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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: LEELA JAIN

DATE OF JUDGMENT: 16/09/1964

BENCH: AYYANGAR, N. RAJAGOPALA BENCH: AYYANGAR, N. RAJAGOPALA SARKAR, A.K. BACHAWAT, R.S.

CITATION:  1965 AIR 1296            1965 SCR  (1) 276  CITATOR INFO :  F          1968 SC  59  (10)  R          1973 SC1034  (22)  RF         1973 SC1461  (907)  R          1985 SC 582  (37)

ACT: Rajasthan  City  Municipal Appeals (Regulation)  Act  (3  of 1950), s. 4(1),     proviso-State      Government-Revisional Jurisdiction--Scope of.

HEADNOTE:    The respondent made certain constructions on her land  in the  city of Jaipur.  Those constructions were in  variation of  the  plans approved by the Municipality.  As  they  were completed  in  spite  of an order by the  President  of  the Municipal  Board  to  stop  unauthorised  constructions,  he ordered the matter to be compounded by the respondent paying a fine.  No appeal was provided by the Jaipur Municipal  Act against such an order, and so, a neighbour, who was affected by  the  constructions moved the State  Government  and  the latter, acting under the proviso to S. 4(1) of the Rajasthan City Municipal Appeals (Regulation) Act, 1950, set aside the order of the President.  The respondent then moved the  High Court under Art. 226 of the Constitution and the High  Court held that the order of the President was not subject to  the revisional jurisdiction of the State Government.  The  State thereupon, appealed to the Supreme Court. HELD : The appeal should be allowed.   The  main purpose of the Act is to create a uniform  forum for  dealing with municipal appeals, that is, appeals  lying under a municipal law to an authority other than a municipal authority,  because such appeals, when provided for, lay  to different  authorities in different cities of the  State  of Rajasthan.   Under s. 3 of the Act the appeal,  if  provided for,  was to be disposed of by the Commissioner.  The  order of the Commissioner and the order of a municipal  authority, where  no appeal was provided for a.-, in the instant  case, would  be final subject to revision by the State  Government under  the proviso to s. 4(1) of the Act.  It would  not  be proper, when the words of the statute are clear, to take the preamble  and the long title into consideration and come  to

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the  conclusion  that  it could not have  been  intended  to permit  the  Government to interfere in  municipal  affairs, especially  when  such an interpretation has the  effect  of omitting or deleting the words "order passed by a  Municipal authority"  in  the proviso, when they have  a  meaning  and significance  in their normal connotation. [278H;  281E,  H; 282C-F; 283H; 285B-D].

JUDGMENT:      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 245  of 1962. Appeal  by special leave from the judgment and  order  dated November 7, 1958 of the Rajasthan High Court in D. B.  Civil Writ Petition No. 65 of 1957. M.   M.  Tewari,  K.  K. Jain and R. N.  Sachthey,  for  the appellant. 277 S. P. Sinha, V. Kumar and Naunit Lal, for respondent No. 1. The Judgment of the Court was delivered by Ayyangar  J.  A  very short question  regarding  the  proper construction of the proviso to s. 4(1) of the Rajasthan City Municipal  Appeals  (Regulation) Act, 1950, is  involved  in this appeal which comes before us by virtue of special leave granted by this Court.    The facts giving rise to this appeal are briefly these  : The  respondent  Mrs. Leela Jain is the owner of a  plot  of land  in the city of Jaipur.  Under the relevant  provisions of the city of Jaipur Municipal Act, 1943, she was  required to  submit  to  the Municipal  Council  plans  for  erecting constructions  on her plot, obtain their approval  and  make the  constructions in accordance with the sanctioned  plans. She  submitted her plans, which were sanctioned but  it  was stated that during the course of the constructions she  made certain  variations  from  the  plan  as  approved  by   the Municipal  authorities.   A  neighbour of hers,  one  D.  D. Goswami, alleged that the variations made by the  respondent in carrying out the constructions of her house prejudicially affected  him.   On  the basis  of  his  representation  the Municipal Council initiated an inquiry as a result whereof a report  was submitted to it in which a finding was  recorded that  the  respondent  had  effected  variations  from   the sanctioned plan.  The President of the Municipal Board  con- considered  the report and passed an order on September  19, 1956  directing  the  respondent to  stop  the  unauthorised constructions    immediately.     It   was    stated    that notwithstanding  this  order the  respondent  continued  the constructions and completed them.  When this was brought  to the notice of the Municipal authorities, an order was passed that action be taken against her under S. 210 of the City of Jaipur  Municipal  Act, 1943.  This  section  provides  that where an owner or occupier was required to execute any  work under  the provisions of the Act and a default was  made  in the execution thereof, the Municipal Board might cause  such work to be executed and the expenses incurred thereby to  be recovered from the person in default.  It is not very  clear from  the  record  what  exactly  was  the  work  which  the respondent was directed to carry out and which she failed to execute.  The only thing that is necessary to be noticed  is that there existed an order under s. 210 passed on September 26,  1956.  Representations were made by the  respondent  to the President of the Municipal Council and thereupon, by  an order dated October 24, 1956, the President L2Sup. /64-5 278

