Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2843 OF 2011

(ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 21928 OF 2010)  

    Afjal Imam         …Appellant

Versus

   State of Bihar and others     …Respondents

J U D G M E N T

Gokhale J.

Leave granted.

By the order passed by us on April 1, 2011, we had allowed this  

appeal.   We  had,  further,  observed  that  we  will  indicate  our  reasons  by  a  

separate judgment. We do so herein.   

2. The Bihar Municipal Act, 2007, like other Municipal Acts, provides  

for the election of the Municipal Councillors, the Mayor or Chief Councillor and  

the Deputy Mayor/Deputy Chief Councillor.  It also provides for an Empowered  

Standing Committee to exercise the executive power of the Municipality.  This  

committee is supposed to consist of the Mayor, the Deputy Mayor and seven  

other Councillors nominated by the Mayor/Chief Councillor under section 21 (3)  

of  this  Act.   Section  27  of  this  Act  provides  that  the  term of  office  of  the  

Mayor/Chief Councillor and the members of the Empowered Standing Committee

shall be co-terminous with the duration of members of the Municipality.  The Act  

provides  for  the  removal  of  the  Mayor/Chief  Councillor  and  the  Deputy  

Mayor/Deputy Chief Councillor under section 25 (4) of the Act by a vote of no  

confidence, which can be moved only after two years from taking over of the  

charge of the post. Section 23 (3) of the Act provides for the election of a new  

Mayor/Chief  Councillor  when  a  vacancy  arises  in  the  office  of  Mayor/Chief  

Councillor  on account  of  death, resignation,  removal  or otherwise.   There is,  

however,  no  specific  provision  for  the  removal  of  the  members  of  the  

Empowered  Standing  Committee  appointed  by  the  earlier  Mayor  or  for  

nomination  of  new members  on  the  Committee  in  their  place  by  the  newly  

elected  Mayor/Chief  Councillor,  thereby  leading  to  an  anomalous  situation,  

namely that the Municipal Council will have a new Mayor/Chief Councillor having  

the confidence of the house, but the members on the Committee nominated by  

the previous Mayor/Chief Councillor who has lost the confidence of the house will  

continue to remain on the committee.    

3. Questions of Law arising in this appeal

A question, therefore,  arises as to whether the members of  the  

Empowered Standing Committee nominated by a Mayor/Chief Councillor continue  

in their office or vacate it by implication, when a vacancy arises in the post of a  

Mayor/Chief  Councillor  either  on  account  of  death,  resignation,  removal  or  

otherwise, and when a new Mayor/Chief Councillor is elected in that vacancy.  

This appeal raises the consequential question as to whether section 27 of the Act  

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should  be  read  as  it  is  and  without  reference  to  other  connected  sections,  

meaning thereby whether the members of the Empowered Standing Committee  

will continue to hold office (for the entire period of the municipal body) even if  

the nominator Mayor/Chief Councillor is no longer in the office? Or, whether such  

a reading of section 27 treats a newly elected Mayor dissimilarly, and therefore,  

whether section 27 of the Act is ultra vires the Constitution of India?   In that  

event, can it be saved by reading it down harmoniously by implication in line  

with and subject to sections 25 (4), 23 (3) and 21 (3) of the Act, thereby holding  

that the term of nominated members shall be co-terminous with the nominating  

Mayor, and they will automatically vacate their office when the Mayor nominating  

them is no longer in the office, and that the newly elected Mayor/Chief Councillor  

will  have  the  authority  to  nominate  seven  members  of  his  choice  on  the  

Empowered Standing Committee?  

4. Facts leading to this appeal:-

The Election to the Patna Municipal Corporation was held sometime  

in  May/June,  2007.   The  Municipal  Corporation  has  72  members.   After  the  

election of  the Municipal  Corporation,  the councillors  elected one Shri  Sanjay  

Kumar as the Mayor and one Shri Santosh Mehta as the Deputy Mayor.  Two  

years  later,  no  confidence  motions  were  moved  against  both  of  them  on  

13.6.2009, and were passed on 14.7.2009.  As far as the motion against the  

Mayor is concerned, we are informed that 42 members voted in favour thereof  

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and 28 opposed it.  One member is reported to have remained absent being in  

jail, and one had died.

5. The above referred Sanjay Kumar challenged the decision on the  

no confidence motion by filing a Writ Petition bearing No. 8603 of 2009.   A  

Learned Single Judge of the Patna High Court who heard the petition, initially  

granted a stay on the fresh election being held to fill the vacancy in the post of  

Mayor  arising  out  of  the  no  confidence motion.   Ultimately  the petition  was  

allowed.  That decision was challenged in an appeal to the Division Bench of the  

Patna High Court, and the Division Bench set aside that order by its judgment  

dated 14.5.2010.   Shri  Sanjay Kumar challenged the decision of  the Division  

Bench by filing Special Leave Petition No. 16578/2010.  A prayer was made to  

this Court that the election to fill the vacancy should not be permitted.  This  

Court did not grant that prayer, but vide its order dated 31.5.2010 directed that  

the subsequent election will be subject to the decision on this SLP.  (It is relevant  

to place it on record at this stage that this Writ Petition came to be dismissed by  

this bench by its separate order passed on 3.2.2011).  

6. In view of the order passed by this Court on 31.5.2010, a notice  

was given on 3.6.2010, and a meeting was accordingly convened on 14.7.2010  

wherein the appellant was elected as the Mayor of the Municipal Corporation.  

We are informed that the he obtained 44 votes and Shri Sanjay Kumar 18 votes,  

a third candidate 9 votes and 1 vote was rejected.  The appellant was given the  

oath of his office on the same day.   On his election, he nominated 7 councillors  

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to  be  the members  of  the Empowered Standing Committee  of  the Municipal  

Corporation as per the provision of section 21 (3) of the Bihar Municipal Act.  He  

requested the District Magistrate (D.M.) of Patna to give them oath of secrecy as  

per section 21 (4) read with section 24 of the Act, but the D.M. declined to do  

so,  in  view  of  the  decision  of  a  Full  Bench  of  the  Patna  High  Court  dated  

11.5.2010 in LPA No.618 of 2010 holding that such nomination by the Mayor is  

only a one time Act.  In that decision, the Full Bench had upleld the Govt. Memo  

No.6020  dated  12.12.2009  to  the  effect  that  notwithstanding  change  of  

Mayor/Chief  Councillor,  the  Empowered  Standing  Committee  as  nominated  

earlier shall continue.

7. The facts leading to the decision of the Full Bench:-

A similar problem had arisen in another Municipal Corporation of  

Bihar, viz. Ara Municipal Corporation.  One Jagdish Singh who was elected as a  

councillor of Ara Municipal Corporation, filed a Writ Petition bearing CWJC NO.  

9380 of 2008 to challenge the constitutional validity of the above referred section  

27, on the ground that although there was a provision for the removal of the  

Chief  Councillor  (or  Mayor)  in  section  25  of  the  Act,  there  was  no  similar  

provision for removal of the members of the Empowered Standing Committee.  

Once the councillors were nominated to the Empowered Standing Committee,  

they continued to be  members  of  that  committee  so  long as  they remained  

councillors.  There was a lack of any provision for removal of members of the  

Empowered Standing Committee, and the members of such committee had been  

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given  unguided  and  unbridled  power.   The  Division  Bench  negated  that  

contention by holding that a member of the Municipal Council, if he is nominated  

as a member of  the Empowered Standing Committee,  can either  be recalled  

under section 17 of the Act, or if he incurs disqualification for holding the post as  

a member, and an order of removal for such disqualification is passed under  

section 18 (2), his membership of the Empowered Standing Committee ipso facto  

comes to an end.  The bench, therefore observed:-  

“In this view of the matter,  even if there was no specific   provision for removal of the members of the Empowered  Standing Committee, there is enough mechanism under  the  Act,  2007  that  cessation  of  membership  to  the   municipality  automatically  brings  to  an  end  the  membership of the Empowered Standing Committee”.

The  High  Court  therefore  repelled  the  challenge  to  the  

constitutionality  of  Section  27  of  the  Act.   This  Division  Bench  rendered  its  

decision on 14.11.2008 which is reported in 2009 (2) PLJR at page 394 in the  

case of Jagdish Singh v. State of Bihar.

