Punjab-Haryana High Court
Krishan Kumar Singla vs The State Of Haryana And Ors. on 22 July, 1999
Equivalent citations: (1999)123PLR150
Author: Swatanter Kumar
Bench: K.S. Kumaran, Swatanter Kumar
JUDGMENT Swatanter Kumar, J.
1. Civil Writ Petition No. 6404 of 1997 was admitted and ordered to be placed before the Hon'ble Single Judge vide order of Hon'ble Division Bench dated 10.7.1997. While Civil Writ Petition No. 14029 of 1997 was admitted and ordered to be heard along with that writ petition vide order dated 23.10.1997 by another Hon'ble Division Bench of this Court Respondents No. 4 to 16 were ordered to be impleaded as respondent-parties vide order of the Court dated 20.10.1997 on an application filed by them in Civil Writ Petition No. 14029 of 1997.
2. On 18.9.1998 when the writs came up for hearing, the Hon'ble Single Judge of this Court, passed the following order:-
Present: Mr. R.K. Jain, Advocate.
Notice of CM to Advocate General Haryana for 22.9.1998.
Counsel for the petitioner relies on (1998-3)120 P.L.R. 1. in support of plea that controversy has been finally settled by Full Bench of this Court.
Copy of CM given to Shri Parmod Geol, DAG, Haryana.
Sd/-
18.9.1998 (N.K. AGRAWAL) JUDGE."
However, when the matters came up for hearing before another Hon'ble Single Judge of this Court, his Lordship heard the arguments at some length and on 15.12.1998 passed the following order:-
"Present: Mr. Ashok Aggarwal, Senior Advocate with Mr. R.K. Jain.
Mr. Viney Mittal, Senior Advocate with Mr. Jagdish Machanda.
Mr. R.S. Chahar, A.A.G. Haryana with Mr. N.S. Bhinder, D.A. Haryana.
V.K. Jhanji, J.
Civil Writ Petitions No. 6404 and 14029 of 1997 involve common questions of law and facts and therefore, both arc being taken up together. Facts are taken from Civil Writ Petition No. 6404 of 1997.
Challenge in Civil Writ Petition No. 6404 of 1997 is to order/resolution dated 5.5.1997 whereby the Prescribed Authority has ordered removal of the petitioner with immediate effect from the post of President, Municipal Council. This order has been passed in the light of resolution dated 5.5.1997 vide which, by 2/3rd majority, 'No Confidence Motion' has been passed against the petitioner.
Petitioner was elected as Municipal Councillor from Ward No. 25. He was further elected as President of Municipal Council, Hisar. There are 31 elected members besides 3 nominated and 2 ex-officio members, namely, Member Legislative Assembly and Member of Parliament. Some of the members of the Council brought requisition for a meeting to consider 'No Confidence Motion' against the petitioner, to be held on 5.5.1997 under the chairmanship of city Magistrate, Hisar. Out of 31 elected members, 21 members voted in favour of 'No Confidence Motion' which was declared to have been passed on the ground that 21 members arc more than 2/3rd of the elected members namely 31. Order removing the petitioner and passing of 'No Confidence Motion' is challenged by the petitioner inter-alia on the ground that the strength of total members has to be seen i.e. out of 36 members, 2/3rd comes to 24 and, therefore, the resolution is not legally passed. It is contended that the Full Bench in Rajpal Chhabra v. State of Haryana and Ors., (1998-3)120 P.L.R. 1, has held that ex-officio members, namely, Member Legislative Assembly and Member of Parliament, have a right to vote in the 'No Confidence Motion'. It is contended that even if their votes are counted towards the total number, the strength of the Council would come to 31 + 2 = 33. It is contended that 2/3rd of 33 comes to 22 and according to the Section 21(3) of the Haryana Municipal Act, 1973 (in short, the Act), resolution has to be passed by not less than 2/3rd and, therefore, the resolution which has been passed by 21 members is less than 2/3rd and thus, illegal.
Mr. Ashok Aggarwal, Senior Advocate, appearing on behalf of petitioner has contended that the writ petitions deserve to be allowed as legal position has been settled by the Full Bench in Rajpal Chhabra's case (supra), and the case of petitioner is squarely covered by the same.
In answer to the aforesaid submissions of petitioner's counsel. Mr. Viney Mittal, Senior Advocate, appearing on behalf of contesting respondents has contended that judgment of the Full Bench in Rajpal Chhabra's case has been rendered per incuriam as it has altogether failed to take notice of Haryana Municipal (Amendment) Act, 1996 (Act 18 of 1996). It is contended that Section 9 of the 1973 Act was amended in 1994 by Act 3 of 1994. By amendment, in addition to persons chosen by direct election from the territorial constituency, it was provided that the State Government, by notification in the official Gazette, shall notify the following categories of persons as members of municipality:
"(i) Not more than 3 person having special knowledge or experience in municipal administration.
(ii) Members of the house of the people and the legislative assembly of the state, representing constituencies which comprise wholly or partly the municipal area; and
(iii) Members of the council of states, registered as electors within the municipal area:
Provided that the persons referred to in Clause (i) above shall not have the right to vote in the meetings of the municipality:
Provided further that the executive officer in the case of a municipal council and the secretary in the case of municipal committee, shall have the right to attend all the meetings of municipality and to take part in discussion but shall not have the right to vole therein."
