Allahabad High Court
Sri Surendra Kumar Gupta vs State Of U.P. Through The Secretary, ... on 11 April, 1994
Equivalent citations: AIR1994ALL349, AIR 1994 ALLAHABAD 349, (1994) 3 ALL WC 1403
Author: V.N. Khare
Bench: V.N. Khare, M.Katju
ORDER V.N. Khare, J.
1. By these petitions under Art. 226 of the Constitution the Petitioners who are either Presidents or Chairmen of different local bodies in the State of Uttar Pradesh, pray for striking down the Ordinance known as U.P. Municipalities, Notified Areas and Town Areas (Alp-Kalik Vyava-stha) Adhyadesh 1994 being U.P. Ordinance No. 3 of 1994 promulgated by the Governor of Uttar Pradesh in exercise of powers under Art. 213 of the Constitution as being unconstitutional, the relevant provisions of which are extracted below:
"1; This Ordinance may be called the Uttar Pradesh Municipalities, Notified Areas and Town Areas (Alpkalik Vyavastha) Adhyadesh, 1994.
2. With effect from the 19th day of January, 1994, the provisions of the U.P. Municipalities Act, 1916 (U.P. Act No. 2 of 1916), hereinafter in this section referred to as the said Act, shall until May 31, 1994 or until the Constitution of the Municipal Boards under the provision of the said Act, whichever is earlier, have effect in relation to the Municipalities specified in Schedule I subject to the following provisions, namely-
(a) notwithstanding anything in the said Act, all members of tbe Municipal Board including the President shall cease to hold
(b) all powers, functions and duties of the Municipal Board, its President and Commit tees shall be vested in and be exercised, performed and discharged by the District Magistrate and the District Magistrate (in-
eluding the person or authority to whom the district Magistrate delegates his powers under sub-section (2) of Section 4 shall be deemed to be the Municipal Board, its President of the Committee concerned as the occasion may require."
2. Before we take up the argument of the learned counsel for the parties, it is necessary to notice the brief facts giving rise to these petitions. In Writ Petition No, 1228 of 1994, the petitioner is the President of Municipal Board, Aliganj, district Etah constituted and established under the U.P. Municipalities Act (hereinafter referred to as the Act). The petitioners in Writ Petition No. 4661 of 1994 and Writ Petition No. 1482 of 1994 are the President of City Board, Jaunpur and Municipal Board, Bilsi respectively. Petitioner in Writ Petition No. 1225 of 1994 is the Chairman of the Town Area Committee Purdilnagar, Aligarh constituted and established under the U.P. Town Areas Act; The Municipal Board and the Town Areas Act of which the petitioners are either President or Chairman, were constituted in Nov./Dec. 1988 for a term of five years. On expiry of five years the State Government by notification dated 19th of Oct. 1993, in exercise of powers under the proviso to sub-section (1) of Section 10A of :the Act extended the term of the Municipal Boards for a period of six months or till the next general election whichever is earlier.
3. Admittedly, during the extended term of six months the impugned Ordinance promulgated by the Governor' of Uttar Pradesh has dissolved 626 local bodies (Municipal Boards, Notified Areas and Town-Areas) including the Municipalities and the town areas of which the petitioners are either President or Chairman and in the place of the elected representatives, the impugned Ordinance directs the respective District Magistrates to exercise the powers of the Board. It is at this stage, the petitioners have knocked the doors of this Court by means of these writ petitions under Art. 226 of the Constitution.
4. We have heard Sarvsri K.N. Tripathi, R.K. Jain, Sudhir Chandra, Senior Advocates and Sarvsri R.H.Zaidi, S.K.. Viddyarthi. and D. Dwivedi, counsel for the Petitioners and Sri Rakesh Dwivedi learned Additional Advocate General for the State of Uttar Pradesh.
