Karnataka High Court
R. Prasanna Kumar And Another vs State Of Karnataka And Others on 11 February, 1999
Equivalent citations: ILR1999KAR1378, 1999(3)KARLJ295, AIR 1999 KARNATAKA 271, 1999 (2) KANTLD 603, (1999) ILR (KANT) 1378, (1999) 3 KANT LJ 295, (1999) 4 ICC 14
Bench: A.M. Farooq, H.L. Dattu
JUDGMENT
Y. Bhaskar Rao, Actg. C.J.
1. A batch of writ appeals are filed assailing the judgment of the learned Single Judge dismissing the writ petitions. The writ petitions were filed seeking a writ or direction to prohibit the respondents 2 and 3 from holding the election to the office of the President and Vice-Presi-dent of the Municipalities before the completion of the term of 30 months by the appellants with effect from the date of their election and for the declaration that the term of office of the appellants as President and Vice-President of the Municipalities is for a period of 30 months from the date of their election.
2. The brief facts of the case are that the appellants in these appeals were elected either as President or Vice-President of the respective Municipalities in the vacancies caused during the currency of the term of the President or Vice-President of the Municipalities. It is their case that though they were elected in the vacancies caused during the currency of the office of the President or Vice-President, they are entitled to continue in the office for a period of 30 months from the date of their election. The Government contended that the appellants have been elected in the casual vacancies and are entitled to hold their office only for remainder term of office of the President and Vice-President elected to the regular vacancies and not beyond the term.
3. The learned Single Judge after considering the rival contentions and relying on the judgment of this Court in the case of C.R. Shi-vananda v Election Officer and Head Quarters Assistant to the Deputy Commissioner, Chikmagalur and Others, wherein it is held that:
"4. Sub-section (12) deals with a different kind of vacancy. It states that in the event of the removal from office of the President or Vice-President or of his election being held void, or of his becoming incapable of acting in such office, etc., the vacancy caused thereupon shall be filled up by appointment or election. It is a casual vacancy which this sub-section is concerned with. It is optional to hold the election whenever there is a casual vacancy. Such vacancy may be filled up either by appointment or election.
It is undisputed that the petitioner was elected to the casual vacancy caused on the resignation of Keshavamurthy, the previous incumbent in the office. The petitioner, therefore, has no right to remain in office for a full term of one year from the date he became the President of the Municipal Council. If he is also held entitled to remain in office for a term of one year, then sub-section (11) of Section 42 and the Government Order dated 16th March, 1967 would be rendered nugatory and the difference between the regular vacancy and casual vacancy in the office of the President or Vice-President would be obliterated. I, therefore, reject the contention urged for the petitioner".
and also distinguishing the unreported Division Bench judgment of this Court in M. Siddappa v State of Karnataka and Others, rejected the contention of the appellants and held that the President and Vice-President of the Municipalities elected in casual vacancies, caused due to non-acceptance of office, death or resignation or removal from the office of the President or Vice-President or of his election being held void, or of his becoming incapable of acting in such office or having ceased to be a Councillor previous to the expiry of his term of office either as President or Vice-President, shall hold office only for the remainder period and not for 30 months from the date of election.
4. Assailing the said judgment, the present appeals are filed. These appeals came before the Division Bench (Y. Bhaskar Rao, J. and A.M. Farooq, J.) and the appeals were referred to the Full Bench, as the judgment in M, Siddappa's case, supra, and connected petitions is delivered by the Division Bench interpreting Section 138 of the Panchayat Raj Act which is similar to Section 42(11) of the Act holding that Adhyaksha and Upadhyaksha elected under the Act will hold office for the entire period. Therefore, the matter is now placed before the Full Bench.
5. The learned Counsel for the appellants contended that by reading Section 42(2) and 42(2-A) of the Act along with Section 42(11) of the Act, it is manifest that every President and Vice-President elected either in regular vacancy or in casual vacancy will hold office for a period of 30 months as the legislature has not provided distinct periods for the casual vacancy. It is contended that while interpreting the statutory provisions used the Court has to interpret as per the language used when it is plain and unambiguous. If the provision is read to interpret that the President and Vice-President elected in the casual vacancy will hold office only for the remainder period of the regular vacancy, it amounts to amending the Statute which is not within the purview of the Court.
