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CASE NO.: Appeal (civil)  6133 of 2002

PETITIONER: Ramesh Mehta

RESPONDENT: Sanwal Chand Singhvi & Ors.

DATE OF JUDGMENT: 20/04/2004

BENCH: S.B. SINHA.

JUDGMENT: J U D G M E N T

With

Civil Appeal Nos. 6134-35, 6136, 8564 of 2002 And Civil Appeal No. 2393 of 2003

S.B. SINHA, J :

       A short but interesting question as regard application  of principles of interpretation of statute arises for  consideration in this appeal.   

       The State of Rajasthan enacted Rajasthan Municipalities  Act, 1959 (for short "the said Act").  Section 9 of the  said Act provides for composition of boards.  The Board  consists of elected members as also members nominated by the  State Government having special knowledge or experience in  municipality and the member of the House of People  representing a Constituency comprising wholly or partly the  area of the municipality.   

       The State made Rajasthan Municipalities (Motion of No- Confidence against Chairman/ Vice-Chairman) Rules, 1974 in   exercise of its power conferred under Section 257 of the  said Act.  The rules inter alia lay down the procedure for  removal of a Chairman.  Upon coming into force of the  Constitution 74th Amendment in terms whereof Article 243R  was inserted, the provisions of the said Act were also  suitably amended.  But the Rules were not amended.   

       Article 243R of the Constitution reads thus: "243R. COMPOSITION OF MUNICIPALITIES.  (1) Save as provided in clause (2), all  the seats in a Municipality shall be  filled by persons chosen by direct  election from the territorial  constituencies in the Municipal area and  for this purpose each Municipal area  shall be divided into territorial  constituencies to be known as wards.  (2) The Legislature of a State may, by  law, provide-  (a) for the representation in a  Municipality of-  (i) persons having special knowledge or  experience in Municipal administration;  (ii) the members of the House of the

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People and the members of the  Legislative Assembly of the State  representing constituencies which  comprise wholly or partly the Municipal  area;  (iii) the members of the Council of  States and the members of the  Legislative Council of the State  registered as electors within tile  Municipal area;  (iv) the Chairpersons of the Committees  constituted under clause (5) of article  243S:  Provided that the persons referred to in  paragraph (i) shall not have the right  to vote in the meetings of the  Municipality;  (b) the manner of election of the  Chairperson of a Municipality."

       It is not in dispute that in terms of proviso to  Article 243R as also Section 9 of the Rajasthan  Municipalities Act, voting right has expressly not been  granted to the co-opted members.   

       But the definition of the member or total number of  members has not been amended which are contained in Sections  3(15) and 3(36) of the Act which are as under:

"3(15) ’member’ means any person who is  lawfully a member of a board;"

"3(36) ’whole number’ or ’total number’  when used with reference to the members  of a board, means the total number of  members holding office at the time."

       In terms of the rules, a motion of ’No Confidence’ in  the Chairman must be carried out by a 2-3rd majority of  the whole number of members or if any meeting cannot be held  for want of quorum, such motion shall be deemed to have been  lost.  

A right to contest election although arises under a  statute but having regard to the Constitution 74th  Amendment Act, the interpretation thereof must be made  keeping in view the constitutional scheme.  Democracy at the  grass-root level was sought to be introduced by reason of   the said amendment in the Constitution.  Once the concept of  a grass-root democracy is accepted, a pragmatic and  purposive meaning to the provisions of the Act must be  assigned.  

One of the Constituency in question had merely 23  members out of whom two were nominated members and one was  the member of the Legislative Assembly.  15 votes were cast  in favour of the No Confidence Motion, still the appellant  was not found liable to be removed having regard to the  definition of ’total number of votes’.

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The ’whole number of votes’ whether should, in our  opinion, be read as total number of elected votes or total  number of members as it patently appears from the  definition; is the question.   It is accepted that the Rules have not been altered  despite the fact that amendments have been carried out in  the Municipalities Act in the year 1994.  All members who  were not elected members under the unamended provisions were  treated as elected members.  Their rights were at par with  them.  The very fact that the Constitution made a difference  between an elected member and nominated member in the matter  of election and removal of a Chairman is suggestive of the  fact that now a new interpretation is called for.  Nominated  members are persons with special knowledge in the subject.   They are nominated so that they may render their advices  properly to the members of the Board which would enable it  to run the municipal affairs efficiently. They remain as  member of the Board irrespective of the fact that as to who  is the person occupying the post or his political affinity.   He is not concerned with election.  He does not take part in  it.  A fortiorari he has also not been assigned any role to  play as regard removal of the Chairman or Vice-Chairman.

