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Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1192  OF 2012 (Arising out of Special Lave Petition (Civil) No.14988 of 2011)

Jeevan Chandrabhan Idnani & Anr. …Appellants

Versus

Divisional Commissioner, Konkan Bhavan & Ors. ….Respondents  

J U D G M E N T

CHELAMESWAR, J.

Leave granted.  

2.  The interpretation and purport of the second proviso to Sub-section(2) of Section  

31(A)  of  the  Bombay  Provincial  Municipal  Corporation  Act,  1949       (hereinafter  

referred to as “Municipal Corporation Act”) falls for the consideration of this Court.

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3. The constitution of the “Municipal Corporations”1 (in the State of Maharashtra),  

their  powers,  functions  and  various  allied  matters  are  regulated  by  the  above-

mentioned Act.  Section 5(2)2 of the Act declares, every “Corporation” shall consist of a  

definite number of elected and a few nominated councillors.  The number of elected  

Councillors  with  respect  to  any  Corporation  is  determined  on  the  basis  of  the  

population of that Municipal Corporation. The case on hand  pertains to the Ulhasnagar  

Municipal  Corporation,  the third respondent herein,  which has a total of 76 elected  

Councillors.

4. Election to the third respondent took place sometime in the month of February,  

2007 and the Corporation was duly constituted with 76 elected Councillors.  The break-

up of the 76 Councillors is specified in the Judgment under appeal as follows:-

“(1) Lok Bharti Party 14 (2)  Nationalist Congress Party 15 (3)  Shiv Sena Party 16 (4) Bhartiya Janata Party 12 (5) Indian National Congress   6 (6)   Republican Party of India (A)  5 (7) Maharashta Navnirman Sena   2 (8) Independents   5  (9) Republic Party of India (G)       1

1 Sec.2(10) – “Corporation” means the Municipal Corporation constituted or deemed to have been constituted for a larger  urban area known as a City.

Sec. 2(8) – “City” means the larger urban area specified in a notification issued in respect thereof under clause (2)  of article 243-Q of the Constitution of India or under sub-section(2) of section 3 of the Act, forming a City.

22 Sec.5(2) Each Corporation shall consist of,- (a)  such number of councilors, elected directly at ward elections, as is specified in the table below-

               T A B L E   XXX XXX XXX XXX

(b)  such number of nominated councilors not exceeding five, having special knowledge or experience in  Municipal Administration to be nominated by the Corporation in such manner as may be prescribed.

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5. Apart  from  the  fourteen  Members  elected  as  Councillors  to  the  Ulhasnagar  

Municipal Corporation on behalf of the Lok Bharti Party, two more Councillors, one  

independent and the other a lone Councillor, belonging to the Republican Party of India  

(G),  joined  hands  with  the  Councillors  of  the  Lok  Bharti  Party  and  formed  a  

front/aghadi immediately after the election availing the facility provided under the 2nd  

proviso to Section 31A(2) of the Municipal Corporation Act.

6. Respondent Nos. 6 to 13 herein were admittedly members of the said Aghadi.  

However,  they  decided  to  quit  the  Aghadi  and  form  a  ‘Swatantar  Aghadi’  and  

addressed a letter  dated 23rd February, 2011 to the first respondent herein requesting  

the  first  respondent  to  make suitable  changes  in  the  records  maintained  under  the  

Disqualification Act and the rules made thereunder.

7. The   first  respondent  accepted   the  above-mentioned  request.   The  same  is  

evidenced by his communication dated 11th March, 2011 (hereinafter referred to as ‘the  

impugned order’).

8. Challenging  the  above-mentioned  communication,  two  of  the  Councillors  

belonging to the Lok Bharti Party approached the Bombay High Court by way of  a writ  

petition (civil) No. 2237 of 2011. By the judgment under appeal, the said writ petition  

was dismissed.

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9. The substance of the objection to the legality of the impugned order is that in the  

light of the language of the second proviso to Section 31A(2), formation of a front or  

aghadi after the completion of the election process to the municipal body is permissible  

only when that is done within one month from the date of the notification of the results   

of the election.  The impugned communication purports to recognise an  aghadi/front  

beyond the above-mentioned period of one month which is clearly impermissible and  

hence illegal.