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ordered  that the case against the respondent be  compounded by  her paying to the Municipal Council a sum of Rs. 101  as fine.  It is stated that the respondent paid this fine,  but the  fact  of her having done so is apparently a  matter  of some controversy to which it is not necessary to refer.    Shri  D.  D.  Goswami, the  respondents  neighbour,  felt aggrieved  by  this order compounding the violation  of  the building  bye-laws.   No appeal was provided by  the  Jaipur Municipal  Act  from such an order, but he moved  the  State Government to set aside that order and the latter purporting to  exercise jurisdiction under the proviso to s. 4  of  the Rajasthan City Municipal Appeals (Regulation) Act,, 1950 (to which  we  shall hereafter refer as the Act) set  aside  the order  of  the  President of  the  Municipal  Council.   The respondent thereupon invoked the jurisdiction of the  Rajas- than High Court under Art. 226 of the Constitution of  India for issue of a writ of certiorari to quash this order of the State Government.  Though several contentions were raised by the  respondent  in  support  of  her  plea  regarding   the invalidity  of the impugned order of the  State  Government, the  learned  Judges  of  the  High  Court  confined   their attention to one of the points raised that the order of  the President  of the Municipal Council which was final and  not subject to appeal under the City of Jaipur Municipal Act was not  subject  to the revisional jurisdiction  of  the  State Government  under  the proviso to S. 4(1) of the  Act.   The learned  Judges of the High Court accepted  this  contention and  acceded  to the Writ Petition and passed  an  order  as prayed  for.   The appellant-State having  obtained  special leave from this Court, has preferred this appeal.    In  order to appreciate the contentions urged  before  us relating  to the construction of the proviso to S. 4 of  the Act, it is necessary to read the main provisions of the Act. It  is  a short Act containing 5 sections.  The  long  title states  that  it  was enacted "to  provide  for  and  secure uniformity in the forum for Municipal appeals pertaining  to the  cities of Rajasthan." Its Preamble carries out what  is stated  in  the  long  title and  it  runs  "Whereas  it  is expedient to provide for and secure uniformity in the  forum for Municipal appeals in the different cities of Rajasthan." The different cities, it may be noticed, include inter alia, the  city of Jaipur with which we are concerned.   The  main purpose  of the Act is, as recited in the preamble  and  the long  title, to create a uniform forum for entertaining  and dealing  with  Municipal  appeals  which  lay  to  different authorities in the several separate Municipal enactments  in force in the different cities within the State of Rajasthan. 279 The officer or authority designated by the Act as the  forum for  hearing appeals is the Commissioner and the  expression "Commissioner" is defined in s. 2 which contains definitions of  the terms used in the Act, as meaning  "Commissioner  or Additional  Commissioner  of the Division within  the  local limits    whereof    a   Municipal    authority    exercises jurisdiction".  The "Municipal appeals" for which a forum is being  provided is, by the Act, treated as a technical  term and  is defined in s. 2(iii) as meaning " an appeal from  an order of a Municipal authority lying under any Municipal law to   any  officer  or  authority  other  than  a   Municipal authority";  in other words, by "Municipal appeal" is  meant an  appeal  lying  under  a  Municipal  law  to  an  outside authority, i.e., some designated officer of the Government.               Sections  3 and 4 have a vital bearing on  the               rival constructions submitted to us by  either               side and therefore it is necessary to set them