       The interpretation clause in the said Act is prefaced  with the expression "unless otherwise requires by the  context".   

       A definition is not to be read in isolation.  It must  be read in the context of the phrase which would define it.  It should not be vague or ambiguous. The definition of words  must be given a meaningful application; where the context  makes the definition given in the interpretation clause  inapplicable, the same meaning cannot be assigned.   

       In State of Maharashtra Vs. Indian Medical Association  [(2002) 1 SCC 589], one of us (V.N. Khare, CJI) stated that  the definition given in the interpretation clause having  regard to the contents would not be applicable.  It was  stated:

"8.A bare perusal of Section 2 of the  Act shows that it starts with the words  "in this Act, unless the context  otherwise requires ....". Let us find  out whether in the context of the  provisions of Section 64 of the Act the  defined meaning of the expression  "management" can be assigned to the word  "management" in Section 64 of the Act.  In para 3 of the Regulation, the  Essentiality Certificate is required to  be given by the State Government and  permission to establish a new medical  college is to be given by the State  Government under Section 64 of the Act.  If we give the defined meaning to the  expression "management" occurring in  Section 64 of the Act, it would mean the  State Government is required to apply to  itself for grant of permission to set up  a government medical college through the  University. Similarly it would also mean

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the State Government applying to itself  for grant of Essentiality Certificate  under para 3 of the Regulation. We are  afraid the defined meaning of the  expression "management" cannot be  assigned to the expression "management"  occurring in Section 64 of the Act. In  the present case, the context does not  permit or requires to apply the defined  meaning to the word "management"  occurring in Section 64 of the Act..."

       Examples are galore when with a view to make a statute  workable the court has corrected obvious drafting errors.  The court in suitable cases may add or omit or substitute  words.

       In National Insurance Co. Ltd. Vs. Swaran Singh and  Others [(2004) 3 SCC 297] it has been held that it is  desirable to look into the legislative history of the  provisions of the Act for their interpretation.

       A subordinate or delegated legislation must also be  read in a meaningful manner so as to give effect to the  provisions of the statute.  In selecting the true meaning of  a word regard must be had to the consequences leading  thereto. If two constructions are possible to adopt, a  meaning which would make the provision workable and  inconsonance with the statutory scheme should be preferred.

       In R. vs. Secretary of State for the Home Department  ex. p. Venables [(1998) AC 407], one of the crucial issues  was the length of time the applicants \026 children who had  been convicted of murder and sentenced to be detained during  Her Majesty’s pleasure \026 should in fact be held.  Keeping in  view the welfare of the children the majority held that the  Secretary of the State was obliged to keep the tariff period  set under continuous review.

       In Deepal Girishbhai Soni and Ors. Vs. United India  Insurance Co. Ltd., Baroda [2004 (3) SCALE 546] a Bench of  this Court laid emphasis that the object underlying the  statute is required to be given effect to by applying the  principles of purposive construction holding :

"It is now well-settled that for the  purpose of interpretation of statute,  same is to be read in its entirety.  The  purport and object of the Act must be  given its full effect.  [See High Court  of Gujarat & Anr. Vs. Gujarat Kishan  Mazdoor Panchayat & Ors. [JT 2003 (3) SC  50], Indian Handicrafts Emporium and  Others vs. Union of India and Others  [(2003) 7 SCC 589], Ameer Trading  Corporation Ltd. vs. Shapoorji Data  Processing Ltd. [JT 2003 (9) SC 109 =  2003 (9) SCALE 713 and Ashok Leyland Vs.  State of Tamil Nadu and Anr. [2004 (1)  SCALE 224].  The object underlying the

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statute is required to be given effect  to by applying the principles of  purposive construction."   

       (See also Reema Aggarwal Vs. Anupam and Others, (2004)  3 SCC 199).  

       The Becnch in Raees Ahmad Vs. State of U.P. and Ors  [(2000) 1 SCC 432] whereupon the learned counsel for the  appellant placed strong reliance did not address itself to  any one of the questions referred to hereinbefore.            In that case the rights were governed by a statute.   The Act was amended in terms of the Constitutional scheme.   The Legislature of U.P. was conscious of the consequences of  such amendment.  The vires of the said amendment was not  questioned.   

       In the instant case, however, the procedure is laid  down in the rules which still remain unamended despite the  fact that the Act had been amended in consonance with  Article 243R of the Constitution of India.

       The said decision in any event having been rendered by  a 2-Judge Bench of this Court is not binding on us.