It is contended that Section 9 was again amended by Act 3 of 1995 and by amendment, another proviso was added to Section 9 which provided that the persons referred to in Clauses (ii) and (iii) shall neither have a right to contest nor right to vote in the election/removal of President or Vice President of Committee or municipal council, as the case may be. Another amendment was made in 1996 by Act 18 of 1996 and proviso added by 1995 amendment was substituted with the proviso that persons referred to in Clauses (ii) and (iii) shall neither have right to contest for the election of President or Vice President nor right to vote in the meetings for the election of President or Vice President and in special meetings for consideration of motion of no confidence against the President or Vice President of the Committee, as the case may be. Clause (i) and first proviso were omitted by 1996 amendment. The effect of 1996 amendment was that the nominated three persons having special knowledge or experience in the municipal administration ceased to be members of the committee and the right given to Member Legislative Assembly and Member of Parliament to vote in the meetings for election of President or Vice President and in special meetings of motion of No Confidence against the President and Vice President, was taken away. It is contended that the Full Bench has discussed the effect of 1995 amendment in Section 9 and its effect of No Confidence Motion carried in Section 21(3) of the Act. It is contended that 1996 amendment has not even been referred to by the Full Bench. Mr. Viney Mittal contended that from the comparative reading of the amendment made in Section 9 by Haryana Act 3 of 1994. Act 3 of 1995 and Act 18 of 1996, it is evident that Member Legislative Assembly and Member of Parliament's right to vote in the special meeting for consideration of 'No Confidence Motion' against the President or Vice President of the committee, as the case may be, was not taken away by 1995 amendment; but was taken away by 1996 amendment. It is contended that under Sections 21 and 22 of the 1973 Act, removal of President or Vice President and vacation of office of President or Vice President by 'No Confidence Motion' are two different things. Section 22 of the 1973 Act provides for removal of President or Vice President by the State Government on the grounds of abuse of his power or of habitual failure to perform his duties. It is contended that 1995 amendment which takes away the right to vote in removal of President thus, is of no consequence so long as amendment in Section 9 made by Haryana Act 18 of 1996 stands.
Mr. Viney Mittal, Senior Advocate, next contended that the Full Bench has tested the amendment made in Section 9 by Haryana Act 3 of 1995 in the context of legislative powers and competence of the State Legislature in amending Section 9. It is contended that neither the amendment made in Section 9 by Haryana Act 3 of 1995 can be taken to be in exercise of the powers vested by virtue of delegated legislation nor could be equated with a subordinate legislation. It is contended that Article 243-R of the Constitution is not a Central Legislation, but was brought in by 74th Amendment. It is also contended that neither the Haryana Municipal Act, 1973, nor Haryana Municipal (Amendment) Act, 1995 was enacted by the State Legislature under any delegated legislative powers derived from Central Legislation. It is contended that the State Legislature alone is empowered to legislate with respect to any subject relating to Local Government including constitution of such Local Authorities. Reference in this regard has been made to Entry-5 of VIIth Schedule of the Constitution. It is contended that it is in exercise of this power, the State of Haryana made amendment in Section 9 by Act 3 of 1995 and Act 18 of 1996. Mr. Mittal next contended that Article 243-R of the Constitution of India lays down the guidelines for the composition of Municipalities and from a reading of the said Article, it is evident that the Constitution-makers made it mandatory for the States to fill seats of the municipality by the persons chosen by direct election from the territorial constituencies of the municipal area. It is contended that it is mandatory for the States to divide the territorial constituencies into Wards and this fact is evident from the use of word 'shall' in Clause (1) of Article 243-R. Mr. Mittal contended that use of word 'May' in Clause (2) of this Article indicates that the Constitution-makers made it optional for the State Legislature to nominate some persons as specified in Clause (2) of the Article. Mr. Mittal contended that it is one of the well-recognised rules of interpretation that when the Legislature uses a particular language in a statute or part of a statute and designedly uses different language in the other part of the statute, full respect should be given to the Legislative intendment of using different language in the same statute or part thereof. It is contended that the Court cannot usurp the role of the Legislature by changing the language of enactment. Mr. Mittal further contended that construction of mandatory words 'shall' and 'must' as directory and directory word 'May' as mandatory should not be mutually adopted because there is a considerable danger that the legislative intent will be wholly or partially defeated.
Mr. Mittal next contended that if the State Government decides to nominate Member Legislative Assembly and Member of Parliament as members of the municipality, then there is nothing in the Constitution which compels the State Government to give them the right to vote. It is contended that the Constitution-makers never intended to give right to vote or contest election of President or Vice President to any of the members nominated to the municipalities because the nominated members are not elected by the people to the municipality. It is further contended that right to vote and contest is not a vested or fundamental right, but the same is a statutory right which is subject to statutory limitation.
After hearing the learned counsel for the parties and carefully going through the judgment of the Full Bench, I am of the view that the following law points, though involved, were not put up for consideration before the learned Judges:
(1) The effect of amendment in Section 9 by Act 18 of 1996 on 'No Confidence Motion' carried under Section 21(3) of the Act.
(2) Article 246 read with Entry-5 in List-II of VIIth Schedule of the Constitution empowering the State Legislature to legislate with respect to any subject relating to Local Government including constitution of such Local Authorities.