6. The learned Counsels appearing for the Municipalities and the Government contended that the constitution, composition of the Municipalities and Wards thereof and reservation of the seats for Scheduled Castes, Scheduled Tribes and Women candidates as Presidents and Vice-Presidents are provided in the Karnataka Municipalities Act, 1964 (hereinafter called the 'Act'), as per the constitutional mandate in Part IX-A of the Constitution of India. The Constitution further directs that the reservations to Scheduled Castes, Scheduled Tribes and Women shall be made by rotation. If the President and Vice-President elected in the casual vacancy holds office for a further period of 30 months, the reservation policy will be defeated. It is further contended that the term of office of the President and Vice-President elected in the casual vacancy will be only for the remainder period even by reading Section 42(11) of the Act. The said section clearly lays down that the President and the Vice-President shall hold office for a period of 30 months from the date of election subject to other provisions of the Act. Therefore by invoking the principles of harmonious construction the learned Single Judge has rightly rejected the contentions of the appellants. There is no merit in these appeals, and they are liable to be rejected.
7. In view of the above contentions the important question of law that arises for consideration is, "whether the President or Vice-President of the Municipalities elected in the casual vacancies is entitled to hold office for the remainder term of the regular vacancies or for full term of 30 months from the date of their election"?
Before adverting to the question, we will examine the constitutional scheme governing the reservations.
Articles 15(3), 15(4) and 16(4) of the Constitution envisaged that the laws made by the legislature envisaging reservation for SCs, STs, OBCs and Women are not hit by doctrine of equality. The Constitution also provides reservations of the constituencies for the election of the Members of the Parliament and State Legislatures for SCs and STs. Article 38 of the Constitution obligates the State to promote the welfare of the people by securing protection as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life. The State shall strive to minimise the inequalities in status, facilities and opportunities not only amongst the individuals, but also amongst the groups of people residing in different areas or engaged in different vocations. The preamble to the Constitution envisages social, economic and political justice to all. As per the above scheme of the Constitution, reservation is provided for SCs, STs, OBCs and Women in educational institutions and in service and reservation is also provided as stated supra in the election of the Members of the Parliament and Legislature. Such reservation is not provided for the election of local bodies including Panchayats and Municipalities. Though some States have provided such reservation, it was not in the ratio of the population of such class of people. Therefore, to ameliorate the socio-economic conditions of such people, by making them to participate in the administration of local bodies, particularly with a view of empowerment of the power of administration to such classes, the Parliament has incorporated Parts IX and IX-A of the Constitution providing reservation for the SCs, STs, Women and Other Backward Classes. To fulfill the constitutional obligation, the State Legislature made the Karnataka Municipalities Act and Rules framed thereunder by providing reservation by rotation to Scheduled Castes, Scheduled Tribes, Women and Other Backward Classes.
8. Now we shall refer to the relevant provisions concerning the Municipalities. Part IX-A of the Constitution, inserted by the Constitution (74th Amendment) Act of 1992, came into force on 1-6-1993, deals with the Municipalities. Articles 243Q, 243R and 243S deals with the constitution and composition of Municipalities and Wards of Municipalities. Article 243T envisages reservation of seats for the Scheduled Castes, Scheduled Tribes and Women and further directs that such reserved seats may be allotted by rotation to constituencies of the Municipalities. It is further provided that this part shall not prevent the legislature of the State from making any provision for reservation of seats in any Municipality or offices of Chairpersons in the Municipalities in favour of backward class of citizens. Article 243U contemplates that the Municipality, unless sooner dissolved under any law shall continue for a period of 5 years from the date appointed for its first meeting. An election to constitute a Municipality shall be completed before the expiry of its duration specified. Where a Municipality is dissolved, such election shall be conducted before the expiry of 6 months from the date of dissolution, except where the remainder period of the Municipal Council is less than 6 months from the date of dissolution. Article 243ZA deals with the election to the Municipalities.
9. Article 243ZF says that the existing laws relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this part, shall continue to be in force until amended or repealed by a competent legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. Thus the legislature is empowered to enact laws keeping in view the constitutional mandate. Thus the constitution, composition and election to the Municipalities including reservations has been given a constitutional status and sanction. The Karnataka Municipalities Act, 1964 as amended by Act No. 24 of 1995 provides the law relating to the management of municipal affairs in towns and cities other than the cities for which Municipal Corporations are established in the State of Karnataka.
