JUDGMENT R.K. Agarwal, J.
1. The growing tendency of the persons who are at the helm of affairs in the State and who have taken oath of office as per the forms set out in the Third Schedule, to do right to all manner of people in accordance with the Constitution and the law, to blindly follow the directions given by another authority, often lead to a situation, like the present one where a constitutional crisis may occur, which could have been avoided. In the present case, the State Government abandoned the exercise of delimitation of wards as mandated in Section 32 of the U.P. Municipal Corporation Adhiniyam, 1959 (hereinafter referred to as "the Adhiniyam") and Section 11-A of the U.P. Municipalities Act, 1916 (hereinafter referred to as "the Municipalities Act"), by blindly following the instructions contained in letter dated 1.10.2004 sent by the Delimitation Commission as communicated by the Executive Council vide letter dated 6.10.2004, which had nothing to do with the delimitation of the wards of municipalities and was only concerned with the constituencies for election of the House of People and the Legislative Assemblies.
2. We consider it proper to refer to the observations made in the opening part of the judgment by the Apex Court in the case of Ganpat Ladha v. Shashikant Vishnu Shinde , which is to the following effect:-
If the quest for certainty in law is often baffled, as it is according to Judge Jerome Frank in "Law and the Modern Mind", the reasons are mainly two : firstly, the lack of precise formulation of even statutory law so as to leave lacunae and loopholes in it giving scope to much avoidable disputation: and, secondly, the unpredictability of the judicial rendering of the law after every conceivable as well as inconceivable aspect of it has been explored and subjected to forensic debate, Even the staunchest exponents of legal realism, who are apt to treat the quest for certainty in the administration of justice in accordance with law, in an uncertain world of imperfect human beings, to be practically always futile and doomed to failure, will not deny the desirability and the beneficial effects of such certainty in law as may be possible. Unfortunately, there are not infrequent instances where what should have been clear and certain, by applying well established canons of statutory construction becomes befogged by the vagaries, if one may use a possibly strong word without disrespect, of judicial exposition divorced from these canons.
3. With a view to strengthen the institution of self-government, the Parliament by the Constitution (Seventy Fourth Amendment) Act, 1992, which was made effective from 1.6.1993, inserted Part IX-A in the Constitution of India. It provided for the constitution, composition, duration of municipalities, constitution and composition of wards, committees etc., reservation of seats, disqualification of membership, the power, authority and responsibility of municipalities, the power to impose tax by, and the funds of, the municipalities, audit of accounts, elections and many more things. While inserting Article 243U in the Constitution of India, the paramount consideration of the Parliament was that a municipality should function in every Nagar Panchayat, a smaller urban area or a larger urban area for a period of five years from the date appointed for its first meeting unless sooner dissolved under any law for the time being in force. In the event the municipality has been dissolved, Sub-clause (b) of Clause (3) of Article 243U provided election to a municipality before the expiration of a period of six months from the date of its dissolution with a rider that if the remainder of the period of the dissolved municipality is less than six months, then election for constituting the municipality for the remainder period is not necessary. However, in the event the term of the municipality has expired, then election to constitute the municipality has to be completed before the expiry of its duration as per Sub-clause (a) of Clause (3) of Article 243U of the Constitution of India.
4. The last election for the municipalities was held in the month of November, 2000. .Its duration was for a period of five years from the date appointed for its first meeting and, therefore, in view of Sub-clause (a) of Clause (3) of Article 243U of the Constitution of India, the election to constitute a municipality was necessarily to be held before the expiry of its duration. Even before the State Government could notify the date of election, two persons who are the elected Corporators in the Nagar Nigam, Allahabad, namely, Sri Kamlesh Singh and Sri Shiv Sewak Singh, invoked the jurisdiction of this Court under Article 226 of the Constitution of India by filing Civil Misc. Writ Petition No. 59093 of 2005, Kamlesh Singh and Anr. v. State of U.P. and Ors. raising a grievance that the State Government has failed to act in accordance with the provisions of Section 32 of the Adhiniyam which provided for delimitation of wards according to the population as ascertained in the last preceding census of which the relevant figure has been published which, in the present case, is the census of 2001 and, therefore, the State Government be restrained from notifying the election till such time the exercise of delimitation is completed. The writ petition was filed on 2.9.2005. This Court in its order dated 28.10.2005 noted that delimitation or division into wards on the basis of 2001 census was started but the exercise was abandoned upon a . letter of the State Election Commission, dated 6.10.2004, wherein it was directed that the wards should remain the same as on 15.2.2004 which was on the basis of the census of 1991. According to the Court, the State of U.P. has been misled by a letter of the Delimitation Commission, dated 1.10.2004, into abandoning the division of the municipal areas into wards according to 2001 census, and into maintaining the earlier division of the wards according to 1991 census. The Court was prima facie of the view that according to Section 4 of the Delimitation Act, 2002, the Delimitation Commission is concerned only with the constituencies for elections to the House of People and the Legislative Assemblies and is not concerned at all with the division of the wards for municipal elections, which is governed by the State Act. When confronted by the State Government, the Delimitation Commission, vide letter dated 22.10.2005, clarified that for the purposes of delimitation of Assembly and Parliamentary Constituencies, the Delimitation Commission will continue to adopt the Administrative Units prevailing as on 15.02.2004 in the State notwithstanding any subsequent changes that any State Government may be required to make, to comply with any constitutional and/or statutory provisions. The Court was prima facie of the opinion that even though Article 243U of the Constitution of India, no doubt casts an obligation to complete the election before the expiry of term of municipality, this would mean a valid and sustained election and it appears difficult to accept that by the words "completion of election", the Constitutional provisions contemplate a mockery of an election, which is bound to be set-aside because of admitted and total disregard of the law. The Court declined intervention at that stage and left it to the good sense of the respondents to consider and decide what needs to be done in larger public interest. It observed that census figures are already available with the Government and there was no reason why the exercise of delimitation could not be completed according to 2001 census within the shortest possible time, and the election be notified thereafter which would avoid the risk of the elections being set-aside on the ground of admitted violation of Section 32 and the consequent holding of fresh elections. It was also of the view that the election involves a lot of man power as well as the public money and holding election in violation of that because it is ultimately not sustainable, therefore, wastage of man power and public money should be avoided by the State Government. In deference to the observations made by this Court in the aforementioned writ petition, the State Government had postponed the issuance of notification for holding the election of the municipalities resulting in a situation where the term of the municipality was coming to an end and an elected body was not in the sight to take over immediately. The State legislature stepped in and enacted the U.P. Urban Local -Self Government Laws (Amendment) Act, 2005 (U.P. Act XXIII of 2005) (hereinafter referred to as "the Amendment Act") providing for appointment of administrator to take over the functioning of the municipalities till such time the elections are held. The validity of the Amendment Act is under challenged in the present writ petitions.
5. We have heard Sarvsri Ravi Kiran Jain, S.K.Verma, Ashok Khare and Shashi Nandan, learned senior counsels, and Sri Manish Goel, learned counsel for the petitioner, Sri S.M.A.Qazmi, learned Additional Advocate General, on behalf of the State respodnents, Sarvsri P.N.Rai and K.P.Singh on behalf of the State Election Commission and Sri Siddharth Srivastava on behalf of the person who has filed an application for impleadment supporting the State respondents.