       Furthermore. amendment in the legislation may not be  decisive as regard the intention of the legislature as to  whether it intended to alter the entire law.  The question  came to be considered upon insertion of Section 11-A of  Industrial Disputes Act by this Court in The Workmen of M/s.  Firestone Tyre & Rubber Co. of India P. Ltd. and others Vs.  The Management and Others [AIR 1973 SC 1227] wheretobefore  this Court noticed its earlier judgment wherein it was held  that in a case of no enquiry or defective enquiry it would  be permissible for the employer to lead evidence before the  industrial Tribunal or the Labour court, as the case may be,  as regard misconduct allegedly committed by a workman.   Section 11A of the Industrial Disputes Act which was  introduced on 15.12.1971 reads thus:

"11-A. Powers of Labour Courts,  Tribunals and National Tribunals to give  appropriate relief in case of discharge  or dismissal of workmen.- Where an  industrial dispute relating to the  discharge or dismissal of a workmen has  been referred to a Labour Court Tribunal  or National Tribunal for adjudication  and in the course of the adjudication  proceedings, the Labour Court, Tribunal  or National Tribunal, as the case may  be, is satisfied that the order of  discharge or dismissal was not  justified, it may, by its award, set  aside the order of discharge or  dismissal and direct reinstatement of  the workmen on such terms and  conditions, if any, as it thinks fit, or  give such other relief to the workmen  including the award of any lesser  punishment in lieu of discharge or

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dismissal as the circumstances of the  case may require: Provided that in any  proceeding under this section the Labour  Court, Tribunal or National Tribunal, as  the case may be, shall rely only on the  materials on record and shall not take  any fresh evidence in relation to the  matter."                                 [Underlining is mine for emphasis]  

       In view the said provisions, a contention was raised  that the jurisdiction of the Tribunal was limited to  consider the merit of the matter only from the records of  the disciplinary proceedings. Repelling the said contention  this Court held:

"...Another aspect to be borne in mind  will be that there has been a long chain  of decisions of this Court, referred to  exhaustively earlier, laying down  various principles in relation to  adjudication of disputes by industrial  Courts arising out of orders of  discharge or dismissal. Therefore it  will have to be found from the words of  the section whether it has altered the  entire law, as laid down by the  decisions, and if so, whether there is a  clear expression of that intention in  the language of the section."

       The Court held that the Tribunal is clothed with the  power to reappraise evidence in the domestic enquiry and  satisfy itself whether the said evidence relied on by an  employer established the misconduct alleged against a  workman or not but despite the purported limitation of the  tribunal’s jurisdiction not to bring on its records any new  material, it was held:

"33. If there has been no enquiry held  by the employer or if the enquiry is  held to be defective, it is open to the  employer even now to adduce evidence for  the first time before the Tribunal  justifying the order of discharge or  dismissal. We are not inclined to accept  the contention on behalf of the workmen  that the right of the employer to adduce  evidence before the Tribunal for the  first time recognised by this Court in  its various decisions, has been taken  away. There is no indication in the  section that the said right has been  abrogated. If the intention of the  legislature was to do away with such a  right, which has been recognised over a  long period of years, as will be noticed  by the decisions referred to earlier,  the section would have been differently  worded. Admittedly there are no express  words to that effect, and there is no  indication that the section has  impliedly changed the law in that

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respect. Therefore, the position is that  even now the employer is entitled to  adduce evidence for the first time  before the Tribunal even if he had held  no enquiry or the enquiry held by him is  found to be defective. Of course, an  opportunity will have to be given to the  workman to lead evidence contra."

                                               [emphasis supplied]

       The decisions of the courts as regard right of  participation of the member who was an elected or who had a  right equal to that of an elected member had been taken  notice of by Brother Kapadia, J.  The said decisions are  pointers to the fact that only elected members and those who  are to be treated at par were entitled to participate in a  proceeding initiated for removal of the Chairman of the  Municipality.    

       By reason of the amendment in the Constitution and  consequent amendment by the State Legislature in the  Rajasthan Municipalities Act, however, no indication has  been given that by reason thereof a special right is sought  to be created in the nominated members although they would   not participate in such a proceedings and would not have any  voting right either at the election of the Chairman or in  the proceedings for his removal.  

       We, therefore, are of the opinion that the rules which  were made in the year 1974 having not been amended; with a  view to give an effective and proper meaning must be  construed to mean that only members with voting right are  entitled to participate in that proceedings and not the  nominated members.

       With these additional reasons, I entirely agree with  the opinion of Brother Kapadia, J.