10. Chapter II of the Act deals with the constitution of Municipalities, election of the Councillors, Presidents and Vice-Presidents.
11. It is apposite to refer the relevant provisions of the Act. Undersectionsection 18(1)(a) aof the Act the term of office of the elected Council is 5 years.section 18(1)(a) aof the Act provides that every Municipal Council shall have a President and Vice-President. Section 42(2) of the Act reads thus.-
"Section 42(2).--Subject to the provisions of sub-section (2-A) the Councillors shall at the first meeting of the Municipal Council after the general election and at subsequent meeting held immediately before the expiry of term of office of the President and Vice-President choose two members from amongst the elected Councillors to be respectively President and Vice-President and so often as there is a casual vacancy in the office of the President or Vice-President shall choose another member from amongst the elected Councillors to be the President or Vice-President, as the case may be".
12. Section 42(2-A) of the Act, provides for reservation of the posts of President and Vice-President for certain categories such as Scheduled Castes, Scheduled Tribes, Backward Classes and 1/3rd of the total number of offices of the President and Vice-President from each of the categories reserved for persons belonging to Scheduled Castes, Scheduled Tribes and Backward Classes and those which are not reserved for Women. The reservation of the posts of President and Vice-President for the categories referred to above shall be allotted by rotation to different Municipal Councils.
13. Section 42(11) and 42(12) of the Act reads as follows.-
"Section 42(11).--Save as otherwise provided under this Act the President and Vice-President shall hold office for a period of thirty months from the date of their election, provided that in the meantime they do not cease to be Councillors.
Section 42(12).--In the event of the non-acceptance of office, death, resignation or removal from office of a President or Vice-President or of his election being void, or of his becoming incapable of acting in such office or having ceased to be a Councillor, previous to the expiry of his term of office as President or Vice-President, the vacancy shall be filled up by election, in accordance with the provisions of the foregoing subjections".
14. Sub-section (2) of Section 42 of the Act provides for filling up of the regular vacancy of the President and Vice-President immediately after the general election to the Municipal Council and also provides for filling up of the casual vacancy in the office of the President or Vice-President. Section 42(11) of the Act, provides for the term of office of the President and Vice-President. Under Section 42(12) of the Act, if the office of the President or Vice-President becomes vacant on the happening of the events provided in the said section, before expiry of the term of office of President or Vice-President who are elected in the regular vacancy, the said vacancy shall be filled up by election.
15. The Government has framed the Karnataka Municipalities (President and Vice-President) Election Amendment Rules, 1995 by virtue of the powers conferred under Section 323 of the Karnataka Municipalities Act. Rule 13 provides for the reservation of office of President and Vice-President, the details of seats including seats reserved for Scheduled Castes, Scheduled Tribes, Backward Classes and Women, specifying the number of seats for reserved category as well as for general category. The chart mentioned in Rule 13 of the rules provides for reservation of office of the President and Vice-President of Municipalities of Town Panchayats in accordance with sub-section (2-A) of Section 42 read with Section 353 specifying the details of reservation. The State is empowered to rotate the reservation of constituencies to abide by the constitutional mandate.
16. The above referred rule of the Act provides for the election of the President and Vicc-President both to regular vacancy and casual vacancy. The term of office of the President and Vice-Prcsident is 30 months as provided under Section 42(11) of the Act even though the term of the Municipal Council is 5 years. Thus during the term of the Municipal Council there will be two elections of the office of the President and Vice-President, one immediately after the general election to the Municipal Council and the second on the expiry of 30 months from the date of the election of the President and Vice-President who are elected immediately after the general election. The election to the post of President and Vice-President is subject to the reservation to be made in respect of certain categories. The persons elected as President and Vice-President immediately after the general election holds office for a period of 30 months from the date of the election. In the event, during the currency of the term of President and Vice-President, a vacancy is caused on the happening of certain events as provided under Section 42(12) of the Act, the said vacancy is filled by election. The legislature in their wisdom have distinguished between the post of regular vacancy and casual vacancy as is evident from Section 42(2) and 42(12). The election to the post of President and Vice-President held immediately after the general election to the Municipal Council and the election to be held on the expiry of first 30 months is for regular vacancy, whereas an election to the office to the vacancy caused on account of the happening of the events as provided under Section 42(12) of the Act is for the casual vacancy.