8. It so transpired that in another Municipal Corporation, namely Gaya  

Municipal Corporation, the Mayor of the Municipal Corporation expired, and one  

Sagufta Parween was elected as a new Mayor in that vacancy.  She wanted to  

nominate her nominees on the Empowered Standing Committee, but was not  

allowed to do so in view of the above referred Government Direction in Memo  

No. 6020 dated 18.12.2009, to the effect that notwithstanding the change of  

Mayor or Chief Councillor, the Empowered Standing Committee of the Municipal  

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Corporation, as nominated earlier, would continue.  Meaning thereby, that the  

Mayor/Chief  Councillor  newly elected would not  have the power  to nominate  

members of the Empowered Standing Committee of the Corporation in terms of  

section  21  (3)  of  the  Municipal  Act.   Smt.  Sagufta  Parween  challenged  that  

Government Direction by filing CWJC No. 1067 of 2010 which was heard by a  

Single Judge, who held that the aforesaid Government Direction was contrary to  

the statutory provisions and the statutory scheme.  The Learned Single Judge  

therefore,  allowed  the  Writ  Petition  and  directed  that  the  necessary  

consequences  will  accordingly  follow.   This  Judgment  of  the  Learned  Single  

Judge dated 23.2.2010 is reported in 2010 (2) PLJR at page 1072.

9. Being aggrieved by this judgment of the Single Judge, one Jitendra  

Kumar Verma and others filed LPA No. 618 of 2010.  When this LPA came up  

before  a  Division  Bench,  it  took  note  of  the  above  referred  Division  Bench  

decision rendered in Jagdish Singh vs. The State of Bihar & Ors. (Supra), and  

thought it appropriate that the matter should be heard by a larger Bench.  That  

LPA,  therefore,  came to be decided by a  Full  Bench.   The Full  Bench in  its  

decision dated 11.5.2010 followed the decision of the Division Bench in the case  

of Jagdish Singh (Supra), and held in paragraph 19 of its judgment reported in  

2010 (3) PLJR 285 that the appointment of the members of the Empowered  

Standing Committee was a one time act.  The full bench therefore allowed the  

appeal and set aside the order passed by the learned Single Judge.

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10. On this background, after the appellant in the present appeal was  

elected as the Mayor of Patna, he nominated his nominees on the Empowered  

Standing Committee.  However, the D.M., Patna declined to administer the oath  

of office to them. The appellant therefore filed Writ Petition bearing No. 9981 of  

2010 for a declaration that section 27 of the Act is ultra vires to the provisions of  

the Constitution of India and to section 21 of the Act, and alternatively to read  

down section 27 of the act.  The appellant also prayed for a Writ of Mandamus  

commanding the respondent D.M., Patna to administer oath of office to those  

nominees.   The Division Bench which decided the petition, noted in its order  

that the petition had sought to challenge the constitutional validity of section 27  

of the Bihar Municipal Act, 2007 for being contrary to section 21 of that Act.  It,  

however, noted that the matters at issue were squarely covered by the decision  

of  the Full  Bench in Jitendra Kumar Vs.  State of  Bihar (Supra).   The bench,  

therefore, passed an order dated 8.7.2010 that for the reasons recorded by the  

Full Bench, this petition was dismissed in limine.  This order is being challenged  

in this Appeal by Special Leave wherein the issues which are mentioned at the  

outset of this judgment have been raised for our consideration.

11. We have heard the learned counsel for the appellant as well as the  

counsel for the State of Bihar, Patna Municipal Corporation and the counsel for  

the intervening members of the Empowered Standing Committee who would be  

unseated if  this  appeal was to be allowed.   We have also gone through the  

written submissions presented by them.

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12. The  relevant  Sections  of  the  Bihar  Municipal  Act,  2007

In  this  appeal  we  are  concerned  with  the  interrelation  

amongst  sections  21,  23,  25  and 27  of  the  Act.   The  sections  of  the Bihar  

Municipal Act relevant for our purposes are as follows:-

“2. Definition:-

(36) “Empowered  Standing  Committee”  means  the  Empowered Standing Committee referred to in Section 21.

Section  21.  Constitution  of  Empowered  Standing  Committee  of  Municipality. (1)  In  every  Municipality   there shall be an Empowered Standing Committee.  

(2) The Empowered Standing Committee shall consist of-

(a) in the case of a Municipal Corporation, the Mayor,   the Deputy Mayor, and seven other Councillors;

(b) in  the case of  a Class ‘A’  or  Class  ‘B’  Municipal   Council,  the  Municipal  Chairperson,  the  Municipal  Vice  Chairperson, and five other Councillors;

(c) in the case of a Class ‘C’  Municipal Council,  the  Municipal  Chairperson,  the  Municipal  Vice-Chairperson,  and three other Councillors; and

(d) in the case of a Nagar Panchayat, the Municipal   President, the Municipal Vice-President, and three other   Councillors.

(3)  The  other  members  of  the  Empowered  Standing  Committee shall be nominated by the Chief Councillor from  among  the  Councillors  elected  under  sub  section  (1)  of   section  12  within  a  period  of  seven  days  of  his  entering   office.

(4)  The  other  members  of  the  Empowered  Standing  Committee  shall  assume  charge  after  taking  the  oath  of   secrecy under section 24.

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(5) The Chief Councillor shall be the presiding officer of the   Empowered Standing Committee.

(6)  The  manner  of  transaction  of  business  of  the  Empowered Standing Committee shall  be such as may be   prescribed.

(7) The Empowered Standing Committee shall be collectively  responsible  to  the  Municipal  Corporation  or  the  Municipal   Council or the Nagar Panchayat, as the case may be.

Section  22.  Executive  power  of  Municipality  to  be  exercised  by  Empowered  Standing  Committee.   –  Subject to the provisions of this Act and the rules and the  regulations  made  there  under,  the  executive  power  of  a   Municipality shall be exercised by the Empowered Standing  Committee.  

Section 23. Election of Chief Councillor and Deputy  Chief Councillor.   – (1) The Councillors shall, in the first   meeting  under  section  35,  elect  in  accordance  with  such  procedure  as  may  be  prescribed  from  amongst  the  Councillors  to  be  the  Chief  Councillor  and  Deputy  Chief   Councillor who shall assume office forthwith after taking the  oath of secrecy under section 24.

(2) If the Councillors fail to elect a Chief Councillor under   sub-section  (1),  the  State  Government  shall  appoint  by  name one of the Councillors to be the Chief Councillor.

(3) In the case of any casual vacancy in the office of the   Chief  Councillor  caused by  death,  resignation,  removal  or  otherwise,  the  Councillors  shall,  in  accordance  with  such   procedure as may be prescribed, elect one of the Councillors   to fill up the vacancy.

Section 25. Removal of Chief Councillor/Deputy Chief  Councillor.  –  (1)  The  Chief  Councillor/Deputy  Chief  Councillor shall cease to hold office as such if he ceases to   be a Councillor.

(2)  The  Chief  Councillor  may  resign  his  office  by  writing   under  his  hand addressed to  the Divisional  Commissioner   and Deputy Chief Councillor may resign his office by writing   under his hand addressed to the Chief Councillor.

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(3) Every resignation under sub-section (2) shall take effect   on  the  expiry  of  seven  days  from  the  date  of  such   resignation, unless within the said period of seven days he  withdraws  such  resignation  by  writing  under  his  hand  addressed  to  the  Divisional  Commissioner  or  the  Chief   Councillor, as the case may be.

(4)  The  Chief  Councillor/Deputy  Chief  Councillor  may  be  removed from office by a resolution carried by a majority of   the whole number of Councillors holding office for the time  being at a special meeting to be called for this purpose in   the manner prescribed, upon a requisition made in writing  by not less than one-third of the total number of Councillors,   and the procedure for the conduct of business in the special   meeting shall be such as may be prescribed:

“Provided that a no confidence motion shall  not be  brought against the Chief Councillor/Deputy Chief Councillor   within a period of two years of taking over the charge of the   post:

Provided further  that  a  no  confidence motion  shall   not  be  brought  again  within  one  year  of  the  first  no   confidence motion:

Provided further also that no confidence motion shall   not be brought within the residual period of six months of   the municipality.