6. Sri Ravi Kiran Jain who led the arguments, submitted that even though under Entry 5 of List II of the Seventh Schedule, the State legislature is competent to enact the law relating to local government including the constitution and powers of Municipal Corporations, Improvement Trusts, District Boards, Mining Settlement Authority, and other local authorities for the purposes of local self-government or village administration, yet the power has to be exercised subject to the limitations imposed by other provisions of the Constitution of India. According to him, Article 245 of the Constitution of India which empowers the legislature of a State to make laws for whole or any part of the State, is subject to the provisions of the Constitution of India itself and in view of Sub-clause (a) of Clause (3) of Article 243U of the Constitution of India, election to constitute a municipality has to be completed before the expiry of its duration specified in Clause (1). By the Amendment Act, the State Government has, in effect, prescribed a different period for holding the election to constitute a municipality and, therefore, the provisions of the Amendment Act are ultra vires of the said provision of the Constitution. He further submitted that the provisions of Part IX and IX-A have been inserted with a view to give effect to the provisions contained in Part IV of the Constitution of India, namely, the Directive Principles of State Policy, which enjoins the State to take steps to organize village panchayat and endow them with such power and authority as may be necessary to enable them to function as a unit of self-government. Referring to the provisions of Clause (2) of Article 83 and Clause (1) of Article 172 of the Constitution of India which provides for duration of the House of People and the State legislature respectively, he submitted that whereas in the case of House of People and the State legislature the expiration of the period of five years from the date appointed from its first meeting, has been treated to operate as a dissolution, the Parliament has consciously not made any such provision in Article 243U, meaning thereby that even after the expiry of the period of five years from the date appointed for its first meeting, the elected body of the municipality shall continue till the election to constitute the new municipality is completed. Elaborating his arguments further, he submitted that the words "no longer" occurring at the end of Clause (1) of Article 243U is redundant. It has been used only to give mandate to Clause (3) of Article 243U and nothing less. According to him, under Article 243W of the Constitution of India, the legislature of a State has been empowered to endow by law upon the municipality the power, authority and responsibility which is analogous to the provisions of Article 243G of the Constitution of India which relates to the Panchayat. A harmonious construction of various provisions of the Constitution has to be given and an approach should be adopted which achieves the provisions contained in Part IV relating to the Directive Principles of State Policy. He also invited the attention of the Court to the Twelfth Schedule of the Constitution which has been referred to in Sub-clause (ii) of Clause (a) of Article 243W and submitted that the responsibilities which have been endowed upon the municipality as specified in various entries mentioned in Twelfth Schedule has necessarily to be performed by an elected body and not by an administrator who is a government official. According to Sri Jain, the provisions of Sections 30 and 31-A of the Municipalities Act and Section 538 of the Adhiniyam which empowers the State Government to dissolve a municipal body, is applicable only where a dissolution of the municipality is to be done but in that event also a reasonable opportunity of being heard is to be provided, which provision is analogous to the powers conferred to the President of India under Article 356 of the Constitution of India for dissolving an elected legislative Assembly and for assuming the powers of governance.
7. Sri Jain further submitted that the Amendment Act is, in fact, a colourable exercise of power by the State legislature inasmuch as the State Government has not been vigilant enough to hold the elections in time and it was a deliberate default. Thus, the Amendment Act is liable to be set aside.
8. According to him, the appointment of administrator is obnoxious as the plea of delimitation has nothing to do with the holdings of the election by the State Election Commission and this Court had not issued any directions not to hold the elections. It had only made some observations and those observations could not have given the authority or the jurisdiction to the State Government to postpone the elections. The State Election Commission is in collusion with the State Government. The census of 2001 is not at all relevant and if the elections were held according to delimitation of wards as it existed, the election would not have been a nullity. Even the State Election Commission has failed to discharge the constitutional function.
9. He further submitted that the duration of a municipality under Clause (1) of Article 243U is five years from the date appointed from its first meeting. According to him, the composition of municipality has been given under Section 9 of the Municipalities Act. An elected President or any other elected member before taking his seat has to make and subscribe an oath or affirmation as provided under Section 43-D of the Municipalities Act. Section 86 provides for meetings of the municipalities whereas Section 88 provides for a quorum and, therefore, according to him, the meeting called for administering oath cannot be treated as the first meeting of the municipality. In support of his submissions, he has relied upon the following decisions:-
(i) State Trading Corporation of India Ltd. v. The Commercial Tax Officer and Ors. AIR 1963 SC 1811;
(ii) Atam Prakash v. State of Haryana and Ors. ;
(iii) Anugrah Narain Singh and Anr. v. State of Uttar Pradesh and Ors. ;
(iv) S.R. Bommai and Ors. v. Union of India and Ors. ;
(v) Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan and Ors. ;
(vi) Sultana Begum v. Prem Chand Jain ; and
(vii) In the matter of Special Reference No. 1 of 2002, ;
10. Sri S.K.Verma, learned Senior counsel, while adopting the arguments advanced by Sri Jain, submitted that the basic features of the Constitution cannot be amended either by the Parliament while amending the Constitution or by enacting any law or by the State legislature while enacting any law. He submitted that the provisions of clauses (1) and (3) of Article 243U should be read together and if for any reason except in a case of dissolution of the municipality, elections are not held, then the old democratically elected municipality should continue. According to him, unlimited, unguided and uncanalised power has been given to the administrator which is bad and ultra vires. There is no limitation or duration as to the period for which the Administrator has been appointed and, therefore, the Amendment Act is ultra vires. In support of his submissions, he has relied upon the following decisions:-
(i) Bisauli Vyapar Mandal, Badaun and Ors. v. State of U.P. and Ors. 2005 (1) UPLBEC 56;
and
(ii) Minerva Mills Ltd. and Ors. v. Union of India and Ors. .
11. Sri Ashok Khare, learned Senior counsel, submitted that under Section 8(1) of the Adhiniyam the duration for Corporation has been provided which is in tune with the provision of Clause (1) of Article 243U of the Constitution of India. The term of the Mayor and the Deputy Mayor has been provided in Section 15 which has been held to be co-terminus with the term of the Corporation in the case of Mayor whereas in the case of the Deputy Mayor it is one year from the date of his election or the residue of his term of office as a Corporator. According to him, under Sub-section (3) of Section 15 of the Adhiniyam, the Mayor is entitled to continue in office until his successor assumes office as Mayor. He further submitted that the Mayor and the elected members before taking their seats have to make an oath or affirmation under Section 85(1) of the Adhiniyam and the meeting which is called under Sub-section (1-A) of Section 85 of the Adhiniyam, is that of the Mayor and the Corporators who have been declared elected and not of the Corporation. According to him, Section 6 of the Adhiniyam provides for the composition of the Corporation and, therefore, the meeting can only be convened by the Mayor or a Deputy Mayor. The Amendment Act is contrary to the mandate as provided by the Constitution under Article 243U(1) and (3). He has also relied upon the decision of this Court in the case of Anugrah Narain Singh (supra).