10. The High Court rejected the above-mentioned submission.  On an examination of  

the various provisions of the Act, the Court rightly held that the appointment to the  

four categories of Committees specified under Sections 31A(1) takes place “at least more  

than once” “during the tenure of the Corporation”.  Therefore the High Court opined  

“the relative strength of the recognised parties or registered parties or groups at the  

time of appointments” whenever made “would be relevant”.  Hence, found no reason  

to find fault with the impugned order. The correctness of the said judgment is in issue  

before us.

11.  To examine the correctness of the conclusion reached by the High Court, a brief  

survey of the relevant provisions of the Municipal Corporation Act is required.  Section  

20 of the Act contemplates the constitution of a Standing Committee consisting  of 16   

Councillors  to  be  appointed by  the  Corporation  out  of  its  own body.   It  is  further

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stipulated in Section 20(3) that half of the members of the Standing Committee shall  

retire every succeeding year.

12. Section 24 authorises the Standing Committee to delegate any of its powers and  

duties to any Special Committee appointed under Section 30 of the Act.  

13. Section 31 contemplates  the appointment  of  ad-hoc Committees  for  inquiring  

into or reporting or for giving opinion with reference  to such subjects relating to the  

purpose of this Act.

14. Section 31(A) of the Act stipulates that in the case of (a) Standing,  (b) Transport,  

(c)  Special  or  (d)  ad  hoc Committees,  the  appointment  of   Councillors   to  such  

Committees  shall be made by the Corporation in accordance with the provisions of  

Sub-section (2) thereof.   

“31A. Appointment  by  nomination  committees  to  be  by  proportional  representation

(1) Notwithstanding anything contained in this Act or the rules or bye-laws  made thereunder, in the case of the following Committees,  except where it is   provided by this Act, that the appointment of a Councillor to any Committee  shall be by virtue of his holding any office, appointment of Councillors to these  Committees,  whether  in  regular  or  casual  vacancies,  shall  be  made  by  the  Corporation by nominating Councillors in accordance with the provisions of sub- section (2):-

(a) Standing Committee; (b) Transport Committee; (c) Any special Committee appointed under section 30; (d) Any ad hoc Committee appointed under section 31.”

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Sub-section (2) stipulates that in making nomination of the Councillors to the above-

mentioned Committees,  the Corporation is required to take into account the relative  

strength of recognised or registered parties or groups in the Corporation and nominate  

members as nearly as in proportion to the strength of such parties or groups in the  

Corporation.

“31A(2). In nominating the Councillors on the Committee, the Corporation  shall  take  into  account  the  relative  strength  of  the  recognised  parties  or  registered parties  or groups and nominate members,  as  nearly as  may be,  in  proportion to the strength of such parties or groups in the Corporation,  after  consulting the Leader of the House, the Leader of Opposition and the leader of  each such party or group.”

In making such nomination, the Corporation is required to consult the Leader of the  

House and the Leader of the Opposition etc.    

15. However, the  first proviso to sub-section (2) would recognise the authority of  

the  Municipal  Corporation  to  nominate  any  Councillor  to  any  one  of  the  above-

mentioned Committees notwithstanding  the fact that such a Councillor does not belong  

to any party or group.   

“Proviso (1) - Provided  that, nothing contained in this sub-section be construed  as preventing the Corporation from nominating on the Committee any member  not belonging to any such party or group.”

Second proviso – the exact meaning and scope of which is required to be examined in  

this appeal – reads as follows:

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“Proviso (2) - Provided  further  that,  for  the  purpose  of  deciding  the  relative  strength of the recognised parties or registered parties or groups under this Act,  the recognised parties or registered parties or groups, or elected Councillors not  belonging to any such party or group may, notwithstanding anything contained  in the Maharashtra Local Authority Members’ Disqualification Act, 1986, within  a period of one month from the date of notification of elections results, from the  aghadi or front and, on its registration, the provision of the said Act shall apply to  the members of such  aghadi or front,  as if  it  is  a registered pre-poll  aghadi or  front.”