(5) “Without prejudice to the provisions under this Act, if, in   opinion  of  the  Divisional  Commissioner  having  territorial   jurisdiction over the Municipality the Chief Councillor/Deputy   Chief Councillor absents himself without sufficient cause for   more than three consecutive meetings or sittings or willfully   omits or refuses to perform his duties and functions under  this  Act,  or  is  found  to  be  guilty  of  misconduct  in  the  discharge of  his  duties or  becomes physically  or  mentally   incapacitated  for  performing  his  duties  or  is  absconding  being  an  accused  in  a  criminal  case  for  more  than  six   months, the Divisional Commissioner may, after giving the  Chief  Councillor/Deputy  Chief  Councillor  a  reasonable   opportunity  for  explanation,  by  order,  remove  such  Chief  Councillor from office.

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(6) The  Chief  Councillor/Deputy  Chief  Councillor  so  removed  shall  not  be  eligible  for  re-election  as  Chief  Councillor/Deputy Chief Councillor  or Councillor  during the  remaining term of office of such Municipality.

Appeal shall lie before the State Government against   the order of the Divisional Commissioner.”

Section 27. The  term  office  of  the  Chief  Councillor   and  the  members  of  Empowered  Standing  Committee.- The term of office of the Chief Councillor and  the members of Empowered Standing Committee shall  be  coterminous  with  the  duration  of  members  of  the  Municipality.”

13. As  seen  from  section  22  above,  the  Executive  power  of  the  

Municipality is to be exercised by the ‘Empowered’ Standing Committee, and in  

the case of a Municipal Corporation, their committee consists of the Mayor, the  

Deputy Mayor and seven other Councillors under section 21 (2) (a) of the Act.  

These seven members are to be nominated under section 21 (3) of the Act by  

the Mayor or the Chief Councillor from amongst the Councillors.

14. Changes brought in by the Present Act   

It would be relevant to refer to the other connected provisions to  

enable us to decide the question of law which is raised in this appeal.  As far as  

Patna  Municipal  Corporation  is  concerned,  it  was  earlier  governed under  the  

Patna Municipal Corporation Act, 1951 (which has been repealed by section 488  

of the Bihar Municipal Act, 2007).  It is material to note that under section 36 of  

the  repealed  Act,  the  principal  committee  of  the  Municipal  Corporation  was  

known merely as the ‘Standing Committee’, and the members of the Standing  

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Committee were directly elected under section 37 of the Act by the full house of  

the Municipal Corporation, and their tenure was for two years.  They were not  

nominated by the Mayor.  Under the present Act,  they are nominated by the  

Mayor.  Now, the principal committee of the Municipal Corporation is known as  

the ‘Empowered Standing Committee’ under section 22 of the Act.   

15. Delegation of Powers

Section 28 (1) of the present Act provides for delegation of the  

powers and functions of the Municipal Corporation to the Empowered Standing  

Committee, and under section 28 (2), the Empowered Standing Committee may  

delegate its powers and function to the Chief Councillor or to the Chief Municipal  

Officer.  This section 28 reads as follows:-

“28.  Delegation of Powers and Functions.-(1)  The  Municipality may, by resolution, delegate, subject to such  conditions as may be specified in the resolution, any of  its  powers  or  functions  to  the  Empowered  Standing  Committee.  

(2) The Empowered Standing Committee may, by order  in writing, delegate, subject to such conditions as may be  specified in the order, any of its powers or functions to  the Chief Councillor or to the Chief Municipal Officer.  

(3)  Subject to such standing orders as may be made by  the Empowered Standing Committee in this behalf –

(a)   the  Chief  Councillor  may,  by  order,  delegate, subject to such conditions as may  be specified in the order, any of his powers  or functions to the Deputy Chief Councillor or  the Chief Municipal Officer;

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(b)   the  Chief  Municipal  Officer  may,  by  order, delegate, subject to such conditions as  may  be  specified  in  the  order,  any  of  his  powers or functions, excluding the powers or  functions  under  sub-section  (2)  of  section  354 or  section 365,  to any officer or other  employee of the Municipality; and  

(c)  any officer of the Municipality, other than  the  Chief  Municipal  Officer,  may,  by  order,  delegate, subject to such conditions as may  be specified in the order, any of his powers  or functions to any other officer subordinate  to him.

(4)  Notwithstanding anything contained in this  section,  the  Empowered  Standing  Committee,  the  Chief  Councillor, the Chief Municipal Officer, or the other officer  referred  to  in  clause  (C)  of  sub-section  (3),  shall  not  delegate –

(a)  any  of  its  or  his  powers  or  functions  delegated to it or him under this section, or

(b) such of its or his powers or functions as  may be specified by regulations.”

16. Collective responsibility

The Empowered Standing Committee is expected to function on the  

principle  of  collective  responsibility.   This  element  of  collective  functioning  is  

introduced in Municipal Governance under sections 57 and 59 of the Act.  Under  

section 57 (1), A Councillor may, subject to the provisions of sub-section (2), ask  

the Empowered Standing Committee, questions on any matter relating to the  

administration of the Municipality or municipal governance.  Sub-section (2) of  

this  section  lays  down the  conditions  subject  to  which  this  right  to  ask  the  

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question is to be exercised.  This section is divided into six sub-sections, though  

for our purpose it is section 57 (1) which is relevant which reads as follows:-

“57. Right of Councillors to ask questions. -  (1) A Councillor   may,  subject  to  the  provisions  of  sub-section  (2),  ask  the   Empowered Standing Committee questions on any matter relating  to  the  administration  of  the  Municipality  or  municipal   governance,  and  all  such questions shall  be addressed to the  Empowered Standing Committee and shall be answered either by  the  Chief  Councillor  or  by  any  other  member  of  the  Empowered Standing Committee.”  

(emphasis supplied)

In continuation of this Section 57, Section 59 provides for asking for a statement  

from  the  Empowered  Standing  Committee  on  any  urgent  matter  relating  to  

administration of the Municipality.  This section reads as follows:

“59.  Asking  for  statement  from  Empowered  Standing  Committee. - (1) Any Councillor may ask for a statement from  the Empowered Standing Committee on an urgent matter relating  to the administration of  the Municipality  by giving notice to the   Municipal Secretary at least one hour before the commencement of   the meeting of the Municipality on any day.

(2)  The  Chief  Councillor  or  a  member  of  the  Empowered Standing Committee may either make a brief   statement on the same day or fix a date for making such  statement.

(3) Not more than two such matters shall be raised at the   same meeting and, in the event of more than two matters being  raised  priority  shall  be  given  to  the  matters  which  are,  in  the  opinion of the Chief Councillor, more urgent and important.

(4) There shall be no debate on such statement at the time  it is made.”

As  has  been  seen,  section  57  (1)  clearly  uses  the  phrase  

‘Municipal Governance.’   Besides, as seen from these provisions, questions  

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about the Municipal  Administration can be asked to the Empowered Standing  

Committee and any member of the Empowered Standing Committee can answer  

such questions.   

17. Relevant  provisions  of  the  Bihar  Municipal  

Empowered  Standing  Committee  Conduct  of  Business  

Rules, 2010

(i) Apart from these provisions in the Act, separate rules have been  

framed under Section 419 of the Act read with Sections 22 and 63 thereof, to  

regulate  the  exercise  of  this  executive  power  under  Section  22  of  the  Act,.  

These  rules  are  known  as  Bihar  Municipal  Empowered  Standing  

Committee  Conduct  of  Business  Rules,  2010.   Rule  6  of  these  rules  

provides for the quorum of the meeting of the committee, Rule 7 provides for  

the notice for the meeting, and the items to be taken up for consideration, and it  

specifically lays down that except with the assent of the majority of members  

present, no business other than those included in the list shall be transacted in  

the meeting.  Rule 7 reads as follows:-

“7. The notice for the meeting shall be issued by the Chief   Municipal Officer with the approval of the Chairman, at least four   days before the date of the meeting, but in case of an emergency  meeting the notice  may be issued at  least  48 hours before the  meeting, The Chief Municipal officer shall send to each member of   the committee at least 24 hours previous to the meeting; a list of   business as approved by the Chairman.  Except with the assent of   the majority of  members present,  no business other than those  included in the list shall be transacted in the meeting.”

