Punjab-Haryana High Court
Smt. Shanti Devi vs The State Of Haryana And Ors. on 7 May, 1996
Equivalent citations: (1996)113PLR625
JUDGMENT G.S. Singhvi, J.
1. This is a petition to quash the notification (Annexure P-4) dated 11.2.1995 issued by the Government of Haryana Under Section 278 of the Haryana Municipal Act, 1973 (for short, 'the Act') and for issue of a direction to the respondent No. 3 to admit the petitioner as a candidate to contest the election for the office of the President, Municipal Committee, Loharu, on the reserved seat of Scheduled Caste (Woman) candidate.
2. During the pendency of the Writ Petition, election of the office of the President of the Municipal Committee, Loharu, has been held but the same has been made subject to the result of the writ petition vide this Court's order dated 15.3.1995.
3. The Petitioner is 'Khatik' by caste which is recognised as a Scheduled Caste in the State of Haryana. She contested the election to the Loharu Municipal committee held on 28.12.1994. She was declared elected from Ward No. 11, which is a general ward for woman candidate. Respondent No. 3 also belongs to Scheduled Caste. She has been elected from the ward which is reserved for Scheduled Caste women candidate.
4. After completion of election to the Municipal Councils/Municipal Committee except Bahaurgarh and Dabwali, a meeting was held by the Commissioner & Secretary to Government of Haryana, Local Government Department for determination by draw of lots a to which of the offices of the President of the Municipalities shall be filled from amongst the members belonging to General Category, Scheduled Castes, Backward Classes and women. On the basis of the decision taken in that meeting, notification Annexure P2 dated 20.1.1995 was issued. After the issue of the notification (Annexure P-2), the Deputy Commissioner-cum-Returning Officer gave out that election to the office of President from amongst Municipal Commissioners will be held on 12.2.1995. Claim of the petitioner to contest election as a Scheduled Caste woman was not accepted on the ground that though she belongs to Scheduled Caste, being a Municipal Commissioner elected from general seat, she is ineligible to contest election of the office of the President reserved for Scheduled Caste woman candidate. This decision of respondent No. 3, according to the petitioner, is based on notification Annexure P-4 issued by the Government on 11.2.1995 in pursuance of the provisions of Section 278 of the Act.
5. The petitioner has questioned Annexure P4 and the decision of respondent No. 3 to exclude her from consideration for the purpose of election to the post of President on the ground that being a Scheduled Caste woman, she has a right to contest election to the reserved post of President and merely because she has not been elected from a reserved ward, the respondents cannot deprive her of an opportunity to contest election to the post of President.
6. No written statement has been filed by either of the respondent and, therefore, the averments made in the writ petition have remained uncontroverted and we have to decide this petition on that basis.
7. By 73rd amendment of the Constitution, the Parliament declared the Municipalities to be the institutions of Self-Government and at the same time provided for constitutional reservation in favour of Scheduled Caste, Scheduled Tribes and women (Article 243-T). Clauses (1), (2) and (4) of Article 243-T which have relevance in the context of this writ petition are reproduced below: -
"243-T. Reservation of seats:
(1) Seats shall be reserved for the Scheduled Castes and the Scheduled Tribes in every Municipality and the number of seats so reserved shall "bear, as nearly as may be, the same proportion to the total number of seats to be filled by direct election in that Municipality as the population of the Scheduled Castes in the Municipal area or of the Scheduled Tribes in the Municipal area bears to the total population of that area and such seats may be allotted by rotation to different constituencies in a Municipality.
(2) Not less than one-third of the total number of seats reserved under Clause (1) shall be reserved for women belonging to the Scheduled Castes or as the case may be, the Scheduled Tribes.
(3) xx xx xx xx (4) The offices of Chairpersons in the Municipalities shall be reserved for the Scheduled Castes, the Scheduled Tribes and women in such manner as the Legislature of a State may, by law, provide."