5. The first ground on which the validity of the impugned ordinance has been questioned, is that the impugned ordinance infringes the constitutional injunctions embodied in Art. 243ZF of the Constitution which provides that the Municipalities existing immediately before the commencement of the Act, shall continue till the expiration of their duration unless dissloved by the resolution passed to that effect by the legislative assembly of that State or in the case of the State having a legislative council by each house of the legislature of that State. In short, the argument is that the Municipalities of which the petitioners are the Presidents having been constituted prior to the commencement of the Act, are entitled to continue for the full extended term unless dissolved the manner provided under Art. 243ZF of the Constitution. Since the argument of the learned counsel for the petitioners turns upon the interpretation of Art. 243ZF of the Constitution it is necessary to extract Article 243ZF which is in the following terms:
"243 ZF. Continuance of existing laws and Municipalities:-- Notwithstanding anything in this part, any provision of any law 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.
Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council by each House of the Legislature of that State."
6. Learned Advocate General, while conceding that the impugned Ordinance is not the substitute of the method as required by the proviso to Art. 243ZF of the Constitution for dissolving the Board in the duration of the Municipalities contended, that the said injunction embodied in Art. 243ZF of the Constitution can be applied only when the Municipalities are sought to be dissolved during their original term of five years and not during their extended term. According to him the extended period of Municipalities does not come wihtin the meaning of expression "duration" as contemplated by proviso to Art. 243ZF of the Constitution, whereas the petitioners' counsel strongly contended that the extended term of Municipalities should also come within the meaning of expression "duration" occurring in proviso to Article 243ZF of the Consiitution. If what the petitioners say is1 correct, definitely the impugned Ordinance is ultra vires the Art. 243ZF of the Constitution. Thus on the argument of the learned counsel for the parties. The questipn that arises for consideration is whether the extended term of Municipalities comes within the meaning of expression "duration" occur: ring in proviso to Art. 243ZF of the Constitution?
7. Learned counsel for the petitioners referred to Section 10A of the Act and meaning of the words "term" "extension" and "duration" in Websters Dictionary as well as in Black's Law Dictionary in Support of their contention that the extended term of the local bodies comes within the meaning of expression "duration". Sub-section (1) to Section 10A of the Act is in the following terms:
"10-A. Term of Board-- (1) Except as provided in Section 31 or 31A the term of every Board shall be five years.
Provided that the State Government may by notification in the official Gazette, extend from time to time the term of all or any of the Boards, so however, the total extension in the case of Board does not in the aggregate exceed two years."
"Term" according to the Webesters Dictionary means:-- Boundary, limit, and an extent of time, the time for which something last, duration, tenure. In the said dictionary "extension" means:) "the action of extending or state of being extended, total range over which something extends or can be extended. According to the Black's Law Dictionary "duration" means:-- "Extent, limit or time: the portion of time during which anything exists." In the said dictionary "Extension" means:-- "enlargement of the main body, addition of something smaller than that to which it is attached: to lengthen or prolong."
8. No doubt it is a well known principle of construction of statute that in the absence of anything contrary to the context, the language of a statute may be intepreted according to the plain dictionary meaning of the term used therein. It is also an accepted view that when a word is not defined in the Act, the Court may go to the dictionary meaning of the word in order to discover what it means. However, dictionaries canpot be taken an authoritative exponent of the meaning of the word used for the plainest word may be controlled by the reference to the context. Thus the dictionary meaning of words "duration", "term" and "extension" is of no help to the petitioners.
9. Learned counself for the petitioners then referred to the defintion of the word "extension" in Prem Judicial Dictionary. In the said Judicial dictionary "extension" means:
"Extension-- "Extension" is a term properly used for the purpose of enlarging or giving further duration to, any existing right, but does not import the 'recreation' I.B. and Aid. See 289 UB 121 "extension" of a term. See includes the addition of deteched buildings. (1946) ALR 558 "Extension of certificate" See (1950) ALR 97".
On the strength of the definition "extension", it was argued that "extension" is continuation of the original term and, therefore, the same meaning may be assigned to the word "duration". It is well settled view of law that definition of particular word given in the Judicial Dictionary in the terms of Court's decisions should not be used unless the decision was given under an Act in partia materia with the Act in question. The definition of the word "extension" in the statute in the terms of Court's decision relied upon by learned counsel for the petitioners is not in pari materia with the provisions of the Constitution and as such the said definition of the word "extension" is of no assistance to the contention of the petitioners' counsel.