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(ii) Rule 10 of these rules speaks about the executive power of the  

Empowered Standing Committee.  This rule reads as follows:-

“10. The Executive Powers of the Municipality shall  vest in the  Empowered Standing Committee.  Executive Powers shall  be  used collectively.

Provided  that  administrative  control  on  the  Staffs  of  Municipality shall  vest in Chief Executive Officer/Executive Office.   Resolution shall be passed in the light of orders/directions issued  time to time by State Government.

Officially  brought  agenda  shall  contain  the   following-

(a) items relating to the establishment as per provision of  the  Act,  which  includes  appointments  promotions,   benefits,  transfers,  disciplinary  actions  etc.  of  the  employees of the Municipality.

        items relating to the collection of taxes and fees. (b) items  relating  to  the  financial  position  of  the  

Municipality. (c) development  activities  undertaken  and  to  be  

undertaken by the Municipal body. (d) items  necessary  for  effective  implementation  of  the  

provision of the Act.   

Provided  that  all  items  are  to  be  placed  before  the  committee by the Chief Municipal officer and shall be in the form of   memorandum which will include the subjects, the status and the   proposal to be approved by the committee.  A separate sheet is to   be  attached  under  the  signature  of  the  Chief  Municipal  officer   specifying  the  period  by  which  the  proposal  approved  by  the  committee shall be implemented.

(4) The Empowered Standing Committee shall  not   discuss and pass a resolution in

(a)  any matter/issue which is against the rules, laws and  directives of the State Government.

(b) any issue which is sub-judice in any court of law and  which may affect the interest of Municipality adversely.

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(5) All  issues  passed  by  the  committee  shall  be  placed before the Municipality in its next meeting.”

(iii) Rule 14 lays  down that  the  business  of  the committee  will  be  

decided by majority and this rule reads as follows:-

“14. All business which may come before the Committee at any meeting   shall  be  decided  by  the  majority  of  the  members  present  by  voting  at  the  meeting and in case of equality of votes, the Chairman shall have a second or   casting vote.”

These rules make it  clear that the executive power vests in the  

Empowered Standing Committee.  Though the Mayor nominates the members of  

the Empowered Standing Committee, the decisions of the Empowered Standing  

Committee are to be taken by majority, and the committee members have to  

function on the basis of collective responsibility.

18. Submissions on behalf of the appellant

The counsel for the appellant therefore submits that consequently  

if  a  vote of  no confidence is  passed against  the Mayor  and a new Mayor  is  

elected in his place, it should be read by implication that the members of the  

Empowered Standing Committee nominated by him shall vacate their seats and  

the  new  Mayor  will  have  the  authority  to  nominate  his  nominees  on  the  

committee.  Otherwise, the new Mayor will not be able to function in unison with  

the other members on the committee.  On the other hand, if section 27 is read  

as it is, without being read in line with and subject to sections 25 (4), 23 (3) and  

21 (3) of the Act, the councillors nominated by the earlier Mayor will continue on  

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the Empowered Standing Committee.  Thus, although the Mayor will be one who  

will have the confidence of the House, the other members of the Empowered  

Standing  Committee  will  be  those  who  have  been  nominated  by  the  earlier  

Mayor who has lost confidence of the House.  The functioning on the basis of  

collective responsibility will be difficult.  There is a clear possibility of a conflict  

between the new Mayor and the other members of the Empowered Standing  

Committee, and the new Mayor who is elected by the House will not be able to  

carry  the  municipal  governance  as  per  the  desire  of  the  House,  since  his  

proposals  could  be  opposed  by  the  members  of  the  Empowered  Standing  

Committee who are nominated by the erstwhile Mayor.  This straight reading of  

section 27 thus leads to an anomalous position.  The counsel for the appellant  

submits that although there is no difference in the position of the newly elected  

Mayor  and  the  earlier  Mayor,  if  literal  interpretation  is  accepted,  the  newly  

elected Mayor will be treated dis-similarly as against the earlier elected Mayor,  

and  the  entire  municipal  governance  will  come  under  strain.   He  therefore  

submits that section 27 is ultra-vires section 21 of the Act and Article 14 of the  

Constitution of India.  Section 27 should therefore be either struck down, or if it  

is to be saved, it should be read down harmoniously with sections 25 (4), 23 (3)  

and 21 (3) of the Act.

19.  Submissions on behalf of the Respondents:

The counsel for the respondents, on the other hand, submit that as  

held  by  different  benches  of  the  Patna  High  Court,  the  appointment  of  the  

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members of the Empowered Standing Committee is a one time Act.  A statutory  

provision should be read as it is, and the court should not add anything to the  

statute.  They submit that the municipal administration is supposed to be run on  

a non-political basis, and it is immaterial that another Mayor is elected in place of  

the previous one, since all of the Councillors are supposed to work harmoniously  

with each other for the benefit of all the citizens.

20.         Reference  to  the  provisions  in  Municipal  Laws  of  other  

States

The respondents submit that the Local Government is a subject in  

the State List under the Constitution of the India (being entry No.5 in list II  

of  the  Seventh  Schedule  thereof)  and  it  is  for  the  State  Government  

concerned to make necessary statutory provisions.  The provisions as enacted  

should be given due respect.   

(i) Thus the respondents point out that  different States have made  

different provisions in this behalf.   In the neighbouring State of West Bengal  

under  the  system  of  ‘Mayor-in-council’  under  the  Howrah  Muncipal  

Corporation Act,  1980 and Calcutta Municipal Corporation Act,  1980,  

the Mayor is elected by the corporators but the Deputy Mayor and the council  

members are nominated by the Mayor under section 6 (2) of the Howrah Act and  

section 8 (2) of the Calcutta Act.  Under section 7 (d) of the Howrah Act and  

section 9 (d) and (e) of the Calcutta Act, members of the Mayor-in-council have  

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to vacate their seats when a newly elected Mayor enters into the office in place  

of  the  earlier  Mayor.   The  Mayor  has  the  power  to  remove  the  Council  

member/Deputy Mayor under section 7 (c) of the Howrah Act and section 9(c) of  

the Calcutta Act.  The West Bengal Municipal Corporation Act, 2006 applies to  

corporations other than Howrah and Calcutta in the State of West Bengal.  It  

also creates a ‘Mayor-in-Council’  system and under section 41 of the Act, the  

executive power of the corporation vests in the Mayor-in-Council.  The Deputy  

Mayor and members of the council are nominated by the Mayor under section 19  

(2) of the Act and their tenure is co-terminous with that of the Mayor under  

section 20 (d) of the Act.

(ii) Similar is the provision in Madhya Pradesh under section 37 of the  

Madhya  Pradesh  Municipal  Corporation  Act,  1956  (the  section  in  the  

present form is since 1998 Amendment).   The Mayor,  who is elected by the  

Councillors from amongst themselves, nominates his Mayor-in-Council members.  

Section 37 (3) provides that the members shall hold office during the pleasure of  

the Mayor.  Section 37 (8) provides that the new Mayor (i.e., elected after the  

office of the Mayor is declared vacant) has the choice to continue the old Council  

members or appoint new members in their place.

(iii) The same is the effect and import of section 70 (in place since the  

1998 Amendment) of the  M.P. and Chattisgarh Municipalities Act, 1961.  

Section 70 deals with President-in-Council of the Municipal Council and is in pari  

materia with section 37 of the Madhya Pradesh Municipal Corporation Act, 1956.

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(iv)  In the  Mizoram Municipalities Act,  2007, there is a provision  

for an Executive Council  similar to the Empowered Standing Committee.  The  

tenure of the members of the Executive Council is co-terminous with that of the  

Chairman under section 21 (d) of Mizoram Municipalities Act, 2007.  

(v) Somewhat similar are the provisions under sections 52, 64 and 66  

of the Goa Municipalities Act 1968.  Under section 66 (1) of the Act, the term  

of office of the members of the Standing Committee is co-terminous with the  

term of the Chairperson during whose period they are elected.  The Chairperson  

of the Municipal Council and the members of the Standing Committee under that  

Act  are,  however,  elected  by  the  councillors,  and  not  nominated  by  the  

Chairperson.

(vi) It is therefore, submitted by the respondents that it is for a State  

Legislature to lay down the law as to what should be the provision in this behalf,  

and in its wisdom the Bihar Legislature had not made the term of the councillors  

co-terminous with that of the Mayor, and it should be read as it is.

