http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: SANTOKCHAND KANAIYALAL JAIN

       Vs.

RESPONDENT: BHUSAVAL BOROUGH MUNICIPALITY AND OTHERS

DATE OF JUDGMENT: 02/09/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. MUDHOLKAR, J.R. BACHAWAT, R.S.

CITATION:  1966 AIR 1358            1966 SCR  (1) 695

ACT: Municipalities-President elected by Municipality for residue of  its terms-Normal term of municipality as provided in  s. 25  of  Bombay  Municipal Borough  Act  four  years-Term  of municipality   extended  beyond  four  years  by  s.  3   of Maharashtra Municipality (Postponement of General  Elections Unification  of  Municipal laws) Act,  1964-Effect  of  such extension  on term of President-Second proviso to s.  19  of Municipal Boroughs Act whether attracted.

HEADNOTE: The appellant was elected President of the Bhusaval  Borough Municipality in Bombay State in July 1964.  On the same  day the Municipality passed a resolution to the effect that  the term of office of the President would be "the residue of the term  of office of the municipality".  The four years’  term of  the  municipality  as provided in s. 25  of  the  Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was  due to  expire on February 17, 1965.  However in  the  meanwhile the  Maharashtra  Municipalities  (Postponement  of  General Elections  Pending Unification of Municipal Laws  Act,  1964 was  passed,  and  under  s.  3  thereof  the  term  of  the councillors  of the municipality was by fiction extended  to December  31,  1965.   The  Collector of  the  area  on  the assumption that the term of the President ending on February 17, 1965, issued notice for a fresh election in March  1965. The  appellant filed an application under Arts. 226 and  227 of the Constitution and contended that as the term of office of  the  municipality had been extended up to  December  31, 1965  he was entitled to be President till that  date  under the  resolution passed by the Municipality.  The High  Court -,.-jetted   the   contention.   The   appellant,   with   a certificate  of fitness granted by the High Court,  came  to this Court. The short question in the appeal was whether the  expression "the  residue of the municipality" in the resolution of  the municipality  meant  the residue of  the  municipality  that would  have been if the Maharashtra Act had not been  passed or  whether it should be interpreted in the context  of  the extended term provided by the Maharashtra Act.  On behalf of the appellant it was argued that the appellant would get the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

extended  term provided by the Maharashtra Act,  because  in effect it was an extension under the Act within the  meaning of the second proviso to s. 19 of the Act or in any event he got  the  benefit  because the  Maharashtra  Act  in  effect amended  s. 25 of the Act with the result that ’residue’  of the ’term’ was extended to December 31, 1965. HELD : (i) The impact of s. 3 of the Maharashtra Act on  the provisions of the Municipal Boroughs Act is that it not only extends the term prescribed under s. 25 of the Act but  also the term extended under s. 25 or under any other section  of the  Act.   If that was the legal effect of  the  Maharahtra Act,  the second proviso to s. 19 was not attracted  to  the instant  case as there was no order or  notification  issued under  s.  25  or  any other relevant  section  of  the  Act extending  the term of the Councillors fixed under s. 25  of the  Act.   Therefore  for the present  purpose  the  second proviso to s. 19 had to be left out of consideration and the problem had 696 to  be approached on the basis of the fiction that the  term of  the  Councillors prescribed under s. 25 of the  Act  was extended up to December 31, 1965. [699 G-700 A] (ii) The  intention  of the municipality could  be  gathered only from the tances statutory or otherwise existing at  the time when the resolution was passed and on the express terms of the said resolution. The  second proviso to s. 19 contemplates the  extension  of the  term of office of the Municipality under the  Act.   It was therefore not possible to predicate that at the time the resolution  was  passed  the  municipality  could  not  have contemplated  a situation when the term of the  Municipality would be extended under the provisions of the Act.  Moreover from the Statement of objects underlying the issuance of the Ordinance  which  culminated  in  the  Maharashtra  Act   it appeared  that the question of extension of the term of  the municipalities in the State was under serious  consideration even  in July 1963.  Indeed on or about July 18,  1964  when the  term  of the President was extended,  the  municipality passed  a  resolution  recommending that  the  term  of  the Municipality  be extended beyond 4 years.  It was  therefore clear  that  on  the  basis  of  the  statutory  and   other circumstances obtaining at the time the extension was  made, the  councillors  clearly  expected that  the  term  of  the municipality  would  be or could be extended and  with  that knowledge they passed the resolution fixing the term of  the President  for the residue of the term of the  Municipality; the intention appeared to be that the term of the  President should  syncbronise  with  the  life  of  the   municipality existing or extended as the case may be. [700 B- 701 D] The  order of the High Court was therefore not  correct  and had to be set aside.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 481 of 1965. Appeal from the judgment and order, dated April 30, 1965, of the  Bombay High Court in Special Civil Application No.  447 of 1965. C.   B.  Agarwala,  S. N. Prasad, J. B.  Dadachanji,  O.  C. Mathur and Ravinder Narain, for the appellant. S.   V.   Gupte, Solicitor-General, and B. R. G.  K.  Achar, for respondent Nos. 2 to 4. The Judgment of the Court was delivered by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