17. Section 42(11) of the Act provides that save as otherwise provided under the Act, the President and Vice-President shall hold office for a period of 30 months from the date of their election, provided in the meantime they do not cease to be the Councillors. There is no dispute that a person elected as President or Vice-President immediately after the general election will hold office for a period of 30 months and after expiry of 30 months again the persons elected as President and Vice-President will hold office for a period of 30 months. The question is when the casual vacancy is caused due to happening of the events as provided under Section 42(12) of the Act, for what period the elected President and Vice-President in the casual vacancy will hold office.
It is relevant to refer the judgment of the Apex Court in Tejkumar Balakrishna Ruia v A.K. Menon and Others. Justice Bharucha considering the scope of Section 3 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992 has considered the principles of interpretation of a statute and held that the Courts must interpret the law as it reads, while the purpose of interpretation is permissible where two interpretations are possible. Therefore, to interpret it as with the term of office of the President and Vice-President elected in casual vacancy is 30 months will defeat the purpose of the constitutional scheme and the Act and makes the provision unconstitutional. Therefore, to preserve the constitutionality of the provision, the best interpretation is that the person elected in the casual vacancy as President and Vice-President will hold office for the remainder of the period.
18. Section 42(2) and 42(2-A) of the Act read with Section 42(11) and (12) of the Act in the light of the constitutional scheme as provided in Part IX-A of the Constitution makes it clear that there shall be reservation of seats for Scheduled Castes, Scheduled Tribes, Backward Classes and Women. Such reservation shall be provided by rotation. The term of the office of the Municipal Council is 5 years and the term of the President and Vice-President is 30 months from the date of election. As per the constitutional mandate there is an obligation on the State to provide reservation of seats for Scheduled Castes, Scheduled Tribes, Backward Classes and Women by rotation. The State has made Act and the rules providing reservation by rotation. Immediately after the general elections, the candidates elected in reserved seats and general seats hold office for a period of 30 months. After the expiry of the term, the reservation of constituency is changed to other category. Where a casual vacancy occurs due to the happening of the events as provided under Section 42(12) of the Act and a President or Vice-President is elected in such vacancy, he will be elected for general or reserved seat as provided for that term. If he continues for a further 30 months period from the date of such election in the seat reserved for general or reserved category as required by the provisions of the Act and rules made thereunder it will not be possible to provide reservation by rotation, thus the policy of reservation by rotation will be defeated, whereas if the elected President or Vice-President in casual vacancy holds office only for the remainder period, then the policy of reservation by rotation will not be defeated and it will consistent with the scheme of the Act and the constitutional mandate.
19. Section 42(11) of the Act itself provides that save as otherwise provided under the Act, the President and Vice-President will hold office for a period of 30 months from the date of their election. Thus, the legislature cautiously used the words 'save as otherwise' provided under the Act. Therefore, while interpreting the term of the President or the Vice-President elected in the casual vacancy, reservation by rotation provided under the provisions of the Act has to be taken into consideration, as the same is provided otherwise in the Act. Therefore, by reading Section 42(2), 42(2-A) and 42(11) of the Act, it is manifest that the elected President or Vice-President in the casual vacancy will hold office only for the remainder period and the same will be in accordance with the principle of harmonious construction.
20. The learned Counsel for the appellants relied on the unreported judgment of this Court in W.P. No. 33497 of 1996 and connected writ petitions, disposed of on 17-7-1997. In that case the Division Bench was considering the term of office of the Adhyakshas of the Zilla and Taluk Panchayats in terms of Section 138(3) of the Karnataka Panchayat Raj Act, 1993. Interpreting Sections 177(3) and 138 and the provisions of the Act, the Court has taken the view that the term of office of every Adhyaksha and Upadyaksha of Taluk Panchayats shall save as otherwise provided under the Act be 20 months from the date of the election. Sub-section (3) of Section 177 is quite different as it provided that every Adhyaksha and Upadhyaksha will hold office for a period of 20 months, whereas in the words of Section 42(11) of the Act the word 'every' is not there. Thus, there is distinction between both the provisions. After the above judgment the Panchayat Raj Act was amended removing that lacuna in the Act.
