult to appreciate this contention. As we have interpreted Section 6(1) read with Section 7A, as and when a situation arises where the State has to decide whether to fall back upon Section 6(1) or in the alternative to resort to Section 7A, once the safety valves are kept in view as indicated hereinabove, no such arbitrary exercise of power would ever be contemplated. If at all, non-extension of term is challenged in a given case, the action would be bad but not the section especially when there is no challenge to Section 6(1) second part and it remains valid and operative. If that is so, it can never be utilised to whittle down the efficacy of Section 7A if otherwise legally affected and Section 7A cannot be treated to be arbitrary because Section 6(1) power may be misused in a given case and vice versa. Consequently, even on the ground of Article 14, it cannot be faulted. One contention was canvassed by the learned Advocates for the petitioners that Section 7A lays down very large period of two and half years upto which the administrator can go. This is neither here nor there. If circumstances so demand and situations so compel, the State can appoint administrator upto a maximum period of two and half years during which time it can be reasonably contemplated that fresh election process would be over within that outer limit of two and half years as envisaged by the legislature while enacting Section 7A(1)(b). It. cannot be said to be arbitrary as during that outer limit, election process has to be completed. Another objection to this Section that State may appoint any administrator it likes even though he may be a man of straw cannot be countenanced as the administrator has to act alongwith the Commissioner and the Transport Manager and he has to discharge the functions of outgoing councillors. He has to be an officer at least of the rank of Commissioner if not a higher officer. In fact, the learned Advocate General conceded to this position and even the notings in the file bring out this. Therefore, it is not possible to countenance this extreme contention that even a man of straw may be appointed as administrator. This apprehension is more imaginary than real. We may mention in this connection a similar challenge mounted on vires of Section 48A which was turned down by the Full Bench of the Bombay High Court in Vidarbha case (supra). Section 48A as noted earlier, provided for appointment of administrator under a statutory scheme which is though not pari-materia is a parallel scheme. This scheme is parallel to Section 7A. In para 17 of the report, the Full Bench observed in connection with Section 48A as under;

So, too in this case, in determining whether the power vested under Section 48A of the Act is an unguided and unfettered power, we will be in error if we restrict our attention to Section 48A alone. We must not forget that this power is vested in the State Government. Further, that power is required to be exercised by the State Government having regard to the changed circumstances. Further, having regard to the changed circumstances, the Government must form an opinion that it is not necessary or expedient to continue the council and the councillors. That power must necessarily be exercised consistent with the other provisions of the Act, the object and intendment of the Act, the rights conferred on the councillors under the Act and keeping in view the consequences that flow from the exercise of this power. All these need not be specified in Section 48A which vests the power of supersession in the State Government. That must be gathered from a reading of the entire enactment and the object for which the enactment is made. The several provisions of the Act make it clear that the object of the legislature is to constitute Municipal councils in the State mainly composed of councillors elected for a term of five years. Such a body must ordinarily be replaced only by holding general election to the Municipal councils and as laid down in Section 40 read with Section 51, until the newly elected councillors assume office and elect their President, the previous body should continue. The Act further envisages that if for any reason election is not held by the time the five year term of the councillors expires, the State Government may in exercise of its power under Sub-section (1) of Section 40 extend its term by one year. As discussed above, if election is not held in time the existing councillors would by virtue of Sub-section (3) of Section 40 of the Act continue until the election is so held. However, extension contemplated by Sub-section (1) of Section 40 could be ordered by the State Government "in exceptional circumstances" and 'for reasons which shall be stated in such notification. It is in this context that the power vested under Section 48A has to be reviewed and exercised. From these provisions it would become clear that extension of one year granted in view of the exceptional circumstances and for reasons to be recorded and the extension that is conferred by the statute under Sub-section (3) of Section 40 may be terminated under Section 48A.

A mere look at Section 7A shows that it is hedged in by two conditions precedent (i) the term must expire and (ii) the order must mention that election must be held for reconstitution of the Corporation within time laid down therein. This power cannot be said to be totally arbitrary and unguided especially when Section 7A is read in the context of Section 6(1) and the duty enjoined on the State for extension as laid down by Section 6(1) second p Article In the context of settings of this provision, therefore, Section 7A cannot be said to be conferring any arbitrary, unguided or unlimited power on the State to pick and choose. Challenge to this section on that score must fail. Point No. 7 is accordingly answered in the negative.

33. What Final Order?: That takes us to the last stage of this proceeding and to the consideration of proper orders to be passed. In the light of our decisions on various points as aforesaid, we direct the State of Gujarat to proceed to hold general ward elections in all these four Corporations forthwith on the basis of 1981 Census figures. The State therefore, shall issue necessary notifications under Sections 5(2) and (3) in the light of the aforesaid Census figures. We make it clear that this exercise will have to be undertaken by the State afresh because these will be fresh general ward elections. We direct the State Government accordingly. This exercise must be completed on or before 31st March, 1992. Thereafter to see to it that preparation of electoral rolls for all the Corporations is immediately resorted to and thereafter at the earliest election process must be initiated and to ensure that fresh elections for wards of these Corporations are completed latest by the end of December 1992 so that newly elected body of councillors is available to take over reins of office from the out going councillors, in the beginning of year 1993. As indicated hereinabove, in the mean time, the outgoing councillors will act as full-fledged councillors discharging all their legitimate functions. State Government will be restrained from resorting to Section 7A and from appointing administrators to these Corporations during all this time.

34. Before parting, we may mention that in view of what we have directed hereinabove, it would not be necessary for us to examine the situation which would have emerged if Section 7A was sought to be resorted to by the State after extended period of aggregate six years and we have, therefore, kept that question open. The learned Advocate General had stated before us during the course of hearing of these petitions that State of its own will not appoint administrators till 20th February, 1992 awaiting decision of this Court. When we have rendered our decision as aforesaid, the State will have to be restrained from appointing administrators for all these corporations as aforesaid.

35. In the result, rules issued in these petitions are made absolute in the aforesaid terms. There will be no order as to costs in each of them.

36. The learned Advocate General requested us that in the light of Articles 134A read with Article 133(1)(a), we may grant a certificate that these are cases which involve substantive question of law of general importance and which in our view, need to be decided by the Supreme Court. In the light of the observations made by us on various points, we have only followed the settled legal position and construed the sections as they are. Hence, in our view, these are not cases which involve substantial question of law which need to be decided by the Supreme Court. Request for certificates is, therefore, refused.

It was lastly submitted that we may grant reasonable time staying operation of our present order enable the State to move the Supreme Court against the present order. In our view, this request is not required to be granted for the simple reason that the first step which the State is required to take by issuing notifications under Sections 5(2) and (3) in the light of the figures of 1981 Census is to be carried out on or before 31st March, 1992. About six weeks are available to them for the said purpose. In the mean time, sufficient time would be left to the State to approach the Supreme Court and obtain appropriate orders if any from the Supreme Court. Request for stay of operation of this order is therefore, rejected.

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