(3) The meaning and difference of word "SHALL" and "MAY" used in Clauses (1) and (2) of Article 243-R of the Constitution.
In my opinion, the judgment in Rajpal Chhabra's case (supra) requires reconsideration by a larger Bench. Let the papers of these writ petitions be placed before the Hon'ble Chief Justice for constitution of a Larger Bench at the earliest as a large number of writ petitions involving identical questions of law are pending.
Sd/-
December 15th, 1998 (V.K. JHANJI) JUDGE."
3. Hon'ble the Chief Justice vide his Lordship's order dated 20.3.1999 directed the matter to be listed for consideration and orders before the Full Bench.
4. The learned counsel Mr. Viney Mittal, appearing for petitioner in one writ petition and for newly added respondents No. 4 to 16 in the other, and Mr. S.K. Mittal, counsel for intervenes have at the very outset, raised the following contentions:-
a) The principles of stare decisis is fully applicable to the present case. The order of reference infringes the settled principles of judicial propriety as the learned Single Judge was bound by the law settled by the Full Bench.
b) The controversies in issue in the present writ petitions are squarely covered on merits by the decision of the Full Bench in the case of Raj Pal Chahbra v. State of Haryana and Ors., (1998-3)120 P.L.R. 1 and the writ petition should be disposed of in terms thereof.
c) The judgment of the Full Bench does not attract the application of the doctrine of per incuriam nor calls for any different view even in face of the amendments incorporated in the Act in the year 1996.
5. On the other hand, Mr. R.K. Jain, learned counsel appearing for the petitioner in one of the writ petitions has contended that the points raised in the order of reference arise for consideration in the present case. He further contends that the Full Bench does not enunciate the correct law, therefore, the cases should be decided on merits.
6. The learned counsel for the State has maintained his common stand in both the writ petitions.
7. At the out-set we must notice, which is also commonly conceded by the learned counsel appearing for the parties, that Mr. Viney Mittal, Senior Advocate, had not raised, as noticed in the order of reference, any contentions, because the learned counsel was arguing on the strength and supporting the decision of the Full Bench in Raj Pal Chhabra's case. The contentions were probably by Mr. Ashok Aggarwal, Senior Advocate or Mr. R.K. Jain, Advocate, on behalf of the petitioners. We do not consider it necessary to discuss this matter any further as we feel that it might have been typographical error in the judgment. We will leave the matter at that, but we notice that the contentions raised were reiterated by Mr. R.K. Jain before us. Now we proceed to notice the submissions made by the learned counsel in support of his first submission.
8. It is contended that the doctrine of stare decisis does not emerge from any statutory rule, but now is a well accepted principle of judicial jurisprudence as the law enunciated by the Full Bench of this Court in the case of Raj Pal Chhabra's case (supra) fully covers the issue, therefore, there was hardly any requirement in law and on the facts of the case to make the reference. Further it is urged that normally the Courts should maintain the finality of judicial decisions, finality of binding precedents, respect and adherence to the application of the principle of stare-decisis, which are indispensable basis for proper administration of justice.
9. Ingenuinity of the counsel to raise submissions of non-consideration of law or the arguments which ought to have been raised and were not raised, would per se be not a ground for doubting the correctness of law enunciated by Larger Bench of the Court. Must there be a need for a reference or expressing the views-to the contrary by a Smaller Bench of the Court, the case necessarily has to be the one which falls in the limited exceptions carved out by judicial pronouncements of Hon'ble Apex Court which are sine qua non to the exercise of such jurisdiction. Reliance was placed on the following judgments wherein it was held as under:-
Des Raj Angra v. Oriental Fire and General Insurance Co. Ltd., Chandigarh, (1985-1)87 P.L.R. 593 (F.B.).
"It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same court. Secondly, where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same. And thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear cut statutory provision or an earlier binding precedent. It is normally within these constructed parameters that a smaller Bench may suggest a reconsideration of the earlier view and not otherwise. The learned counsel for the appellant has not been able to satisfy us that any case is made out in terms of the aforesaid guidelines for the reconsideration of the Full Bench to a larger Bench. Also the very question is before the Supreme Court in some Special Leave Petitions which are on the daily board of their Lordships and we may soon have an authoritative view of the highest Court in the matter.
Pritam Kaur v. Surjit Singh (1984)86 P.L.R. 203 (F.B.):-
"Now apart from Full Benches and the precedents of the superior Court, it would appear that even judgments of the Benches of the same High Court in a limited way are binding in the sense that a judgment cannot be rendered contrary to the earlier decision of a co-equal Bench. At the highest, an equivalent Bench can seek reconsideration of the same by a larger Bench."
"The law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be rested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid the law directly contrary to the same. And, thirdly, where it can be conclusively said that the judgment of the larger bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a smaller Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive, yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration."
G.C. Gupta and Ors. v. N.K. Pandey and Ors. 1988(1) S.L.R. 706 (S.C.):-
"In legal matters, some degree of certainty is as valuable a part of justice as perfection. One reason for consistency is that people often regulate their conduct with reference to existing rules, which makes it important for Judges to abide by them. Innovations can be unsettling and lead to a loss of confidence: Dias Jurisprudence, 4th Edn. P.286. In the present case, the High Court was obviously wrong in proceeding upon the basis that the matter was still res integra. The decision of the earlier Division Bench was arrived at keeping in view all the aspects and it was held that the claim for redetermination of inter se seniority between direct recruits and promotees could not be agitated after a lapse of 16 years. It is sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, an earlier decision may be overruled if the Court comes to the conclusion that it is manifestly wrong and not upon a mere suggestion that if the matter was res integra, the Court on a later occasion could come to a different conclusion. It cannot be doubted that an unlimited and perpetual threat of litigation leads to disorder, sense of insecurity and uncertainty."