21. In  this  connection,  it  is  material  to  note  that  by  the  74th  

Amendment to the Constitution of India, the Municipalities have been given a  

status under the Constitution.  Part IX A has been introduced concerning the  

Municipalities and their powers and functions are laid down under the Twelfth  

Schedule of the Constitution.  Article 243R provides for the composition of the  

Municipalities, and the same is to be done by the Legislature of a State by law.  

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Article 243R (2) (b) provides for the manner of election of the Chairperson of a  

Municipality.  Article 243S provides for the constitution and composition of the  

Wards  Committees,  and  sub-article  (5)  thereof  provides  for  constitution  of  

Committees in addition to the Wards Committees.   Article  243U assures the  

Municipalities  a  term  of  five  years.  Thus,  it  is  true  that  it  is  for  the  State  

Legislature  to  make  necessary  provisions  concerning  the  municipal  

administration.  However, the enactments of different States relied upon by the  

respondents,  in  fact,  point  out  that  whenever  the  Mayor-in-Council  or  on  

analogous pattern is adopted, the term of the members on the Council or the  

Standing Committee is co-terminous with that of the Mayor or the Chairperson.    

22. The  respondents  submitted  that  the  approach  of  the  appellant  

amounted to legislation and should not be permitted.  They relied upon various  

judgments to submit  that  the court is  expected to interpret the law and not  

legislate.   Firstly,  they  relied  upon  the  judgment  of  this  Court  in  State  of  

Jharkhand and Anr. Vs. Govind Singh, reported in 2005 (10) SCC 437,  

which was a case under Forest Act, 1927.  The High Court had read into sections  

52 (3) of the Act, the power to direct release of seized vehicles on payment of  

fine in lieu of  confiscation, when there was no such specific provision in the  

statute.  This Court held that casus omissus cannot be readily inferred by the  

Court except in the case of clear necessity and when reason for it is found in the  

four corners of the statute itself.   The decision was rendered in view of the facts  

of the case and the relevant provisions of the Forest Act 1927, and while so  

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doing, the court did make it clear that if literal construction of a particular clause  

leads to manifestly absurd or anomalous results, a literal interpration may not be  

preferred. The proposition of law laid down in this case, is thus quite clear and  

does not help the respondents.  In para 21 of the judgment this Court (per Arijit  

Pasayat, J) observed as follows:-

“Two  principles  of  construction  —  one  relating  to  casus  omissus and the other in regard to reading the statute as a whole  — appear  to  be  well  settled.  Under  the  first  principle  a  casus  omissus cannot be supplied by the court except in the case of clear   necessity and when reason for it is found in the four corners of the  statute itself but at the same time a casus omissus should not be  readily inferred and for that purpose all the parts of a statute or   section must be construed together and every clause of a section   should  be  construed  with  reference  to  the  context  and  other   clauses thereof so that the construction to be put on a particular   provision makes a consistent enactment of the whole statute. This   would be more so if literal construction of a particular clause leads  to manifestly absurd or anomalous results which could not have  been  intended  by  the  legislature.  “An  intention  to  produce  an  unreasonable  result”,  said  Danckwerts,  L.J.  in Artemiou v.  Procopiou18 (All ER p. 544 I), “is not to be imputed to a statute if   there is some other construction available”. Where to apply words  literally would “defeat the obvious intention of the legislation and  produce a wholly unreasonable result”, we must “do some violence  to the words” and so achieve that obvious intention and produce a  rational construction. [Per Lord Reid in  Luke v.  IRC where at AC  p. 577  (All  ER  p. 664  I)  he  also  observed:  “This  is  not  a  new  problem,  though  our  standard  of  drafting  is  such  that  it  rarely   emerges.]”

23. The respondents relied upon the judgment in Union of India and  

Another Vs. Shardindu,  reported in 2007 (6) SCC 276, wherein this Court  

set aside the premature repatriation of the respondent to his parent cadre.  The  

appointment of the respondent in that case was a tenure appointment under a  

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statute, and it was contented on behalf of the appellant that same is governed  

under  the  ’Doctrine  of  Pleasure’  available  under  the  Constitution.   In  that  

context, this Court laid down that when it was an appointment under a statute as  

against a constitutional appointment, the court could not bring in such concept,  

and could not supply the omission under the statute.  The judgment will have to  

be read in that context.

24. The respondents then relied upon the judgment of this Court in  

Satheedevi Vs. Prasanna and Anr. reported in 2010 (5) SCC 622 to submit  

that  the intention of  the legislature must  be read in the words used by the  

legislature itself.  It was submitted that if words that are used are capable of one  

construction  it  was  not  open  to  courts  to  adopt  any  other  hypothetical  

construction on the grounds that it is more consistent with the alleged object and  

policy of the Act.  It is however, material to note that in paragraph 12 thereof  

this judgment also accepts that when the words used in the statute are capable  

of two constructions, the question of giving effect to the policy or object of the  

act can legitimately arise.

25. Consideration

Constitutional Provisions concerning the Municipalities

Before we deal with the rival submissions, we may note that the  

Municipalities are expected to render wide-ranging functions.  They have now  

been enumerated in the Constitution.   Article  243W lays down the powers of  

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the Municipalities to perform the functions that are listed in Twelfth Schedule  

It reads as follows:-

“243W. Powers, authority and responsibilities of  

Municipalities,  etc.  –  Subject  to  the  provisions  of  this  Constitution, the Legislature of a State may, by law, endow –  

(a) the  Municipalities  with  such  powers  and  authority  as  may  be  necessary  to  enable  them  to  function  as  institutions  of  self- government  and  such  law  may  contain  provisions  for  the  devolution  of  powers  and  responsibilities  upon  Municipalities,   subject to such conditions as may be specified therein, with respect  to-

(i) the  preparation  of  plans  for  economic  development  and  social justice;

(ii) the  performance  of  functions  and  the  implementation  of   schemes as may be entrusted to them including those in  relation to the matters listed in the Twelfth Schedule;

(b)  the  Committees  with  such  powers  and  authority  as  may  be  necessary to enable them to carry out the responsibilities conferred  upon them including those in relation to the matters listed in the  Twelfth Schedule.”

 Twelfth Schedule reads as follows:-

TWELFTH SCHEDULE [Article 243W]

1. Urban planning including town planning. 2. Regulation of land-use and construction of buildings. 3. Planning for economic and social development. 4. Roads and bridges. 5. Water supply for domestic, industrial and, commercial purposes. 6. Public health, sanitation conservancy and solid waste       

management. 7. Fire services. 8. Urban forestry, protection of the environment and promotion of   

ecological aspects.

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9. Safeguarding the interests of weaker sections of society, including  the handicapped and mentally retarded.

10. Slum improvement and upgradation. 11. Urban poverty alleviation. 12. Provision of urban amenities and facilities such as parks, gardens,  

playgrounds. 13. Promotion of cultural, educational and aesthetic aspects. 14. Burials  and burial  grounds;  cremations,  cremation grounds and   

electric crematoriums. 15. Cattle ponds; prevention of cruelty to animals. 16. Vital statistics including registration of births and deaths. 17. Public amenities including street lighting, parking lots, bus stops   

and public conveniences. 18. Regulation of slaughter houses and tanneries.

26. The scheme of the Bihar Municipal Act, 2007

The provisions  of  the Bihar Municipal  Act,  2007 will  have to be  

looked into on this  background.   The Act is  a detailed Act  running into 488  

sections which are divided into VIII parts and 44 chapters and they govern all  

the aspects of Municipal Governance and Administration.  Part I contains the  

preliminary provisions.  Part II deals with the Constitution of the Government of  

the  Municipal  Bodies  some  of  which  provisions  we  have  already  referred  to  

namely those contained in Sections 21 to 59.  Part III deals with the Financial  

Management of Municipalities.  Part IV is on the Municipal Revenue.  Part V is  

on  the  Urban  Environmental  Infrastructure  and  Services  which  contains  the  

following chapters.   