21. It is relevant to refer to the judgment of the Supreme Court in Kasambhai F. Ghanchi v Chandubhai D. Rajput and Others, wherein the policy of reservation by rotation for the post of President and Vice-President of the Municipalities to Scheduled Castes, Scheduled Tribes, Women and Backward Classes was upheld by the Supreme Court. The Apex Court in that case considered whether a Backward Class member elected from the general constituency can contest for the post of President reserved for the Backward Class. The Supreme Court considering the scheme of reservation under the Constitution as well as under the Gujarat Municipalities Act upheld the reservation of seats by rotation of Scheduled Castes, Scheduled Tribes, Women and Backward Classes and held that the appellant who belongs to Backward Class was eligible to hold the office of President even though he was elected as a Member of the Municipality not from the reserved seat, but from the general seat. As the appellant who admittedly belongs to a backward class could not be regarded as being ineligible merely because he had not been elected to a seat which had been reserved for a Backward Class candidate and upheld his election. In this case, the Supreme Court affirmed the constitutional scheme providing reservation by rotation to Scheduled Castes, Scheduled Tribes, Backward Class and Women in the Municipalities.
22. Now, we will examine the case laws concerning the interpretation of the statutory provisions:
In Sultana Begum v Prem Chand Jain , the Supreme Court has considered in paras 11 and 12 of the judgment the scope of the interpretation of the classes of a statute and referred the observations of Lord Davy in Canada Sugar Refining Company v Rex, which reads:
"Every clause of a statute should be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute or series of statutes relating to the subject-matter".
The Supreme Court affirmed the said view and also held that this view was already affirmed by the Apex Court in number of judgments. The Supreme Court specifically referred the rule of construction laid down in J.K. Cotton Spinning and Weaving Mills Company Limited v State of Uttar Pradesh and Others, which is as follows:
"It is the duty of the Courts to avoid a head on clash between two sections of the Act and to construe the provisions which appear to be in conflict with each other in such a manner as to harmonise them".
Relying on the above principles, the Supreme Court held:
"When there are two conflicting provisions in an Act, which cannot be reconciled with each other, they should be so interpreted that, if possible effect should be given to both. This is the essence of the rule of 'harmonious construction'. The Courts have also to keep in mind that an interpretation which reduces one of the provisions as a "dead letter" or "useless lumber" is not harmonious construction. To harmonise is not to destroy any statutory provision or to render it otiose".
Applying the principle laid down in the above judgment, the interpretation of Section 42(2), 42(2-A) read with Section 42(11) of the Act has to be read in accordance with the constitutional mandate to uphold the constitutionality of the provisions to keep in consonance with constitutional scheme.
In Ajeet Singh Singhvi v State of Rajasthan, Justice Punchhi speaking for the Supreme Court, considering the interpretation of Rule 32 of the Rajasthan Administrative Service Rules, 1954 has referred the judgment of the Apex Court in Lt. Col. Prithi Pal Singh Bedi v Union of India, wherein the Court has held as follows:
"The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognised canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in Rule 40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity, external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act".
and held that the rule of harmonious construction has to be applied.
In Sachida Nand Singh and Another v State of Bihar and Another, the Apex Court was considering the interpretation and scope of Sections 195(1)(b)(ii) and 340(1) of the Criminal Procedure Code and held:
"That apart it is difficult to interpret Section 195(1)(b)(ii) as containing a bar against initiation of prosecution proceedings merely because the document concerned was produced in a Court albeit the act of forgery was perpetrated prior to its production in the Court. Any such construction is likely to ensure unsavoury consequences. For instance, if rank forgery of a valuable document is detected and the forgerer is sure that he would imminently be embroiled in prosecution proceedings he can simply get that document produced in any long-drawn litigation which was either instituted by himself or somebody else who can be influenced by him and thereby pre-empt the prosecution for the entire long period of pendency of that litigation. It is a settled proposition that if the language of a legislation is capable of more than one interpretation, the one which is capable of causing mischievous consequences should be averted. Quoting from Gill v Donald Humber Stone and Company Limited, Maxwell has stated in his treatise (Interpretation of Statutes, 12th Edn., page 105) that "If the language is capable of more than one interpretation we ought to discard the more natural meaning if it leads to unreasonable result and adopt that interpretation which leads to a reasonably practicable result". The clause which we are now considering contains enough indication to show that the more natural meaning is that which leans in favour of a strict construction, and hence the aforesaid observations is eminently applicable here".
Therefore, even if there is a possibility of two interpretations, the interpretation to hold that the President and Vice-President elected in a casual vacancy will continue only for the remainder period has to be upheld as it will be in accordance with the policy of reservation by rotation.