12. Sri Shashi Nandan, learned Senior counsel, has invited the attention of the Court to the provisions of Sections 10-A, 10-AA, 13-A and 13-B of the Municipalities Act before its amendment and submitted that after the insertion of Part IX-A in the Constitution of India, Sections 10-A, 13-A and 13-B have been substituted by the U.P. Act No. XII of 1994 and have been brought in conformity with the constitutional scheme whereas Section 10-AA has been omitted. According to him, the word "dissolution" after the expiry of the duration of municipality is missing in Article 243U as compared to the provisions of Sub-section (2) of Article 83 of the Constitution of India relating to the House of People. He submitted that the provisions of the Amendment Act are similar to what the earlier provision of Section 10-AA in the Municipalities Act which has been omitted by the U.P.Act No. XII of 1994 and declared to be ultra vires by this Court in the case of Anugrah Narain Singh (supra). In support of his aforesaid submissions, he has relied upon the decision of the Apex Court in the case of Special Reference No. 1 of 2002 .
13. Sri Manish Goel, learned counsel, submitted that Sub-clause (a) of Clause (3) of Article 243U should be read as a proviso to Sub-clause (1) of Article 243U of the Constitution of India and, if so read, the elected members of the municipality shall continue till the election to constitute the municipality has been completed. He submitted that the Parliament has taken care of all the situations while providing for holding the election of the municipality in the case of dissolution as also in the case of expiry of its duration. Whereas in the case of dissolution, the elected municipality is dissolved, it has no right to continue, the same would not be applicable in a case where the duration of a municipality has come to an end and a fresh election for any reason whatsoever has not been held. The Constitution itself has provided for composition of municipality under Article 243R and, therefore, the constitutional mandate has to be followed.
14. Coming to the question of the date of first meeting, he submitted that by no stretch of imagination, the date of first meeting of the municipality can be taken to be the date on which the both has been administered to the elected members of a municipality and, therefore, the order appointing administrator from the date of oath is wholly illegal and void.
15. He further submitted that in the Amendment Act the duration of the administrator has not been mentioned and the words "unavoidable circumstance" or "public interest" have not been given any meaning nor explained. The provision gives uncanalised power to State to do what it wants. There is neither any check in the working of the administrator nor the object appears to have any nexus to the Amendment Act and the constitutional scheme. It is an attempt to cover up the failure of the State Government. Further, it gives an absolute discretion to the State as to when to constitute the municipality and the scope is unlimited, which circumstance either singly or jointly constitutes arbitrariness and discrimination being violative of Article 14 of the Constitution of India. According to him, under Article 243Q of the Constitution of India, the power to constitute municipality now vests with the Governor whereas in the present case all the powers vests with the Administrator. Such a delegation is not contemplated. In support of his submissions, he has relied upon the following decisions:-
(i) Saradhakar Supakar v. Speaker, Orissa Legislative Assembly and Anr. AIR 1952 Orrissa 234;
(ii) Yogendra Nath Handa and Ors. v. State and Ors. ;
(iii) The Tehsildar, Hinganghat and Anr. v. Deorao and Ors. ;
(iv) Om Prakash Sood and Anr. v. Stte of Himachal Pradesh and Anr. ;
(v) Ram Kishore Prasad v. State of Bihar and Ors. ;
(vi) Municipal Council, Eluru v. Government of Andhra Pradesh and Anr. ;
(vii) Sita Ram Dwivedi v. State of U.P. 1988 UPLBEC 371;
(viii) Anugrah Narain Singh (supra);
(ix) Prem Lal Patel v. State of U.P. and Anr. 2000 (3) AWC 2159; and
(x) Nagar Palika Parishad, Roorkee and Ors. v. State of Uttaranchal and Ors. 2002 (2) AWC 1743.
16. Sri S.M.A.Qazmi, learned Additional Advocate General, dealing with the allegations regarding slackness or deliberate attempt on the part of the State Government for not holding the elections or not doing the exercise of delimitation of wards, as contemplated under the provisions of the Municipalities Act and the Adhiniyarn, submitted that the State Government has already initiated the process of delimitation in the beginning of the year 2004 but on account of the letter dated 1.10.2004 sent by the Delimitation Commission, the exercise was abandoned. The State is bound to comply with the direction issued by the Delimitation Commission and, therefore, the State had decided to hold the election on the basis of the existing position as on 15.2.2004. He submitted that the State Government, in fact, had decided to get the notification issued on 28.10.2005 but because of the writ petition filed by Kamlesh Singh and anther and the observation made by this Court in its order dated 28.10.2005, the State Government, in deference to the observation made by this Court, had decided to undertake the exercise of delimitation in order to avoid incurring of unnecessary expenses and loss of man power in holding the elections. He submitted that the postponement of election has been caused on account of the observation made by this Court in the writ petition filed by Kamlesh Singh and, therefore, there was no other option but to make arrangement for taking over the charge of the municipalities after the term of the elected body comes to an end.
17. According to him, by the Amendment Act the provisions of Part IX-A of the Constitution of India has not been violated at all. The Amendment Act has been made in exercise of powers conferred under Entry No. 5 of List II of the Seventh Schedule which empowered the State legislature to make law relating to local self-government, power of the Municipal Corporations, etc. etc. Inviting the attention of the Court to the provisions of Clause (1) of Article 243U of the Constitutiph of India, he submitted that the Constitution itself provides that there may be cases of dissolution of a municipality under any law for the time being in force and in the event of dissolution of a municipality, fresh elections are to be held before the expiry of a period of six months. For a maximum period of six months, the elected body after being dissolved, is no longer in existence. Thus, the concept of there being an administrator to run and manage the municipalities is also recognised by the constitutional provision contained in Part IX-A. He further submitted that under Clause (1) of Article 243U, the duration of a municipality has been fixed for a period of five years from the date appointed for its first meeting and no longer. The words "no longer" have to be given some meaning and it cannot be said that they are redundant or used without any purpose. He submitted that the moment the period of five years from the date appointed from its first meeting expired, the elected body ceases to hold the office and after cessation of the office by the elected body as a natural consequence and corollary a person has to be appointed to look and manage the affairs of the municipality. It cannot be left in the vacuum. After the insertion of Part IX and IX-A in the Constitution, the Municipalities Act as also the Adhiniyam have been amended and brought in line with the constitutional scheme. Referring to clauses (1) and (3) of Article 243U, he submitted that harmonious construction should be given. If such a construction is given, by no stretch of imagination the term of an elected body can be extended up till the completion of election of municipality even if such election has been held after expiry of the period and, therefore, the appointment of the administrator is a must and a foregone conclusion. According to him, the Amendment Act does not extend the period of municipality for more than five years, as provided under Clause (1) of Article 243U. He submitted that there can be a hiatus between the existing municipality whose term has come to an end and a new municipality has to be elected which has also been recognised by the Apex Court in the case of State of Maharashtra and Ors. v. Jalgaon Municipal Council and Ors. . As a result of the exercise of delimitation of wards, there would be a change in composition of municipality by increase in the number of wards, Corporators etc. According to him, there is a presumption regarding constitutionality of an Act and the negative words "no longer" used in Article 243U(1) have to be treated as mandatory. The amendment is consistent with the policy and the right to contest is not a fundamental right. Sufficient safeguards have been provided in the Amendment Act and it is open to judicial scrutiny if it is misused. He submitted that the date on which the Mayor, Corporator, the elected Chairman; and other members are administered oath, whether it is a municipality or a Municipal Corporation, it would be deemed to be the date appointed for the first meeting of such a body and the period of five years would be counted from that date. In the case of a Municipal Corporation, he submitted that the Mayor is administered the oath by a government official and after he is administered the oath, the Mayor administers the oath to other elected Corporators. Thus, the meeting would be deemed to be held on that date. He has also referred to a Division Bench decision of this Court in the case of Lakhan Singh v. State of U.P. and Ors. 2000 (4) AWC 2625, wherein this Court has held that date appointed for the first meeting would be the date on which the Governor constitutes the Zila Panchayat and Kshettra Panchayat.
