PARMAR SAMANTSINH UMEDSINH AND OTHERS versus STATE OF GUJARAT & ORS. on 24 February 2021

PARMAR SAMANTSINH UMEDSINH AND OTHERS

v.

STATE OF GUJARAT & ORS.

(Civil Appeal No. 706 of 2021)

FEBRUARY 24, 2021

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Gujarat Provincial Municipal Corporation Act, 1949 – s.5(3)(iii)(a) and s.29A – Bombay Provincial Municipal Corporations(the Delimitation of Wards in the City and Allocation of ReservedSeats) Rules, 1994 – rr. 4 and 5 – Present two appeals arise out ofthe judgments of the High Court in two separate Writ Petitions –The first appeal was filed against the judgment of Gujarat HighCourt in the writ petition filed challenging the vires of s.5(3) (iii)(a)and s.29A of the Gujarat Provincial Municipal Corporation Act,1949 as well as Rule 4 and 5 of the Bombay Provincial MunicipalCorporations (the Delimitation of Wards in the City and Allocationof Reserved Seats) Rules, 1994 – High Court dismissed the saidpetition noticing that earlier the vires of said sections and Rule 4were upheld by the earlier Division Bench judgment of the HighCourt – The second appeal was filed by State Election Commissionagainst the judgment of High Court in the writ petition challengingthe Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgatedby the Governor of Gujarat by which s.7A of the Gujarat ProvincialMunicipal Corporations Act, 1949, s.8A of Gujarat MunicipalitiesAct, 1963 and s.257 of the Gujarat Panchayats Act, 1993 havebeen substituted – The High Court held that the s.7A of the GPMCAct, s.8A Gujarat Municipalities Act and s.257 of the GujaratPanchayats Act brought by Ordinance No.3 of 2015 wasunconstitutional and the action of the State Election Commissionfor postponement of the election of all local bodies in the State wasillegal – Besides above mentioned two civil appeals, a writ petitionwas also filed challenging the notifications issued by the Governorof Gujarat in exercise of power u/s. 5(3)(iii)(a) of the Act, 1949determining the number of Wards, seats including the seats reservedfor Scheduled Castes, Scheduled Tribes, Backward Classes andwomen in several Provincial Corporations – The two civil appeals

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Aand writ petition are tagged and heard together – Held: Theprovisions of s.5(3) (iii)(a) and s.29A of Act, 1949 and Rule 4 and5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra vires toPart IXA of the Constitution, the Division Bench of the High Courtdid not commit any error in dismissing the writ petition filed by theappellants – Hence, the first civil appeal and Writ Petition areBdismissed – The civil appeal filed by the State Election Commissionis dismissed as having become infructuous as the directions of theDivision Bench to initiate process of holding the election of thelocal bodies was carried out and nothing remains to be decided inthis appeal.C

Constitution of India – Art 243R and 243S – Whether Arts.243R and Art. 243S of the Constitution of India contains anylimitation to the effect that there shall be only one member from oneward – Held: The constitutional provisions of Art. 243R, whichprovides for composition of Municipalities and that of Art. 243ZADdoes not give any indication as to whether from territorialconstituency, i.e., the Wards, whether only one member has to beelected in the Municipality or it can be multiple member constituency– There is no limitation in provision of Art. 243S, which limits theState Legislature for requiring multi-member seats in a Ward – Theonly requirement is that a member of the Municipality representingEa Ward shall be a member of the Ward Committee – Thus,constitutional requirement or limitation engrafted in sub-Article(3)of Art. 243S is that a member of the Municipality representing aWard shall be a member of the Ward Committee, it cannot be readto mean that it mandates that from one Ward more than one members Fcannot be made representatives.

Fcannot be made representatives.

Gujarat Provincial Municipal Corporation Act, 1949 – ss.5(3)(iii)(a), 29A – Bombay Provincial Municipal Corporations (thedelimitation of wards and allocation of reserved seats) Rules, 1994– rr. 4 and 5 – Gujarat Municipal Corporation’s Ward CommitteesGFunctions, Duties, Territorial Areas and Procedure for Transactionof Business Rules, 2007 – r. 2(b) – Whether the provisions ofss. 5(3)(iii)(a), 29A of the Gujarat Provincial Municipal CorporationAct, 1949 and Rules 4 and 5 of Bombay Provincial MunicipalCorporations (the delimitation of wards and allocation of reservedseats) Rules, 1994 and Rule 2(b) of Gujarat Municipal Corporation’sH

Ward Committees Functions, Duties, Territorial Areas and Procedurefor Transaction of Business Rules, 2007 are ultra vires to theprovisions of Articles 243R and 243S of the Constitution? – Held:The composition of Municipality has been dealt separately by Art.243R and for composition of Municipality, the provisions of Art.243S cannot be said to be applicable or intended to provide anylimitation or prohibition with regard to composition of theMunicipalities – The Rule 2(b) of Rules, 2007 which provides forelection of Chairperson, by following which rule, in case of multi-member Ward, Chairperson can be elected, which may apply bothto Art. 243S(4) as well as Rule 2(b) of the Rules, 2007 – Thus,Rules 4 and 5 of Rules, 1994 as well as Rule 2(b) of Rules, 2007does in no manner disobey the mandate of Art. 243S(4), bothcan be complied with without any conflict between the two differentprovisions – Thus, the provisions of s. 5(3)(iii)(a) as well as Rules4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are notinconsistent with provisions of Art. 243R and Art.243S.

The Gujarat Delimitation of Wards and Allocation of ReservedSeats in Municipal Borough Rules, 1994 – Whether having morethan one representative from a Ward negates the empowerment ofweaker sections, i.e. women, Schedule Castes and Schedule Tribes– Held: The Gujarat Delimitation of Wards and Allocation ofReserved Seats in Municipal Borough Rules, 1994 has beenamended by Amendment Rules, 2015 – As per clauses 2 and 3, nowit is 4 member Ward, 2 seats are to be reserved for women includingseats reserved for women belonging to Scheduled Castes, ScheduledTribes and Back Ward Classes – The entire purpose and object ofreserving seats for weaker sections is to empower the weakersections, i.e., women, Scheduled Castes and Scheduled Tribes, whenthere are more numbers are reserved for weaker sections theirparticipation in municipality is bound to increase giving strengthto their voice and effective participation which is nothing butempowerment of weaker sections – By the Rules, 1994 as amendedin 2015 now the voice of weaker sections can be felt from everyWard which clearly enhances of presence and participation ofweaker sections does not in any manner, negate the empowermentof weaker sections.

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92SUPREME COURT REPORTSADisposing of the appeals, this Court HELD: 1. Both these questions being interrelated are beingtaken together:

i. Whether Article 243R and Article 243S of the Constitution of India contains any limitation to the effectthatthereshallbeBonlyonememberfromone Ward?

ii. Whether the provisions of Sections 5(3)(iii)(a), 29AoftheGujaratProvincialMunicipalCorporationsAct, 1949 and-Rules 4 and 5 of Bombay Provincial Municipal Corporations(the delimitation of wards andallocation of reserved seats) Rules,C’1994 and Rule2(b) of Gujarat Municipal Corporations WardCommittees Functions, Duties, Territorial Areas and ProcedureforTransactionofBusinessRules,2007areultravirustotheprovisionsofArticles243Rand 243SoftheConstitution?

Article 245, which deals with distribution of legislativeDpowers, begins with the words “subject to the provisions of thisConstitution”. Thus, laws made by the Parliament and by theLegislature of the State, have to be subject to the provisions ofthe Constitution. Article 246 deals with subject-matter of thelaws made by the Parliament and by the Legislature of the State.EReading Articles 245 and 246 together, it is abundantly clear thatthe legislative power to be exercised by the Parliament and theState Legislatures as enumerated in List I, List II and List IIIof Seventh Schedule are subject to the provisions of theConstitution. Thus, when the Constitution expressly or impliedlycontains a limitation in exercise of legislative power, the legislativeFpower is subject to such Constitution limitations. For example,Article 13(2) contains a limitation that State shall not make anylaw which takes away or abridges the rights conferred by Part IIIand any law made in contravention of this clause shall, to theextent of the contravention, be void. [Paras 22, 32, 33][108-A-C;G111-G-H; 112-B-D]

2. Article 243ZF provides that any law relating tomunicipalities in force in a State immediately before thecommencement of the Constitution (Seventy-fourth Amendment)Act, 1992, which is inconsistent with the provisions of Part IXA,shall not continue beyond expiration of one year fromH

commencement of the constitutional amendment. Thus, Part IXAof the Constitution categorically contemplated that any law madeby State Legislature, which is inconsistent with the provisions ofPart IXA shall cease to operate on the expiration of one year ortill amended or repealed by a competent Legislature, whicheveris earlier. The Constitution provisions, thus, mandates that anylaw of the State, which is inconsistent, cannot continue. Thus,this limitation shall also govern any law made after enforcementof Constitution (Seventy-fourth Amendment) Act. Thus, a law,which is inconsistent with Part IXA cannot be framed by the StateLegislature. [Para 36][113-H; 114-A-C]

3. One of the meanings of expression “inconsistent” asapproved by this Court is mutually repugnant or contradictory.Article 254 of the Constitution contains a heading “inconsistencybetween laws made by the Parliament and the laws made by theLegislature of the State” whereas under Article 254(1) and Article254(2) the words used are repugnant. The Constitution itself,thus, has used the words inconsistency and repugnancyinterchangeably. To find out as to whether a law made by StateLegislature is inconsistent with provisions of Part IXA of theConstitution, the principles which have been laid down by thisCourt to determine the repugnancy between the law made bythe Legislature of a State and law made by Parliament can beprofitably relied on. This Court, thus, need to notice the principleson which the repugnancy of law made by State and law made bythe Parliament is found out. [Para 38][114-E-G]

4. The Constitution of India is a paramount law to which allother laws are subject. One of the important tests to find out asto whether or not there is repugnancy is to ascertain the intentionof the Legislature regarding the fact that the dominant Legislatureallowed the subordinate Legislature to operate in the same fieldparipasu the State Act and there will be no inconsistency whenthe State Act and Central Act are supplemental to each other.Things are inconsistent when they cannot stand together at thesame time and one law is inconsistent with another law, when thecommand or power or provision in the law conflicts directly withthe command or power or provision in the other law. While AB

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Alegislating on a particular subject matter, the paramountLegislature may evince the intention to cover only certain specificmatters leaving it to the State Legislature to deal with the rest.One more preposition need to be noticed is that there is alwaysa presumption that Legislature does not exceed its jurisdictionand Court should make every attempt to reconcile the provisionsBof apparently conflicting enactment. [Para 39] [114-H; 115-A-C]

5. Sub-article(1) of Article 243R contains two constitutionalrequirements:- (i) all the seats in a Municipality shall be filled bypersons chosen by direct election and (ii) from the territorialCconstituencies in the Municipal area and for this purpose eachMunicipal area shall be divided into territorial constituencies tobe known as wards. Sub-article (2) of Article 243R provided forthe representation in a municipality of four categories of personswhich is a constitutional requirement required to be adopted byState Legislature. It may be noted that sub-article (2) of ArticleD243R does not deal with seats in the Municipalities, which shallbe filed up by persons chosen by direct election. Article 243ZAdeals with elections to the Municipalities, thus, direct election,as contemplated under Article 243R has to be as per Article243ZA. [Para 49][119-F-H]