10. As noticed earlier the dictionaries and Judicial Dictionaries cannot be taken as authority for knowing the meaning of the word used and as such the word used has to be interpreted in reference to the context. In this background it is necessary to look into the scheme of the Constitution (Seventyfourth Amendment) Act, 1992 by which Part IX-A has been introduced in the Constitution. Under Art. 243Q of the Constitution the Municipal Council for a smaller urban area and Municipal Corporation for a larger urban area are to be constituted in accordance with the provisions of Part of the Constitution. Article 243R of the Constitution provides for composition of the Municipalities. Clause (1) of the Art. 243U of the Constitution provides that every Municipality shall continue for five years from the date appointed for its first meeting and no longer, (Empahsis mine). Clause (2) of Art. 243U further provides that no amendment of any law for the time being in force shall have the effect of causing dissolution of the Municipality at any level which is functioning immediately before such amendment till the expiration of its duration (Emphasis mine) specified in clause (1). Here it is significant to note that the word "duration" refers to Cl. (1) of Art. 243 which provides that duration ofa Municipality shall be for a period of five years and no longer (emphasis mine). The scheme of the Act is that the election to constitute the Muncipality has to be completed before the expiry of duration specified in Cl. (1) of Art. 243U or before the expiry of a period of six months form the date of its dissolution.
There is no provision in Part IXA of the Constitution which provides for extension of term or duration of the Municipalities constituted in accordance with the provisions of Chapter IX-A of the Constitution.
11. Since Chapter IX-A of the Constitution introduces a new scheme for the Constitution and fixing the term of the Municipalities, the word "duration" has to be interpreted in reference to the context as well as in accordance with the scheme of the provisions of Chapter IX-A of the Constitution. As noticed earlier the scheme of Chapter IX-A is that the duration on trial of the Municipality is for a period of five years and no longer and further there is no extension of duration of such Muncipatity. If any other interpretation is given, the legislature while enacting the law for establishing and constituting Municipalities may frustrate the scheme envisaged in Chapter IX-A of the Constitution by providing extension of the term of the Municipalities and not holding elections as required under Art. 243U of the Constitution. We are, therefore, of view that expression duration occurrying in poviso in Art. 243ZF of the Constitution means duration of five years and no more by way of extension. Thus the expression duration would not includle the extended term of the Municipality under Section 10A of the Act.
12. Learned counsel for the petitioners referred to Arts. 83 and 172 of the Constitution with emphasis on their marginal notes and argued that since the marginal notes of the Articles use the expression duration which refers to the original term of the parliament and the State Legislatures as well as also their extended term, thus the same meaning may be assigned to the expression duration occurring in proviso to Art. 243ZF of the Constitution. No doubt the marginal notes of Art. 83 and 172 of the Constitution use expression 'duration' and further Articles 83 and 172 provide for extension of the term of Parliament as well as the State Legislature in certain contingencies. In view pf this the question arises for consideration is whether the marginal notes can be treated as a part of the provision of the Act or not? Initially British Courts took view that side notes cannot be treated as part of the Act and were not considered or amend ed by the Legislature. However, in India, the Courts have entertained different views re garding the relevance of the marginal notes while interpreting a statute. One line of cases are that the marginal notes are not part of the Constitution or the Act and the Courts shall neither consider them while interpreting the section nor treat them as index as to what the section meant. The second line of cases are that the marginal notes although they do not form part of the section, yet are of some assistance inasmuch as they show the trend of the section and illuminates its meaning when there is a doubt about the meaning of the word. In the case of Bengal Immunity Company v. State of Bihar, AIR 1955 SC 661 it was held thus at page 676:
"..... that the marginal note to Article 286 is Restriction to Imposition of Tax on the sale or purchase of goods, which, unlike the marginal notes in Acts of British Parliament, is part of the constitution as passed by the constituent Assembly." prima facie furnishes some clue as to the meaning and purpose of the Article."
In view of this the word 'duration' occurring in the marginal notes of Arts. 83 and 172 of the Constitution furnish clue to this aspect that the extending term of Parliament and the State Legislature is included in the expression 'duration'. However, the foremost question which requires consideration is whether the word used in a statute can have a different meaning different provisions of the same statute or not. Generally the same word in a statute have the same meaning whenever used in that statute. But sometimes they convey a different meaning when used in a different provision of the same statute. "The presumption", says Craies in his book Statute Law page 169, "that the same words are used in the same meaning is however very slight, and it is proper 'if sufficient reason can be assigned to construe a word in one part of an Act in a different sense from that which it bears in another part of an Act."