Whether the judgment can be treated as per incuriam on the grounds stated, as it has been observed in the order:-
"Mr. Viney Mittal, Senior Advocate, appearing on behalf of contesting respondents has contended that judgment of the Full Bench in Rajpal Chhabra's case has been rendered per incuriam as it has altogether failed to take notice of Haryana Municipal (Amendment) Act, 1996 (Act 18 of 1996). It is contended that Section 9 of the 1973 Act was amended in 1994 by Act 3 of 1994."
As we have already noticed, the above contention was not raised by Mr. Viney Mittal, but we suppose that the same must have been raised by Mr. R.K. Jain or Mr. Ashok Aggarwal, as the case may be. It appears to us that even factually the correct facts were not brought to the notice of the Hon'ble Single Judge. In Raj Pal Chhabra's (supra) the Full bench was concerned with the resolution passed on 13.7.1995. The Full Bench while following with approval, the views taken by different Division Benches of the High Court, held that amendment of such statute cannot be retrospective unless so clearly stated in the statute itself. It further held that on this principle the Court was not concerned with the amendments which were incorporated in the statute subsequent to 13.7.1995 by the Legislature. In paragraph 16 of the judgment, the Full Bench held as under: -
"In view of the above settled position of law, we are in respectful agreement with the view taken by the Full bench of this Court in Kaka's case and Division Bench in Dr. Harbhajan Singh's and Gian Chand Kalra's cases (supra). We hold that these provisions do not have retrospective effect in the sense that it could affect the validity or otherwise of the resolution passed, prior to the amendments."
10. We may also notice that in addition to general discussion in the judgment in paragraph No.3 of the judgment a specific mention was made to various amendments which were introduced in this Act and Rules right from 1988 till the recent times, when the case was heard. As such we regret to say that the learned counsel omitted to bring to the notice of the Hon'ble Judge the relevant paragraphs of the judgment and the final view taken by the Court in relation to retrospectivity of the legislative amendment of this Act and the consequences flowing therefrom in relation to the resolution passed prior to such amendments. Thus, we are of the firm view that the judgment on this ground cannot be stated to be even remotely covered by the principle of per incuriam, much less unequivocally or manifestly hit by the said doctrine.
11. Doctrine of per incuriam has all along been given a consistent meaning. In one of the very early pronouncements on this subject Lord Goddard, C.J. in the case of Hunddersfield Police Authority v. Watson, 1947(2) AII.E.R. 193, described this term as under:-
"What is meant by giving a decision per incuriam is giving a decision when a case or statute has not been brought to the attention of the court and they have given the decision in ignorance or forgetfulness of the existence of that case or that statute."
This was approved and reiterated by the Hon'ble Supreme Court in the case of A.R. Antulay v. R.S. Nayak and Anr., (1988)2 Supreme Court Cases 602.
12. From the above well enunciated principles of law, we are of the considered view that the judicial propriety expects that the decision of a larger Bench normally could not be subjected to the appellate or referral jurisdiction before a smaller Bench of the same Court lest it destroys the golden principle of judicial discipline, restraint and respect for judgments of the larger Bench(es). Certainly ingenuinity of the submission of the counsel does not constitute a valid and proper ground for invoking such jurisdiction unless it is unequivocally and manifestly shown that the judgment was contrary to the law of the land or where co-equal Bench has taken directly, a contrary view or thirdly, the judgment is per incuriam. With respect, we follow the views taken in the aforesaid judgments and we are of the considered view that the present case falls in neither of the three classes aforestated.
13. The Bench was neither in ignorance nor was in forgetfulness of the existence of the legislative amendments including amendment of 1996, much less the Bench had failed to take notice of the amendment as recorded in the order. In regard to judicial discipline, the Hon'ble Supreme Court of India in the case of Assistant Collector of Estate Duty, Madras v. Smt. v. Devaki Ammal, Madras, J.T. 1994(7) S.C. 543, where the Bench of equi-strength had differed with the judgment of the earlier Division Bench on the question of constitutionality and validity of statutory provisions and had not referred the matter to the Hon'ble Supreme court held as under:-
"We are at a loss to understood how, once one Division Bench of a High Court has held a particular provision of law to be Constitutional and not violative of Article 143, it is open to another Division Bench to hold that the same provision of law is unconstitutional and violative of Article 14. Judicial discipline demands that one Division Bench of that High Court should, ordinarily, follow the judgment of another Division Bench of that High Court. In extraordinary cases, where the latter Division Bench finds it difficult, for stated reasons, to follow the earlier Division Bench Judge, the proper course is to order that the papers be placed before the learned Chief Justice of the High Court for constituting a larger Bench. Certainly, where one Division Bench has held a statutory provision to be constitutional it is not open to another Division Bench to hold otherwise."