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6. Thus, the Legislature of a State may by lay has to provideall matters relating to or in connection with election to theMunicipalities, which includes filling of the seats in theMunicipality by person chosen by direct election. Articles 243Rand 243ZA does not give any indication as to whether fromFterritorial constituency, i.e., the Wards, whether only one memberhas to be elected in the Municipality or it can be multiple memberconstituency. The constitutional provisions of Article 243R, whichprovides for composition of Municipalities and that of Article243ZA does not give any indication to the above. The provisionsof Article 243ZG, which deals with bar to interference by courtsGin electoral matters throws some light. Article 243ZG(a) usedtwo expressions: “any law relating to the delimitation ofconstituencies or the allotment of seats to such constituencies”may be read as allotment of more than one seat to oneconstituency but it can be said that the above provision also do H

not provide that in one constituency, there may be more thanone seats. Article 243S deals with Constitution and Compositionof Wards Committees. [Paras 50, 51, 52][120-B-D, F-G]

7. When carefully analysed the extent and purpose of Article243S, this court does not find any such limitation in provision ofArticle 243S, which limits the State Legislature for requiringmulti-member seats in a Ward. Reverting to sub-article (3) ofArticle 243S, the requirement is that a member of the Municipalityrepresenting a Ward shall be a member of the Ward Committee.Thus, constitutional requirement or limitation engrafted in sub-article(3) is that a member of the Municipality representing aWard shall be a member of the Ward Committee. The provisionof Article 243S(3) is not a provision regarding composition ofMunicipality rather the provision is for constitution andcomposition of Wards Committee. In Wards Committee, amember representing a Ward in Municipality has to be themember. Sub-article(3) of Article 243S cannot be read to meanthat it mandates that from one Ward more than one memberscannot be made representatives. In cases, where there are morethan one member from one Ward all will become the member ofthe Committee. When all the members of the Municipalityrepresenting a Ward are members of the Committee, there is nobreach of Article 243S(3). [Para 53][121-G-H; 122-A-C]

8. This court may now examine, if there are multi-membersin one ward, whether Constitutional provisions of Article 243S(4)are breached when Chairperson is to be elected. The requirementis that member representing the Ward shall be the Chairpersonof the Committee and if there are more than one members andone member out of multi-member Ward is elected as Chairperson,the provision of Article 243S(4) shall be applied. When theconstitutional provisions under Article 243S(4)(a) does notprovide for election for electing Chairperson in case of a multi-member Ward, the same is supplemented by the State legislation.In the present case, this court noticed that Rule 2(b) of Rules,2007, which provides that Chairperson of a Ward Committee isthe person elected by the members of the Wards Committee.

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AThe Rule, thus, contemplate an election of Chairperson amongstthe members of the Wards Committee, which shall also beapplicable in a case where there are more than one membersfrom one Ward. When out of multiple members in a Ward, onemember is elected as Chairperson, the mandate of Article243S(4)(a) is complied with. The requirement is that memberBrepresenting the ward in the Municipality shall be theChairperson. The above provision cannot be read in providingany prohibition or limitation that in one Ward, there cannot bemore than one member. The composition of Municipality has beendealt separately by Article 243R and for composition ofCMunicipality, the provisions of Article 243S cannot be said to beapplicable or intended to provide any limitation or prohibitionwith regard to composition of the Municipalities. The Rule 2(b)of Rules, 2007 which provides for election of Chairperson, byfollowing which rule, in case of multi-member Ward, Chairpersoncan be elected, which may apply both to Article 243S(4) as wellDas Rule 2(b) of the Rules, 2007. Thus, Rules 4 and 5 of Rules,1994 as well as Rule 2(b) of Rules, 2007 does in no mannerdisobey the mandate of Article 243S(4), both can be compliedwith without any conflict between the two different provisions.This Court, thus, come to the conclusion that provisions ofESection 5(3)(iii)(a) as well as Rules 4 and 5 of Rules, 1994 andRule 2(b) of Rules, 2007 are not inconsistent with provisions ofArticle 243S. [Para 55][122-F-G; 123-A-D]

9. This Court has analyzed the provisions of Article 243R,243S and have come to the definite conclusion that no limitationFin Article 243S can be found of which contains any prohibition ofhaving more than one member for a Ward. When the StateLegislature has been given preliminary power of legislation withregard to composition of the Municipalities, there has to beexpress or implied limitation, which may prohibit the StateLegislature to make a law providing for multi-member Ward.G[Paras 59, 61][125-E-F; 126-F-G]

10. This Court, in the present case, after analysing therelevant provisions of Part IXA of the Constitution has come tothe conclusion that there is no prohibition or limitation in PartIXA of the Constitution prohibiting the State Legislature fromH

PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATEOF GUJARAT & ORS.

making a law providing for election of more than one memberfrom one territorial constituency, i.e., Ward. This Court, thus,answer Question Nos. i and ii in following manner:-

(1) Article 243R and 243S of the Constitution of In dia doesnot contain any limitation to the effect that there shall be onlyone member from one Ward.

(2) Provisions of Section 5(3)(iii)(a) and Section 29A of theAct, 1949 and Rules 4 and 5 of the Rules, 1994 and Rule 2(b) ofRules, 2007 are not ultra vires to the provisions of Articles 243Rand 243S of the Constitution.[Para 63][127-D-F]

iii) Whether having more than one representative from aWardnegatestheempowermentofweakersections, i.e.,women,ScheduledCastesandScheduledTribes?

11. The entire purpose and object of reserving seats forweaker sections is to empower the weaker sections, i.e., women,Scheduled Castes and Scheduled Tribes, when there are morenumbers are reserved for weaker sections their participation inmunicipality is bound to increase giving strength to their voiceand effective participation which is nothing but empowerment ofweaker sections. This court is not able to subscribe to thesubmission that when there are only one representation fromone Ward only then empowerment of weaker sections can be made.By the Rules, 1994 as amended in 2015 now the voice of weakersections can be felt from every Ward which clearly enhances ofpresence and participation of weaker sections and does not, inany manner, negate the empowerment of weaker sections. ThisCourt, thus, do not find any substance in the above submission.This Court answer Question No.iii) in the following manner:Having more than one representation from a Ward in no mannernegates the empowerment of weaker sections rather it increasesthe empowerment of weaker sections. [Paras 69, 70][129-G-H;130-A-C]

iv) Whether when the draft rules for amendment of BombayProvincial Municipal Corporations (the delimitationof wards andallocation of reserved seats) Rules,1994 were issued on27.11.2014 which were to be published after noting of objections AB

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Aon or expiry ofthirty days, the State Government could haveissuednotificationdated04.12.2014beforeexpiryofthirtydays?

12. A perusal of the above notification indicates that thesaid notification was a draft notification to amend the Delimitationof Wards and Allocation of Reserved Seats (Amendment) Rules,B2014 wherein Rule 4, for the word “three”, the word “four” wassought to be substituted. The notification dated 04.12.2014 hasbeen issued in exercise of powers conferred by sub-clause (a) ofclause (iii) of sub-section (3) of Section 5 of Act, 1949. A bareperusal of the notification dated 04.12.2014 indicates that thesaid notification is not in reference to the notification datedC27.11.2014 rather the said notification was issued regardingdetermination of number of Wards and Councillors’ seatsreserved for Scheduled Castes and Scheduled Tribes and women.Thus, the argument that notification dated 04.12.2014 issuedbefore expiry of 30 days is wholly misconceived. The appellantsDthemselves have brought on record a notification dated 15.01.2015as Annexured to the paper book which is the notification issuedin reference to the notification dated 27.11.2014. [Paras 72, 73and 74][132-C-D; 134-B-C]

13. Thus, in reference to notification dated 27.11.2014, theEnotification was issued on 15.01.2015, Rules, namely, BombayProvincial Municipal Corporation (Delimitation of Wards in theCity and Allocation of Reserved Seats) (Amendment) Rules, 2015were issued which specifically mentioned that objections andsuggestions in pursuance of draft have been considered by theGovernment. Thus, this court does not find any infirmity in theFabove notification.[Para 75][134-G-H]Civil Appeal (arising out of SLP(C)No.30635 of 2015-StateElection Commission vs. Virendrasinh Mafaji Vaghela &Ors.)

15. The appeal has been filed against the Division BenchGjudgment of the Gujarat High Court dated 21.10.2015 by whichwrit petition filed by the respondents was allowed. The High Courtfound the Ordinance No.3 of 2015 as unconstitutional and void.The action of the State Election Commission for postponementof the election of all local bodies in the State was held to be illegaland set aside. The State Election Commission was directed toH

initiate process of holding the election of the local bodiesforthwith. In pursuance of the Division Bench judgment of theHigh Court dated 21.10.2015 Elections for the local bodies wereheld in November/December, 2015. The direction of the DivisionBench dated 21.10.2015 having been carried out nothing remainsto be decided in this appeal. The tenure of the Local Bodyconstituted in pursuance of the impugned direction of the HighCourt dated 21.10.2015 having come to end, this Court see nonecessity to enter into issue raised in this appeal. Thus, theappeal is dismissed as having become infructuous. [Para 78][135-D-F]

Ch. Tika Ramji and Others, etc. v. The State of UttarPradesh and Others, AIR 1956 SC 676 : [1956] SCR393; Maharaj Umeg Singh and Ors. v. State of Bombayand Ors., AIR 1955 SC 540 : [1955] SCR 164; JindalStainless Limited and Anr. v. State of Haryana and Ors.,(2017) 12 SCC 1 : [2016] 10 SCR 1; Deep Chand andOrs. v. The State of Uttar Pradesh and Ors., AIR 1959SC 648 : [1959] Suppl. SCR 8; M. KarunanidhiVs.Union of India and Anr., (1979) 3 SCC 431 : [1979]3 SCR 254; K.T. Plantation Private Limited and Anr.Vs. State of Karanataka, (2011) 9 SCC 1 : [2011] 13SCR 636 – followed.

Basti Sugar Mills Co. Ltd. v. State of Uttar Pradesh andAnr., (1979) 2 SCC 88 : [1979] 1 SCR 590; M/s. RamChandra Mawa Lal, Varanasi and Ors. v. State of UttarPradesh and Ors., (1984) Suppl. SCC 28 : [1984] SCR348 – relied on.

Manoj Narula v. Union of India, (2014) 9 SCC 1 :[2014] 9 SCR 965; Chief Justice of Andhra Pradeshand Others v. L.V.A. Dixitulu and Ors., (1979) 2 SCC34 : [1979] 1 SCR 26; M.T. Khan and Ors. v. Govt. ofA.P. and Ors., (2004) 2 SCC 267 : [2004] 1 SCR 117;Karnataka Bank Ltd. v. State of Andhra Pradesh andOrs., (2008) 2 SCC 254 : [2008] 1 SCR 986;Kasambhai F. Ghanchi v. Chandubhai D. Rajput andOthers, (1998) 1 SCC 285 : [1997] 5 Suppl. SCR 401– referred to.