18. Regarding grant of interim relief, relying upon the decision of the Apex Court in the case of State of H.P. and Ors. v. Mahendra Pal and Anr. 1995 Supp. (2) SCC 731, he submitted that this Court should not, in exercise of its power under Article 226 of the Constitution of India, stay the operation of the Amendment Act as such a course has not been approved by the Apex Court.
19. In support of his various submissions, he has relied upon the following decisions;-
(i) The Superintendent and Remembrancer of Legal Affairs, West Bengal v. Girish Kumar Navalakha and Ors. ;
(ii) State of U.P. and Ors. v. Pradhan Sangh Kshettra Samiti and Ors. ;
(iii) State of U.P. and Anr. v. C.O.D. Chheoki Employees Cooperative Society Ltd. and Ors. 1997 (2) UPLBEC 793;
(iv) State of Karnataka and Ors. v. Drive-in enterprises ;
(v) Union of India v. Elphinstone Spinning and Weaving Co. Ltd. and Ors. ;
(vi) Jalgaon Municipal Council (supra);
(vii) Nathi Devi v. Radha Devi Gupta ;
20. Sri K.P.Singh and Sri P.N.Rai, learned counsels appearing for the State Election Commission, submitted that the State Election Commission had taken adequate steps for holding the elections. According to him, after the preparation of the electoral roll wardwise, which is held every year as on 1st January, the notification was issued by the State Election Commission on 21.7.2005 as amended on 11.8.2005 whereby final publication of the electoral roll was to be completed by 9.9.2005. The Commission had requested the State Government, vide letter dated 18.10.2005, to notify for phased-wise election. However, the State Government, vide letter dated 28.10.2005, had shown its inability due to unavoidable circumstances to issue the notification as per schedule sent by the State Election Commission. Immediately, on the next date, i.e., on 29.2.2005, the Commission has asked the State Government to explain the unavoidable circumstance, which was replied by the State Government vide letter dated 10.11.2005 in which the observation made by this Court in the case of Kamlesh Singh was referred. He, thus, submitted that the State Election Commission has acted in letter and spirit to hold the election, but on account of unavoidable circumstances the election could not be held and the decision to hold the election has to be postponed. He vehemently denied any collusion on the part of the State Election Commission with the State Government in postponing the elections.
21. Sri Siddharth Srivastava, learned counsel, has made an application for impleadment. While supporting the stand taken by the learned Additional Advocate General, he submitted that a hiatus can be created after the duration of municipality comes to an end and new election to be held and the office bearer of the outgoing municipality cannot continue even after the expiry of the duration. He has relied upon a decision of the Uttaranchal High Court in the case of Nagar Palika Parishad, Roorkee (supra).
22. Sri R.K.Jain, learned Senior counsel, in reply, submitted that the decision of this Court in the case of Lakhan Singh (supra) does not lay down the correct law and it is per incuriam. No words can be added to a constitutional provision as has been done by the Division Bench in Lakhan Singh (supra). He further submitted that the Division Bench of this Court in the case of Prem Lal Patel v. State of U.P. through the Secretary, Panchayat Raj, and Anr. 2000 (3) AWC 2159, has already declared similar provision of the U.P. Panchayat Laws (Amendment) Ordinance, 2000, which provided for deferring elections beyond five years and usurping the power of the State Election Commission as violative of Part IX of the Constitution of India and, therefore, declared it to be ultra vires. The declaration being already there, further declaration is not required. Even otherwise, the provision of the Amendment Act is in pari materia with the old Section 10-AA of the Municipalities Act, which has already been declared ultra vires in the year 1992 in the case of Anugrah Narain Singh (supra) and, therefore, a fresh declaration is not required. He submitted that the decision of the Apex Court in the case of Jalgaon Municipality (supra) is not applicable as the municipality to be constituted is the same and its composition is not being changed into a Municipal Corporation. In support of his submissions, he has relied upon the following decisions:-
(i) Wilayat Khan and Ors. v. The State of U.P. ;
(ii) Behram Khurshid Pesikaka v. State of Bombay ;
(iii) Dr. Narayan Bhaskar Khare v. Election Commission of India ;
(iv) M.P.V. Sundararamier & Co. v. The State of Andhra Pradesh and Anr. ;
(v) Meghraj Kothari v. Delimitation Commission and Ors. ;
(vi) In the matter of Special Reference No. 1 of 1974 AIR 1974 SC 1682;
(vii) Municipal Corporation of Delhi v. Gurnam Kaur ;
(viii) State of U.P. and Ors. v. Pradhan Sangh Kshettra Samiti and Ors. ; and
(ix) Central Board of Dawoodi Bohra Community and Anr. v. State of Maharashtra and Anr. .
23. He submitted that the decision relied upon by Sri Qazmi in the case of Mahendra Pal (supra) is not applicable as this Court has ample jurisdiction to grant the interim relief. In support whereof, he has relied upon the following decisions:-
(i) In the matter of Special Reference No. 1 of 1964, ;
(ii) State of Bihar v. Rambalak Singh "Balak" and Ors. ;
(iii) Shri Kihota Hallohon v. Mr. Zachilhu and Ors. ;
(iv) Air India Statutory Corporation v. United Labour Union and Ors. ; and
(v) Deoraj v. State of Maharashtra and Ors. .
24. We have given our anxious consideration to the various pleas raised by the learned counsels for the parties.
25. Taking up the question of power of the High Court under Article 226 of the Constitution of India regarding grant of interim relief, we may observe that this issue need not detain us any longer as we are proceeding to decide the matter on merits and not on the issue of granting any interim relief. Thus, we are not referring to the various decisions cited by the learned counsel for the parties at Bar.
26. Now, coming to the question of the allegation of collusion between the State Government and the State Election Commission regarding postponement of the election we find that the charge appears to be without any substance. It has come on record that the State Government was proceeding to undertake the exercise of de-limitation of wards but for the letter dated 1.10.2004, sent by the De-Limitation Commission asking the State Election Commission to stop the exercise of de-limitation of municipal areas into wards according to 2001 Census and to maintain the earlier division of wards according to 1991 Census. No doubt, the State Government ought to have considered the instructions issued by the De-Limitation Commission in reference and context of the power conferred upon the said Commission under the De-Limitation Act, 2002 but by not undertaking such an exercise we cannot impute any motive on its part to postpone the elections. When the matter was brought before the Court by two elected Corporators of Nagar Nigam, Allahabad by means of Writ Petition No. 59093 of 2005, Kamlesh Singh and Anr. v. State of U.P. and Anr., particularly for the direction to the State Government to hold elections after the delimitation of wards as per the population figures of 2001 Census, the State Government as also the Delimitation Commission realised the exact position and Delimitation Commission itself has modified its instruction contained in earlier letter dated 1.10.2004. From the affidavit filed on behalf of the State Election Commission it is seen that the State Election Commission had taken steps to revise the electoral rolls and has also issued a notification for final publication of the electoral rolls and has asked the State Government to notify the election schedule. The State Government had given due respect to the concern shown by this Court while passing various orders in Writ Petition No. 59093 of 2005 and if it has postponed the decision of holding election in order to undertake the exercise of de-limitation of wards it cannot be said to have faulted. Thus, the plea of collusion or deliberate attempt on the part of the State Government and/or the State Election Commission is not established and is hereby rejected.