14. We are unable to appreciate and accept the contention of the learned counsel for the petitioner that the judgment of the Full Bench could be disregarded and principle of law enunciated avoided merely on the plea of the judgment being per incuriam. The judgment of the Full Bench in Raj Pal Chhabra's case (supra) has considered the relevant amendments and has taken a definite view. No judgment of the Hon'ble Supreme Court of India has either been noticed in the order of reference or brought to our notice during the course of hearing, which could even remotedly suggest that judgment of the Full bench is contrary to the settled law of the land.
15. The reasoning given in a judgment for taking a particular view, may not be the appropriate reasoning in the view of another Bench, but of lesser strength, can hardly constitute the plausible and valid ground for directing constitution of a larger Bench. Whether the matter should or should not be referred to a larger Bench would primarily fall within the domain and jurisdiction of Hon'ble Chief Justice. At this stage, we consider it appropriate to refer to a Full Bench judgment of Karnataka High Court in the case of Narasimhasetty v. Pad-masetty, 1992(2) Indian Civil Cases 163. The Full Bench, while dealing with somewhat similar situation, relying upon various judgments of the Hon'ble Supreme Court held as under:-
"It also goes without saying that while exercising powers of allocation/distribution of judicial work among the benches, it is open for the Chief Justice to devise his own method of classification of cases to ensure quick and effective disposal of cases for effective administration of justice."
"It cannot be disputed that the learned Single Judge himself could not have referred the present appeal to a full bench for final disposal. But it is a matter of record that on perusal of the order passed by the learned Single Judge, the Hon'ble Chief Justice has directed for placing of the present appeal for final disposal before this Full Bench. As held by the Supreme Court in the case of Tribhovandas Thakkar (supra) the adoption of such a course is quite permissible in law."
16. In the case of Bhagwan v. Ram Chand, A.I.R. 1965 S.C. 1767, it has been held as under:-
"It is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned Single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court, whether of a Division Bench or of a Single Judge, need to be reconsidered, he should not embark upon that enquiry sitting as a Single Judge, but should refer the matter to a Division Bench, or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety."
17. But inevitable for us is to notice the observation of the Hon'ble Apex Court in the case of COIR Board, Ernakulam, Cochin and Anr. v. Indira Devi, P.S. and Ors., 1998(6) Scale 288, where Hon'ble the Chief Justice of India declined to refer that case to a Larger bench with the following observations: -
"The judgment delivered by seven learned Judges of this Court in Bangalore Water Supply case does not, in our opinion, require any reconsideration or a reference being made by a two Judge Bench of this Court, which is bound by the judgment of the larger Bench."
18. In the case of Gaurav Jain v. Union of India and Ors., 1998(4), Supreme Court Cases 270, a Bench of three Hon'ble Judges of Hon'ble Supreme court of India held that the provisions pf Article 145(5) of the Constitution of India are applicable in precedence to the provisions of Article 142(1) of the Constitution. It was further held that even where two Judges of the same Bench have difference of opinion, the matter must necessarily be referred to the Chief Justice for constituting of appropriate Bench. Their Lordships observed that Article 142(1) cannot contravene the provisions of Article 145(5) of the Constitution of India.
19. In view of the above settled position of law, we hardly find any reason for us to accept the contention raised on behalf of the petitioner that there is any occasion for this bench to take a view other than the one taken by the Full bench in Raj Pal Chhabra's case (supra). The cumulative effect of the submissions and |aw aforestated, in our view, does not bring the case in the curio exceptions carved out by the authoritative pronouncements of Hon'ble Supreme Court of India invoking the jurisdiction alike one exercised by the Hon'ble Single Judge, in law or on facts of this case. Since, as per the order of Hon'ble the Chief Justice, the cases itself have been placed for order and direction before the Full Bench, we find it more appropriate not to deal with this issue with any further elaboration and would prefer to consider the matter on merit and dispose of the petition in accordance with law. The parties had filed these writ petitions in the year 1997. No fruitful purpose would be served by requiring them to argue the cases all over again. The expression order would obviously include disposal of the case by the bench in accordance with law. In making the above observation, our approach in no way is innovative and is a mere reiteration of tenacitically settled principle of law.
20. Having answered the question in relation to application of principle of per incuriam in the negative, we would proceed to discuss the merit of the lengthy arguments raised before the Full Bench in relation to the merits of the case.
21. By Act of 18 of 1996, amongst other provisions, Section 9 of the Act was amended. We have already noticed that the Full Bench was not really concerned with the amendments effective from 16.12.1997 in Raj Pal Chhabra's case, as the resolution in question was passed on 13.7.1995. However, in the present case, 'no confidence motion' was passed on 5.5.1997. Therefore, the amended provisions of Section 9 would be applicable and would be of relevant consideration.
22. At the out-set we would like to refer to the un-amended Section 9 of the Act as well as Section 9 as it reads after amendment, as follows:-
Before the amendment of the Act published in Haryana Gazette on 16th December, 1996.
Composition of Municipalities:
1. The municipality constituted under Section 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules.
2. Save as provided in Sub-section (2), all the scats in the municipality shall be Filled in by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies, that State Government shall, by notification in the official gazette nominate the following categories of persons as members of municipality: -
i. Note more than 3 persons having special knowledge or experience in municipal administration.
ii. Members of the house of the people and the legislative assembly of the State, representing constituencies which comprise wholly or partly, the municipal area; and iii. Members of the council of States, registered as electors within the municipal area:
Provided that the persons referred to in Clause (i) above shall not have the right to vote in the meetings of the municipality.