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APankajsinh Waghela v. State Election Commissionthrough Election Commissioner & Others (Special CivilApplication No.12084 of 2015) – referred to.

Case Law Reference

From the Judgment and Order dated 29.07.2015 of the High Courtof Gujarat at Ahmedabad in Special Civil Application No. 12084 of 2015.F

With

Civil Appeal No. 707 of 2021

With

Writ Petition (Civil) No. 786 of 2020G

Tushar Mehta, SG Kapil Sibal, Harin P. Raval, Maninder Singh,Ms. Manisha Lavkumar, Sr. Advs. Anirudh Sharma, Abhaid Parikh,Sameer Sawarn, Kartikeya Kanojiya, Ms. Sukanya Singh, Alio Joseph,Anando Mukherjee, Shwetank Singh, Koshy John, Ms. Ranjeeta Rohatgi,Prabhas Bajaj, Ms. Samten Doma, Aniruddha P. Mayee, Ms. AasthaH

PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATEOF GUJARAT & ORS.

Mehta, Kanu Agarwal, Maulik Nanavati, Ms. Deepanwita Priyanka,M/S. A P & J Chambers, Ms. Jesal Wahi, Ms. Hemantika Wahi, Advs.for the appearing parties.

The Judgment of the Court was delivered by ASHOK BHUSHAN, J.

1. Leave granted.

2. The civil appeals and writ petition, being tagged, all three mattershave been heard together.

3. We need to notice the facts and pleadings in the first matter,i.e., Civil Appeal (arising out of SLP(C)No. 24950 of 2015-ParmarSamantsinh Umedsinh vs. State of Gujarat & Ors.). The abovesaidappeal has been filed against the judgment of Gujarat High Court dated29.07.2015 in Special Civil Application No.12084 of 2015 dismissing thewrit petition following an earlier Division Bench judgment dated 13.08.2010in Pankajsinh Waghela v. State Election Commission throughElection Commissioner & others. The writ petition was filed by theappellant herein challenging the vires of Section 5(3)(iii)(a) and Section29A of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafterreferred to as “Act, 1949”) and other statutory provisions including Rulesframed thereunder and the notifications. In the writ petition followingreliefs were claimed:

“(A) Issue a writ of declaration, declaring that:

a) Section 5(3)(iii)(a) and 29A of the Gujarat Provincial MunicipalCorporation Act, 1949 and

b) Sections 2 and 3 of the Gujarat Local Authorities Laws(Amendment) Act, 2009 as being ultra vires the Constitution ofIndia as it violates one member one ward mandate.

(B) Issue a writ of declaration, declaring that Rule 4 and Rule 5of the Bombay Provincial Municipal Corporation (Delimittaion ofWards in the City and Allocations of Reserved Seats) Rules, 1994(including amendment of 2015) as being ultra vires the Constitutionof India.

(C) Issue a writ of declaration, declaring Notification No.KV-194of 2014-ELE-102014-17010P dated 04.12.2014 as well as otherNotification dated 15.01.2015 issued by State of Gujarat as ultra A

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Avires the Constitution of India and/or Gujarat Local AuthoritiesLaws (Amendment)Act, 2009 and/or Gujarat Provincial MunicipalCorporation Act, 1949.

(D) Quash and set aside the order dated 11.12.2014 passed bythe State Election Commission under Section 5(3)(iii)(b) of theBGujarat Provincial Municipal Corporation Act, 1949.

(E) Pending admission, hearing and final hearing, be pleased tostay Notification No.KV-194 of 2014-ELE-102014-1701-P dated04.12.2014 issued by the State of Gujarat as well as order dated11.12.2014 passed by the State Election Commission under SectionC5(3)(iii)(b) of the Gujarat Provincial Municipal Corporation Act,1949.

(F) Pending admission, hearing and final hearing, be pleased tostay the election process for the election due in October 2015 forMunicipality in the State of Gujarat.

D(G) Costs.

(H) Such other and further relief or relieves as may be deem fit,just and proper, in the facts and circumstances of the case.”

4. The Division Bench of the High Court dismissed the writ petitionnoticing that earlier the vires of Section 5(3)(iii)(a) and Sections 29A(2)(a)Eand 29A(3)(a) of the Act, 1949 as well as Rule 4 of the Bombay ProvincialMunicipal Corporations (the Delimitation of Wards in the City andAllocation of Reserved Seats) Rules, 1994 were challenged and wereupheld and the issues in the writ petition being covered by the earlierDivision Bench judgment of the High Court in the case of PankajsinhFWaghela v. State Election Commission and others, the writ petitionis to be dismissed.

5. Aggrieved against the judgment of the Division Bench dated29.07.2015 Civil Appeal (arising out of SLP(C)No.24950 of 2015) hasbeen filed.

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6. The Civil Appeal (arising out of SLP(C)No.30635 of 2015) hasbeen filed against the Division Bench judgment of the High Court dated21.10.2015 by which judgment Special Civil Application No.16313 of2015 filed by the respondents has been allowed. In the writ petitionClauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated by the H

Governor of Gujarat were under challenge. A mandamus was also soughtseeking a direction to the State Election Commission to declare the datesof holding Elections of Panchayats in the State of Gujarat forthwith. On03.10.2015 on the same date when Ordinance No.3 of 2015 was issuedby which Section 7A of the Gujarat Provincial Municipal CorporationsAct, 1949, Section 8A of Gujarat Municipalities Act, 1963 and Section257 of the Gujarat Panchayats Act, 1993 have been substituted an orderwas issued by the State Election Commission that the Elections of 6Municipal Corporations, 53 Municipalities, 3 newly constitutedMunipalities, 23 Taluka Panchayats and 31 District Panchayats whichwere to be held in October/November, 2015 were decided not to be heldat present. The Division Bench had disposed of the writ petition byrecording its conclusion in paragraph 72 which was to the followingeffect:

“72.In view of the above observations and discussions, the followingconclusions:- (a) Section 15(1) of the Gujarat Panchayats Act inserted byOrdinance No.2 of 2015 is read down in a manner that the ElectionCommissioner must initiate the process of election at least 45days prior to the expiry of the term of the respective Panchayatsso as to enable the newly elected body to hold the first meetingand assume the power by replacing the outgoing elected body. IfSection 15(1) is not interpreted and read accordingly, Section 15(1)would unconstitutional and void.

If there is failure on the part of the State Election Commission toinitiate the process for elections 45 days in advance, any citizenaffected thereby would be at liberty to approach this Court underArticle 226 of the Constitution for seeking appropriate directionagainst the State Election Commission.

(b) Section 7A of the GPMC Act, Section 8A of Page 86 of 89Downloaded on : Sat Feb 20 15:44:28 IST 2021 C/SCA/16313/2015 CAV JUDGMENT Municipalities Act and Section 257 ofthe Act brought about by Ordinance No.3 of 2015 are held to beunconstitutional and void.

(c) The action of the State Election Commission for postponementof the election of all local bodies in the State is held to be illegaland is set aside. Respondent No.2 Election Commission is directed A

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[2021] 13 S.C.R.

Ato initiate process of holding the election of the local bodiesforthwith.

Respondent No.1 State Government is directed to render allcooperation and assistance, including providing necessary policeforce and reserved force or any other force as may be requisitionedBby the Election Commission for ensuring the election at the earliestin a free and fair atmosphere.”

7. The State Election Commission aggrieved by the judgment ofthe High Court has come up in this appeal.

8. Writ Petition(C)No.786 of 2020 has been filed challenging theCnotifications dated 08.07.2020 issued by the Governor of Gujarat inexercise of power under Section 5(3)(iii)(a) of the Act, 1949 determiningthe number of Wards, seats including the seats reserved for ScheduledCastes, Scheduled Tribes, Backward Classes and women of VadodaraProvincial Corporation, Ahmedabad Provincial Corporation, BhavnagarDProvincial Corporation, Ghandhinagar Provincial Corporation, JamnagarProvincial Corporation, Rajkot Provincial Corporation and Surat ProvincialCorporation. Writ order or declaration declaring Section 5(3)(iii)(a) and29A of Act, 1949 as unconstitutional was also prayed for. Section5(3)(iii)(a) and 29A, Rule 4 and Rule 5 of Rules, 1994 as amended in2015 has also been challenged. Notification dated 04.12.2015 as well asE15.01.2015 was also sought to be challenged including challenge toSections 2 and 3 of the Gujarat Local Authorities Laws (Amendment)Act, 2009. By order of this Court dated 25.08.2020 the writ petition hasbeen tagged with Civil Appeal arising out of SLP(C) No.24950/2015.

9. We have heard Shri Kapil Sibal, learned senior counsel andFShri Harin P. Raval, learned senior counsel appearing in the first appealand writ petition for the appellants and petitioner.

10. We have heard Shri Maninder Singh, learned senior counselappearing for the appellant in the appeal filed by the State ElectionCommission. Shri Tushar Mehta, learned Solicitor General andGMs. Manisha Lavkumar, learned senior counsel have been heard for theState of Gujarat.

11. Shri Kapil Sibal has led the arguments on behalf of theappellants in the first matter. Referring to provisions of Article 243R and243S of the Constitution of India, Shri Sibal submits that the constitutionalH

scheme does not permit multi member representation from a Ward inthe Municipal Corporation/Municipality. Shri Sibal submits that Article243S sub-clause (3) and sub-clause (4) uses expression “a member andthe member”, which indicates that from one Ward there can only be onemember in the Municipality. Similarly, Section 29A sub-clause 2 of theAct, 1949 is inconsistent with Article 243S of the Constitution. He submitsthat Article 243R does not contemplate/mandate a multi member Ward.

12. Shri Sibal submits that in the case of Lok Sabha it is rule ofelection of one Member of Parliament is to be from one unit ofrepresentation from one constituency. Similarly, is the case of VidhanSabha only one member is to be elected from one constituency. It issubmitted that Article 243S of the Constitution mandates that only onemember be elected from one Ward and it does not allow for more thanone member to be elected from the same Ward and the impugnedprovisions and notifications are in contravention of this cardinalconstitutional principle enshrined in Article 243S of the Constitution. It issubmitted that the election to a Municipal Corporation ought to beconducted in the same manner as State Legislative Assembly, whereindifferent constituencies are represented by one member and no more.Further, Article 243R cannot be interpreted to give wide, unguided anduncontrolled powers to the State Legislature ignoring other Constitutionalprovisions enshrined in the Constitution of India. The State Legislatureis empowered to make laws with regard to representation in aMunicipality and also composition and territorial area of WardsCommittees and the manner in which the seats are to be filled. However,in its exercise of legislative powers, the State Legislature cannot makelaws violative of the Constitutional principles and mandate.