Chapter 21 on Private Sector Participation Agreement and Assignment of Other  Agencies,  

Chapter 22 on Water-supply,  

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Chapter 23 on Drainage and Sewerage,  

Chapter  24  on  other  provisions  relating  to  Water-supply,  Drainage  and  Sewerage,  

Chapter 25 on Solid Wastes,

Chapter 26 on Communication Systems which deals with the public streets and  street lighting,  

Chapter 27 on Markets, Commercial Infrastructure and Slaughter Houses.   

Part VI  deals with Urban Environmental Management, Community Health and  

Public Safety.

Chapter 28 is on local agenda for Urban Environmental Management,  

Chapter 29 on Environmental Sanitation and Community Health,

Chapter 30 on restraint of infection,

Chapter 31 on disposal of the dead,

Chapter 32 on Urban Forestry, Parks, Gardens, Trees and Playgrounds.   

Part  VII  deals  with  the  Regulatory  Jurisdiction,  and  contains  chapters  on  

Development Plans, Improvement, Public Streets, Buildings, Municipal Licences,  

Vital Statistics, Disaster Management and Industrial Townships.

Lastly Part VIII deals with the Powers, Procedures, Offences and Penalties.

27. Thus,  it  will  be  seen  that  the  Bihar  Municipal  Act  is  quite  a  

comprehensive Act, and as noted earlier the executive powers of the Municipality  

are vested in the Empowered Standing Committee under section 22 of the Act.  

The members  of  this  Empowered Standing Committee  are nominated by the  

Mayor.  After a Mayor is removed, and another Mayor is elected in his place, if  

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the new Mayor is  not  allowed to nominate his  nominees on the Empowered  

Standing Committee, it is likely to result into a situation of conflict.  This is apart  

from the fact that the new Mayor will  be treated dissimilarly with the earlier  

Mayor, although both of them are elected by the same full House and there is no  

justifiable reason for making any distinction.  The fact that a councillor is elected  

as the Mayor immediately after the general election to the Municipality, and he  

nominates  seven  councillors  on  the  Empowered  Standing  Committee,  cannot  

make this act of nomination as a one time act, nor does the enactment say so.  

After a Mayor is removed under section 25 (4) of the Act, a new Mayor is to be  

elected under section 23 (3) of the Act.  This section does not say that the newly  

elected Mayor will not have the powers of nominating the other members on the  

Empowered Standing Committee which is  available  to the Chief  Councillor  or  

Mayor  under  section  21  (3)  of  the  Act.   Thus,  in  fact,  by  stating  that  the  

nomination of the members on the Empowered Standing Committee is a one  

time act, the respondents are adding words in section 21 (3) of the Act.  Thus, in  

a way, they are supplying in section 21 (3) the words ‘only by the first Chief  

Councillor  and not by his  successors in office’  in place of  ‘the Chief  

Councillor’ after the words ‘shall be nominated’ in section 21 (3) of the Act.  

Thus, they want section 21 (3) to read as follows:-

         “(3) The other members of the Empowered Standing   Committee shall be nominated ‘only by the first Chief Councillor   and not by his successors in office’  from among the Councillors  elected under sub section (1) of section 12 within a period of seven  days of his entering office.”

29

Such  a  reading  and  resultant  situation  will  be  contrary  to  the  basic  

principle  of  parliamentary  democracy,  viz.  that  those  in  office  ought  to  be  

representative of and responsible to the House.  Therefore, if the house has lost  

confidence in the earlier Mayor, it is all the more necessary that the members of  

the Empowered Standing Committee should be made to step down alongwith  

him and  a  newly  elected  Mayor  be  permitted  to  have  his  nominees  on  the  

Empowered Standing Committee.   

28. The concept of Executive Power and Article 14

As  seen  above,  the  term executive  power  has  been  specifically  

used in section 22 of the Act and section 57 specifically uses the term Municipal  

Governance.   The  concept  of  executive  power  has  been  read  widely  by  

Constitution Bench of this Court way back in Rai Sahib Ram Jawaya Kapur &  

Ors. Vs. The State of Punjab, reported in  [AIR 1955 SC 549],  wherein this  

court has observed:-

“12.  It  may  not  be  possible  to  frame  an  exhaustive   definition  of  what  executive  functions  means  and  implies.   Ordinarily  the  executive  power  connotes  the  residue  of  governmental  functions  that  remain  after  legislative  and judicial   functions are taken away...…   

13.  .....The  executive  function  comprises  both  the  determination of the policy as well as carrying it into execution…..”

This being the breadth of the executive power of the Empowered  

Standing Committee, the newly elected Mayor will not be able to exercise the  

30

same effectively and the entire municipal governance will come in jeopardy, if  

the other members on the Committee are not his nominees.   

29. Apart  from  the  aforesaid  resultant  administrative  difficulty,  if  a  

literal interpretation of section 27 is followed alongwith adding words in section  

21 (3) as pointed out above, the newly elected Mayor will be treated dissimilarly  

for no justifiable distinction.  In that case, as against the earlier elected Mayor he  

will not permitted to have his nominees on the Empowered Standing Committee.  

A literal interpretation of section 27 of the Act will clearly bring it in conflict with  

section  21  (3)  of  the  Act,  and  will  also  be  violative  of  Article  14  of  the  

Constitution of India as held by the Constitution Bench of this Court way back in  

State of West Bengal Vs. Anwar Ali Sarkar, reported in [AIR 1952 SC 75].  

In that matter, in his leading judgment,  B.K. Mukherjea, J. (as he then was)  

observed in para 46 as follows–

   ….. “If  a  legislation  is  discriminatory  and  discriminates  one  person or  class  of  persons  against  others  similarly  situated  and   denies to the former the privileges that are enjoyed by the latter, it   cannot  but  be regarded as “hostile”  in  the sense that  it  affects   injuriously the interests of that person or class.  Of course, if one’s   interests are not at all affected by a particular piece of legislation,   he may have no right to complain.  But if it is established that the   person complaining has been discriminated against as a result of   legislation and denied equal privileges with others occupying the  same position.  I do not think that it is incumbent upon him, before  he can claim relief on the basis of his fundamental rights, to assert   and prove that in making the law, the legislature was actuated by a   hostile or inimical intention against a particular person or class.”

30. The correct approach towards interpretation  

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What  should  be  then  the  approach  towards  interpreting  the  

provisions in such a situation?  Guidance can be had from three passages quoted  

herein below:-

(a) In Reserve Bank of India Vs. Peerless Corp. reported in [AIR  

1987  SC  1023]  =  1987  (1)  SCC  424,  O.  Chinnappa  Reddy,  J.  has  

observed as follows (in para 33):-

“33. Interpretation must depend on the text and the  context. They are the bases of interpretation. One may well say if   the text is the texture, context is what gives the colour. Neither can  be  ignored.  Both  are  important.  That  interpretation  is  best  which  makes  the  textual  interpretation  match  the  contextual.  A statute is best interpreted when we know why it   was enacted. With this knowledge, the statute must be read, first   as a whole and then section by section, clause by clause, phrase by   phrase and word by word. If a statute is looked at, in the context   of its enactment, with the glasses of the statute-maker, provided   by such context,  its  scheme, the sections,  clauses,  phrases and  words may take colour and appear different than when the statute   is  looked  at  without  the  glasses  provided  by  the  context.  With   these glasses we must look at the Act as a whole and discover  what  each section,  each clause,  each phrase and each word is   meant and designed to say as to fit into the scheme of the entire  Act.  No part of a statute and no word of a statute can be  construed in isolation.  Statutes  have to be construed so  that every word has a place and everything is in its place. It   is by looking at the definition as a whole in the setting of the entire   Act  and by reference to what  preceded the enactment  and the  reasons for it that the Court construed the expression “Prize Chit”   in  Srinivasa and  we find  no  reason  to  depart  from the  Court’s   construction.”

(emphasis   supplied)

(b) In Union of India Vs. Filip Tiago De Gama, reported in 1990  

(1) SCC 277, K. Jagannatha Shetty, J. observed as follows (in para 16) :-

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16. The paramount object in statutory interpretation is to   discover what the legislature intended. This intention is primarily to   be ascertained from the text of enactment in question. That does  not mean the text is to be construed merely as a piece of prose,   without reference to its nature or purpose. A statute is neither a  literary  text  nor  a  divine  revelation.  “Words  are  certainly  not   crystals,  transparent  and unchanged”  as  Mr  Justice  Holmes has  wisely and properly warned. (Towne v. Eisner1) Learned Hand, J.,   was  equally  emphatic  when  he  said:  “Statutes  should  be  construed,  not  as  theorems  of  Euclid,  but  with  some  imagination of the purposes which lie behind them.” (Lenigh  Valley Coal Co. v. Yensavage 2).”