13. Maxwell on the Interpretation of Statutes says, "But the presumption is not of much weight. The same word may be used in different senses in the same statute, and even in the same section. "In S.V. Parulekar v. D.M. Thana, AIR 1957 SC 23 it was held thus at page 26:
"The rule of construction contended for by the petitioners is well settled, but that is only one element in deciding what the true import of the enactment is to ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute."
14. In view of the aforesaid decision while ascertaining the true meaning of expression 'duration' it is necessary to have regard to the purpose behind the said provision of the Constitution. The examining of the two provisions of the Constitution namely Articles 83 and 243ZF in their context, it may be seen that Art. 83 of the Constitution provides for extension of the term of Parliament in certain contigencies whereas no provisions in Chapter IX-A of the Constitution for extension of duration or term of the Muncipality after expiry of its term. The Constitution (Seventyfourth Amendment) Act, 1992 has brought Part IX-A in the Constitution which introduced a new scheme of having local bodies without extension of the original term which is a departure from the scheme envisaged under Art. 83 and Art. 172 of the Constitution. The Scheme envisaged in Part IX-A of the Constitution does not provide extension of the term or duration of the Municipality after it has completed its full term. Thus the meaning assigned to expression 'duration' on the marginal notes of Articles 83 and 172 of the Constitution cannot be assigned to the expression 'duration' occurring in proviso to Art. 243ZF of the Act. We are, therefore, of opinion that expression 'duration' occurring in proviso to Art. 243ZF of the Constitution when read in reference to the context does not include the extended term of the Municipality.
15. Learned counsel then relied upon a decision in the case of Provesh Chandta Dalui v. Bishwa Nath Banerjee, AIR 1989 SC 1834 for the preposition that the duration of period of lease includes extended period of lease. In our opinion this case is distinguishable and is of no help to the contention of the petitioners as the lease deed which was subject matter of intepretation itself provided for extension of lease.
16. In view of what has been stated above, we are of the view that the Municipalities of which the petitioners are either President or Chairman having outlived their full term of five years, it was no longer necessary for the State Legislature and the Legislative Council to dissolve the Municipalities by resolution passed to that effect as required under Article 243ZF of the Constitution and further the impugned ordinance is not repugnant to Article 243ZF of the Constitution.
17. The second submission of the learned counsel for the petitioners is that since the impugned Ordinance directs that the next Municipalities shall be constituted in accordance with the provisions of the U. P. Municipalities Act 1916 and as such the Ordinance is repugnant to Art. 243ZF of the Constitution which provides that any provision of law relating to Municipalities in force immediately before the commencement of the Constitution (Seventyfourth Amendment) Act 1992 which is inconsistent which the provisions of this part shall continue to be in force until amended or repealed by a competent Legislature or until the expiration of one year, from such commencement whichever is earlier. Learned counsel for the petitioners also contended that the provisions of the impunged Ordinace cannot be read down in order to save it from the unconstitu-tionality when the language used in the Ordinance is plain and simple and relied upon the decision in the case of Union of India v. Deoki Nandan Aggrawal, AIR 1992 SC 96 : 1992 AH LJ 258 Delhi Transport Corpration v. DTC Mazdoor Congress, AIR 1991 SC 101: (1991 Lab 1C9I), Mohan LalTripathiv. District Magistrate, Rai Bareili, 1992 (4) SCC 80 : (AIR 1993 SC 2042), P.K. Unni v. Nirmala Industries, AIR 1990 SC 933 and S. Narayana Swamy v. Pannerselvam, AIR 1972 SC 2284. These cases lay down that where the words of the statute being clear explicit and unambiguous there is no scope to have recourse to external aid for their construction and they have to be literally interpreted. It is true that the impugned Ordinance does provide that with effect from 19th of January, 1994 the provisions of U.P. Municipalities Act, 1916 shall until May 31st, 1994 or until the constitution of the Municipalities under the provisions of the said Act. whichever is earlier, have effect in relation to the Municipalities specified in Scheule I of the Ordinance. It means that the forthcoming election for constituting Municipalities shall be held under the provisions of U.P. Municipalities Act 1916 which is admittedly inconsistent with the provisions of Part IX-A of the Constitution which has been brought in the Constitution by the Constitution (Seventy-fourth Amendment) Act, 1992. It is true that one of the rule of intepretation is that where there is no ambiguity in the words used in a statute, they have to be literally interpreted. But this rule of interpretation has further been qualified by the another rule of interpretation that it is permissible for the Court to look into the object of the Act and if necessary, to go behind the words used in the Statute to find out the real intention of the Legislature.