27. We are not inclined to go into the question as to whether the elections of the Municipalities or Municipal Corporations, Nagar Panchayats, Municipal Council could be held without delimitation of the wards as provided in Sections 11A and 11-B of the Municipalities Act and Section 32 of the Adhiniyam as this controversy is engaging the attention of this Court in Civil Misc. Writ Petition No. 59093 of 2005. At this juncture it would be appropriate to refer to the observation of the Apex Court, which was made more than two decades ago, in the case of Mahalaxmi Sugar Mills Co. v. C.I.T., Delhi , which are as follows:-
12...Our attention has also been invited to Sarya sugar Mills (P) Ltd. v. C.I.T. , where a Full Bench of the Allahabad High Court has held that the payment of interest under Section 3(3) of the U.P. Sugarcane Purchase Tax Act, 1961 is a penal liability which accrues on an infraction of the law. Section 3(3) of the U.P. Sugarcane Purchase Tax Act, 1961 does seem to be in pari materia with Section 3(3) of the Cess Act. But we think we should resist the blandishment to sit in judgment over that decision when it is not in appeal before us. We are concerned solely with the nature of the liability to pay interest under Section 3(3) of the Cess Act. A court should be slow to succumb to the temptation of deciding questions on the construction of a statute not directly before it.
(underlined by us)
28. The Apex Court in the case of Pradhan Sangh Kshetra Samiti (supra) has held that the Constitution (Seventy-Third Amendment) Act, 1992 came into force on 24th April, 1993 to give effect to one of the Directive Principles of the State Policy, viz. Article 40 of the Constitution of India, which directs the State to organise village panchayats as units of self-government. On coming into force of the said Constitutional amendment, the States were required by the Centre to take steps to organise village panchayats on the lines of the provisions of the said Constitutional amendment, by making law or amending the existing law suitably. Similar would be the position of Part IX-A of the Constitution of India. The State of U.P. had amended the various provisions of the Municipalities Act and the Adhiniyam in accordance with Part IX-A of the Constitution of India.
29. In the case of Ahmedabad Municipal Corporation (supra), the Apex Court has held that the Gram Panchayats, the Zila Parishads and Municipalities are local bodies. Parts IX and IX-A of the Constitution have brought, through Articles 243 to 243ZG, the Panchayats, Zila Parishads and Municipalities as constitutional instrumentalities to elongate the socio-economic and political democracy under the rule of law. Article 243G and 243W enjoin preparation of plans for economic development and social justice. The State, i.e., the Union of India, the State Governments and the local bodies constitute an integral executive to implement the directive principles contained in Part IV through planned development under the rule of law. The appellant-Corporation, therefore, has constitutional duty and authority to implement the directives contained in Articles 38, 39 and 46 and all cognate provisions to make the fundamental rights available to all the citizens as meaningful. It would, therefore, be the duty of the appellant to enforce the schemes in a planned manner by annual budgets to provide right to residence to the poor.
30. Now coming to the challenges made to the constitutional validity of the Amendment Act, we are of the considered opinion that it would appropriate and necessary to reproduce the provisions of the Amendment Act:-
CHAPTER-II Amendment of the Uttar Pradesh Municipalities Act, 1916.
2. Amendment of Section 10-A of U.P. act No. 2 of 1916. Section 10-A of the Uttar Pradesh Municipalities Act, 1916, after Sub-section (3) the following sub-section shall be inserted, namely:-
(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where, due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitute a Municipality before the expiry of its term, then until the due constitution of such Municipality, all the powers, functions and duties of the Municipality shall be exercised and performed by the District Magistrate or by a gazetted officer not below the rank of a Deputy Collector appointed by the District Magistrate in this behalf, and such District Magistrate or Officer shall be called the Administrator, and such Administrator shall be deemed in law to be the Municipality, the President or the Committee as the occasion may require.
CHAPTER-III Amendment of the Uttar Pradesh Municipal Corporation Act, 1959.
3. Amendment of Section 8 of U.P. Act No. 2 of 1959. In Section 8 of the Uttar Pradesh Municipal Corporation Act, 1959, after Sub-section (3) the following sub-section shall be inserted, namely:-
(4) Notwithstanding anything to the contrary contained in any other provision of this Act, where due to unavoidable circumstances or in the public interest, it is not practicable to hold an election to constitute a Municipal Corporation before the expiration of its duration, then until the due constitution of such Municipal Corporation all powers functions and duties of the Corporation, its Mayor, Deputy Mayor, Wards Committee, Executive Committee, Development Committee and other Committees established under Clause (c) of Section 5 shall as from the specified date, be vested in and be exercised, performed and discharged by District Magistrate who shall be called the Administrator and such Administrator shall be deemed in law to be the Corporation, the Mayor, the Deputy Mayor, Ward Committee, Executive Committee, Development committee or other Committees as the occasion may require.
31. From the perusal of the aforesaid provisions of the aforesaid Act it would be seen that amended Section 10-A of the Municipalities Act and also Section 8 of the Adhiniyam, the provisions are almost similar except in the case of Municipalities constituted under the Municipalities Act, the powers of the Municipalities has been vested with the District Magistrate or gazetted officer no below the rank of a Deputy Collector appointed by the District Magistrate whereas in the case of Municipal Corporation, the powers have been vested in the District Magistrate. This Act does not provide for extension of the term of the Municipalities or Municipal Corporation constituted under the Municipalities Act or the Adhiniyam. It only takes care of the situation where the term of an elected body has come to an end and after election a new elected body is yet to take charge. The object clearly is to ensure that during the interregnum period the Municipality or the Municipal Corporation, which is enjoined upon to look after the civil amenities of the area does not become functus officio and the civic amenities and other problems faced by the citizens of that area are looked after and taken care of.
32. There cannot be any dispute regarding the principles of interpretation of legislative entries, constitutional provisions or the statutory provisions. It is well established that the Parliament or the State Legislature while enacting laws are conscious of the ground realities and make suitable provisions. No word which has been added either in the constitutional provisions or statutory enactments can be said to have been used without purpose nor it can be said to be redundant. The various decisions cited regarding interpretation of the legislative entries, constitutional provisions and statutory provisions also lay down establish the same principles.