16. We may mention here that some of the political parties to which the councillors  

of  the  3rd respondent  corporation  belong  to,  such  as  Bhartiya  Janata  Party,  Indian  

National  Congress,  National  Congress,  Shiv  Sena,  etc.,  are  indisputably  registered  

political parties under Section 29A of the  Representations of the People’s Act and also  

recognised political parties  in terms of the allotment of the symbols orders 1968 made  

by the Election Commission of India.  Unfortunately there is no material on record to  

indicate whether Lok Bharti Party is either a registered or a recognised political party.

17.  As  already noticed under  Section 31A of  the Municipal  Corporation Act,  the  

Corporation is  required to  take into  account  the  relative  strength  of  the  recognised  

parties or registered parties or groups. The  expressions  (1)  ‘registered  party’,  (2)  

‘recognised party’, (3) groups and (4) ‘front or  aghadi’ occurring in Section 31A of the  

Municipal  Corporation  Act  are  not  defined  under  the  said  Act.   However,  the  

expression ‘front’ or ‘aghadi’ is defined under Section 2(a) of the Disqualification Act.  

“2.(a) “aghadi”  or  “front”  means  a  group  of  persons  who  have  formed  themselves into a party for the purpose of setting up candidates for election to a  local authority.”

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18. The  expressions  “recognised  party”  and  “registered  party”  in  the  context  of  

political parties have a definite legal connotation in this country.   

19. Part  IVA  of  the  Representation  of  the  People  Act,  1951  provides  for  the  

registration  of  political  parties.   Section  29A  prescribes  the  procedure  for  the  

registration  of  a  political  party.   Such  registration  is  not  compulsory,  but  optional.  

However, registration enables a political party to claim certain benefits under law such  

as  accepting  of  a  contribution  (See  Section 29B )  from any person or  company etc.  

Similarly under the Election Symbols (Allotment and Reservation) Order, 1968 certain  

symbols are reserved for a ‘recognised political party’ for the exclusive allotment to the  

candidates set up by such political party. The above mentioned order stipulates the  

various conditions which are required to be satisfied before a political party is entitled  

for recognition under the said order.

20. The expression “political party” itself is defined under the said order to mean a  

political party registered under Section 29A of the Representation of the People Act,  

1951.    

“Political  party’  means  an association or  body of  individual  citizens of  India  registered with the Commission as a political party under Section 29A of the  Representation of the People Act, 1951.”

In  the  absence  of  any  clear  definition  to  the  contra   in  either  of  the  local  acts  of  

Maharashtra referred to earlier, coupled with the established practice in this country  

that  the various ‘recognised political  parties’  under  the symbols  Order,  1968 set  up

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candidates at the elections to the local bodies such as the third respondent  and they are  

permitted to use the symbols which are reserved for them under the provisions of the  

Election Symbols (Reservation and Allotment) Order,  1968, the expressions ‘political  

party’,  ‘registered  party’  and  ‘recognised  party’  occurring  in  Section  31A  of  the  

Municipal Corporation Act, must necessarily be given the same meaning as assigned to  

them  in  the  Representation  of  the  People  Act,  1951  and  the   Election  Symbols  

(Reservation and Allotment) Order, 1968.

21. The expression “groups”,  occurring under  Section 31A(2),   once again,  is  not  

defined  but  in  the  context  and  scheme  of  the  Section,  in  our  view,  the  expression  

“group” must be understood only as meaning - Councillors not belonging to either a  

registered  political party or a recognised political party,  but persons  set up at the  

Municipal election by an Aghadi as defined under the Disqualification Act.

22.  Having arrived at the meaning of various undefined expressions employed in  

Section  31A  of  the  Municipal  Corporation  Act,  the  scheme  and purpose  of  the  2nd  

proviso to Section 31A(2) is required to be examined. To understand the purport and  

scheme of the 2nd proviso to Section 31A(2) of the Municipal Corporation act, we must  

first examine relevance of the reference to the Maharashtra Local Authority Members  

Disqualification  Act,  1986  made  in  the  said  proviso,  and the  purpose  sought  to  be  

achieved by the legislature by excluding the application of the said Act through the

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devise of employing a non obstante clause.  For a ready reference the relevant portion of  

the second proviso may again be extracted which reads as follows:-

“*****  notwithstanding anything contained in the Maharashtra Local Authority  Members’ Disqualification Act, 1986,********”

The  State  of  Maharashtra  made  an  enactment  called  Maharashtra  Local  Authority  