18. In Organo Chemical Industries v. Union of India, AIR 1979 SC 1803 : (1979 Lab IC 1261) the Supreme Court has held thus at page 1817; of AIR :--
"A bare mechanical interpretation of the words devoid of concept or purpose' will reduce most of legislation to futility. It is a salutary rule, well established, that the intention of the legislature must be found by reading the statute as a whole."
19. In Chairman, Board of Mining Examination and Chief Inspector of Mines v. Ramjee, AIR 1977 SC 965 it was held as thus:--
"To be literal in meaning is to see the skin and miss the soul of the Regulation."
20. In Directorate of Enforcement v. Deepak Mahajan, 1994(1) JT 290: (AIR 1994 SC 175) it was held thus:
"..... It is permissible for Courts to have functional approaches and look into the legislative intention and sometimes may be even necessary to go behind the words and enactment and take other factors into consideration to give effect to the legislative intention and to the purpose and spirit of the enactment so that no absurdity or practical inconvenience may result and the legislature exercise and its scope and object may not become futile."
It is not necessary to multiply cases on this point as it is accepted view of law that where ' there is ambiguity in the provisions of the statute, the Court may find out the real object of the Act in order to give the interpretation of that provisions of the Statute. In the present case admittedly, the Constitution (Seventy-fourth Amendment) Act, 1992 which was published on 20th April, 1993, came into force on 1-6-1993. Article 243ZF gives one year's time from the date of commencement of the Constitution (Seventy fourth Amendment) Act to the competent Legislatures to amend the law relating to Municipalities in force in a State immediately before the commencement of the Act. It is also admitted that the U.P. Municipalities Act, 1916 is not in conformity with the provisions of Chapter IX-A of the Constitution, It is also admilated that the U.P. Municipalities Act 1916 has neither been amended nor one year's time for amending the Act has expired. In fact the law relating to Municipalities is yet to be amended by 31st of May, 1994. The real object to the Ordinance is to dissolve the Municipalities with a view to reconstitute them in accordance with the provision of Part IX-A of the Constitution. Since the Municipalities cannot be constituted under the present provisions of the U.P. Municipalities Act being repugnant to the provisions of Part IX-A of the Constitution, there appears to be ambiguity in the Ordinance, while refering to the provisions of the Act under which the Municipalities are to be constituted. As the period for amending the Act has not yet expired, we can read the Municipalities Act occurring in the Ordinace as Municipalities Act to be amended in the light of the Constitutional mandate as contained in Part IX-A of the Constitution. In view of what has been stated above, we reject the argument of the learned counsel for the petitioners that the impugned Ordinance is repugnant to the provisions of Art. 243ZF of the Constitution.