33. In this regard we are referring to the case of Nathi Devi v. Radha Devi Gupta , wherein the Apex Court has held as under:-
12. It is equally well settled that in interpreting a statute, effort should be made to give effect to each and every word used by the legislature. The courts always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect. A construction which attributes redundancy to the legislature will not be accepted except for compelling reasons such as obvious drafting errors. (See- State of U.P. and Ors. v. Vijay Anand Maharaj ; Rananjaya Singh v. Baijnath Singh and Ors. ; Kanai Lal Sur v. Paramnidhi Sadhukhan ; Nyadar Singh v. Union of India and Ors. ; J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. State of U.P. ; and Ghanshyam Das v. Regional Assistant Commissioner, Sales Tax ).
13. It is well settled that literal interpretation should be given to a statute if the same does not lead to an absurdity.
14. In Nasirddin and Ors. v. Sita Ram Agarwal , this Court stated the law in the following terms :-
37. The court's jurisdiction to interpret a statute can be invoked when the same is ambiguous. It is well known that in a given case the court can iron out the fabric but it cannot change the texture of the fabric. It cannot enlarge the scope of legislation or intention when the language of provision is plain and unambiguous. It cannot add or subtract words to a statute or read something into it which is not there. It cannot rewrite or recast legislation. It is also necessary to determine that there exists a presumption that the legislature has not used any superfluous words. It is well settled that the real intention of the legislation must be gathered from the language used. It may be true that use of the expression "shall or may" is not decisive for arriving at a finding as to whether statute is directory or mandatory. But the intention of the legislature must be found out from the scheme of the Act. It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions should be mandatory in character.
15. Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. (See: Swedish Match AB and Anr. v. Securities & Exchange Board, India and Anr. ).
16. In High Court of Gujarat and Anr. v. Gujarat Kishan Mazdoor Panchayat and Ors. JT 2003 (3) SC 50 : (2003) 4 SCC 712, this Court held:-
35. The Court while interpreting the provision of a statute, although, is not entitled to rewrite the statute itself, is not debarred from "ironing out the creases". The court should always make an attempt to uphold the rules and interpret the same in such a manner which would make it workable.
36. It is also a well-settled principle of law that an attempt should be made to give effect to each and every word employed in a statute and such interpretation which would render a particular provision redundant or otiose should be avoided.
34. The Apex Court has referred to its earlier decision in the case of Nasiruddin (supra) wherein it has been held that it is also equally well settled that when negative words are used the Courts will presume that the intention of the legislature was that the provisions should be mandatory in character.
35. The question still is as to whether the Amendment Act infringes any of the provisions of the Part IX-A of the Constitution, more particularly, Clause (3) of the Article 243U of the Constitution of India or not. For ready reference Article 243U of the Constitution of India is reproduced below: -
243-U. Duration of Municipalities, etc. -(1) Every Municipality, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:
Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in Clause (1).
(3) An election to constitute a Municipality shall be completed, -
(a) before the expiry of its duration specified in Clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.
(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under Clause (1) had it not been so dissolved.
36. From the plain reading of the aforesaid provision we find that every Municipality unless sooner dissolved shall continue for five years from the date appointed for its first meeting and no longer. The period of five years starts from the date appointed for its first meeting and moment the period of five years comes to an end the duration of that Municipality will also come to an end. The Parliament had used the words "no longer" in Clause (1) of Article 243U of the Constitution of India to which some meaning has to be assigned. The natural meaning which can be ascribed to the said phrase is that the duration of the Municipality cannot extend even for a single second beyond the stipulated five years' period from the date appointed for its first meeting. The words "no longer" has been used in the negative sense and, in view of decision of the Apex Court referred to above it is mandatory and therefore, in any event the duration cannot extend beyond the stipulated period. The plea that Sub-clause (a) of Clause (3) of Article 243U be read as proviso to Clause (1) of Article 243U of the Constitution of India and that the term of a Municipality shall continue till the election to constitute a new Municipality has been completed is wholly misconceived and is liable to be rejected.
37. It appears that the framers of the Constitution wherever they wanted that holder of the elected office should continue till his successor takes charge, have made specific provision in this regard in the Constitution itself. Reference may be invited to Clause (c) of the proviso of Article 56(1) of the Constitution of India which says that the President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. Likewise, in the case of Vice President, Clause (c) of the proviso to Article 67 of the Constitution of India provides that the Vice-President shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office. Likewise, the proviso to Article 156, which deals with the term of office of governor provides that a Governor shall, notwithstanding the expiration of his term continue to hold office until his successor enters upon his office. The second proviso to Article 94, which deals with vacation and resignation of, and removal from, the office of Speaker and Deputy Speaker of the House of People provides that whenever the House of the People is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the House of the People after the dissolution. Likewise in respect of vacation and resignation of, and removal from, the offices of Speaker and Deputy Speaker of an Assembly, the second proviso to Article 179 of the Constitution of India provides that whenever the Assembly is dissolved, the Speaker shall not vacate his office until immediately before the first meeting of the Assembly after the dissolution. No such provision has been made in Article 243U(1) of the Constitution of India and, therefore, necessary corollary is that the framers of the Constitution did not want that the elected Municipality should be allowed to continue to hold the office till new elected body assumes charge.
38. In the case of Anugrah Narain Singh (supra), on which heavy reliance has been placed by the learned Senior Counsels for the petitioners, this Court was considering the provisions of Section 10AA of the Municipalities Act and Section 8A of the Adhiniyam, which provided for elected representatives to vacate their respective offices and the municipal bodies to be managed by the administrators for a very long period, namely, for 24 years and 13 years in the case of Municipalities and Municipal Corporations respectively and has held that these two provisions are not an aid in step for the purposes of local self government. They have been declared to be retrograde legislations which permit the local self government to function under fear with attributes of arbitrariness and not compatible with the fabric of the Constitution of India to perpetuate local self government in parliamentary democracy from top to bottom and while holding so this Court has traced out the history of the local self government with special reference to the debates and the proceedings of the Council of Governor General of India, discussion and resolution re: recommendations of Decentralisation Commission with regard to municipalities as were held from 18 march, 1914 as also the view expressed by renowned authors, politicians and Mahatma Gandhi, the Father of our Nation. The aforesaid decision was rendered in the peculiar facts of the case as elected bodies remained superseded for a very long period and the Administrator continued which was held to be a retrograde step. In the present case, under the Amendment Act the provision has been made to appoint an Administrator to fill up the interregnum period between the end of the duration of the Municipality and completion of the election for the constitution of new Municipality.
39. In the case of Prem Lal Patel (supra), this Court was considering the provisions of Sub-section (3-A) as inserted by Uttar Pradesh Panchayat Laws (Amendment) Ordinance, 2000 in the U.P. Panchyat Raj Act, 1947, which was to the following effect: -
(3A) Notwithstanding anything contained in any other provisions of this Act, where, due to unavoidable circumstances or in public interest, it is not practicable to hold an election to constitute a Gram Panchayat before the expiry of its duration, the State Government or an officer authorised by it in this behalf may, by order, appoint an Administrative Committee consisting of such number of persons qualified to be elected as members of the Gram Panchayat, as it may consider proper or an Administrator and the members of the Administrative Committee or the Administrator shall hold office for such period not exceeding six months as may be specified in the said order and all powers, functions and duties of the Gram Panchayat, its Pradhan and Committees shall vest in and be exercised, performed and discharged by such Administrative Committee or the Administrator, as the case may be.