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             out :               "3.     First    Municipal    appeals.     (1)               Notwithstanding  anything  contained  in   any               Municipal law, wherever such law provides  for               a Municipal appeal, the appeal shall,  subject               to the time-limit prescribed therefore by such               law,   lie  to  and  be  brought  before   the               Commissioner.               (2)   All  Municipal  appeals pending  at  the               commencement of this Act before any officer or               authority other than the Commissioner shall be               transferred to the Commissioner for disposal.               (3)   In  any  Municipal  appeal  under   this               section, the Commissioner shall proceed in the               manner   provided  for  such  appeal  in   the               Municipal  law  applicable  thereto  and   the               decision  thereon of the  Commissioner,  shall               subject  to  the provisions of ss. 4 &  5,  be               final and conclusive.               (4)   When  an  appeal under this  section  is               pending at the commencement of this Act or has               been thereafter preferred, all proceedings  to               enforce  the  order appealed against  and  all               prosecutions  for  a breach  thereof  may,  by               order of the Commissioner be suspended pending               the decision of the appeal.               4.    Second Municipal appeals and  revisions.               (1) Notwithstanding anything contained in  any               Municipal  Law, no Municipal appeal shall  lie               from any order passed in appeal under  section               3               280               Provided  that the Government may, of its  own               motion  or on the application of  a  Municipal               authority or of any aggrieved person call  for               the  record  of any case for  the  purpose  of               satisfying  itself  as  to  the   correctness,               legality or expediency of any order passed  by               a  Commissioner or a Municipal  authority  and               may pass such orders therein as the Government               may consider fit and reasonable.               (2)   Any  Municipal appeals from orders  made               in  appeal by any officer or  authority  other               than  a  Municipal authority, pending  at  the               commencement of this Act, shall be transferred               to  the  Government  and  be  disposed  of  in               accordance with the proviso to sub-sec. (I).               (3)   The provisions of sub-section (4) of  s.               3 shall mutatis mutandis apply also to appeals               and applications under this section."               Section 5 contains merely a saving and  though               not  very relevant in the present context,  we               may quote it for completeness :               "5.  Saving.  Nothing in this Act shall affect               any  power other than the power to  entertain,               hear  and determine municipal appeals,  vested               in the Government by any Municipal law."   The  controversy between the parties rests on the  meaning and  effect  of the expression "or  a  municipal  authority" occurring  in the proviso to s. 4. It may be mentioned  that the  expression  "a Municipal authority" is  defined  in  s. 2(iv)  of  the  Act and it is common  ground  that  on  that definition the President of the Municipal Council who passed the order which was set aside by the State Government was  a Municipal Authority.