21. The validity of the impugned Ordinance is also questioned on the ground that it encroached upon the judicial power which the State Legislature does not possess under the Constitution. In short, the submission is that this Court in the case of Anugrah Narain Singh v. State of U.P., 1992 ALJ 22 struck down the Act known as U.P. Municipalities Notified Area, Town Areas (Alpkalik Vyawa-stha) Adhiniyam 1-977 (hereinafter referred to as the Adhiniyam 1977) the provisions of which are identical to the provisions of the impugned Ordinance and as such the State Legislature has no power to enact such a law in the same field. Learned counsel for the petitioners in support of his argument relied upon the decision of the Supreme Court in the case of State of Haryana v. Karnal Cooperative & Farmers, 1993 (II) 235 : (1993 SCW 3432). Before we deal this submission, it is necessary to notice the facts of the case of Anugrah Narain Singh (supra) which led this Court to strike down the Adhiniyam 1977. In the year 1977 the then Government in power by an Ordinance which was subsequently replaced by the Adhiniyam 1977 dissolved all the Local Bodies in the State of Uttar Pradesh and provided for transitory arrangement for running of the Local Bodies for a particular period of time. However, by repeated Ordinances which were subsequently replaced by the Acts the period of transitory arrangements continued to be extended for over 12 years and no elections were held for constituting the Local Bodies. Ultimately, the Writ Petitions were filed in this Court for issuing directions to the State Government for holding election for constituting the Local Bodies. It is this background that this Court in the case of Anugrah Narain Singh (supra) held that the State Legislature by continuously extending the period of interim arrangement is negating the institution of local self Government which is not available to it. However, this Court in the said case was of view that the Legislature is competent to provide for interim arrangements for managing and running the affairs of the Local Bodies after completion of their term or on dissolution and the period of such interim arrangement may not be more than six months. Thus this Court recognised the competence of the State Legislature to provide for interim arrangement for running the affairs of the Local Bodies on completion of their term of or on dissolution. In the present case the impugned ordinance has been promulgated with a view to constitute the Municipalities in conformity with the constitutional mandates brought in the Constitution by (Seventyfourth Amde-ment) Act 1974. The interim arrangement provided for in the Ordinance is until May 31, 1994 or until the Constiution of Municipal Boards whichever is earlier. Thus, we do not find any merit in the argument of the learned counsel for the petitioners that this Court by striking down the Adhiniyam !977 the provisions of which are identical to the impugned Ordinance has debarred the U.P. Legislature from enacting the law providing for interim arrangement in respect of running and managing the affairs of Local Bodies till the reconstitution of the Municipal Boards.
22. This matter can be examined from another angle. Entry 5 of List 11 of the VII Schedule of the Constitution authorises the State Legislature to make law providing for the constitution of Local Bodies for the purposes of local self Government. Thus the establishment and Constitution of Local Bodies with reference to the local self Government may or may not be the requirement of Constitution prior to enforcement of the Constitution (Seventyfourth Amendment) Act but where a State Legislature in exercise of the plenary powers conferred on it by Articles 245 and 246 of the Constitution in reference to Entry 5 of List II of VII Schedule of the Constitution enacts law for constituting Local Bodies, such a power includes the power to determine the duration or term of the Municipalities and to dissolve the Municipalities for reconstituting them and further also to provide for interim arrangement till the reconstitution of the Municipalities. However, such an interim arrangement may not be for more than six months. Thus the plenary power of Slate Legislature to enact a law for establishing and constituting Municipal Corporation includes the power to dissolve the Board and provide for interim arrangement for running the affairs of the Municipalities till they are reconstituted in accordance with the law.
23. The decision relied upon by the learned Counsel for the petitioners in the case of State of Haryana'v. Karnal Co-pperative Farmers (supra) is distinguishable and is of no assistance to him. In the said case what has been held is that the Legislature cannot by a mere declaration without more directly overrule a judicial pronouncement in exercise of plenary powers conferred on it by Articles 245 and 246 of the Constitution. In the present case of declaration has been made that the Adhiniyam 1977 struck down by this Court is a good law. We, therefore, reject the argument of the learned Counsel for the petitioners that the impugned Ordinance encroaches upon the judicial power and as such is ultra vires.
24. Before the arguments were concluded the learned Counsel for the petitioners, orally prayed that in case their arguments are not accepted, we may issue a writ of mandamus to the State Government to hold elections for constituting Municipalities before 31st of May, 1994. Admittedly, the time for amending the law on the subject as envisaged under Article 243ZF has not yet expired, we are afraid, we cannot issue such a direction in this regard. However, we hope and trust that the Government shall hold elections for constituting Municipalities expeditiously after the law relating to Municipalities is amended in conformity with the provisions of Part IX-A of the Constitution.
25. In view of what we have stated above, we find no merit in these petitions and they deserve to be dismissed.
26. In the result the petitions are dismissed. There shall be no order as to costs.
27. Petitions dismissed.