40. The insertion of Sub-section (3-A) in Section 12 of the U.P. Panchayat Raj Act, 1947 was justified by the State on the following grounds :-
6...the duration of the existing Gram Panchayats and Zila Panchayats will expire in the month of May, 2000, while the duration of Kshetra Panchayat will continue till January 2001. The Pradhans of Gram Panchayats are ex officio members of the Zila Panchayats. As the Gram Panchayats, Kshetra Panchayats and Zila Panchayats unitedly constitute a well-defined Panchayati Raj system according to the spirit of the Constitution; it will be expedient that elections to all the three tiers of panchayats be held simultaneously which was also a practice in the past.
7. It was further asserted that process of delimitation of the constituencies have not been completed and the government has ordered that it shall be completed till 20th July, 2000. Certain new communities including the Jats, have been declared as other Backward Classes on 10.03.2000, whereas proper representation to the Other Backward Class is also required. Holding of the elections of Gram Panchayats and Zila Panchayats at one point of time and elections of Kshetra Panchayats at another point of time, will have the financial implications meaning thereby that about Rs.70 crores shall be required and due to financial constraints, it is not feasible for the State to hold these elections at two different points of time.
41. This Court while interpreting Article 243E of the Constitution of India, which provided for a fixed tenure of a Panchayat, has held that the words "no longer" unequivocally mandates that fresh elections to constitute the next Panchayat, at any cost, must be completed before expiry of the duration of five years of ongoing Panchayat. It has further held that in view of the constitutional mandate neither the Governor of U.P. State nor the State Legislature possesses any legislative competence to enact any provisions or issue an Ordinance which amounts to circumventing or nullifying the mandate of Article 243E, of the Constitution of India in any manner, whatsoever. The amendment made in the U.P. Panchayat Raj Act was declared unconstitutional and ultra vires to the Constitution of India and a direction was issued to the State Election Commission to hold election of Panchayats before the expiry of five years in accordance with the provisions of Article 243E(2)(a). It may be mentioned here that in the aforesaid case the terms of the Gram Panchayats and Zila Panchayats were to expire in the month of May, 2000 whereas the Ordinance was promulgated on 8th March, 2000 inserting Sub-section (3A) and the writ petition decided by this Court on 3rd April, 2000 i.e. much before the period of five years was to expire. In the present case as already mentioned above even though it is mandatory to hold election before the expiry of the duration of earlier elected Municipalities, in the special facts and circumstances, the Amendment Act cannot be faulted on this ground inasmuch as in the present case a situation has arisen not because of any deliberate action on the part of the State Government but on account of the observations made by this Court in the delimitation matter for which the State Government cannot be blamed.
42. In the case of Nagar Palika Parishad, Roorkee (supra), the Uttaranchal High Court was considering a case where the State Government of Uttaranchal by second Uttaranchal Amending Act of 2001 replaced the proviso to Section 10-AA of the U.P. Municipalities Act, 1916 as adopted by it by the proviso which earlier stipulated that the term of the Administrator appointed under Section 10AA shall not exceed more than six months by substituting that the term of the Administrator shall continue upto 31st March, 2002 as beyond the legislative competence. It has followed the decision of this Court in the case of Anugrah Narain Singh (supra).
43. Moreover, we find that the hiatus has been recongnised by the Apex Court in the case of Jalgaon Municipal Council (supra). It was a case where the Apex Court was considering the provisions of Sections 3, 5 and 452A of the Bombay Provincial Municipal Corporations Act, 1949 with reference to provisions of Parts IX and IX-A of the Constitution of India. Section 3 of the Bombay Provincial Municipalities Act, 1949, provided for specification of larger urban areas and constitution of Corporations and Councils vis-a-vis population. Section 452A of the aforesaid Act which was inserted by the Bombay Provincial Municipal Corporations (Amendment and Validation) Act, 1995 provided for empowering the State Government to appoint government officer or officers to exercise powers and perform functions and duties of Corporation. Under the said Act the maximum period for such appointment was provided as six months. The Apex Court in paragraphs 21 and 22 of the reports has held as follows:-
21. Having heard the learned counsel for the parties at length on this aspect, we are of the opinion that the said hiatus is an unavoidable event which must take place in the process of conversion of a Municipal Council into a Municipal Corporation. Reliance on Article 243U by the learned counsel for the respondents in this context is misconceived. The use of the expression "a Municipality" in sub-article (3) of Article 243U in the context and in the setting in which it is employed suggests and means the duration of the same type of Municipality coming to an end and the same type of successor Municipality taking over as a consequence of the term of the previous Municipality coming to an end. Article 243U cannot be applied to a case where the area of one description is converted into an area of another description and one description of Municipality is ceased by constituting another Municipality of a better description. Article 243U(3) cannot be pressed into service to base a submission on that an election to constitute a Municipal Corporation is required to be completed before the expiry of duration of a Municipal Council.
22. The constitution of a Municipal corporation would require notification of larger urban area and a Municipal Corporation to govern it. The area shall have to be divided into wards with the number of corporators specified and reservations made. The Corporation would need to nominate councillors. The territorial limits may need to be altered. The State Election Commission cannot conduct election without specifying numbers and boundaries of wards. New rules, bye-laws etc. shall need to be framed and municipal tax structure may need to be recast. The statutory provisions do not contemplate a situation where the same area may be called a smaller and larger area simultaneously and process of constitution of a Municipal Corporation being commenced and completed though the Municipal Council continues to exist. Such an action would result in anomaly and confusion if not chaos. Care has been taken by the legislature by engrafting Section 452A into the body of the BPMC Act by the Bombay Provincial Municipal Corporations (amendment and Validation) Act, 1995 (at Maharashtra Act 4 of 1995)..
44. Thus the Apex Court has held that the provisions of Article 243U cannot be applied to a case where the area of one description is converted into an area of another description and one description of Municipality is ceased by constituting another Municipality of a better description. In the present case with the exercise taken by the State Government regarding delimitation of wards the Municipality may not be converted into another Municipality of better description but nonetheless the composition would change as there would be increase in the number of wards and the Corporators.
45. In the case of Special Reference No. 1 of 2002 (supra), the Constitution Bench of the Apex Court has held that even though no limitation for holding of election of the Legislative Assembly is provided either under the Representation of Peoples Act, 1951 or the Constitution of India, the Election Commission is required to take immediate steps for holding election on first occasion and in any case within six months of premature dissolution. Hon'ble Mr. Justice A. Pasayat in his concurring opinion has held as follows:
Free and fair election is the sine qua non of democracy. The scheme of the Constitution makes it clear that two distinct Constitutional authorities deal with election and calling of session. It has been pointed out to us that as a matter of practice the elections are completed within a period of six months from the date of dissolution, on completing the prescribed tenure or on completing the premature dissolution except when for inevitable reasons there is a delay. The Election Commissioner is a high constitutional authority charged with the duty of ensuring free and fair elections and the purity of electoral process. To effectuate the constitutional objective and purpose it is to draw upon all incidental and ancillary powers. Six months' period applicable to elections held on expiry of the prescribed term would be imperatively applicable to elections held after premature dissolution. This of course would be subject to such rare exceptional cases occasioned on account of facts situation (like acts of God) which make holding of elections impossible. But man made situation intended to defer holding of elections should be sternly dealt with and should not normally be a ground for deferring elections beyond six months period, starting point of which would be the date of dissolution. As was observed in Digvijay Mote v. Union of India and Ors. , timely election which is not free and fair subverts democracy and frustrates the ultimate responsibility to assess objectively whether free and fair election is possible. Any man made attempt to obstruct free and fair election is antitheses to democratic norms and should be overcome by garnering resources from the intended sources and by holding the elections within the six months' period.