( 1  245 US 428,425 (1918)  

 2  218 FR 547, 553  )

(emphasis supplied)

(c) In Anwar Hasan Khan Vs. Mohd. Shafi and others reported in  

2001 (8) SCC 540, R.P. Sethi, J.  quoted the above paragraph in Filip Tiago  

De Gama with approval prior whereto he observed as follows (in para 8):-

“8. It is settled that for interpreting a particular provision of   an Act, the import and effect of the meaning of the words and   phrases used in the statute have to be gathered from the text, the  nature of the subject-matter and the purpose and intention of the   statute. It is a cardinal principle of construction of a statute   that effort should be made in construing its provisions by  avoiding  a  conflict  and  adopting  a  harmonious  construction. The statute or  rules made thereunder should  be  read  as  a  whole  and  one  provision  should  be  construed  with   reference to the other provision to make the provision consistent   with  the  object  sought  to  be  achieved.  The  well-known  principle of harmonious construction is that effect should  be  given  to  all  the  provisions  and  a  construction  that   reduces  one  of  the  provisions  to  a  “dead  letter”  is  not  harmonious construction.”

        (emphasis supplied)

31. Removal of anomaly

This  rule  of  harmonious  construction  has  been  adopted  by  this  

Court from time to time.  In  N.T. Veluswami Thevar Vs. G. Raja Nainar  

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reported  in  [AIR 1959  SC  422],  a  bench  of  three  Judges  of  this  Court,  

(consisting of T.L. Venkatarama Aiyer, P.B. Gajendragadkar and A.K. Sarkar JJ.)  

was dealing with a matter concerning the election to the Legislative Assembly of  

the then State of Madras held in the year 1957.  In this case arising under the  

Representation  of  the People  Act,  1951,  the  Supreme Court  held  that  if  the  

Returning  Officer  had  rejected  a  nomination  paper  of  a  candidate  on  one  

disqualification, it was open for the Election Tribunal to find the rejection proper  

on some other ground of disqualification which may not have been raised before  

the Returning Officer.  It was pointed out that if this construction is not placed  

on section 100 (1) (c) of the Act, the result will  be anomalous in that if the  

decision under section 36(6) of the Returning Officer on the objection on which  

he rejected the nomination paper is held to be bad, the Tribunal will have no  

option but to set aside the election under section 100(1) (c) even though the  

candidate was disqualified and his nomination paper was rightly rejected.  In  

holding so, Venkatarama Aiyer, J. observed as follows in para 13:

……“It is no doubt true that if on its true construction, a statute  leads to anomalous results, the Courts have no option but to give effect   to it and leave it to the Legislature to amend and alter the law.  But  when on a construction of a statute, two views are possible,   one which results in an anomaly and the other not,  it  is our   duty to adopt the latter and not the former, seeking consolation  in the thought that the law bristles with anomalies.”…..

    (emphasis supplied)

32. In  S.V.  Kondeakar  Vs.  V.M.  Deshpande,  reported  in  [AIR  

1972 SC 878], a  Constitution  Bench  of  this  Court  was  concerned with  the  

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construction of section 446 (1) of the Companies Act, 1956 which provides that  

when a winding  up order  has  been made or  the  official  liquidator  has  been  

appointed, no suit or legal proceedings shall be commenced or continued against  

the company except with the leave of the court, the Supreme Court held that  

assessment proceedings under the Income-tax Act do not fall within the section.  

This conclusion was reached on the ground that only such proceedings fall under  

section 446 (1) which could appropriately be dealt with by the winding up court  

under section 446 (2). The Court held in para 7 of the judgment for the bench  

I.D. Dua, J. observed as follows:-  

“It would lead to anomalous consequences if the winding up   court  were  to  be  held  empowered  to  transfer  the  assessment   proceeding to itself and assess the company to income-tax.”

33. Making  cross-reference  to  sections  to  read  them   

harmoniously

One  of  the  methods  adopted  in  such  situations  is  to  make   

cross-reference to the relevant sections to read them harmoniously.  Thus, way  

back  in  Ramkissendas  Dhanuka  Vs.  Satyacharan  Lal,  reported  in  [AIR  

1950 PC 81], the Privy Council was faced with such a situation in a case arising  

under the Companies Act, 1913.   One of the Articles of Association i.e. 109 of  

the Company concerned prescribed a maximum of four and a minimum of three  

directors without any qualifying words.  Another Article i.e. 126 authorised the  

company  in  a  general  meeting  from time to  time to  increase  or  reduce  the  

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number of directors subject to the provisions of section 83A(1) and to alter their  

qualification  and  change  the  order  of  rotation  of  the  increased  or  reduced  

number.   The question was whether  the power of  the company by ordinary  

resolution to “increase or reduce” the number of directors conferred by Article  

126 was only exercisable within the limits set by the maximum and the minimum  

prescribed by Article 109, and whether a special resolution altering Art. 109 was  

required to increase the number of directors beyond the prescribed maximum.  

After considering the relevant Articles, the Privy Council held that Articles 126  

and 109 were two textually inconsistent provisions. The proposition that emerges  

from the judgment is that it is permissible to read words such as “subject to” etc.  

in order to reconcile two apparently inconsistent provisions.  To reconcile Article  

109 with Article 126 and to give effective content to them, it was necessary to  

imply words such as “subject to”.  The Court therefore, observed in paragraph 5  

as follows:-

“The  omission  to  make  such  cross-references  as  may  be  required  to  reconcile  two  textually  inconsistent  provisions  is  a   common defect  of  draftsmanship.   There is  thus no insuperable   difficulty  in  reconciling  Article  109  with  Article  126  either  by  implying in the former some such opening words as “subject  to   Article 126” or implying in the latter some such opening words as  “notwithstanding anything containing in Article 109.”

34. Reading a section subject to another to realise the real   

intent of the two provisions

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Recently  this  Court  was  concerned  with  the  anomaly  between  

section  23  (3)  of  the  Code  of  Civil  Procedure  and  section  25  thereof  as  

substituted by the Act No. 104 of  1976 in  Durgesh Sharma Vs. Jayshree  

reported  in  2008 (9) SCC 648.   The amending Act  did not  delete  or  omit  

section 23 (3) of the Code which provided that where several Courts  having the  

jurisdiction are subordinate to different High Courts, the application for transfer  

shall be made to the High Court within the local limits of whose jurisdiction the  

court  in  which  the  suit  is  brought  is  situate.   Section  25  as  substituted  

empowered the Supreme Court to transfer any suit, appeal or other proceedings  

from one High Court to another High Court or from one Civil Court in a State to  

any  other  Civil  Court  in  another  State  through  the  Country.   The  scope  of  

amended section 25 is very wide and plenary and extensive powers have been  

conferred on this Court as it stands now.  In the case of Durgesh Sharma versus  

Jayshree (supra), this Court held that section 23 must be read subject to section  

25 and even if the High Court had the power to transfer a case from one State to  

another, that must be taken to have been withdrawn from 1.1.1997 when the  

Amending Act of 1976 came into force.   The Amending Act had failed to delete  

section 23 (3) and therefore this Court had to make it clear that section 23 (3)  

will  be subject  to  section 25 of  the Act.   In para 55 of  the judgment,  C.K.  

Thakker, J. held as follows:-

“It  is no doubt true that even when section 25 in the  present form was substituted by the Amendment Act of 1976, sub- section (3) of Section 23 of the Code has neither been deleted nor   

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amended.  That, however, is not relevant.  Since in our considered   view, Section 23 is merely a procedural provision, no order of transfer   can be made under  the said  provision.   If  the case is  covered by   section 25 of the Code, it is only that section which will apply for both   the purposes, namely, for the purpose of making application and also   for the purpose of effecting transfer.  On the contrary, reading of sub- section (3) of section 23 of the Code in the manner suggested by the   learned counsel for the respondent wife would result in allowing inroad   and  encroachment  on  the  power  of  this  Court  not  intended  by  Parliament.  Section 23, therefore, in our considered view, must   be read subject to Section 25 of the Code.”……..