13. Shri Sibal submits that there has to be thematic consistencywhile interpreting the provisions of Part IXA of the Constitution. Thethematic flow of the Constitution is of election of only one member fromone Ward constituency/unit of representation. Multi memberrepresentation from a Ward is against the principle of empowerment ofdown-trodden and woman. One member Ward enables exclusiverepresentation of the women/other backward classes/Scheduled Castes/Scheduled Tribes resulting therein empowerment which cannot beachieved by a multi member Ward. Shri Sibal further submits that aholistic schematic interpretation of the Constitution has to be advanced.Shri Sibal submits that words occurring in the Constitution should be AB

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Aread in their ordinary, natural and grammatical meaning. Wordings ofArticle 243S(4) would mean adding words to the plain language andintent to Article 243S(4) of the Constitution of India.

14. It is submitted that singular cannot be read plural in Article243S. Applicability of the General Clauses Act is restricted to theBinterpretation of the Constitution of India by Article 367 itself. One ofthe submissions of Shri Sibal is that Draft Rules for Amendment ofDelimitation Rules, 1994 were issued on 27.11.2014 inviting objectionswithin 30 days of the publication of Draft Rules, 1994. However, beforeexpiry of 30 days notification was issued on 04.12.2014 which is not inaccordance with law.C

15. Shri Sibal submits that the Municipal Laws which are prevalentin 28 States provide for one representation from one Ward whereasMunicipal Laws in Gujarat provide for multi member Ward. It is submittedthat in the Municipal Laws of Bombay which provide for multi memberWard now in 2019 it has reverted back to one member representation.D

16. Shri Harin P. Raval adopting the arguments of Shri Kapil Sibalsubmits that if the words are clear Rule of literal interpretation shallapply. He submits that Section 29A of Act, 1949 is inconsistent withArticle 243S of the Constitution. Shri Raval further submits that withoutreference to notification dated 27.11.2014, the notification datedE04.12.2014 was published which is a colourable exercise of power.

17. Shri Tushar Mehta, learned Solicitor General submits that inGujarat there were always multi member Wards. Shri Mehta submitsthat an Act can be challenged on the grounds of (1) substantive ultravires, i.e, competence; (2) procedural ultra vires; (3) ultra vires andFarbitrariness and (4) runs contrary to the constitutional provisions. Hesubmits that under Entry 5 List II of Seventh Schedule of the Constitution,“the State Legislature is competent to legislate local on Governments.Shri Tushar Mehta submits that the expression “the member” used insub-clause (4) of Article 243S is used in reference to the Chairperson.GArticle 243S does not contain any provision that there shall be only onemember for one Ward. He submits that Article 243S deals with constitutionand composition of Wards Committees and the provisions therein haveto be confined to constitution and composition of Wards Committeesand cannot be read in reference to constitution and composition of aMunicipality. He submits that the constitutional provision of Article 243THcontemplates reservation of seats for the Scheduled Castes and the

Scheduled Tribes has to be seat wise and not Ward wise. Reservation of50% is the object of empowering the women. Increase of seats forreserved category is a step towards empowering the SC/ST and theseprovisions cannot be read, in any manner, to hamper the empowermentof women, SC/ST. By the amendments made in 2015 in each Ward twoseats are to be reserved for women which is with the intent and purposeof empowerment of women and increasing women representation in aMunicipality.

18. Elaborating on Article 243R, Shri Mehta submits that it is Article243R which provides for composition of Municipalities and there is noprohibition in the constitutional provision in providing representation ofmore than one member from one Ward. In interpretation of provision ofthe Constitution by virtue of Article 357 of the Constitution a singularcan also be read as plural. He submits that Constitution does not providefor any thematic mode and manner, the election to Lok Sabha and RajyaSabha is entirely different. In Lok Sabha members are elected by directElection whereas in Rajya Sabha members are elected by indirect Election.There is complete different mode of election of President of India. Evenin Parliament there is no thematic schematic.

19. The power of competent Legislature, i.e., State Legislature inthe light of enabling provisions provided in the Constitution with regardto framing of laws concerning Legislature cannot be whittled down byway of restrictive interpretation as contended by the appellants. TheState Legislature in federal set up specially in the matter of localGovernment are to enable enough seats to adopt the reservation basedon local body.

20. The overarching scheme of Article 243D and 243T is to ensurethe fair representation of social diversity in the composition of electedlocal bodies so as to contribute to the empowerment of the traditionalweaker sections in Society. The preferred means for pursuing this policyis the reservation of seats and Chairperson positions in favour of SC/ST,women and Backward Class candidates.

21. Learned counsel for the parties have also placed reliance onvarious judgments of this Court which shall be referred while consideringthe submission in detail.

22. From the submissions of the learned counsel for the partiesfollowing questions arise for consideration:

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A(1) Whether Article 243R and Article 243S of the Constitution ofIndia contains any limitation to the effect that there shall beonly one member from one Ward?

(2) Whether the provisions of Sections 5(3)(iii)(a), 29A of theGujarat Provincial Municipal Corporations Act, 1949 and RulesB4 and 5 of Bombay Provincial Municipal Corporations (thedelimitation of wards and allocation of reserved seats) Rules,1994 and Rule 2(b) of Gujarat Municipal Corporation’s WardCommittees Functions, Duties, Territorial Areas andProcedure for Transaction of Business Rules, 2007 are ultravirus to the provisions of Articles 243R and 243S of theCConstitution?

(3) Whether having more than one representative from a Wardnegates the empowerment of weaker sections, i.e., women,Scheduled Castes and Scheduled Tribes?

D(4) Whether when the draft rules for amendment of BombayProvincial Municipal Corporations (the delimitation of wardsand allocation of reserved seats) Rules, 1994 were issued on27.11.2014 which were to be published after noting ofobjections on or expiry of thirty days, the State Governmentcould have issued notification dated 04.12.2014 before expiryEof thirty days?

Question Nos. 1 and 2

23. Both these questions being interrelated are being taken together.We need to first notice the relevant constitutional as well as statutoryFprovisions which are up for consideration before us. The provisions ofthe Gujarat Provincial Municipal Corporations Act, 1949 and the rulesframed thereunder are under challenge. The Legislation under challengeis referable to Entry 5 of List II, i.e., State List under Seventh Scheduleof the Constitution. Entry 5 is as follows:- “5. Local government, that is to say, the constitution and powersGof municipal corporations, improvement trusts, districts boards,mining settlement authorities and other local authorities for thepurpose of local self-government or village administration.”

24. By Constitution (Seventy-fourth Amendment) Act, 1992, PartIXA “The Municipalities” have been inserted in the Constitution of India.H

Bill No.159 of 1991 was introduced in the Lok Sabha for inserting newPart IXA. The Bill, which was published in the gazette on 16.09.1991,contains the Statement of Objects and Reasons for insertion of PartIXA in the Constitution. Paragraph 3(b) of the Statement of Objectsand Reasons provides as follows:- “3. XXXXXXXXXXXXX

b) composition of Municipalities, which will be decided by theLegislature of a State, having the following features:

(i) persons to be chosen by direct election;

(ii) representation of Chairpersons of Committees, if any, at wardor other levels in the Municipalities;

(iii) representation of persons having special knowledge orexperience of Municipal Administration in Municipalities (withoutvoting rights); XXXXXXXXXXXXXXXX”

25. The provisions of Part IXA of the Constitution, which arerelevant for the present case are Articles 243P, 243R, 243S, 243ZA and243ZG, which shall be noticed hereinafter. The appellant has also laidchallenge to Section 5(3)(iii) sub-clause(a) of the Act, 1949, which is tothe following effect:- “5. XXXXXXXXXXXXXXXXXXXX

(3) Where general election is to be held immediately after,—

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(iii) the limits of a City are altered,—

(a) the State Government shall, by notification in the Officialgazette, determine the number of wards into which the City shallbe divided, the number of councillors to be elected to theCorporation and the number of seats to be reserved in favour ofthe Scheduled Castes, the Scheduled Tribes, the Backward Classesand Women as provided in this section, and

XXXXXXXXXXXXXXXXXXXX”

26. Section 29A of the Act, 1949, which is also under challenge, isto the following effect:-

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“29A. Composition of Wards Committee.-(1) Wherethe population of the City is three lakhs or more, there shall beconstituted by the Municipal Corporation, Subject to the rules madeby the State Government Wards Committee or Committeesconsisting of one or more wards within the territorial area of aCorporation.

(2) Each Wards Committee shall consist of –

(a) Councillors of the Corporation representing a wardwithin the territorial area of the Ward Committee; [ * * * * * * * * *]:

Provided that a person shall be disqualified for beingappointed, and for being a member of the Wards Committee, ifunder the provisions of this Act or any other law for the timebeing in force, he would be disqualified for being elected as, andfor being, a councillor.

(3) The Wards Committee shall at its first meeting after itsconstitution under subsection (1) and at its first meeting in thesame month in each succeeding year shall elect,- where the Wards Committee consists of- (a) one ward, the Councillor representing that ward inthe Corporation; or (b) two or more wards, one of the Councillorsrepresenting such wards in the Corporation elected by themembers of the Wards Committee, to be the Chairperson ofthat Committee.

XXXXXXXXXXXXXXXX”

27. Rules 4 and 5 of Bombay Provincial Municipal Corporations(the Delimitation of wards in the city and allocation of Reserved Seats)Rules, 1994, as it existed prior to 2015 amendment are as follows:- “4. All wards shall be multi-member wards with threecouncilors to be elected from each ward.

5. In each and every ward one seat shall be reserved forwomen (including seats to be reserved for women belonging toScheduled Castes, Scheduled Tribes and Backward Classes) and one seat shall remain unreserved. The remaining third seat maybe reserved, depending upon the requirement of reservation asnotified by the State Government under Section 5 of the said Act.”

28. Another rule challenged before us is the Gujarat MunicipalWards Committees Functions, Duties, Territorial Areas and Procedurefor Transaction of Business Rules, 2007. Rule 2(b) provides:- “2(b) “Chairperson” means the persons elected by themembers of the Wards Committee as the Chairperson of thatCommittee;”

29. The notifications issued in exercise of powers under Section5(3) as well as the Rules, 1994 have also been challenged. The ambitand scope of legislative power of the State being under consideration,we need to first notice the rules of interpretation of a legislative entry.

30. It is well settled that legislative entries as contained in Listsunder Seventh Schedule of the Constitution have not to be read in anarrow or restricted manner and each general word occurring in theentries should be held to extend to all ancillary or subsidiary matters,which can fairly and reasonably be said to be comprehended in it. Inconstruing an entry in a List conferring legislative power, the widestpossible construction according to their ordinary meaning must be putupon the words used therein.

31. We may refer to the Constitution Bench judgment of this Courtin Ch. Tika Ramji and Others, etc. Vs. The State of Uttar Pradeshand Others, AIR 1956 SC 676 where the principles for interpretationof a legislative entry has been enumerated in following words:-

“Each entry in the Lists which is a category or head of thesubject-matter of legislation must be construed not in a narrow orrestricted sense but as widely as possible so as to extend to allancillary or subsidiary matters which can fairly and reasonably besaid to be comprehended in it………………”

32. Article 245, which deals with distribution of legislative powers,begins with the words “subject to the provisions of this Constitution”.Thus, laws made by the Parliament and by the Legislature of the State,have to be subject to the provisions of the Constitution. Article 245(1) isas follows:- A

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112SUPREME COURT REPORTS

“245. Extent of laws made by Parliament and by theLegislatures of States.-(1) Subject to the provisions of thisConstitution, Parliament may make laws for the whole or anypart of the territory of India, and the Legislature of a State maymake laws for the whole or any part of the State.”