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 Before considering the arguments addressed to us it  would be  convenient to briefly advert to the reasoning  by  which the  learned  Judges held that the State Government  had  no jurisdiction to entertain the revision against the order  of the  Chairman  of  the Municipal Council  which,  as  stated already, was not under the provisions of the City of  Jaipur Municipal  Act  subject to an appeal either to  a  Municipal authority  or to an outside party.  In the first place,  the learned Judges considered that the long title, the  preamble and  the operative portion of the enactment other  than  the crucial  words of the proviso all pointed to  the  enactment not  being  intended  to alter  the  substantive  rights  of parties but only to provide a new forum for entertaining and disposing  appeals which already existed under the  relevant Municipal  enactment  If, as was admitted, an order  of  the President of the Municipal 281 Council  compounding an offence against a Municipal  bye-law was  under  the City of Jaipur Municipal Act final  and  not subject to an appeal or any other kind of interference, they held that it could not be the intention of the Act to confer a  right  on the Government to interfere with  such  orders. This, one might say, proceeds on the textual construction of the Act.  The other line of reasoning which according to the learned  Judges pointed to the same conclusion was that  the City  of Jaipur Municipal Act was intended to confer on  the inhabitants of the Municipal area and their  representatives on  the Municipal Council the right of local  self-Govemment and  it was inconsistent with that basic conception to  read the  Act  as making such an inroad on local autonomy  as  to permit the Government to interfere in cases where under  the Municipal Act an order was final and immune from challenge.   It  would, however, be seen that the construction  adopted by the learned Judges does not give any effect to the  words ’or  other  municipal authorities’ in the  proviso  and,  in fact,  on their interpretation the words had no meaning  and in  reality,  though  not in terms, have  been  rejected  as inconsistent with the theory of the local self-Government.    With due respect to the learned Judges we do not find  it possible  to agree that it is permissible to omit or  delete words  from the operative part of an enactment,  which  have meaning and significance in their normal connotation  merely on the ground that according to the view of the Court it  is inconsistent  with  the  spirit  underlying  the  enactment. Unless the words are unmeaning or absurd, it would not be in accord with any sound principle of construction to refuse to give  effect  to  the provisions of a statute  on  the  very elusive  ground  that to give them  their  ordinary  meaning leads  to  consequences  which are not in  accord  with  the notions  of propriety or justice entertained by  the  Court. No doubt, if there are other provisions in the statute which conflict with them, the Court may prefer the one and  reject the other on the ground of repugnance.  Surely, that is  not the position here.  Again, when the words in the statute are reasonably  capable  of more than  one  interpretation,  the object  and purpose of the statute, a general conspectus  of its  provisions, and the context in which they  occur  might induce a court to adopt a more liberal or a more strict view of  the  provisions,  as  the case may  be,  as  being  more consonant  with  the  underlying purpose.   But  we  do  not consider  it possible to reject words used in  an  enactment merely  for  the  reason that they do not  accord  with  the context  in  which they occur. or with the  purpose  of  the legislation as gathered from 282

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the preamble or long title.  The preamble may, no doubt,  be used  to solve any ambiguity or to fix the meaning of  words which  may have more than one meaning, but it can,  however, not  be  used to eliminate as redundant or  unintended,  the operative provisions of a statute.  Besides, if one strictly applied  this  rule of interpretation that the Act  did  not intend  to  make provision for nothing except  a  forum  for appeals--the whole of the proviso even where it provided for revisions  against  the orders of a  Commissioner,  must  be rejected  as  traveling  beyond  the  long  title  and   the preamble,  for  in  neither of them  is  reference  made  to revisions.  We do not therefore consider that in the case of the Act under consideration, it would be possible to  reject the words "or a municipality authority" by reference to  the preamble and the long title.   Coming next to the words used, we start with the  position that  under  s.  3  of  the  Act,  appeals  from   Municipal authorities  to  outside authorities  which  are  designated "Municipal  appeals" by the Act are to be filed  before  and disposed  of only by the Commissioner.  If any appeals  were pending   before  authorities  designated  by  the   several Municipal  enactments, they were directed to be  transferred to the Commissioner and to be disposed of by him [Sec. 3 (2) ].   Then  comes  section  4(1) by which the  finality  of  the orders of the Commissioner declared by s. 3(3) was  repeated and  reinforced  by the use of  the  words  "notwithstanding anything  contained  in  any Municipal law",  even  where  a second appeal or other proceeding had been permitted by  the Municipal law against orders of an outside authority  passed in Municipal appeals as defined by s. 2 (3) of the Act.  But this finality was not absolute as indicated by s. 3 (3)  but could  be  imperilled by a revision to a  State  Government. This  is  effected  by the proviso to s.  4(1)  and  if  the learned Judges of the High Court are right, the proviso  has done nothing more.   The  question for our consideration is whether any  effect can  or should be given to the words "the Government may  on its  own  motion  or  on  the  application  of  a  Municipal authority or of any aggrieved person call for the record  of any   case.......  for  the  purpose  of   considering   the correctness.......  of  any  orders  passed  by.  .  .  .  a Municipal  authority".  Before entering on a  discussion  of this  question  it  might be convenient  to  put  aside  the arguments  addressed  to us by the learned Counsel  for  the respondent  that  these  words occurring as  they  do  in  a proviso are to be construed differently from what they would 283 have  been  if they occurred as  an  independent  provision. This, to some extent, also figures as part of the  reasoning of the learned Judges of the High Court who have cited a few decisions  one  of which was of the Privy  Council  and  the other  of this Court in which the construction of a  proviso came  up  for  consideration.   These  cases  may  be   thus summarised.   In  some of them a question has arisen  as  to whether  the  terms of a proviso could be called in  aid  to determine  the  scope  of the main part to  which  it  is  a proviso.  This approach and its limitations need not  detain us, for obviously that is not the principle that arises  for examination  in  the  case  before  us.   There  are   other decisions  to which learned Counsel for the respondent  drew our  attention  in which the question to be  considered  was whether  the proviso was really redundant i.e.,  enacted  ex abundanti  cautela.   No such principle  arises  for  consi- deration  in  the  proviso before us either.  So  far  as  a