8. In order to give effect to the constitutional mandate contained in Article 243-T, the Act of 1973 has been amended. Section 10(1) of the amended Act provides for reservation for Scheduled Castes, Section 10(2) provides for reservation for women belonging to Scheduled Castes whereas Section 10(3) generally speaks for reservation for women, including the women belonging to Scheduled Castes. Section 10(4) provides for reservation in favour of Backward Classes. Section 10(5) deals with filling up of the offices of Presidents in Municipalities from amongst the members belonging to the general category, Scheduled Castes, backward Classes and women by rotation and by lots in the manner prescribed. Section 18 contains provisions for election of the Presidents and Vice-Presidents. Rule 70 of the Haryana Municipal Elections Rules, 1978 contains provisions of oath of allegiance and election of President etc. Sub-rule (4) of Rule 70 lays down the mode of ejection of the President for the Municipality. Sections 10(5), 18 of the Act and Rule 70(4) of the 1978 Rules are reproduced below for reference purpose :-
"10(5) The offices of presidents in the municipalities shall be filled up from amongst the members belonging to the general category, Scheduled Castes, backward classes and women by rotation and by lots in the manner prescribed.
18. Election of President and Vice President:
(1) Every Municipal Committee or Municipal Council shall, from time to time, elect one of its members to be President for such period as may be prescribed, and the member so elected skull become President of the Municipal Committee or Municipal Council;
Provided that the office of the President in Municipal Committee and Municipal Council shall be reserved for Scheduled caste and women in accordance with the provisions made in Section Provided further that if the office of the President is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held from the same category.
(2) Every Municipal Committee or Municipal Council shall also, from, time to time, elect one vice-president:
Provided that if the office of the vice-president is vacated during his tenure on account of death, resignation or no confidence motion, a fresh election for the remainder of the period shall be held.
(3) The term of the office of vice-president shall be one year.
Rule 70(4): The offices of the presidents in the municipalities shall be filled up from amongst the members belonging to the general category, Scheduled Castes, Backward Classes and women by rotation which will be determined in the manner as detailed below:
Provided that the number of offices of the presidents reserved for the Scheduled Castes and Backward Classes in the State shall bear as may be the same proportion to the total number of such offices of the municipalities as the population of the Scheduled Castes and Backward Classes in the State bears to the total population of the State:
Provided further that not less than one-third of the total number of officers of the President in the municipalities shall be reserved for women including the offices reserved for Scheduled Castes and Backward Classes women. The reservation of offices for women shall rotate to different municipalities which will be determined by draw of lots, by a committee consisting of the Director, Local Bodies and Deputy Commissioners of the districts concerned or their nominee. If women of the reserved category are not available, then the office of the president shall be filled up from the male member of the said reserved category;
Provided further that the number of offices of the president for Scheduled Castes and Backward Classes shall be determined on basis of their population and shall rotate to different municipalities firstly, having largest population of Scheduled Castes, secondly, from the remaining Municipalities having largest population of Backward Classes and they rotate in the subsequent terms of offices of the municipalities having their next largest population and so on. In case percentage of population of two Municipal Committees or Municipal Councils as regard Backward Classes and Scheduled Castes is the same the reservation will be determined by draw of lots to be conducted by a committee consisting of Director, Local Bodies and Deputy Commissioner of district concerned or his nominee;
Provided further that in case of office of the Municipal Council reserved for Backward Classes, the President shall be elected from amongst the members belonging to the Backward Classes and in case of Municipal Committee, the member of Backward Class shall be deemed to be elected as president of the Municipality reserved for the Backward Classes."
9. On a combined reading of Article 243-T, Sections 10(5) and 18 of the Act and Rule 70(4) of the Rues, it becomes clear that the Parliament as well as the State Legislature have enacted these provisions in order to provide for reservation of offices of the Presidents for the members of Scheduled Castes, Scheduled Tribes, Backward Classes and women. A bare reading of Section 10(5) and Rule 70(4) shows that the offices of the Presidents are to be filled from amongst members belonging to different categories by rotation and by lots. There is nothing in the language of these provisions giving an indication that the reservation made in favour of Scheduled Castes etc. is to be confined to the candidates of particular categories who got elected from the reserved constituencies/wards. The use of expression "members belonging to....." is clearly indicative of legislative intendment that only candidate who belongs to Scheduled Caste can contest election to the office of the President against the seat reserved for Scheduled Caste. Similarly, candidates belonging to Backward Classes only can contest election for the office of President reserved for Backward Classes. Likewise, only women candidates can contest election for the office of the President reserved for woman and if the office is reserved for Scheduled Caste woman then women belonging to Scheduled Castes can contest the election.