In State of Bihar and Others v Bihar Distillery Limited, the Supreme Court was considering the constitutional validity of the provisions of the Bihar Excise Act and referred and confirmed the observations in the decision of Lord Denning in Seaford Court Estates Limited v Asher, which is as follows:
"Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A Judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity. It would certainly save the Judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a Judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the Judges in Heydon's case (1584(3) Co. Rep. 7a), and it is the safest guide today. Good practical advice on the subject was given about the same time by Plowden..... Put into homely metaphor it is this: A Judge should ask himself the question: If the makers of the Act had themselves come across this ruck in the texture of it, how would they have straightened it out? He must then do as they would have done. A Judge must not alter the material of which it is woven, but he can and should iron out the creases", and held that this observation was approved by the Supreme Court in number of decisions. In the judgment Lord Denning stressed and laid down to work on the constructive task of finding the intention of the Parliament, one must look not only to the language of the statute, but also from the consideration of the social conditions which gave rise to it and the mischief which it was passed to remedy and if necessary supplement the written words so as to give force and life to the intention of the legislature.
In Part IX of the Constitution reservation to Scheduled Castes, Scheduled Tribes and Women is provided as a constitutional scheme keeping in view the socio-economic conditions of the depressed classes and the classes which were not able to participate in the administration of the local bodies due to their socio-economic conditions. Therefore, the socio-economic conditions of weaker sections of society prompted the Parliament to incorporate Part DC of the Constitution and the provisions of the Act which are made by the legislature. Therefore, while interpreting the concerned provisions of the Act, the cause of socio-economic conditions of weaker sections of the society which prompted the Parliament and legislature in incorporating Part IX-A of the Constitution and the relevant provisions of the Act have to be taken into consideration. If this principle is adopted, it will be right to hold that the person elected as President and Vice-President for a casual vacancy will hold office for a remainder period in consonance with the constitutional spirit and if other view is taken, the same will cause mischief to the constitutional scheme and the spirit of the enactment. It is relevant to state that the interpretation to avoid the mischief and uphold the constitutionality of a statute has to be adopted as held in Sachida Nand Singh's case, supra.
Keeping in view the principles laid down by the Apex Court we hold that the person elected as a President or Vice-President in casual vacancy will hold office for a remainder period only and not for 30 months.
23. We will now examine the rules which govern the reservation by rotation.
The policy of reservation by rotation was incorporated in the Municipalities Act and to implement the provisions of the Act, Karnataka Municipalities (President and Vice-President) Election (Amendment) Rules, 1995 are made amending the earlier rules by virtue of the power under Section 320 of the Act. Rule 13 of the Rules delineated the reservation of constituencies for different categories, such as, Scheduled Castes, Scheduled Tribes, Backward Classes, Women and General. As the Act empowered the State to provide reservation, the State is providing the reservation by rotation amending the rules from time to time so that reservation for the post of President and Vice-President by rotation is provided to the people of each region of the State. This rule is to effectively implement the reservation by rotation. Rule 13(6) empowered the State Government to change the reservation of a constituency after the expiry of the term to keep in line with the policy of reservation by rotation. Thus, the Act and rules formed part of the composite scheme for providing reservation by rotation. Therefore, while interpreting the provisions of the Act, the rules have to be taken into consideration as per the principle of interpretation of contemporanea expositio as held by the Supreme Court in the case of P. Kasilingam and Others v P.S.G. College of Technology and Others, which reads:
"The rules have been made in exercise of the power conferred by Section 53 of the Act. Under Section 54(2) of the Act every rule made under the Act is required to be placed on the table of both houses of the legislature as soon as possible after it is made. It is accepted principle of statutory construction that "rules made under a statute are a legitimate aid to construction of the statute as contemporanea expositio (See: Craies on Statue Law, 7th Edn., pp. 157-158; Tata Engineering and Locomotive Company Limited v Gram Panchayat Pimpri Waghere) Rule 2(b) and Rule 2(d) defining the expression, 'college' and 'Director' can, therefore, be taken into consideration as contemporanea expositio for construing the expression "private college" in Section 2(8) of the Act. Moreover, the Act and the rules form part of a composite scheme. Many of the provisions of the Act can be put into operation only after the relevant provision or form is prescribed in the rules. In the absence of the rules the Act cannot be enforced. If it is held that rules do not apply to technical educational institutions the provisions of the Act cannot be enforced in respect of such institutions. There is, therefore, no escape from the conclusion that professional and technical educational institutions are excluded from the ambit of the Act and the High Court has rightly taken the said view. Since we agree with the view of the High Court that professional and technical educational institutions are not covered by the Act and the rules, we do not consider it necessary to go into the question whether the provisions of the Act fall within the ambit of Entry 25 of List III and do not relate to Entry 66 of List I".