"Provided further that the person referred to in Clause (ii) and (iii) above shall neither have right to contest nor right to vote in the election for removal of president or vice-president of committee or municipal council as the case may be".
Provided further that the executive officer in the case of a municipal council and the Secretary in the case of municipal committee, shall have the right to attend all the meetings of municipality and to take part in discussion but shall not have the right to vote therein.
After the Amendment of 16.12.1996.
Composition of Municipalities
1. The municipality constituted under Section 2A shall consist of such number of elected members not less than eleven as may be prescribed by rules.
2. Save as provided in Sub-section (2), all the seats in the municipality shall be filled in by persons chosen by direct election from the territorial constituencies in the municipal area and for this purpose each municipal area shall be divided into territorial constituencies to be known as wards.
3. In addition to persons chosen by direct election from the territorial constituencies, that State Government shall by notification in the official Gazette nominate the following categories of persons as members of municipality:-
i. Members of the house of the people and the legislative assembly of the State, representing constituencies, which comprise wholly or partly, the municipal area; and ii. Members of the council of States, registered as electors within the municipal area:
"Provided that the persons referred to in (ii) and (iii) above shall neither have right to contest for the election of president or vice-president nor right to vote in the meetings for the election of president or vice-president and in special meetings for consideration of motion of no-confidence against the president or vice-president of the committee, as the case may be." (As per Act) Provided further that the executive officer in the case of a municipal council and the secretary in the case of municipal committee, shall have the right to attend all the meetings of municipality and to take part in discussion but shall not have the right to vote therein.
23. A bare reading of the amended provisions shows that Clause(i) of Sub-section (3) of Section 9 as well as the first proviso were omitted by the Amended Act while second proviso was substituted by the amended proviso. The effect of amendment would be that the persons with special knowledge or experience need not be members of the Committee and the persons falling in the category of Clauses (ii) and (iii), as per the amended proviso, will have no right to contest the election of President or Vice-President, to vote in the meeting for election of President or Vice-President and special meeting for consideration of motion of no-confidence against the President and Vice-President of the Committee, as the case may be. There is no challenge in these writ petitions to the Amendment of 1996 in so far as omission of Clause (i) and first proviso is concerned. The challenge obviously is to explaining the expression "2/3rd" of the members of the Committee as expressed under Section 21 of the Act.
24. In fact what were the arguments before the Full bench in Raj Pal Chhabra's case have been incorporated by way of legislative amendment. The amended proviso to that extent suffers from the vice of same unconstitutionally vide which the earlier provisions of Section 9 were held to be bad. We adopt the same reasoning as given in Raj Pal Chhabra's case as that is fully applicable to the facts of the present case in coming to the same conclusion. Further more it is strange that the amendment proposes to divest the members of the House of People and Legislative Assemblies or Councils of State, as the case may be, from the right of voting. The learned counsel for the parties could hardly advance any justification for debarring these two members from the right of voting in special meetings or when a motion of no-confidence is being considered in relation to President or Vice President of the Committee by the House. It appears to be totally arbitrary that these members would have right to vote in day-to-day affairs of the Committee, but would be deprived of the right to vote in the above stated meetings only.
25. Arbitrariness per se may not be a ground for adjudging the validity or otherwise of a legislative provision but when such arbitrariness coupled with the fact that the very object sought to be achieved by the Act is defeated, would have its cumulative effect on the validity of amendment of such provisions. But we have already held that exclusion or debarment of right of these elected members to a much larger constituency of which constituency of the Municipal Committee is a small part, is unconstitutional and is ultra vires of the protection given under Article 243-R of the Constitution of India.
26. Having given our considered view to the entire matter, we are unable to persuade ourselves to take any other view than the one taken by us in Raj Pal Chhabra's case. The Full Bench of this Court has enunciated certain principles based on well accepted norms of Interpretation of Statutes. Amongst others, for the following reasons, which have weighed with us, we would reiterate the same views:-
a) Object of the legislation sought to be achieved under the constitutional mandate of Article 243-R of the Constitution;
b) Object and purpose sought to be achieved by introduction of the concept of governance at grass-root level;
c) The scope of limited power to legislate under Article 243-R(2) of the Constitution in furtherance of the constitutional mandate contained in Article 243-R(1) of the Constitution;
d) Supremacy of union legislation over the State legislation;
e) Right protected or granted by necessary implication under the constitutional provisions, cannot be divested by State legislation;
f) Before amendment of Section 21(3) it used the expression 'not less than 2/3rd of the members' who could carry the no confidence motion of a Committee. This Section was amended to incorporate the words 'not less than 2/3rd of the elected members.' The elected members naturally would include the members who become members of the Committee by virtue of their having been elected as member of the House of People, Legislative Assembly or council as the case may be, for the constituency of which the Municipal Committee is a segment. The expression 'elected members1 must be given its proper connotation and meaning which would help to further the object of the legislation rather than to oust the people who were otherwise granted a protected right by necessary implication of the constitutional provisions. These elected members would obviously have a better understanding of the controversies, and the implication of a particular decision taken by the Committee and the manner in which such decision could be effectively implemented at different levels of the State Administration. Thus, they effectively participate and help the administration of the Committee at the grass root level, being elected members from a much larger constituency, than that of the Municipal Committee. Thus, in our view, they would be covered by the expression 'elected members' used in Section 21(3) of the Act;
g) It is settled rule of law that normally the Court would not substitute its own words for the expressions used by the Legislature in the enactment. It is also equally true that Courts would not give any other meaning to the language of the Section other than the one which is permissible on its plain reading keeping in mind the object of the legislation. Even the amended provisions of Section 9 of the Act states that the Municipality constituted under Section 2(a) shall consist of such number of elected members, not less than 11, as may be prescribed by the rules.