Members  Disqualification  Act,  1986.  The  Act  provides  for  the  disqualification  of  

Members of the Local Authorities i.e. Municipal Bodies and Panchayati Raj Institutions  

in certain circumstances.  Section 3 of the said Act declares that an elected Councillor of  

a Municipal Corporation  shall be disqualified for being (i.e. continuing as) a Councillor   

in three contingencies, if such person – (i) voluntarily gives up the membership of the  

political party which had set him up as a candidate at the election to the Municipal  

Corporation, (ii) on voting or abstaining from voting in any meeting of the concerned  

municipal body, contrary to any directions issued by the political party to which such a  

person belongs.  Section 3 of the Disqualification Act, in so far as it is relevant for the  

present purposes, reads as follows:-

“ 3.(1)   Subject to the provisions of [section 5] a councillor ……………. belonging  to  any  political  party or  aghadi  or  front shall  be  disqualified  for  being  a  councillor ……………. :--

(a)  if  he  has  voluntarily  given  up his  membership  of  such  political  party  or  aghadi or front; or

(b)  if  he  votes  or  abstains  from  voting  in  any  meeting  of  a  Municipal  Corporation, Municipal Council, ………………………. contrary to any direction  issued by the political party or aghadi, or front to which he belongs to by any  person or authority authorised by any of them in this behalf, without obtaining,

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in either case,  the prior permission of such political party or aghadi or front,  person or authority and such voting or abstention  has not been condoned by  such political party or aghadi or front, person or authority within fifteen days  from the date of such voting or abstention:

    Provided that, such voting or abstention without prior permission from such  party or aghadi or front, at election of any office, authority or committee under  any relevant municipal law …………………… shall not be condoned under this  clause;

Explanation.—For the purpose of this section— (a) a person elected as a councillor, ……………. shall be deemed to belong to the  political party or aghadi or front, if any, by which he was set up as candidate  for election as such councillor ……….. ; “

[emphasis supplied]

(iii)  under  sub-section(2)  that  an  elected  councillor  who  had  been  elected  as  such  

otherwise than as a candidate set up by any political party or aghadi or front (i.e. an  

independent councillor) shall be disqualified if he joins any political party or aghadi  

after such election.

“(2) An elected councillor, ************** who has been elected as such otherwise  than as  a candidate  set  up by any political  party or  aghadi  or  front shall  be  disqualified for being a councillor, or as the case may be, a member if he joins  any political party or aghadi or front after such election.”

23. Section 5 of the Act carves out an exception to the Rule contained under Section  

3(1) i.e.  it  stipulates contingencies in which an elected councillor does not incur the  

disqualification contemplated under Section 3(1) notwithstanding the fact  that  such  

person  parted  ways  with  the  original  political  party  to  which  he/she  originally  

belonged to.   The complete scheme of Section 5 may not be necessary for the purpose of  

this  case  but  we  must  take  note  of  the  fact  that  Section  5  does  not  recognise  any

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exception  to  the  rule   contained  in  Section3(2)  with  respect  to  the  independent  

councillors.

24.  The second proviso to sub-section (2) of Section 31A enables the formation of a  

Aghadi  or  front  within  a  period of  one  month  from the  date  of  notification  of  the  

election  results.   Such  an  Aghadi  or  front  can  be  formed  by  various  possible  

combinations  of  councillors  belonging  to  either  two  or  more  registered  parties  or  

recognised parties or independent councillors.  The proviso categorically stipulates that  

such  a  formation  of  an  ‘Aghadi’  or  ‘front’  is  possible  notwithstanding  anything  

contained   in  the  Disqualification  Act.  Because  an  “Aghadi”  or  “front”,  as  defined  

under  the  Disqualification  Act,  clearly,  can  only  be  the  combination  of  a  group of  

persons forming themselves into a party prior to the election for setting up candidates  

at an election to a local authority but not a combination of political parties or political  

parties and individuals.   