The Supreme Court in Jagadish Singh v Lt. Governor of Delhi and Others, while interpreting the provisions of the Delhi Co-operative Societies Act and the rules framed thereunder has laid down the principle as:
"If sub-rule (2) of Rule 25 and Rule 28 are examined the obvious answer would be that under sub-rule (2) the deemed cessation from membership of the person concerned is in relation to the society pertaining to which disqualifications are incurred. A plain reading of Rule 28 makes it crystal clear that the Registrar when becomes aware of the fact that an individual has become a member of two co-operative societies of the same class which obviously is a disqualification under Rule 25 then he has the discretion to direct removal of the said individual from the membership of either or both the co-operative societies. If sub-rule (2) of Rule 25 is interpreted to mean deemed cessation of the person concerned from membership of both the societies then the question of discretion of the Registrar under Rule 28 will not arise. On the other hand, if sub-rule (2) is interpreted mean that the deemed cessation is in relation to the society in respect of which the person concerned incurs the disqualification then both sub-rule (2) as well as Rule 28 would have its play. Rule 28 cannot be considered to be otiose and must be allowed to have its full play. In this view of the matter the only way by which sub-rule (2) of Rule 25 and Rule 28 can be harmoniously construed is to construe sub-rule (2) of Rule 25 to mean that the deemed cessation of the person concerned from the membership of the society is the society in respect of which the disqualification was incurred".
Therefore, keeping in view the principle laid down by the above judgments of the Apex Court, the rules and provisions of the Act providing reservation by rotation is an integrated scheme of the Act, so all the relevant provisions along with the concerned rule has to be read together to find out the intention of the legislature as per the principle of interpretation of contemporanea expositio. By applying the principle of interpretation of contemporanea expositio, it is in favour of holding that the reservation by rotation is essentiality of the Statute. Therefore, to keep the reservation by rotation is necessary, otherwise the reservation of the constituencies of all the regions in the term of 5 years of the Municipal Council is not possible. So to hold that the elected President and Vice-President in the casual vacancy holding office for the remainder period of regular vacancy is proper and justified.
24. Section 42(11) of the Act provides that the President and Vice-President shall hold office for a period of 30 months from the date of their election save as otherwise provided under the Act. To determine the period of holding of office of President and Vice-President elected in a casual vacancy, we have to read Section 42(2), 42(2-A) and 42(12) together and to find out the intention of the legislature, whether different periods are envisaged for the President and Vice-Presidcnt elected in a regular vacancy and in casual vacancy. There is no dispute of the term of office for regular vacancy. The point that has to be considered is whether the President and Vice-President elected in a casual vacancy will hold office for 30 months or for the remaining period. The legislature specifically used the word 'save as otherwise provided under the Act', that means, if not otherwise provided under the Act, they can hold office for 30 months, if it is provided otherwise under the Act, they cannot hold office for 30 months. The words 'under the Act' is different than the words 'by the Act'. The words 'by the Act' denotes as provided in the Act, whereas the word 'under the Act' denotes as provided under the Act as well as under the rules or bye-laws. Thus, there is a distinction. This distinction has been considered by the Supreme Court in Dr. Indramani Pyarelal Gupta and Others v W.R. Natu and Others. Considering the provisions of the Forward Contracts Regulation Act, 1952 his Lordship Subba Rao, J., as he then was, giving the contrary opinion of the majority, has pointed out the difference between the words 'by the Act' and 'under the Act', as follows:
" 'By an Act' would mean by a provision directly enacted in the statute in question and which is gatherable from its express language or by necessary implication therefrom. The words "under the Act" would, in that context, signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done, in other words, bye-laws made by a subordinate law-making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by the Act. A power conferred 'by a bye-law is not one conferred "by the Act", for in the context the expression "conferred by the Act" would mean "conferred expressly or by necessary implication by the Act itself". A bye-law framed under Section 11 or Section 12 could not fall within the phraseology "as may be prescribed" for the expression "prescribed" has been defined to mean "by rules under the Act", i.e., those framed under Section 28 and a bye-law is certainly not within that description. But, having regard to the provisions of Sections 11(1), (4) and 12(2) notwithstanding that the bye-laws are rules made by an Association under Section 11 or compulsorily made by the Central Government for the Association as its bye-laws under Section 12, they are not in either case subordinate legislation under Section 11 or Section 12 as the case may be, of the Act. They would therefore squarely fall within the words "under the Act" in Section 4(f)".