As already noticed, the seats of the Municipality have to be filled in by the persons chosen by direct election from concerned constituency or ward, subject to provisions of Sub-section (2). Sub-section (3) makes it mandatory by using the expression 'shall' to notify in the official gazette and nominate the member: belonging to the category stated in the amended provisions. Thus, the members o House of People, Legislative Assembly of the State or Council of State shall be the nominated members of the Committee. The constitutional mandate and the legislative intent of the State Legislature clearly lead to an indispensable direction that the elected members to a larger constituency of which the constituency of the Committee is a part, shall be the nominated member of the Committee. The legislation in its wisdom has not used the expression "ex-officio members" in any of the provisions. We see no reason to read into the statute such meaning. A nominated member gets his status as member of the Committee only upon a gazette notification of his being so nominated. As such it is a definite act on the part of the Government which would entitle him to be member of the Committee. The legislature has used different expression in different provisions of the Act (reference can be made to Sections 9, 18 and 21 of the Amended Act). The distinction between the expression "persons chosen by direct election", "one of its election members" and "not less than 2/3rd of elected members of the Committee" used in the above three different provisions may be fine but is a clear one. The legislature could have used the expression 2/3rd of the directly elected members rather than elected members of the Committee. Keeping in view the object of this Act a somewhat liberal construction of these provisions to achieve an effective, purposeful and efficient public administration at grass root level. The legislature in its wisdom though has used different expression as afore-stated, in context to the members of the Committee, but term 'member' has not been defined in Section 2 of the Act;
h) We must notice that Article 243-R(2) empowers in State Legislation to enact law in that regard and it could hardly be questioned in so far it relates to 'manner of election'. But divestment of the right of the nominated member could hardly be justified on this ground, who, as already noticed, are elected members from a much larger constituency to a more important forum.
Validity of other provisions or its effects have neither been questioned before us nor we could venture to comment there-upon specifically where they relate to the manner of election of Chairperson of a Municipality;
i) It is one of the settled principles of interpretation of statutes that absurd results should be avoided. The doctrine of absurdity makes it necessary for the Court to give interpretation to a provision the results of which would not be opposed to public policy and would not be unreasonable as well. The members elected to a much larger constituency and office of greater public importance would be entitled to participate in the day to day business of the Committee, other meetings except for meeting which are termed as special or meetings for considering "no confidence motion". This itself indicates the extent of unreasonableness by restricting the interpretation of elected members of the Committee as directly elected members to the Committee, result arising from the fact that the elected members to a much larger constituency and office of greater public importance would be entitled to participate in other meetings except for special and meeting held for decision of a no confidence motion;
j) The elected members of the House of People or Legislative Assemblies or the Council, as the case may be, in fact would be able to further the cause and help in achievement of the purpose and object of the resolutions passed by the Committee from time to time. To say that these elected members falling under Article 243-R(2)(a) (ii) and (iii) Section 9(i) and (ii) would have no role in effective governance and passing resolutions in the special meeting of the Committee, would tantamount to decimating the very object behind their inclusion as members of the Committee. The constitutional directive made it compulsory for the Committees to have the member of the House of People, Legislative Assemblies and Councils, as members of the Committee to effectively participate in the business of the Committee. To divest them of such power, privilege and responsibility would be violative of the very spirit behind these constitutional provisions.
Therefore, we have no hesitation in coming to the conclusion that amendment of Section 9 by the Amending Act 18 of 1996 does not in any way improve the case of the respondents. The amended provisions (Second proviso to Section 9 of the Act) to the limited extent in so far as it debars the members of the House of People, Legislative Assembly or Council, as the case may be from exercising their right of vote, that too only in special meetings or meeting of no confidence motion, is invalid and unconstitutional.
With some emphasis the learned counsel pressed the other contention also in relation to the meaning of word 'shall' and 'may' used in Clauses (1) and (2) of Article 243-R of the Constitution. It was contended that Court can not usurp the role of Legislature by changing the nature of the enactment. The expression 'shall' should not be inter-changed with the expression 'may' and the Legislative competence either of the Union or the State should be treated as directory or mandatory founded on these expressions. On the other hand, Mr. Viney Mittal, Senior Advocate, contended that the judgment of the Full Bench had fully dealt with the case and settled the law, thus, there was hardly an occasion for re-consideration of the matter on this ground.
We are not able to find substance in the contentions raised on behalf of the petitioner. In fact we are also unable to see how does the question arises for reconsideration of the law settled in Raj Pal Chhabra's case in the present case. The Full bench has taken a view, validity or otherwise of which, in the normal course would be open to challenge only before the Appellate or Higher Court. In our view it could be subjected only to that jurisdiction.