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B33. Article 246 deals with subject-matter of the laws made by theParliament and by the Legislature of the State. Reading Articles 245and 246 together, it is abundantly clear that the legislative power to beexercised by the Parliament and the State Legislatures as enumeratedin List I, List II and List III of Seventh Schedule are subject to theprovisions of the Constitution. Thus, when the Constitution expressly orCimpliedly contains a limitation in exercise of legislative power, the legislativepower is subject to such Constitution limitations. For example, Article13(2) contains a limitation that State shall not make any law which takesaway or abridges the rights conferred by Part III and any law made incontravention of this clause shall, to the extent of the contravention, beDvoid. A Constitution Bench of this Court in Maharaj Umeg Singh andOrs. Vs. State of Bombay and Ors., AIR 1955 SC 540 hadcategorically laid down that the legislative competence of the StateLegislature can only be circumscribed by express prohibition containedin the Constitution itself. In paragraphs 12 and 13 following was laiddown:-E

“12. …………………..The legislative competence of theState Legislature can only be circumscribed by express prohibitioncontained in the Constitution itself and unless and until there isany provision in the Constitution expressly prohibiting legislationon the subject either absolutely or conditionally, there is no fetterFor limitation on the plenary powers which the State Legislatureenjoys to legislate on the topics enumerated in the Lists 2 and 3 ofthe Seventh Schedule to the Constitution.

13. The fetter or limitation upon the legislative power ofthe State Legislature which had plenary powers of legislation withinGthe ambit of the legislative heads specified in the Lists 2 and 3 ofthe Seventh Schedule to the Constitution could only be imposedby the Constitution itself and not by any obligation which had beenundertaken by either the Dominion Government or the Provinceof Bombay or even the State of Bombay. Under Article 246 theState Legislature was invested with the power to legislate on the H

topics enumerated in Lists 2 and 3 of the Seventh Schedule to theConstitution and this power was by virtue of Article 245(1) subjectto the provisions of the Constitution.

The Constitution itself laid down the fetters or limitationson this power e.g. in Article 303 or Article 286(2). But unless anduntil the court came to the conclusion that the Constitution itselfhad expressly prohibited legislation on the subject either absolutelyor conditionally the power of the State Legislature to enactlegislation within its legislative competence was plenary. Oncethe topic of legislation was comprised within any of the entries inthe Lists 2 and 3 of the Seventh Schedule to the Constitution thefetter or limitation on such legislative power had to be found withinthe Constitution itself and if there was no such fetter or limitationto be found there the State Legislature had full competence toenact the impugned Act no matter whether such enactment wascontrary to the guarantee given, or the obligation undertaken bythe Dominion Government or the Province of Bombay or eventhe State of Bombay.

XXXXXXXXXXXXXXXX”

34. Justice R. Banumathi in her separate opinion in a ConstitutionBench in Jindal Stainless Limited and Anr. Vs. State of Haryanaand Ors., (2017) 12 SCC 1 laid down following in paragraph 316:- “316. In Umeg Singh v. State of Bombay [AIR 1955 SC540], this Court held that since the power of the State to legislatewithin its legislative competence is plenary and the same cannotbe curtailed in the absence of an express limitation placed onsuch power in the Constitution itself, there is no express prohibitionon the legislative powers of the State to levy taxes on the goodsentering into a local area for consumption, use or sale therein.Taxes being the lifeblood of the State, they cannot be decimatedby implication.”

35. The ratio which can be culled out from the above judgment isthat power of the State to legislate within its legislative competence isplenary and the same cannot be curtailed in the absence of an expresslimitation placed on such power in the Constitution itself.

36. Article 243ZF provides that any law relating to municipalitiesin force in a State immediately before the commencement of the AB

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AConstitution (Seventy-fourth Amendment) Act, 1992, which is inconsistentwith the provisions of Part IXA, shall not continue beyond expiration ofone year from commencement of the constitutional amendment. Thus,Part IXA of the Constitution categorically contemplated that any lawmade by State Legislature, which is inconsistent with the provisions ofPart IXA shall cease to operate on the expiration of one year or tillBamended or repealed by a competent Legislature, whichever is earlier.The Constitution provisions, thus, mandates that any law of the State,which is inconsistent, cannot continue. Thus, this limitation shall alsogovern any law made after enforcement of Constitution (Seventy-fourthAmendment) Act. Thus, a law, which is inconsistent with Part IXA cannotCbe framed by the State Legislature.

37. Explaining the expression “inconsistent”, this Court in BastiSugar Mills Co. Ltd. Vs. State of Uttar Pradesh and Anr., (1979)2 SCC 88 where following was laid down in paragraph 23:- “23.…………………………………….”Inconsistent”,D’according to Blacks Legal Dictionary, means “mutuallyrepugnant or contradictory; contrary, the one to the other so thatboth cannot stand, but the acceptance or establishment of the oneimplies the abrogation or abandonment of theother”………………………”

E38. One of the meanings of expression “inconsistent” as approvedby this Court is mutually repugnant or contradictory. Article 254 of theConstitution contains a heading “inconsistency between laws made bythe Parliament and the laws made by the Legislature of the State”whereas under Article 254(1) and Article 254(2) the words used areFrepugnant. The Constitution itself, thus, has used the words inconsistencyand repugnancy interchangeably. To find out as to whether a law madeby State Legislature is inconsistent with provisions of Part IXA of theConstitution, the principles which have been laid down by this Court todetermine the repugnancy between the law made by the Legislature ofa State and law made by Parliament can be profitably relied on. We,Gthus, need to notice the principles on which the repugnancy of law madeby State and law made by the Parliament is found out.

39. The Constitution of India is a paramount law to which allother laws are subject. One of the important tests to find out as to whetheror not there is repugnancy is to ascertain the intention of the LegislatureH

regarding the fact that the dominant Legislature allowed the subordinateLegislature to operate in the same field paripasu the State Act and therewill be no inconsistency when the State Act and Central Act aresupplemental to each other. Things are inconsistent when they cannotstand together at the same time and one law is inconsistent with anotherlaw, when the command or power or provision in the law conflicts directlywith the command or power or provision in the other law. While legislatingon a particular subject matter, the paramount Legislature may evincethe intention to cover only certain specific matters leaving it to the StateLegislature to deal with the rest. One more preposition need to be noticedis that there is always a presumption that Legislature does not exceed itsjurisdiction and Court should make every attempt to reconcile theprovisions of apparently conflicting enactment. This Court in Ch. TikaRamji and Others, Etc. Vs. The State of Uttar Pradesh and Others,AIR 1956 SC 676 had occasion to consider the repugnancy between aState legislation, U.P. Sugarcane (Regulation of Supply and Purchase)Act, 1953 and the Central Legislation namely the Industries (Developmentand Regulation) Act, 1951 as well as the Essential Commodities Act,1955. It was held by this Court that repugnancy falls to be consideredwhen the law made by the Parliament and the law made by the StateLegislature occupies the same field. This Court quoted with approvalthree tests as referred by Nicholas in his Australian Constitution and onetest referred by Isaacs, J. in paragraphs 27 and 28 of the judgment,which are to the following effect:- “27. Nicholas in his Australian Constitution, 2nd Ed.,p. 303, refers to three tests of inconsistency or repugnancy:—

(1) There may be inconsistency in the actual terms of thecompeting statutes (R. v. Brisbane Licensing Court, [1920] 28CLR 23).

(2) Though there may be no direct conflict, a State lawmay be inoperative because the Commonwealth law, or the awardof the Commonwealth Court, is intended to be a completeexhaustive code (Clyde Engineering Co. Ltd. v. Cowburn,[1926] 37 CLR 466).

(3) Even in the absence of intention, a conflict may arisewhen both State and Commonwealth seek to exercise their powersover the same subject-matter (Victoria v. Commonwealth, [1937]

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A58 CLR 618; Wenn v. Attorney-General (Vict.), [1948] 77 CLR84)

28. Isaacs, J. in Clyde Engineering Company,Limited v. Cowburn [(1926) 37 CLR 466, 489] laid down onetest of inconsistency as conclusive: “If, however, a competentBlegislature expressly or implicitly evinces its intention to cover thewhole field, that is a conclusive test of inconsistency where anotherLegislature assumes to enter to any extent upon the same field”.”

40. This Court after referring to the provisions of State Legislationas well as Central Legislation held that none of these provisions do overlap,Cthe Centre being silent with regard to some of the provisions, whichhave been enacted by the State, hence no repugnancy was found.Following was laid down in paragraph 36:- “(36). XXXXXXXXXXXXXXXX

Suffice it to say that none of these provisions do overlap,Dthe Centre being silent with regard to some of the provisions whichhave been enacted by the State and the State being silent withregard to some of the provisions which have been enacted by theCentre. There is no repugnancy whatever between theseprovisions and the impugned Act and the Rules framed thereunderEas also the U.P. Sugarcane Regulation of Supply and PurchaseOrder, 1954 do not trench upon the field covered by Act 10 of1955.”

41. Another Constitution Bench in Deep Chand and Ors. Vs.The State of Uttar Pradesh and Ors., AIR 1959 SC 648 speakingFthrough K. Subba Rao, J. after referring to the earlier judgments of thisCourt and other precedents laid down following three principles forascertaining the repugnancy between two statutes:- “(29). XXXXXXXXXXXX

Repugnancy between two statutes may thus be ascertainedGon the basis of the following three principles:(1) Whether there is direct conflict between the twoprovisions;

(2) Whether Parliament intended to lay down an exhaustivecode in respect of the subject-matter replacing the Act of theHState Legislature and

(3) Whether the law made by Parliament and the law madeby the State Legislature occupy the same field.”

42. Again a Constitution Bench of this Court in M.KarunanidhiVs.Union of India and Anr., (1979) 3 SCC 431 reiterated the principlesto determine the inconsistency between two Statutes. In paragraph 35,following prepositions were laid down:- “35. On a careful consideration, therefore, of the authoritiesreferred to above, the following propositions emerge:

1. That in order to decide the question of repugnancy itmust be shown that the two enactments contain inconsistent andirreconcilable provisions, so that they cannot stand together oroperate in the same field.

2. That there can be no repeal by implication unless theinconsistency appears on the face of the two statutes.

3. That where the two statutes occupy a particular field,but there is room or possibility of both the statutes operating in thesame field without coming into collision with each other, norepugnancy results.

4. That where there is no inconsistency but a statuteoccupying the same field seeks to create distinct and separateoffences, no question of repugnancy arises and both the statutescontinue to operate in the same field.”

43. Thakkar, J. speaking for himself and Fazal Ali, J. inM/s. Ram Chandra Mawa Lal, Varanasi and Ors. Vs. State of UttarPradesh and Ors., 1984 (Supp.) SCC 28 had occasion to elaboratelyconsider the principles to determine inconsistency between two Statutes.The principles were stated in following words in paragraph 47:-

47. ……………………………..The principle may bestated thus. The Centre and the State both cannot speak on thesame channel and create disharmony. If both speak, the voice ofthe Centre will drown the voice of the State. The State has toremain “silent” or it will be “silenced”. But the State has the rightto “speak” and can “speak” (with unquestionable authority) wherethe Centre is “silent, without introducing disharmony…………..”