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general principle of construction of a proviso is concerned, it has been broadly stated that the function of a proviso is to  limit  the  main  part of  the  section  and  carve  out something  which but for the proviso would have been  within the  operative  part.  It is obvious that this  is  not  the function  of  the  proviso to s. 4(1) of the  Act,  for  the operative  words  in the main part of s. 4(1)  prohibit  all appeals from the appellate orders of the Commissioner.   The primary  purpose of the proviso now under consideration  is, it  is apparent, to provide a substitute or  an  alternative remedy to that which is prohibited by the main part of s.  4 (1  ).  There  is, therefore,. no question  of  the  proviso carving out any portion out of the area covered by the  main part  and leaving the other part unaffected.  What  we  have stated earlier should suffice to establish that the  proviso now before us is really not a proviso in the accepted  sense but  an  independent  legislative provision by  which  to  a remedy which is prohibited by the main part of the  section, an  alternative is provided.  It is, further, obvious to  us that the proviso is not co-extensive with but covers a field wider  than the main part of s. 4(1).  If its function  were only  to  provide a remedy alternative to a  further  appeal from the orders of the Commissioner and no more and that  is the  contention of the learned Counsel for  the  respondent, the  words  "of any order passed by . . . .  .  a  municipal authority"  should have no place in it.  If this  submission has  to  be  accepted, the proviso would  have  to  be  read deleting  the  words  "or  other  municipal  authority,"  As already  pointed out, this rejection cannot be done  on  any accepted principle of statutory construction, for the  words have  meaning  and effect can be given to them  without  the same  conflicting with any other operative provision of  the Act. 284 If  the  argument that the words should be rejected  is  not accepted  and  some meaning has to be  attributed  to  these words, the alternative submission of the learned Counsel for the  respondent  was that we should read the  words  ’orders passed’  as confined to orders which were appealable  orders for which an appeal was provided under a Municipal law.   In this  connection  it  was urged that the  intention  of  the framers  of  the  Act  was merely  to  enact  a  legislation providing  for an uniform forum in which appeals, for  which diverse  provisions were made in the Municipal laws  of  the several Municipalities in the State, were to be  entertained and  disposed of and it would be inconsistent with  such  an intention to hold that they made a provision for  Government revising  orders which according to the  relevant  Municipal law were final and not subject to any appeal.  This argument though  plausible  does  not appear to us  to  be  sound  or maintainable  on  any  proper  construction  of  the   words employed.  If the learned Counsel is right, the clause would read "The Government may......... call for any record of any case.........   of   any  appealable  order  passed   by   a Commissioner  or by a Municipal authority and may pass  such orders.                 This would show how impossible it is to  read the word ’order’ as confined to appealable  order,, which  is  what the learned Counsel suggests as  the  proper construction  of the proviso, for it would at once  be  seen that  there  are no appealable orders of  the  Commissioner, since  s. 4(1) has in terms prohibited all appeals.  As  the words  ’orders  of’  are not repeated before  the  words  ’a municipal  authority’,.  you cannot, read  word  ’order’  as meaning ’orders declared final by this Act’ when applied  to the orders of a Commissioner and as meaning I orders subject