Article 243-R(1) does not give any legislative power to the State. The constitutional provisions issue a mandate that seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies of the Municipal Area which shall be divided into territorial constituencies known as wards. While Clause (2) of Article 243-R imposes an obligation upon the State to legislate as Sub-clause (1) is subject to Clause (2). The legislation by the State could be for the limited purposes stated in Clause (2) of Article 243-R itself. The law must relate to representation in a Municipality and would only include the persons specified therein though their number has been left to the discretion of the State Legislature. The State Legislature could also enact in relation to the manner of election of the Chairperson of the Municipality. We are at a loss to appreciate the need for either inter-mingling or substituting the expression "shall" or "may" as used by the Legislature in various provisions referred above. The argument based upon such interpretation would be a misconceived one. At this stage it may be relevant to make a reference to the judgment of the Hon'ble Supreme Court of India in the case of Ganesh Prasad v. Laxmi Prasad, A.I.R. 1985 S.C. 964, wherein it has been held as under:-
"Obviously where legislature uses two words 'may' and 'shall' in two different parts of the same provision prima facie it would appear that the legislature manifested its intent on to make one part directory and another mandatory. But that by itself is not decisive. The power of Court to find out whether the provision is directory or mandatory remains unimpaired."
Certainly expression 'may' per se is not a word of compulsion. It is an enabling word and they only confer capacity. May be this expression can be equated to 'shall have power'. But where an authority or a body is given the power to legislate in the discharge of a power delegated to it or the method in which such powers shall be exercised, the word 'may' would necessarily lead to some element and compulsion. The law so enacted in any case cannot run contrary to the Constitutional provisions or lead to frustration of the object sought to be achieved by implementation of such provisions.
k) The Schedule and Lists of the Constitution are primarily intended to aid the substantive provisions of the Constitution. The Schedule and the Lists, therefore, must be construed harmoniously to the relevant Articles of the Constitution. They no way can over-ride the substantive law. While referring to Article 245(2) and 251 of the Constitution the Full bench had emphasised that the legislative power of the Union has precedence over the legislative power of the State in relation to the laws specified therein. The power of the State Legislature to enact law under Article 243-R read with the Schedule to the constitution is a limited one and it must be exercised in conformity with the substantive language of the relevant Articles of the Constitution.
We did see the anxiety of the learned counsel Mr. R.K. Jain to raise the pleas to counter the Full bench judgment but we hardly see any merit in this effort of the learned counsel for the petitioner. Reasoning of a judgment of a larger Bench could hardly be questioned by the counsel in the present manner. Be that as it may, we see no reason to take any different view than what has been taken by the Full Bench in Raj Pal Chhabra's case.
l) We had also numerically demonstrated in Raj Pal Chhabra's case that any other interpretation is likely to frustrate the object of the Act. The numerous examples given by us would not vary by language of the amended provisions i.e. Section 9 and Section 21(3) of the Act as amended by Amendment of 1996.
27. Having answering the question of law as afore-stated, we would apply the principles of Raj Pal Chhabra's case and the principles enunciated above, to the facts of the case in hand.
28. As far as the case of Krishan Kumar Singla is concerned, there are admittedly 31 elected members, 3 nominated members and 2 ex-officio members, as indicated in the order of reference. The 'no confidence motion' against the petitioner was passed on 5.5.1997 under the chairmanship of the City Magistrate, Hisar. Out of the 31 elected members, 21 members voted in favour of the motion. Resultantly, it was declared that the motion is carried and the petitioner was, thus, removed from his office by virtue of no confidence motion against him having been passed. Obvious contentions, according to the petitioner, are that the resolution had not been passed by 2/3rd majority of the elected members while according to the respondents the motion has been carried by requisite majority and, therefore, is a valid and effective resolution.
29. We have already held that the amendments made in the Act from time to time are prospective and would operate during the tenure for which such President or Vice-President remain elected. There were 31 elected members and 2 so called ex-officio members, who in fact are the elected members to a much larger constituency. They are entitled to and have the right to vote in such a meeting as per the principles enunciated above and in Raj Pal Chhabra's case. The total members being 33, 2/3rd of the same is 22. The resolution was passed by 21 members. As such the resolution dated 5.5.1997 has not been passed by the requisite majority within the meaning and scope of Section 21(3) of the Act. Consequently, C.W.P. No. 6404 of 1997 is allowed and the resolution dated 5.5.1997 is hereby quashed.
30. Coming to the case of Dr. Surinder Kumar Shamra, it is conceded that notices were served on all the elected and nominated members of the Committee. There were in all 22 members of the Committee (17 elected + 3 nominated as persons having special knowledge and 2 nominated being MLA and M.P. of the constituencies concerned). In accordance with the amended law and principles settled in Raj Pal Chhabra's case (supra) as reiterated by us above, there will be 19 members (17 directly elected to Committee and 2 nominated who are elected members to a much larger constituencies) who will really matter for determining the fate of no confidence motion presented before the house. They would constitute requisite 2/3rd majority as elected members of the Committee. 2/3rd of 19 would be little more than 12, which would be the requisite majority for a no confidence motion to be carried. The resolution dated 17.9.1997 was passed after coming into force of the Amending Act of 1996 and, admittedly, 13 members had voted in favour of the motion. Thus, the no confidence motion was carried with requisite majority of 2/3rd elected members of the Committee and who were entitled to vote. Consequently, this writ petition (C.W.P. No. 14029 of 1997) is liable to be dismissed, which we do hereby dismiss, though without any order as to costs.