25. Therefore, second proviso to Section 31A (2) of the Municipal Corporation Act  

which is a later expression of the will of the sovereign, in contrast to the  stipulation as  

contained under Section 2(a) and  3(2) of the Disqualification Act,  would enable the  

formation of post electoral aghadis or fronts.  However, such a formation is only meant  

for a limited purpose of enabling such aghadis to secure better representation in the  

various  categories  of  the Committees  specified  under  Section 31A.   The component  

parties or individual independent Councillors, as the case may be, in the case of a given

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front/aghadi do not lose their political identify and merge in to the aghadi/front or  

bring  into  existence  a  new  political  party.   There  is  no  merger  such  as  the  one  

contemplated under Section 5 of the Disqualification Act.  It is further apparent from  

the language of the second proviso that on the formation of such an Aghadi or front, the  

same is required to be registered.  The  procedure for such registration is contained in  

the Maharashtra Local Authority Members Disqualification Rules, 1987.

26.  Once such an Aghadi is registered by a legal fiction created under the proviso,  

such an Aghadi is treated as if it were a pre-poll Aghadi or front.  The proviso further  

declares that once such registration is made, the provisions of the Disqualification Act  

apply to the Members of such post poll Aghadi.   We do not propose to examine the  

legal consequences of such a declaration as it appears  from the  record that a complaint  

has already been lodged against the respondents 6 to 13 herein under the provisions of  

the Disqualification Act.  The limited question before us is whether the 1st respondent  

was legally right in registering an Aghadi or front formed after the lapse of one month  

from the date of the notification of the election results.

27. At paras 19 and 20 of the judgment under appeal, the High Court held:

“19. Once  it  is  held  that  the  appointment  to  the  various  Committees  contemplated under Section 31A of the B.P.M.C. Act takes place more than once,  the relative strength of the recognized parties or registered parties or groups at  the time of their appointment would be relevant. In other words, the relative  strength of the parties that was at the time of registration with a period of one  month from the date of notification of the election results,  would be relevant  only on the first occasion after the general elections are held.  

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xxxx xxxx xxxx xxxx xxxx xxxx

20. ………… If the interpretation suggested by the petitioners is accepted, in  our opinion, Rule 3(4) of the Rules would be rendered otiose.  We have already  held  that  the  provisions  of  the  Act  and Rules  are  required  to  be  taken into  account while interpreting the provisions of Section 31A of the B.P.M.C. Act.  In  view thereof,  we  are  clearly  of  the  opinion  that  the  appointment  of  various  Committees under Section 31A of the B.P.M.C. Act not being one time affair, the  relative strength of the recognized parties or registered parties or groups, subject  to  any  change,  if  any,  will  have  to  be  taken  into  account  at  the  time  of  appointment of councillors to these committees.”

In substance, the High Court held that the interpretation of the Section 31A depends  

upon the tenor and scheme of the subordinate legislation.  Such a principle of statutory  

construction is not normally resorted to save in the case of interpretation of an old  

enactment where the language is ambiguous.  We are conscious of the fact that there is  

some difference of opinion on this principle but for the purpose of the present case we  

do not think it necessary to examine the proposition in detail  as in our opinion the  

language  of  Section  31A  is  too  explicit  to  require  any  other  external  aid  for  the  

interpretation of the same.  Subordinate legislation made by the executive in exercise of  

the powers delegated by the legislature, at best, may reflect the understanding of the  

executive of the scope of the powers delegated.  But there is no inherent guarantee such  

an  understanding  is  consistent  with  the  true  meaning  and  purport  of  the  parent  

enactment.

28. Such  variations  of  the  relative  strength  of  aghadis  would have  various  legal  

consequences  provided  under  the  Disqualification  Act.   Depending  upon  the  fact  

situation in a given case, the variation might result in the consequence of rendering

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some of the Councillors disqualified for continuing as Councillors.  Section 31A of the  

Municipal Corporation Act only enables the formation of an aghadi or front within a  

month from the date of the notification of the results of the election to the Municipal  

Corporation.  To permit recognition of variations in the relative strength of the political  

parties beyond the above mentioned period of one month would be plainly in violation  

of the language of the second proviso to Section 31A.

29. We are, therefore, of the opinion that the judgment under appeal, as well as the  

impugned order, cannot be sustained.  We allow the appeal and set aside the impugned  

order.

………………………..………..J. ( ALTAMAS KABIR )

………………………………….J. ( SURINDER SINGH NIJJAR )

………………………………….J. ( J. CHELAMESWAR )

New Delhi; January 31, 2012.