44. The last judgment which needs to be noticed is anotherConstitution Bench judgment in K.T. Plantation Private Limited and A

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AAnr. Vs. State of Karanataka, (2011) 9 SCC 1 where on repugnancy,following was laid down in paragraph 108:- “108. The question of repugnancy under Article 254 of theConstitution arises when the provisions of both laws are fullyinconsistent or are absolutely irreconcilable and it is impossibleBwithout disturbing the other, or conflicting results are produced,when both the statutes covering the same field are applied to agiven set of facts. Repugnancy between the two statutes wouldarise if there is a direct conflict between the two provisions andthe law made by Parliament and the law made by the StateLegislature occupy the same field. Reference may be made toCthe decisions of this Court in Deep Chand v. State of U.P. [AIR1959 SC 648], Prem Nath Kaul v. State of J&K [AIR 1959 SC749], UkhaKolhe v. State of Maharashtra [AIR 1963 SC1531], Bar Council of U.P. v. State of U.P. [(1973) 1 SCC 261], T. Barai v. Henry Ah Hoe [(1983) 1 SCC 177], HoechstDPharmaceuticals Ltd. v. State of Bihar [(1983) 4 SCC 45],LingappaPochannaAppelwar v. State of Maharashtra [(1985) 1SCC 479] and Vijay Kumar Sharma v. State of Karnataka [(1990)2 SCC 562].”

45. After noticing the principles laid down by this Court in aboveEnoted cases to find out repugnancy between law made by StateLegislature and that of Parliament, we need to apply the aboveprepositions to find out as to whether the provisions of Act, 1949 and theRules framed thereunder are inconsistent with constitutional provisionsas contained in Part IXA of the Constitution of India.

F46. We, now, proceed to notice the relevant constitutional provisionscontained in Part IXA. Article 243P is a definition clause. Article 243P(a)defines the “Committee” in following words:- “(a)”Committee” means a Committee constituted under Article243S; G47. Article 243(e) defines “Municipality” in following words:- “(e) “Municipality” means an institution of self-government constituted under Article 243Q;”

48. Article 243Q provides for constitution of Municipalities. ArticleH243R deals with composition of Municipalities, which is as follows:-

“243R. Composition of Municipalities—(1) Save asprovided in Clause (2), all the seats in a Municipality shall be filledby persons chosen by direct election from the territorialconstituencies in the Municipal area and for this purpose eachMunicipal area shall be divided into territorial constituencies to beknown as wards.

(2) The Legislature of a State may, by law, provide –

(a) for the representation in a Municipality of –

i. persons having special knowledge or experience inMunicipal administration;

ii. the members of the House of the People and themembers of the Legislative Assembly of the Staterepresenting constituencies which comprise wholly orpartly the Municipal area;

iii. the members of the Council of States and the membersof the Legislative Council of the State registered aselectors within the Municipal area;

iv. the Chairpersons of the Committees constituted underClause (5) of Article 243S:

Provided that the persons referred to in paragraph (i)shall not have the right to vote in the meeting of the Municipality;

b. the manner of election of the Chairperson of aMunicipality.”

49. Sub-article(1) of Article 243R contains two constitutionalrequirements:- (i) all the seats in a Municipality shall be filled by personschosen by direct election and (ii) from the territorial constituencies in theMunicipal area and for this purpose each Municipal area shall be dividedinto territorial constituencies to be known as wards. Sub-article (2) ofArticle 243R provided for the representation in a municipality of fourcategories of persons which is a constitutional requirement required tobe adopted by State Legislature. It may be noted that sub-article(2) ofArticle 243R does not deal with seats in the Municipalities, which shallbe filed up by persons chosen by direct election. Article 243ZA dealswith elections to the Municipalities, thus, direct election, as contemplatedunder Article 243R has to be as per Article 243ZA. 243ZA(2) providesas follows:-

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A“243ZA Elections to the Municipalities—

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(2) Subject to the provisions of the Constitution, the Legislatureof a State may, by law, make provision with respect to allmatters relating to, or in connection with, elections to theBMunicipalities.”

50. Thus, the Legislature of a State may by lay has to provide allmatters relating to or in connection with election to the Municipalities,which includes filling of the seats in the Municipality by person chosenby direct election. Articles 243R and 243ZA does not give any indicationCas to whether from territorial constituency, i.e., the Wards, whether onlyone member has to be elected in the Municipality or it can be multiplemember constituency. The constitutional provisions of Article 243R, whichprovides for composition of Municipalities and that of Article 243ZAdoes not give any indication to the above. The provisions of Article 243ZG,Dwhich deals with bar to interference by courts in electoral matters throwssome light. Article 243ZG is as follows:- “243ZG Bar to interference by Courts in electoral matters-Notwithstanding anything in this Constitution,-

a. the validity of any law relating to the delimitation ofEconstituencies or the allotment of seats to such constituenciesmade or purporting to be made under Article 243ZA shallnot be called in question in any Court;

b. ………”

51. Article 243ZG(a) used two expressions: “any law relating toFthe delimitation of constituencies or the allotment of seats to suchconstituencies” may be read as allotment of more than one seat to oneconstituency but it can be said that the above provision also do not providethat in one constituency, there may be more than one seats.

52. Now, we turn to Article 243S, which is sheet anchor of theGargument of Shri Kapil Sibal, learned senior counsel. Article 243S dealswith Constitution and Composition of Wards Committees. Article 243Sis as follows:- “243S Constitution and composition of Wards Committees,etc.—(1) There shall be constituted Wards Committees, consisting H

of one or more Wards, within the territorial area of a Municipalityhaving a population of three lakhs or more.

(2) The Legislature of a State may, by law, make provision withrespect to –

a. the composition and the territorial area of a WardsCommittee;

b. the manner in which the seats in a Wards Committee shallbe filled.

(3) A member of a Municipality representing a ward within theterritorial area of the Wards Committee shall be a member of thatCommittee.

(4) Where a Wards Committee consists of -

a. one ward, the member representing that ward in theMunicipality; or

b. two or more wards, one of the members representing suchwards in the Municipality elected by the members of theWards Committee, shall be the Chairperson of that Committee.

(5) Nothing in this article shall be deemed to prevent the Legislatureof a State from making any provision for the Constitution ofCommittees in addition to the Wards Committees.”

53. On sub-article(3) and sub-article (4) of Article 243S greatemphasis has been laid down. It is submitted by Shri Sibal that sub-article (3) uses the expression “a member of a Municipality representinga ward”. It is submitted that the expression “a member” clearly meansthat only one member shall represent a ward. He further submits thatsub-article (4) sub-clause(a) uses the expression “the memberrepresenting that ward” which again reinforces that one ward shall berepresented by only one member. On a first blush, the argument appearsto be attractive but when we carefully analysed the extent and purposeof Article 243S, we do not find any such limitation in provision of Article243S, which limits the State Legislature for requiring multi-member seatsin a Ward. Reverting to sub-article (3) of Article 243S, the requirementis that a member of the Municipality representing a Ward shall be amember of the Ward Committee. Thus, constitutional requirement or

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Alimitation engrafted in sub-article(3) is that a member of the Municipalityrepresenting a Ward shall be a member of the Ward Committee. Theprovision of Article 243S(3) is not a provision regarding composition ofMunicipality rather the provision is for constitution and composition ofWards Committee. In Wards Committee, a member representing a Wardin Municipality has to be the member sub-article(3) of Article 243S cannotBbe read to mean that it mandates that from one Ward more than onemembers cannot be made representatives. In cases, where there aremore than one member from one Ward all will become the member ofthe Committee. When all the members of the Municipality representinga Ward are members of the Committee, there is no breach of ArticleC243S(3).

54. Now, we come to sub-article (4) of Article 243S. Article243S(4) is a provision indicating as to who shall be the Chairperson ofWards Committee. Sub-article(4) says that where Wards committeeconsists of one ward, the when it consists of two or more wards, one ofDthe members representing such wards in the Municipality elected by themembers of the Wards Committee. Shri Sibal submits that sub-article(4)of Article 243S uses the expression “the member” which means thatwith regard to one Ward only one member has to represent in theMunicipality and in case of multi-member Ward, no election iscontemplated to elect Chairperson with regard to one Ward and electionEis contemplated to elect one person only when there are two or moreWards. It is true that under sub-article (4)(a), in case of one Ward memberrepresenting that Ward shall be the Chairperson.

55. We may now examine, if there are multi-members in oneward, whether Constitutional provisions of Article 243S(4) are breachedFwhen Chairperson is to be elected. The requirement is that memberrepresenting the Ward shall be the Chairperson of the Committee and ifthere are more than one members and one member out of multi-memberWard is elected as Chairperson, the provision of Article 243S(4) shall beapplied. When the constitutional provisions under Article 243S(4)(a) doesGnot provide for election for electing Chairperson in case of a multi-member Ward, the same is supplemented by the State legislation. In thepresent case, we have noticed that Rule 2(b) of Rules, 2007, whichprovides that Chairperson of a Ward Committee is the person elected bythe members of the Wards Committee. The Rule, thus, contemplate anelection of Chairperson amongst the members of the Wards Committee,H

which shall also be applicable in a case where there are more than onemembers from one Ward. When out of multiple members in a Ward, onemember is elected as Chairperson, the mandate of Article 243S(4)(a) iscomplied with. The requirement is that member representing the wardin the Municipality shall be the Chairperson. The above provision cannotbe read in providing any prohibition or limitation that in one Ward, therecannot be more than one member. The composition of Municipality hasbeen dealt separately by Article 243R and for composition of Municipality,the provisions of Article 243S cannot be said to be applicable or intendedto provide any limitation or prohibition with regard to composition of theMunicipalities. The Rule 2(b) of Rules, 2007 which provides for electionof Chairperson, by following which rule, in case of multi-member Ward,Chairperson can be elected, which may apply both to Article 243S(4) aswell as Rule 2(b) of the Rules, 2007. Thus, Rules 4 and 5 of Rules, 1994as well as Rule 2(b) of Rules, 2007 does in no manner disobey the mandateof Article 243S(4), both can be complied with without any conflict betweenthe two different provisions. We, thus, come to the conclusion thatprovisions of Section 5(3)(iii)(a) as well as Rules 4 and 5 of Rules, 1994and Rule 2(b) of Rules, 2007 are not inconsistent with provisions ofArticle 243S.