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to  appeal under a Municipal law’ in relation to the  orders of  a  municipal authority.  Besides, it would  be  somewhat anomalous  that  s. 3 should provide the forum  for  appeals which lay under the Municipal Act and in regard to the  same matter  i.e.,  those in regard to which a  Municipal  appeal would  lie, make a parallel provision for a revision by  the State Government without clearer words.  We do not  consider it  necessary to examine this matter further or  to  examine the  other anomalies which this construction might  involve, because we are in this case concerned with a  non-appealable order  of  a  municipal  authority.   So  far  as  they  are concerned,  such  orders  would  be  in  exactly  the   same situation  as  regards  their finality as the  orders  of  i Commissioner, which by reason of the positive provisions  of s.  3  (3) and s. 4 (I are expressly declared final  by  the Act.  It appears to us that the more reasonable construction is  to construe the words ’orders of a municipal  authority’ as including final order,, not subject to a 285 Municipal appeal which would fall into the same category  as appellate orders of a Commissioner which are declared  final by the Act.     It  is, no doubt, true that so to construe  these  words could  empower a State Government to interfere in  Municipal affairs  and this on an extensive scale and enable  them  to pass orders in revision, on matters which under the relevant Municipal law was final and not subject to any appeal.  That is an aspect which appealed greatly to the learned Judges of the  Hi-Ili Court and as we have pointed out earlier,  forms the  main  reasoning  on  which they  have  arrived  at  the construction of the proviso.  Though we are not unmindful of the  consequences and implications of this construction,  we consider  that it would not be proper to take these  factors into consideration where the words of the statute are  clear and what we have stated earlier should suffice to show that, in our opinion, the opposite construction is not  reasonably open without doing violence to the language of the enactment either   by   omitting  the  words   "or   other   Municipal authorities" altogether or by rewriting the section so as to achieve  the desired result.  We do not conceive this to  be the function of a Court of construction but that it must  be left to other organs of Government.  We, therefore. consider that  the learned Judges of the High Court were in error  in holding that the State Government had no power to  entertain the  revision  against  the order of the  President  of  the Municipal Council and to quash it on that ground.   As  already indicated in the Writ Petition under Art.  226 filed  by  the respondent to the High Court  she  based  her attack on the validity of the order of the State  Government not merely on the grand that it was beyond their  revisions] jurisdiction,  but  on various other grounds.   The  learned Judges of the High Court having reached a conclusion in  her favour  on  this  around, observed in the  course  of  their judgment               "The  order  of  the  Government  is   Without               Jurisdiction  and  must  be  quashed  on  this               ground alone.  It is not necessary to go  into               the other grounds raised in this petition."   The learned Counsel for the respondent drew our  attention to  this  passage  and submitted that should  we  allow  the appeal  on our construction of the proviso to s. 4(1  ),  we should remand the case to the High Court for considering the other  objections  that  were raised.   Though  the  learned Counsel for the appellant submitted that we might  ourselves deal with the other points, we do

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286 not accede to this request.  In our opinion the case has  to be sent back to the High Court for all the other  objections being  considered  on  their  merits as  may  arise  on  the pleadings and in law.  We are not to be understood as having expressed any opinion as to whether any such point arises or their merits. The appeal is accordingly allowed and the order of the  High Court allowing the Writ Petition is set aside and the matter is  remanded  to  the High Court for being  disposed  of  in accordance  with law and with this judgment.  The  costs  of the parties in this Court will abide the result and will  be provided for by the High Court in its final order. Appeal allowed and case remanded. 287