Subba Rao J. This appeal by certificate raises the  question of the true construction of the provisions of ss. 19 and  25 of  the Bombay Municipal Borough Act, 1925 (Bom.  Act 18  of 1925),  hereinafter  called the Act, read with s. 3  of  the Maharashtra   Municipalities   (Postponement   of    General Elections Pending Unification of Municipal Laws) Act,  1964, hereinafter called the Maharashtra Act. The facts lie in a small compass.  The last general election of  the,  members of the Bhusaval Borough  Municipality  was held 697 under the provisions of the Act in the year 1960.  The first general  meeting thereafter was held on February  18,  1961. Under  the  provisions of s. 25 of the Act.  in  the  normal course  the life of the Municipality would have  expired  on February  17, 1965; but, under s. 3 of the  Maharashtra  Act the  term  of the Councillors of the  Municipality  was,  by fiction, extended to and inclusive of December 31, 1965.  On July  18, 1964, the appellant was elected the  President  of the  Municipality;  and  on the same  day  the  Municipality passed  a  resolution  to the effect that the  term  of  the office of the President shall be "the residue of the term of office  of  the Municipality".  On the assumption  that  the term  of  the President expired on February  17,  1965,  the Collector  of  Jalgaon  issued a notice on  March  2,  1965, calling for a meeting of the Municipality on March 15, 1965, for  electing  a new President.  Thereafter,  the  appellant filed  an  application  under  Arts.  226  and  227  of  the Constitution in the High Court of Maharashtra for the  issue of  an appropriate order setting aside the notice issued  by the  Collector.  There the appellant contended that, as  the term of office of the Municipality had been extended by  the Maharashtra Act up to December 31, 1965, he was entitled  to continue in office as President till that date.  A  Division Bench  of the said High Court rejected that  contention  and dismissed the petition.  Hence the appeal. The  short question in the appeal is whether the  expression "the  residue of the Municipality" in the resolution of  the Municipality, dated July 18, 1964, means the residue of  the Municipality that would have been if the Maharashtra Act had not  been passed or whether it should be interpreted in  the context  of  the extended term provided by  the  Maharashtra Act. Mr.  Agarwala, learned counsel for the appellant,  contended that  the appellant would get the extended term provided  in the Maharashtra Act, because in effect it was an "extension" under the Act within the meaning of the second proviso to s. 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended s. 25 of the Act, with the result the "residue" of the "term" was extended to  December 31, 1965. The  learned  Solicitor-General, on the other  hand,  argued that  the  second  proviso  to  s. 19  of  the  Act  had  no application,  for  it  dealt  only  with  an  extension   by notification  or otherwise under the provisions of  the  Act and  the  statutory extension given by the  Maharashtra  Act could not possibly be an extension under the Act; that  even if  the Maharashtra Act had the effect of amending s. 25  of the Act with the result that the life of the 698 members of the Municipality was extended by the amendment of the Act itself, it would not help the appellant as the scope of  the  resolution  passed by the  Municipality  should  be construed on the basis of the circumstances existing at  the time  the  resolution  was passed,  i.e.,  previous  to  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

election of the President, and at that time the  councillors of  the Municipality could have only passed  the  resolution fixing  the term of the President during the residue of  the life the Municipality had at that time : to put it in  other words,  the  intention of the Councillors,  who  passed  the resolution,  could be gathered only from the  circumstances, statutory or otherwise, existing at the time the  resolution was passed. The  problem presented from different angles by the  learned counsel  can only be solved on a true interpretation of  the said provisions.  It will, therefore, be convenient at  this stage to read the relevant provisions. Section 19 of the Act :               (1)   Save as otherwise provided in this Act a               president  or vice-president, shall  hold  his               office  for such term, not less than one  year               or  not less than the residue of the  term  of               office of the municipality, whichever is  less               and   not   exceeding  four  years,   as   the               municipality  shall, previous to the  election               of  the president or vicepresident  determine,               or  until the expiry within the said  term  of               his  term of office, as councillor, but  shall               be eligible for reelection :               Provided that..............               Provided further that where the term of office               of a municipality :Is extended under this  Act               to a term not exceeding in the aggregate  five               years the president and vice-president holding               offices  immediately  before  the  date   with               effect from which such term is extended  shall               continue  to  hold  their  respective  offices               until  the date on which the term so  extended               expires.               Section 25 of the Act :               (1)   Councillors  nominated or elected  at  a               general  election under this Act, shall,  save               as otherwise provided in this Act, hold office               for a term of four years, extensible by  order               of   the  State  Government  to  a  term   not               exceeding  in the aggregate five years, if  on               any occasion the State Government shall  think               fit, for               699               reasons which shall be notified together  with               the order in the Official Gazette so to extend               the same               Section 3 of the Maharashtra Act               Postponement of municipal  elections.-Notwith-               standing anything in any Act by or under which               any    municipality    is    constituted    or               established,-               (a)               (b)   the term or extended term of office,  of               the Councillors or members of a  municipality,               who  were  in  office  on  the  date  of   the               commencement of the Ordinance (and whose  term               or  extended term will expire before the  31st               day  of December 1965), shall be deemed to  be               extended  to and inclusive of the 31st day  of               December 1965.                                  SCHEDULE                              (See section 2)               2.    The Bombay Municipal Boroughs Act, 1925                           (Bom.  XVIII of 1925).