(emphasis supplied)

Thereafter in para 57 of that judgment the Court gave a declaration as follows:-

“….We hold  that  a  High  Court   has  no  power,  authority  or  jurisdiction to transfer a case, appeal or other proceedings pending in   a court  subordinate to it  to any court  subordinate to another High  Court in purported exercise of power under sub-section (3) of Section   23 of the Code and it is only this Court which can exercise the said  authority under section 25 of the Code……”

35. Reading down a section to save it from being ultra vires  

We have noted that the view canvassed by the respondents that  

the nomination of the members on the Empowered Standing Committee is a one  

time act, is possible only if the words are added in section 21 (3) of the Act as  

pointed out above.    The intention of the legislature as seen from the provisions  

of  the  Act  and  the  Rules  is  to  have  a  ‘Mayor-in-Council’  who  enjoys  the  

confidence of the Municipal House.  The Empowered Standing Committee along  

with him is vested with the executive power and is expected to run the municipal  

governance.   There  is  no  reason  to  treat  the  subsequently  elected  Mayor  

differently, and deny him the right to nominate his nominees on the Empowered  

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Standing Committee which right  is available to the duly elected Mayor under  

section 21 (3) of the Act.  Except for the fact that the person who is elected as  

the Mayor after the no confidence motion is passed against the first Mayor, is  

elected  subsequent  to  the  first  Mayor,  there  is  no  ground  to  classify  the  

subsequent Mayor differently from the first Mayor. The view canvassed by the  

respondents would lead to a conflict between the newly elected Mayor and the  

other members of the Empowered Standing Committee if they are not nominated  

by him.   That was surely not the intention of the legislature.  Considering the  

powers which are available to the Empowered Standing Committee, if the newly  

elected Mayor is not read as having the power to nominate his nominees on the  

Empowered Standing  Committee,  he  will  be  treated  dissimilarly  and such an  

interpretation will make section 27 violative of Article 14 of the Constitution and  

contrary to the powers of the Mayor under section 21(3) of the Act.  The only  

way, therefore, to save section 27 is to read it down by implication, and to make  

it subject to sections 25 (4), 23 (3) and 21 (3) of the Act, thereby, holding that  

the nominated members shall  also automatically vacate their  office when the  

Mayor nominating them is no longer in the office. Thus, the newly elected Mayor  

will  also have the authority to nominate seven members of his choice on the  

Empowered Standing Committee.   

36. This has been the approach adopted by this Court in similar cases  

for instance by the Constitution Bench in 20th Century Finance Corpn. Ltd. Vs  

State of Maharashtra, reported in 2000 (6) SCC 12.  Amongst others, in that  

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matter the Constitution Bench was concerned with the Maharashtra Sales Tax on  

the  Transfer  of  the  Right  to  use  any  Goods  for  any  Purpose  Act,  1985.  

Explanation to section 2(10) of that Act deemed the transfer of right to use any  

goods to have occurred in the State of Maharashtra if the goods were located  

within  the  State  at  the  time  of  their  use,  irrespective  of  the  place  where  

agreement of such transfer of the right is made and therefore included deemed  

sales (i) which are in the course of inter-State trade and commerce; (ii) sales  

outside  the State  of  Maharashtra;  and (iii)  sales  which  occasioned  import  of  

goods into India.  Section 3 laid down that subject to the provisions contained in  

the Act and Rules, tax shall be leviable on the turnover of sales and therefore  

turnover necessarily has to include outside sale and sale in the course of inter-

State  trade  and  commerce  and  sales  which  occasioned  import  of  goods.  

Although  Section  8-A  of  the  Act  provided  that  nothing  in  this  Act  would  be  

deemed to impose or authorize imposition of any tax on a sale outside the State  

or in the course of the import or export or inter-state trade or commerce but the  

explanation  has  not  been  amended  accordingly.   There  is  a  provision  for  

exemption of turnover related to goods in respect of which tax has already been  

paid under the Bombay Sales Tax Act, 1952, but there is no provision that such  

exemption would be available in case of goods which have suffered sales tax  

under the other Sales Tax Laws.  In the circumstances, this Court held as follows  

in para 38 (per V.N. Khare, J (as he then was) speaking for the majority on the  

bench):-

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“We are, therefore, of the view that since the explanation has   not been amended in conformity with Section 8-A of the Act, the   explanation to Section 2(10) of the Maharashtra Act transgresses the  limits of legislative power conferred on the State Legislature under  Entry 54 of List II and we, thus, instead of striking it down, direct   that the explanation to Section 2(10) of the Act shall be read down  to this effect that it would not be applicable to the transactions of   transfer  of  right  to  use any goods if  such deemed sale  is  (i)  an  outside sale; (ii) sale in course of the import of the goods into or  export of the goods out of the territory of India; and (iii) an inter- State sale.”

37. Conclusions

The above overview clearly shows that after the 74th Amendment to  

the Constitution, the Municipalities are strengthened and they are given wide  

ranging powers.  The Municipal Laws in other states which we have seen clearly  

demonstrate that wherever Mayor-in-Council system is adopted, the tenure of  

the members in the Council is made co-terminus with that of the Mayor.  The  

idea is that the Mayor should have the confidence of the Executive Council or the  

Empowered Standing Committee, as the case may be, apart from that of the  

House.  The members of the Empowered Standing Committee are authorized to  

answer the questions on behalf of the Empowered Standing Committee under  

the Bihar Municipal Act.  Thus, there is an element of collective responsibility.  

The Empowered Standing Committee is supposed to function on the basis of the  

principle of Democratic Governance in the sense that the decisions are to be  

taken by the majority.  If the new Mayor is not permitted to have his nominees  

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on the Empowered Standing Committee, the collective functioning will be under  

jeopardy.  Thus, there is a clear omission in the Bihar Municipal Act, 2007 in this  

behalf.   

38. As noted above, the interpretation sought to be placed on section  

27 by the respondents requires addition of words in section 21 (3) of the Act.  

Even  after  adding  the  necessary  words,  the  result  will  be  incongruous  to  a  

democratic  functioning  in  as  much  as  the  nomination  on  the  Empowered  

Standing Committee will be a one time act and the newly elected Mayor will be  

at  the mercy of  the other  members  of  the Empowered Standing Committee.  

Such a reading will be also be contrary to section 21 of the Act and the newly  

elected Mayor will be treated dissimilarly as against the earlier elected Mayor for  

no justifiable reason.  Thereby section 27 will be ultra vires to Article 14 of the  

Constitution.  The legislature cannot be attributed such an intent.  On the other  

hand,  reading section 27 by making a cross-reference and making the same  

subject to sections 25 (4), 23 (3), 21 (3) and 21 (4) will lead to a harmonious  

functioning of the Municipal Corporation and will also save the section from being  

ultra vires Article 14.  The judgment of the Division Bench of the Patna High  

Court in Jagdish Singh Vs. State of Bihar (supra) and that of the full bench of  

that Court in Jitendra Kumar Vs. State of Bihar (supra) do not lay down the  

correct legal position and are overruled.

39. In the circumstances, we allow this appeal.  Impugned judgment  

and order passed by the Division Bench of the Patna High Court in Writ Petition  

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bearing No. CWJC 9981/2010, dated 8th July, 2010, is set aside.  The said writ  

petition filed by the appellant herein stands allowed in part.  Section 27 of the  

Bihar Municipal Act 2007, shall be read down harmoniously with and subject to  

sections 25 (4), 23 (3), 21 (3) and 21 (4) of the said Act.  The respondent no.3,  

the District Magistrate, Patna, Bihar is consequently directed to administer the  

oath of secrecy under Section 24 of the Act to the seven Municipal Councillors  

nominated  by  the  appellant  to  the  Empowered  Standing  Committee.   The  

appellant as well as the members of the Empowered Standing Committee shall  

be entitled to exercise all  the powers as the Mayor and the members of the  

Empowered Standing Committee as provided in the Bihar Municipal Act, 2007, in  

accordance with law.   

40. Parties will bear their own costs of the proceedings.

…………..……………………..J.  

(  J.M. Panchal )

  …………………………………..J.  

( H.L. Gokhale  )

New Delhi

Dated:     19th April, 2011   

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