46. It cannot be said that the present is not an exceptional case, on account of facts and situation arising out of the observations made by this Court in the delimitation case (Writ Petition No. 59093 of 2005) holding of elections before the end of the duration of term of the elected Municipality became impossible on account of any man made attempt.
47. We, therefore, are of the considered opinion that the Amendment Act does not violate any of the constitutional provisions and is a valid piece of legislation. However, we are of the considered opinion that the intention of the Parliament by enacting Sub-clause (b) of Clause (3) in Article 243U had made its intention clear that the election should be held not later than six months in the case of dissolution of a Municipality. Applying the principle laid down by the Apex Court in Special Reference Case No. 1 of 2002 (supra), if the elections are not held before the expiry of the duration of the Municipalities due to unavoidable reasons, beyond the control of the State Government, the elections should at any cost be held within a period of six months.
48. This leaves us to the question as to what meaning should be given to the words "the date appointed for its first meeting" as occurring in Clause (1) of Article 243U of the Constitution of India. According to the learned counsel for the petitioners the date appointed for the first meeting of the Municipality including Municipal Corporation and Nagar Panchayats, is the date on which the meeting has been called to transact some business and not the date on which the meeting has been called for administering oath to the elected members, Mayor and Chairman respectively. The date appointed for its first meeting has not been defined either in the Constitution or in any of the provisions of the Municipalities Act or the Adhiniyam and, therefore, we have to consider the meaning as given in the dictionaries and other texts.
49. Meeting has been defined in Shorter Oxford Dictionary is an assembly of a number of people for entertainment, discussion or the like. The learned authors M.Kaye Kerr and H.W.King in their book titled "Procedures for Meeting and Organisations" 1984 Edition, at page 63, have stated that a meeting is a gathering of individuals, delegates, or representatives who desire to accomplish a particular common purpose. The purpose of the meeting must be clearly identified as the first stage in the planning process. Thus, meeting is an assembly of a number of people for discussion or the like.
50. Taking up the provisions of the Municipalities Act, first, we find that under Sub-section (4) of Section 43-D of the Municipalities Act after the constitution of the municipality, the District Magistrate has been empowered to convene a meeting of the Municipality for the administration of the oath or affirmation under Sub-section (1) of Section 43-D of the Municipalities Act to the President and every member of the Municipality before taking his seat has to subscribe at a meeting of the Municipality an oath or affirmation of his allegiance to the Constitution. This meeting convened by the District Magistrate after the constitution of the Municipalities for administering the oath or affirmation, is the meeting of the Municipalities and its duration would start running from the date appointed for the first meeting. However, in the case of the Adhiniyam, we find that under Section 6 the composition of the Corporation has been provided and the Corporation shall consist of a Mayor, elected Corporators, nominated members, ex-officio members of the House of People and the State Legislative Assembly representing constituencies comprising the whole or part of the city, ex-officio members of the Council of State and the State Legislative Council who are registered as electors in the city and the Chairpersons of the Committees, if any, established under Clause (e) of Section 5 if they are not members of the Corporation. The nominated members have not been given any right to vote and it has further been provided that any vacancy in any category of members, referred to above, shall be no bar to the constitution or re-constitution of a Corporation. Unlike Section 43-D(4) of the Municipalities Act, the Adhiniyam does not contain any such provision for calling the meeting of the Corporation for administering the oath to the Mayor and the elected Corporators. Sub-section (1-A) of Section 85 of the Adhiniyam empowers the Municipal Commissioner to convene a meeting of the Mayor and the Corporators who have been declared elected. In the said meeting the Commissioner of the Division and, in his absence, the District Magistrate is to administer the oath or affirmation to the Mayor and thereafter the Mayor is to administer oath or affirmation to such Corporators, as may be present. It is remarkable to notice the departure made by the State legislature in the two enactments. While under the Municipalities Act a provision has been made for convening the meeting of the Municipality, the said provision is absent in the Adhiniyam. In the Adhiniyam, meeting of the Mayor and the elected Corporators is alone convened. By no stretch of imagination it cannot be said to be a meeting of the Corporation which has been convened. Therefore, the date appointed for the first meeting would not be the same date on which the Mayor and the Corporators have been administered oath. The plea of Sri Kazmi, learned Additional Advocate General that the meeting for administration of oath or affirmation to the elected Corporators, should be held to be the meeting of the Corporation's misconceived and cannot be accepted.
51. The learned Additional Advocate General has passed on a chart giving the dates on which the Mayor and the elected corporators have taken oath in various Nagar Nigams/Municipal Corporations and the date of first meeting which are as follows:
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53. The decision of this Court in the case of Lakhan Singh (supra), relied upon by the learned Additional Advocate General, would, therefore, on the clear language of the provisions of the Municipalities Act and the Adhiniyam would not be applicable. In this view of the matter, we are not going into the question as to whether the decision in the case of Lakhan Singh (supra) is per incuriam or not.
54. It may be mentioned here that the various decisions relied upon by Sri Manish Goel in support of his plea on the date of first meeting are not applicable in the present case in view of the clear language of the provisions of the Municipalities Act and the Adhiniyam and, therefore, they are not being discussed.
55. So far as the apprehension that the Administrator appointed under the amendment Act shall have unguided arbitrary powers, suffice it to mention that there is already a decision of the Full bench of this Court in the case of Bisauli Vyapar Mandal, Baduan and Ors. v. State of U.P. and Ors. (2005) 1 UPLBEC 56, in which it has been held that the Administrator cannot impose fresh taxes which are required to be done only by a special resolution. The Administrator so appointed is to work in accordance with law and, therefore, this apprehension is misplaced.
56. In view of the aforesaid discussions, all the writ petitions except writ petition No. 73095 of 2005 and 73792 of 2005 fail and are dismissed and the writ petition Nos. 73095 of 2005 and 73792 of 2005 succeed in part and are partly allowed. The challenge to the validity of the Amendment Act fails. However, the order dated 28th November, 2005 issued by the State Government (annexure 7 to the Writ Petition No. 73792 of 2005) is quashed and the respective Administrator is directed to forthwith hand over the charge of the Mayor and the elected representatives of the Nagar Nigams of the 11 districts, namely, Kanpur, Agra, Varanasi, Allahabad, Lucknow, Meerut, Bareilly, Ghaziabad, Moradabad, Aligarh and Gorakhpur to the erstwhile Mayors and Corporators. The State Government and the State Election Commission are further directed to hold elections to ensure that the elections of the Municipalities, Nagar Panchayats, and Municipal Corporations are held within a period of six months from the expiration of the period of five years from the date appointed for the first meeting. In the facts and circumstances of the case, parties are left to bear their own costs.