Therefore, by applying the principle while interpreting Section 42(11) of the Act, apart from the other relevant provisions of the Act, the rules framed under the Act has to be taken into consideration. Thus, from Section 42(11) read with Section 42(2-A) and 42(12) along with Rule 13 of the Rules it is manifest that reservation has to be provided by rotation. If the President or Vice-President elected in the casual vacancy has to hold office for a period of 30 months as a President elected under regular vacancy, there is no possibility of implementing the reservation by rotation and the same defeats the intention of the legislature. Therefore, all the relevant provisions along with the rules have to be read together to find out the intention. If that method is adopted, the only conclusion that is possible is the President or Vice-President elected in casual vacancy will hold office for the remainder period.
Section 42(11) of the Act reads:
"Save as otherwise provided under this Act, the President and Vice-President shall hold office for a period of thirty months from the date of their election, provided that in the meantime they do not cease to be Councillors".
The holding of office by the President and Vice-President elected for a period of 30 months is subject to other provisions of the Act. Therefore, the sub-section has to be read with Section 42(2) and 42(2-A) along with Article 243T of the Constitution and Rule 13 of the Rules. The said provisions provide the reservation by rotation. So, if a person elected as President or Vice-President is to hold office for a period of 30 months from the date of election, the reservation by rotation will be defeated and there will be no possibility to provide reservation by rotation, as the term of the Municipal Council itself is 60 months. For example, if a person is elected as a President or Vice-President after 25th month and he has to continue for further more 30 months, then out of 60 months, that is 5 years, he will continue for 55 months. The same category of person continues in office for 55 months, which will be in contravention of the constitutional scheme and the Act.
The Supreme Court in State of Rajasthan and Others v Noor Mohammad, in the context has considered the meaning of the expression 'save as otherwise provided by or under the Act, and held that the provisions must be construed in a harmonious manner, so as not to reduce to nullity. Thus, there is no bar under the Act to provide reservation by rotation. On the other hand, the Act provides reservation by rotation. Therefore, by adopting the harmonious construction, as found by the Supreme Court, it is proper to hold that the person elected as a President or Vice-President in a casual vacancy to hold office for a remainder period.
The learned Counsel for the appellant contended that the words in sub-section (11) of Section 42 of the Act are very unambiguous and clear and it is capable of one construction only that the President and Vice-President elected will hold office for a period of 30 months and no other view is possible. Therefore, when the language of the provision itself is clear, the material provision of the statute has to be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions, then the question of giving effect to the policy or object of the Act can legitimately arise. The learned Counsel for the appellants relied on the judgment in Kanai Lal Sur v Paramnidhi Sadhukhan, for that proposition, which reads:
"The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. 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. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct".
For the same proposition, the learned Counsel relied on the decision in Arul Nadar v Authorised Officer, Land Reforms . The Supreme Court has laid down that when the language of the statute is unambiguous and plain, it is not necessary to examine the intent and object of the Act while interpreting the provisions of the Act. There is no dispute about the proposition laid down by the Supreme Court. In the present case, as stated supra, the words in sub-section (11) of Section 42 of the Act have to be interpreted keeping in view the other provisions of the Act, that is Section 42(2), 42(2-A) and 42(12) of the Act to give effect to the scheme of the Act of providing reservation of the constituencies to SCs, STs, Backward Classes and women with a direction to provide reservation by rotation. If the contention of the appellants is accepted, the policy of reservation by rotation will be defeated, and the same will be against the intent and object of providing reservation. Therefore, we are not able to accede to the contentions of the learned Counsel for the appellants.
25. In view of the above stated facts and circumstances of the case, we hold that a Councillor elected as a President or Vice-President in a casual vacancy under the Karnataka Municipalities Act and Rules framed thereunder will hold office for a remainder period. The judgments of the learned Single Judge are confirmed and writ appeals are dismissed with no order as to costs.