56. Now, we come to the cases, which have been relied by ShriKapil Sibal in support of his submissions. Shri Sibal has placed relianceon judgment of this Court in Manoj Narula Vs. Union of India, (2014)9 SCC 1 for the preposition that doctrine of implication has to be appliedto explain the constitutional concepts. He has referred to paragraph 17of the judgment, which is to the following effect:- “17. Recently, in Subramanian Swamy v. CBI [(2014) 8SCC 682], the Constitution Bench, speaking through R.M. Lodha,C.J., while declaring Section 6-A of the Delhi Special PoliceEstablishment Act, 1946, which was inserted by Act 45 of 2003,as unconstitutional, has opined that: (SCC pp. 725-26, para 59)

“59. It seems to us that classification which is made inSection 6-A on the basis of status in the government service is notpermissible under Article 14 as it defeats the purpose of findingprima facie truth into the allegations of graft, which amount to anoffence under the PC Act, 1988. Can there be sound differentiationbetween corrupt public servants based on their status? Surelynot, because irrespective of their status or position, corrupt public AB

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servants are corrupters of public power. The corrupt publicservants, whether high or low, are birds of the same feather andmust be confronted with the process of investigation and inquiryequally. Based on the position or status in service, no distinctioncan be made between public servants against whom there areallegations amounting to an offence under the PC Act, 1988.”

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And thereafter, the larger Bench further said: (SCC p. 726, para

“60. Corruption is an enemy of the nation and tracking downcorrupt public servants and punishing such persons is a necessarymandate of the PC Act, 1988. It is difficult to justify theclassification which has been made in Section 6-A because thegoal of law in the PC Act, 1988 is to meet corruption cases with avery strong hand and all public servants are warned through sucha legislative measure that corrupt public servants have to facevery serious consequences.”

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And again: (SCC pp. 730-31, paras 71-72)

“71. Office of public power cannot be the workshop ofpersonal gain. The probity in public life is of great importance.How can two public servants against whom there are allegationsof corruption of graft or bribe-taking or criminal misconduct underthe PC Act, 1988 can be made to be treated differently becauseone happens to be a junior officer and the other, a senior decisionmaker.

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72. Corruption is an enemy of nation and tracking downFcorrupt public servant, howsoever high he may be, and punishingsuch person is a necessary mandate under the PC Act, 1988. Thestatus or position of public servant does not qualify such publicservant from exemption from equal treatment. The decision-making power does not segregate corrupt officers into two classesas they are common crimedoers and have to be tracked down byGthe same process of inquiry and investigation.”

57. No exception can be taken to the preposition laid down by thisCourt as above. But this Court in subsequent paragraph 71 while explainingthe doctrine of implication has held that this doctrine has its ownlimitations. Interpretation has to have a base in the Constitution. TheHrelevant observations made in Paragraph 71 are as follows:-

“71. …………………….Thus, the said principle can betaken aid of for the purpose of interpreting constitutional provisionin an expansive manner. But, it has its own limitations. Theinterpretation has to have a base in the Constitution. The Courtcannot rewrite a constitutional provision. In this context, we mayfruitfully refer to Kuldip Nayar case [Kuldip Nayar v. Union ofIndia, (2006) 7 SCC 1] wherein the Court repelled the contentionthat a right to vote invariably carries an implied term i.e. the rightto vote in secrecy. The Court observed that where the Constitutionthought it fit to do so, it has itself provided for elections by secretballot e.g. in the case of election of the President of India and theVice-President of India. ……………………………………….”

58. In paragraph 72, the Court rejected the submission of petitionerthat while interpreting the words “advise of the Prime Minister” aprohibition to think of a person as a Minister, if charges have been framedagainst him cannot be inferred. In paragraph 72, following has been laiddown:- “72. Thus analysed, it is not possible to accept the submissionof Mr Dwivedi that while interpreting the words “advice of thePrime Minister” it can legitimately be inferred that there is aprohibition to think of a person as a Minister if charges have beenframed against him in respect of heinous and serious offencesincluding corruption cases under the criminal law.

59. We have analysed the provisions of Article 243R, 243S andhave come to the definite conclusion that no limitation in Article 243Scan be found of which contains any prohibition of having more than onemember for a Ward.

60. Next judgment relied by Shri Kapil Sibal is Chief Justice ofAndhra Pradesh and Others Vs. L.V.A. Dixitulu and Ors., (1979)2 SCC 34. In the above case, this Court has reiterated the principles ofinterpretation of a constitutional provision. In paragraphs 66 and 67following has been laid down:- “66. The primary principle of interpretation is that aConstitutional or statutory provision should be construed“according to the intent of they that made it” (Coke). Normally,such intent is gathered from the language of the provision. If thelanguage or the phraseology employed by the legislation is precise AB

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Aand plain and thus by itself proclaims the legislative intent inunequivocal terms, the same must be given effect to, regardlessof the consequences that may follow. But if the words used in theprovision are imprecise, protean or evocative or can reasonablybear meanings more than one, the Rule of strict grammaticalconstruction ceases to be a sure guide to reach at the realBlegislative intent. In such a case, in order to ascertain the truemeaning of the terms and phrases employed, it is legitimate forthe Court to go beyond the and literal confines of the provisionand to call in aid other well recognised rules of construction, suchas its legislative/history, the basic scheme and framework of theCstatute as a whole, each portion throwing light on the rest, thepurpose of the legislation, the object sought to be achieved, andthe consequences that may flow from the adoption of one inpreference to the other possible interpretation.

67. Where two alternative constructions are possible, theDcourt must choose the one which will be in accord with the otherparts of the statute and ensure its smooth, harmonious working,and eschew the other which leads to absurdity, confusion, orfriction, contradiction and conflict between its various provisions,or undermines, or tends to defeat or destroy the basic schemeand purpose of the enactment. These canons of construction applyEto the interpretation of our Constitution with greater force, becausethe Constitution is a living, integrated organism having a soul andconsciousness of its own……………………………………”

61. There can be no dispute to the above preposition which hasbeen laid down for interpretation of a constitutional provision. ApplyingFthe above principle of interpretation on the Constitution, we may noticethat when the State Legislature has been given preliminary power oflegislation with regard to composition of the Municipalities, there has tobe express or implied limitation, which may prohibit the State Legislatureto make a law providing for multi-member Ward.GM.T. Khan and Ors.

62. Another judgment relied by Shri Sibal is M.T. Khan and Ors.Vs. Govt. of A.P. and Ors., (2004) 2 SCC 267. This Court in theabove case had occasion to consider Articles 165 and 367 of theConstitution. Article 367 provides that the General Clauses Act could beapplied in dealing with interpretation unless the context otherwise requires.This Court held that the Advocate General referred to in Article 165H

cannot be read in plural sense. The Advocate General discharges theconstitutional functions and if more than one person is appointed todischarge the constitutional functions, different Advocate Generals mayact differently, resulting in a chaos. The office of Advocate General is apublic office, hence, Additional Advocate General appointed by the Statecannot be said to have been appointed under Article 165 but thatappointment has to be traced to the source of the State’s power underArticle 162 of the Constitution of India. No exception can be taken tothe preposition as laid down by this Court in the above judgment. Similarly,in Karnataka Bank Ltd. Vs. State of Andhra Pradesh and Ors.,(2008) 2 SCC 254. This Court held that the definition of person underSection 3(42) of the General Clauses Act is not applicable automaticallyto interpret the provision of the Constitution unless the context so requiresand makes the definition applicable. Again, there can be no dispute tothe preposition as laid down in the above case.

63. We, in the present case, after analysing the relevant provisionsof Part IXA of the Constitution has come to the conclusion that there isno prohibition or limitation in Part IXA of the Constitution prohibiting theState Legislature from making a law providing for election of more thanone member from one territorial constituency, i.e., Ward.

64. We, thus, answer Question Nos.1 and 2 in following manner:-

(1) Article 243R and 243S of the Constitution of India does notcontain any limitation to the effect that there shall be only onemember from one Ward.

(2) Provisions of Section 5(3)(iii)(a) and Section 29A of the Act,1949 and Rules 4 and 5 of the Rules, 1994 and Rule 2(b) ofRules, 2007 are not ultra vires to the provisions of Articles243R and 243S of the Constitution.

Question No.3

65. The submission of Shri Sibal is that having more than onerepresentative from a Ward negates the very concept of empowermentof weaker sections, i.e., women, Scheduled Castes and Scheduled Tribes.He submits that when there is only one member from a Ward and if theWard is reserved for women, Scheduled Castes and Scheduled Tribes, itis empowerment of women, Scheduled Caste and Scheduled Tribes andif there are 4 members in a Ward, women, Scheduled Castes andScheduled Tribes shall not be able to effectively espouse the cause of A

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Aweaker sections. The Statement of Objects and Reasons of the BillNo.159 of 1991 which was introduced in the Lok Sabha for insertingPart IX in the Constitution, in paragraph 2 stated:

“2. Having regard to these inadequacies, it is considerednecessary that provisions relating to Urban Local Bodies areBincorporated in the Constitution particularly for-

(i) putting on a former footing the relationship between theState Government and the Urban Local Bodies with respect to- (a) the functions and taxation powers; and (b) arrangements for revenue sharing; C

(ii) ensuring regular conduct of elections;

(iii) ensuring timely elections in the case of supersession;

and

(iv) providing adequate representations for the weakerDsections like Scheduled Castes, Scheduled Tribes and women.”

66. Article 243T of the Constitution of India included in Part IXA,provides for reservation of seats. The provision in the Constitution forproviding reservation of seats is a provision for empowering the women,Scheduled Castes and Scheduled Tribes. The Gujarat DelimitationEof Wards and Allocation of Reserved Seats in Municipal Borough Rules,1994 has been amended by Amendment Rules, 2015. Clauses 2 and 3 ofwhich provide as follows:

“2. In the Delimitation of Wards and allocation of Reserved Seatsin Municipal Borough Rules, 1994 (hereinafter referred to theF“the said rules”), in rule 4, for the word “three”, the word“four” shall be substituted.

3. In the said rules, for rule 5, the following rule shall besubstituted, namely:- ‘‘5. (1) In each Ward two seats shall be reserved for women(including seats to be reserved for women belonging to theScheduled Castes, Scheduled Tribes and Backward Classes) andthe remaining seats shall be allocated taking into considerationthe requirement of reservation as provided under Section 6 of thesaid Act.

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(2) While determining the number of seats to be reserved for thedifferent reserved categories as provided in sub-rule (1);- (a) if it is not feasible to exactly divide the number ofseats evenly, then, after such division the remaining one seat,or (b) if in case only one seat is required to be reserved forany of the reserved categories, then, such seat, Shall first be allocated to a male candidate and then a women byrotation in the general elections to be held after coming into forceof the Delimitation of Wards and Allocation of Reserved Seats inMunicipal Borough (Amendment) Rules, 2015".”

67. As per above provision now it is 4 member Ward, 2 seats areto be reserved for women including seats reserved for women belongingto Scheduled Castes, Scheduled Tribes and Back Ward Classes.

68. This Court in Kasambhai F. Ghanchi vs. Chandubhai D.Rajput and others, (1998) 1 SCC 285, had held that the idea ofproviding reservation for the benefit of weaker sections of the society isnot only to ensure their participation but it is an effort to improve theirlot. Following observations were made in paragraph 13:

“13. The idea of providing reservation for the benefit of weakersections of the society is not only to ensure their participation inthe conduct of the affairs of the municipality but it is an effort toimprove their lot. The reservation ensures that the specifiedminimum number of persons belonging to that category becomemembers of the municipality. If because of their popularity a largernumber of Scheduled Castes, Scheduled Tribes, BackwardClasses or women get elected to the municipality than the numberof reserved seats that would be welcome. ……………”

69. The entire purpose and object of reserving seats for weakersections is to empower the weaker sections, i.e., women, ScheduledCastes and Scheduled Tribes, when there are more numbers are reservedfor weaker sections their participation in municipality is bound to increasegiving strength to their voice and effective participation which is nothingbut empowerment of weaker sections. We are not able to subscribe tothe submission of Shri Sibal that when there are only one representationfrom one Ward only then empowerment of weaker sections can be made.