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

The  combined  effect of these two Acts may be  stated  thus Under  s. 25 of the Act the term of the Councillors  of  the Municipality  is 4 years.  It may be extended by  the  State Government to  a  term not exceeding in the  aggregate  five years.  If the term is   so  extended by the  Government  in the manner prescribed by s.   25  of  the  Act,  under   the second proviso to s. 19 of the Act the term of the President also is automatically extended to the date on which the term so extended expires.  The expression "  under  this Act"  in the  second proviso to s. 19 of the Act  certainly  attracts the extension of the term of the councillors under s. 25, as it is an extension under the Act.  The impact of s. 3 of the Maharashtra Act on the provisions of the Act is that it  not only extends the term prescribed under s. 25 of the Act  but also  the  term  extended under s. 25  or  under  any  other section of the Act.  If that be the legal effect of s. 3  of the Maharashtra Act, the second proviso is not attracted  to the  instant  case, as there was no  order  or  notification issued under s. 25 or any other relevant section of the  Act extending  the term of the councillors fixed under s. 25  of the Act.  Therefore for the present purpose we leave out  of consideration  the second proviso to s. 19 and approach  the problem on the basis of the fiction that the term of the 700 councillors  prescribed under s. 25 of the Act was  extended up  to December 31, 1965.  If that be so, the next  question is whether on July 18, 1964, when the Municipal  councillors passed a resolution to the effect that the term of office of the  appellant  shall be the residue  of  the  Municipality, their  intention was that his term should extend only up  to February  17,  1965,  i.e., the date when the  term  of  the Municipal  councillors  would  have  expired  but  for   the statutory  extension  given  by the  Maharashtra  Act.   The intention of the Municipality can be gathered only from  the circumstances,  statutory or otherwise existing at the  time when  the resolution was passed and on the express terms  of the   said  resolution.   Under  s.  19  of  the  Act,   the Municipality  can  fix the term of office of  the  President between  one and four years, except when the residue of  the term  of  the Municipality is less than one year.   But  the second  proviso to s. 19 also contemplates the extension  of the term of office of the Municipality under the  provisions of  the  Act.  It is, therefore, not possible  to  predicate that at the time the resolution was passed the  Municipality could not have contemplated a situation when the term of the Municipality  would be extended under the provisions of  the Act.  With the knowledge of such a possible extension,  when the members used the elastic expression "residue", it is not reasonable  to  attribute to them the  intention  that  they meant only the residue of the term available to them at that time.    If  that  was  their  intention  they  would   have prescribed  a  definite  date  on  which  the  term  of  the President  would  expire.  That apart, there  is  sufficient material on the record which indicates that the  councillors designedly  used  the  word "residue" instead  of  fixing  a precise  date.  It appears that it was in the  contemplation of  the  councillors  at the time of  the  election  of  the President  that there was a possibility of the term  of  the Municipality  being extended.  In the Statement  of  Objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act, it was observed as follows               "In   July,  1963,  Government   appointed   a               Committee  for the purpose of considering  the               question of unification of the four  Municipal               Acts  which  are at present in  force  in  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

             State.   As substantial changes are  envisaged               in the unified municipal law, it is considered               expedient  that the advantages of the new  and               uniform  pattern of administration  should  be               available   to   all   those    municipalities               concerned  simultaneously with the holding  of               general  election in accordance with the  pro-               visions of the unified law.  Consequently, the               Munici-               701               parties  that  are elected or may  be  elected               under  the existing Acts may  be  short-lived,               and the time, energy and expenditure  incurred               on holding any more general elections would be               wasteful.  It has, therefore, be-on decided to               postpone  the general elections to such  muni-               cipalities   from  the  promulgation  of   the               Ordinance until the 31st of December, 1965, by               which  time the new unified municipal  law  is               expected to be enacted." This indicates that the question of extension of the term of the  municipalities was under serious consideration even  in July 1963.  Indeed, on or about July 18, 1964, when the term of  the  Presitent  of the Municipality  was  extended,  the Municipality passed a resolution recommending that the  term of  the  Municipality be extended beyond 4  years.   It  is, therefore,  clear that -on the basis of statutory and  other circumstances obtaining at the time the extension was  made, the  councillors  clearly  expected that  the  term  of  the Municipality  would  be or could be extended and  with  that knowledge they passed the resolution fixing the term of  the President  for the residue of the term of the  Municipality; the  intention appears to be that the term of the  President should  synchronize  with  the  life  of  the   Municipality existing or extended, as the case may be. In  our view, therefore, the order of the High Court is  not Correct  and  the  same is set aside.   A  writ  will  issue prohibiting  the Collector from holding the election of  the President  of the Municipality of the Bhusaval Borough  till December 31, 1965. The  controversy arose because the relevant  provisions  are not free from ambiguity.  We, therefore, think that this  is a  fit case where the parties may be directed to bear  their own costs; throughout. Appeal allowed. 702