10. The word 'belonging' has not been defined in the Act or the Rules. In Blacks' Law Dictionary, Revised Fourth Edition, the word 'belonging' has been ascribed the following meanings:
"that which is connected with the property or greater thing; an appendage; an appurtenance."
11. According to the Chambers English Dictionary, one of the meanings of the word 'belong' is "in any way connected with" and the word 'belonging' means "matters connected with any person". From these dictionary meanings and also on a plain reading of the statute, it becomes clear that by using the word 'belonging' after the word 'members' the Legislature has made its intention clear that the candidate belonging to particular group will be entitled to contest election against the office reserved for Scheduled Castes etc. If the Legislature wanted to confine the reserved seat to those members who are elected from the reserved seats, then the language of the statute would have been differently worded. In that event the words 'who have been elected from the reserved seats' would have been used between the words 'woman' and 'by'. If we were to interpret Section 10(5) and Rule 70(4) in the manner the respondents want this Court to do, we will enter into an arena where the courts do not normally tread. Amendment, addition or subtraction from the statute is the function of the Legislature and not of the Courts and except in a case where result of a plain interpretation of the statute leads to extremely absurd situation or causes grave public mischief, the Court cannot re-write the statute or make some addition or deletion from a statutory provision. It is also one of the well settled principles of interpretation that if the words of the statute are precise and unambiguous then the Court must expound those words in their natural and ordinary sense because the words themselves best declare the intent of the law giver.
12. In State of Uttar Pradesh v. Vijay Anand Maharaj, AIR 1963 SC 946, Subba Rao, J. enunciated this rule of interpretation in the following words:-
"When a language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself."
13. In Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907, Gajendragadkar, J. said :
"If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act."
14. Similarly, in Rananjaya Singh v. Baijnath Singh and Ors., AIR 1954 SC 749, S.R. Das, J. observed:-
"The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act."
15. Argument of Shri Grewal that the reserved seats for women belonging to the Scheduled Castes should not be made open to the Scheduled Castes candidates who have been elected against the general seats because they cannot be treated as representatives of the Scheduled Castes sound attractive but is wholly unacceptable. The basic fallacy in the argument of Shri Grewal is that it proceeds on an assumption that a person who is elected as a President of the Municipal Committee represents a particular ward only. In law as well as in practice, the President of the Municipal Committee is the senior-most public representative in the local body and he owe a duty to the entire population of the municipality to undertake development of entire municipal area. A member of the Municipal Committee loses his/her character as a representative of single ward or a particular segment of the population soon after his/her election as President.
16. Coming to the legality of Annexure P-4, we find that by issuing notification Annexure P-4, the Government has indirectly made an attempt to amend the statutory provision referred to herein-above. By saying that if a single member of Scheduled Caste category man/woman is elected from a reserved area and the office of the President is to be filled from amongst the members belonging to the Scheduled Caste category then such single man/woman shall be deemed to have been elected as President, the Government has clearly travelled beyond its authority Under Section 278 of the 1973 Act. That section empowers the Government to remove difficulties but it does not empower the Government to pass an order inconsistent with the plain language of the statute. That is precisely what the Government has done by issuing Annexure P-4 and in view of the interpretation which we have placed on the various provisions of the Act of 1973, it must be held that the notification Annexure P-4 is ultra vires to the power of the Government Under Section 278 of the Act.
17. In view of the above conclusion, we hold that denial of opportunity to the petitioner, who belongs to the category of Scheduled Caste woman, to contest election to the office of the President of the Municipal Committee, Loharu, is clearly illegal and election of respondent No. 5 which has been held during the pendency of the writ petition is liable to be declared as illegal. Result of the election of respondent No. 5 was made subject to the final decision of the writ petition and, therefore, we have no hesitation to quash the election of respondent No. 5.
18. For the reasons mentioned above, the writ petition is allowed. Annexure P-4 is declared as illegal and is quashed. The election of respondent No. 5 as President, Municipal Committee, Loharu, is declared illegal. The respondent No. 3 is directed to hold fresh election to the office of the President within a period of 30 days of the submission of certified copy of this order. We, however, direct that till fresh election is held, respondent No. 5 shall not be dislodged from the office of the President.