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ABy the Rules, 1994 as amended in 2015 now the voice of weaker sectionscan be felt from every Ward which clearly enhances of presence andparticipation of weaker sections and does not, in any manner, negate theempowerment of weaker sections. We, thus, do not find any substancein the above submission of Shri Sibal.

B70. We answer Question No.3 in the following manner:

Having more than one representation from a Ward in nomanner negates the empowerment of weaker sections rather itincreases the empowerment of weaker sections.

Question No.4C

71. The submission of Shri Sibal is that before expiry of 30 daysfrom the date of publication of notification dated 27.11.2014, thenotification has been issued on 04.12.2014 itself which is illegal. Hesubmits that notification dated 04.12.2014 has been issued withoutconsidering the objection which was contemplated to be filed within 30Ddays. The notification dated 27.11.2014 as well as notification dated04.12.2014 has been brought on record as Annexure P-1 and AnnexureP-2 to the paper book. It is useful to notice the notification dated27.11.2014 along with draft notification which is to the following effect:

“NOTIFICATION

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Urban Development and Urban Housing Department, Sachivalaya, Gandhinagar Dated: 27.11.2014

No.KV/184 of 2014/MISC/102014/5640/P:- The following draftFof rules which is proposed to be issued under sub-section (1) ofsection 456, read with section 5 of the Gujarat Provincial MunicipalCorporations Act, 1949 (Born.LIX of 1949) is hereby publishedas required by subsection (2) of the said section 456 of the saidAct, for informatioria all persons likely to be affected thereby andGnotice is hereby given that the said draft rules will be taken intoconsideration by the Government of Gujarat on or after the expiryof thirty days from the date of publication of this notification in theOfficial Gazette.

2 Any objection or suggestion which may be received by theAdditional Chief Secretary to the Government of Gujarat, Urban H

Development and Urban Housing Department, Sachivalaya,Gandhinagar, from any person with respect to the said draftnotification before the expiry of the aforesaid period will beconsidered by the Government.

DRAFT NOTIFICATION

No. KV/184 of 2014/MISC/102014/5640/P:- In exercise of thepowers conferred by sub-section (1) of section 456 read withsection 5 of the Gujarat Provincial Municipal Corporations Act,1949 (Born. LIX of 1949), the Government of Gujarat herebymakes the following rules further to amend the Delimitation ofWards and Allocation of Reserved Seats Rules, 1994, namely:-

1. These rules may be called the Delimitation of Wards andAllocation of Reserved Seats (Amendment) Rules, 2014.

2. In the Delimitation of Wards and Allocation of ReservedSeats Rules, 1994 (hereinafter referred to as “the said rules”),in rule 4, for the word “three”, the word “four” shall besubstituted.

3. In the said rules, for rule 5, the following rule shall besubstituted, namely:- “5.(1) In each ward two seats shall be reserved for women(including seats to be reserved for women belonging to theScheduled Castes, Scheduled Tribes and BackwardClasses) and the remaining seats shall be allocated takinginto consideration the requirement of reservation as providedunder section 5 of the said Act.

(2) While determining the number of seats to be reservedfor the different reserved categories as provided in sub-rule (1),- (a) if it is not feasible to exactly divide the number ofseats evenly then after such division the remaining oneseat, or (b) if in case only one seat is required to be reserved forany of the reserved categories, then, such seat- shall first be allocated to a male candidate and then a woman byrotation in the general elections to be held after coming into force A

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of the Delimitation of Wards and Allocation of Reserved Seats(Amendment) Rules, 2014.”

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4. In the said rules, in rule 8, for the words, brackets and figures“recognized for the purposes of Representation of Peoples Act,1951 (43 of 1951)”, the words “registered with the State ElectionBCommission” shall be substituted.

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By order and in the name of the Governor of Gujarat, (Ashoksinh Parmar)

Deputy Secretary to Government.”

72. A perusal of the above notification indicates that the saidnotification was a draft notification to amend the Delimitation of Wardsand Allocation of Reserved Seats (Amendment) Rules, 2014 whereinRule 4, for the word “three”, the word “four” was sought to be substituted.

73. The notification dated 04.12.2014 has been issued in exerciseof powers conferred by sub-clause (a) of clause (iii) of sub-section (3)of Section 5 of Act, 1949. The notification dated 04.12.2014 reads:

“NOTIFICATION

Urban Development and Urban Housing DepartmentSachivalaya.

Gandhinagar.

Dated the 4[th] December, 2014

No.KV-194 of 2014 -ELE – 102014 – 1701 – P: WHEREAS theGovernment of Gujarat in exercise of powers conferred by sub-clause (a) of clause (iii) of sub-section (3) of section 5 read withsub-sections (4), (5), (6) and (7) of the said section 5 of the GujaratProvincial Municipal Corporations Act, 1949(Born. LIX of 1949)(hereinafter referred to as “the said Act”) under the GovernmentNotification, Urban Development and Urban Housing DepartmentNo.KV-47 of 2010-ELE102009-526-P, dated the 23[rd] March, 2010has determined the numbers of Wards and Councillors, numbersof Seats reserved for Scheduled Tribes, Backward Classes andWomen for the Ahmedabad Municipal Corporation.

AND WHEREAS, the number of Wards and Councillors, numberof seats to be reserved for Scheduled Castes, Scheduled Tribes,Backward Classes and Women is required to be ascertained inaccordance with the figures of the population as declared on thebasis of Census-2011 as also in view of the provisions of section5 of the said Act; A

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AND WHEREAS, the General Election of the MunicipalCorporation of the City of the Ahmedabad is to be held; NOW, THEREFORE, in exercise of the powers conferred bysub-clause (a) of clause (iii) of sub-section (3) of section 5 readwith sub-sectoins (4), (5), (6) and of the said section 5 of the saidAct, so far as the City of Ahmedabad is concerned, the Governmentof Gujarat hereby determines the numbers of Wards and Seats asfollows:- C

1. The areas of the City of Ahmedabad shall be divided into Forty-eight (48) Wards and the Municipal Corporation of the CityDof Ahmedabad shall consist of One Hundred and Ninety – two(192) Councillors;

2. Out of One Hundred and Ninety-two (192) Seats-

(i) Twenty (20) Seats shall be reserved for persons belongingto the Scheduled Castes out of which Ten (10) Seats shallbe reserved for women belonging to the Scheduled Castes; E

(ii) Two (2) Seats shall be reserved for the persons belongingto the Scheduled Tribes out of which One(1) seat shallbe reserved for women belonging to the Scheduled Tribes; F

(iii) Nineteen (19) Seats shall be reserved for the personsbelonging to the Backward Classes out of which Nine(9) Seats shall be reserved for women belonging toBackward Classes; G

(iv) Ninety-six (96) Seats shall be reserved for the women(including the number of seats reserved for the womenbelonging to Scheduled Castes, Scheduled Tribes and theBackward Classes referred to as above).

By order and in name of the Governor of Gujarat.

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(Ashoksinh Parmar)

Deputy Secretary to Government.”

74. A bare perusal of the notification dated 04.12.2014 indicatesthat the said notification is not in reference to the notification dated27.11.2014 rather the said notification was issued regarding determinationBof number of Wards and Councillors’ seats reserved for Scheduled Castesand Scheduled Tribes and women. Thus, the argument that notificationdated 04.12.2014 issued before expiry of 30 days is wholly misconceived.The appellants themselves have brought on record a notification dated15.01.2015 as Annexure P-9 to the paper book which is the notificationCissued in reference to the notification dated 27.11.2014. Notification dated15.01.2015 reads:

“NOTIFICATION

Government of Gujarat

Urban Development and Urban Housing DepartmentD

Sachivalaya, Gandhinagar

Dated 15[th] January, 2015

NO.KV-38 of 2015 – MISC – 102014 – 564- - P: WHEREAS,the certain draft rules were published as required by sub-sectionE(2) of section 456 of the Gujarat Provincial Municipal CorporationsAct, 1949 (Bom. LIX of 1949), at pages 76-1 and 76-2, Part I-A,in the Central Section of the Gujarat Government Gazette, ExtraOrdinary, dated the 27[th] November, 2014 under the GovernmentNotification, Urban Development and Urban Housing DepartmentNo.KV/184 of 2014, inviting objections or suggestions from allFpersons likely to be affected thereby, within a period of thirtydays from the date of publication of the said notification in theOfficial Gazette.

Xxxxxxxxxxxxx”

75. Thus, in reference to notification dated 27.11.2014, theGnotification was issued on 15.01.2015,Rules, namely, Bombay ProvincialMunicipal Corporation (Delimitation of Wards in the City and Allocationof Reserved Seats) (Amendment) Rules, 2015 were issued whichspecifically mentioned that objections and suggestions in pursuance ofdraft have been considered by the Government. We, thus, do not findHany infirmity in the above notification.

76. In view of the above discussion, we answer Question No.3 inthe following manner:

Notification dated 04.12.0214 being not in reference tonotification dated 27.11.2014 which notification was on entirelydifferent subject, there is no illegality in issuing notification dated04.12.2014.

77. We having found that the provisions of Section 5(3) (iii)(a)and Section 29A of Act, 1949 and Rule 4 and 5 of Rules, 1994 and Rule2(b) of Rules, 2007 are not ultra vires to Part IXA of the Constitution,the Division Bench of the High Court did not commit any error indismissing the writ petition filed by the appellants. We, thus, do not findany merit in the Civil Appeal arising out of SLP(C)No.24950 of 2015and the Writ Petition (C)No.786 of 2020. Hence, the civil appeal andwrit petition are dismissed.

Civil Appeal (arising out of SLP(C)No.30635 of 2015-StateElection Commission vs. Virendrasinh Mafaji Vaghela & Ors.)

78. The appeal has been filed against the Division Bench judgmentof the Gujarat High Court dated 21.10.2015 by which writ petition filedby the respondents was allowed. The High Court in paragraph 72 hasissued directions which we have noted above. The High Court found theOrdinance No.3 of 2015 as unconstitutional and void. The action of theState Election Commission for postponement of the election of all localbodies in the State was held to be illegal and set aside. The State ElectionCommission was directed to initiate process of holding the election ofthe local bodies forthwith. In pursuance of the Division Bench judgmentof the High Court dated 21.10.2015 Elections for the local bodies wereheld in November/December, 2015. The direction of the Division Benchdated 21.10.2015 having been carried out nothing remains to be decidedin this appeal. The tenure of the Local Body constituted in pursuance ofthe impugned direction of the High Court dated 21.10.2015 having cometo end, we see no necessity to enter into issue raised in this appeal.Thus, the appeal is dismissed as having become infructuous.

Ankit Gyan

Appeals disposed of.

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