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Veerappa Shiddalingappa Virupathi and ors. Vs. State of Mysore and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. Nos. 714 to 718 and 719 of 1963
Judge
Reported inAIR1965Kant227; AIR1965Mys227; (1964)2MysLJ211
ActsBombay Municipal Boroughs Act, 1901 - Sections 8, 11, 11A(2), 12, 13 and 13(2); Bombay Municipal Boroughs Rules - Rule 11 and 11(2); Representation of the People Act, 1950; Poor Law Amendment Act, 1834; Local Government Act, 1933; Bombay Borough Municipalities Election Rules, 1950; Constitution of India - Article 226
AppellantVeerappa Shiddalingappa Virupathi and ors.
RespondentState of Mysore and ors.
Excerpt:
- major port trusts act, 1963 [c.a. no. 38 of 1963]. sections 49-b, 50-a & 50-b: [a.s. bopanna, j]port dues held, it includes only port dues as a category of levy and will not include pilotage charges and berth hire charges. -- section 56: show cause notice regarding short levy bills - notice issued indicating that it has approval of board of trustees - it is not by delegating power but after passing resolution held, show cause notice not invalid for want of competence. -- section 56: notice of payment of charges short levied or erroneously refunded - two years period within which notice is to be issued held, port trust cannot claim benefit of exclusion of time during which earlier writ petitions were pending before court. moreso, when court in earlier writ petition has passed an.....k.s. hegde, j. (1) these petitions came up before me and ahmed ali khan, j. on september 4, 1963. after hearing counsel for the parties, we referred the question, whether rule 11(2) of the rules framed under the bombay municipal boroughs act (to be hereinafter referred to as the 'act'') is a valid rule, to the decision of a full bench. this reference became necessary in view of the decision of this court in (1963) 2 mys lj 83, the correctness of which was seriously challenged before us by the learned counsel for the petitioners. if that decision is held to lay down the law correctly, then rule 11(2) must be held to be invalid. as we were of the opinion that the decision in question may require reconsideration, we referred the above question of law for the decision of full bench.(2) the.....
Judgment:

K.S. Hegde, J.

(1) These petitions came up before me and Ahmed Ali Khan, J. on September 4, 1963. After hearing Counsel for the parties, we referred the question, whether Rule 11(2) of the Rules framed under the Bombay Municipal Boroughs Act (to be hereinafter referred to as the 'Act'') is a valid Rule, to the decision of a Full Bench. This reference became necessary in view of the decision of this Court in (1963) 2 Mys LJ 83, the correctness of which was seriously challenged before us by the learned Counsel for the petitioners. If that decision is held to lay down the law correctly, then Rule 11(2) must be held to be invalid. As we were of the opinion that the decision in question may require reconsideration, we referred the above question of law for the decision of Full Bench.

(2) The material facts bearing on the question under consideration are as follows: In about the beginning of 1963, a calendar of events for the general election to the Belgaum Municipal Borough was duly published. As per that calendar, the last date for filing the nominations nsthe intending candidates was April 19, 1963. By that date, the petitioner in W.P. No. 714/63 filed his nominations for the ward No. 14, the petitioner in W.P. No. 715/63 for ward No. 4, the petitioners in W.P. Nos. 716 and 717 of 63 for ward No. 13 and the Petitioners in W.Ps. Nos. 718 and 719/63 for ward No. 16. On 23-4-1963, after scrutiny, the Returning Officer rejected the nominations of the petitioners mentioned above on the sole ground that they were not voters in the wards in which they sought election. In so deciding, he relied on the decision of this Court in Gadigeppa Gurupadappa Vadakkanvar's Case, (1963) 2 Mys. LJ 83. The Petitioner's appeal against the decision of the Returning Officer, to the Deputy Commissioner was unsuccessful. Thereafter, the petitioners moved this Court under Article 226 of the Constitution to quash the Orders rejecting their nominations.

(3) It is not denied that the petitioners are registered as voters in the lists pertaining to their wards. But, their nominations have been rejected as mentioned earlier on the ground that they are not registered as voters in the voters list pertaining to the respective wards in which they had sought election. We have to decide whether such a registration is a condition precedent for seeking election under the 'Act' or to put it differently whether such a voter in one ward can seek election in any of the wards of the Municipal Borough as claimed by the petitioners.

(4) For deciding the above question, we have to consider the scope of the relevant provisions in the 'Act' and the Rules framed thereunder (Known as 'The Bombay Borough Municipalities Election Rules, 1950' to be hereinafter referred to as the 'Rules'). Rule 1:(2) says :

'Any person whose name is entered in the list of voters for a ward as entitled to vote in that ward may(if duly qualified) be a candidate for election either in the ward for which his name is so entered or any other ward.'

This rule is plain and unambiguous. That much is admitted. If that rule is valid, then the petitioner should be held to have been validly nominated. Rule 13 fully accords with Rule 11(2). It reads:

'When the elections are to be held at or about the same time in two or more wards, one and the same person, if qualified, may be nominated for election in all or any number of the said wards.'

Sub-rule (2) of Rule 11 and sub-rule (3) of the Rule 13 clearly lay down that a person whose name is entered in the list of voters in any one of the wards of a Municipal Borough can stand as a candidate for election either in the ward where his name is entered in the list of voters or in any other ward of that Municipal Borough.

(5) Section 221 of the 'Act' provides that all rules made under the 'Act' whether by the State Government or by the Commissioner, must be laid before each House of the Legislature for one month previous to the session thereof and they shall be liable to be rescinded or modified by a resolution in which each of the said Houses concurs during its next session. Therefore, the 'Rules' that are in force must be deemed to have had the assent of the Legislature. In interpreting the provisions of a Statute assistance can be had from the Rules framed if the provision that comes up for interpretation is ambiguous. At page 157 of Craies on Statute Law(Sixth edition) it is observed:

'Where the language of an Act is ambiguous and difficult to construe the Court may for assistance in its construction refer to rules made under the provisions of the Act, especially where such rules are by the statute authorising them directed to be read as part of the Act.

For not only is every part of the Statute itself to be taken into consideration in order to ascertain the meaning of any obscure expression but 'recourse may(also) be had to rules which have been made under the authority of the Act, if the construction of the Act is ambiguous and doubtful on any point, and if we find that in the rules any particular construction has been put on the Act, it is our duty to adopt and follow that construction.' These rules form a sort of contemporaneous expositio.'

If the impugned rule is plainly opposed to any provisions in the 'Act', then it has to be struck down whatever may be the formalities observed in framing the same. But, if the provisions in the 'Act' which calls for interpretation is capable of two reasonable interpretations then that interpretation which accords with the impugned rule should be accepted because as mentioned earlier that rule forms a sort of contemporanea expositio. The Legislature which has enacted the 'Act' must be deemed to have accepted that rule as a true interpretation of its intention.

(6) According to the respondents, Rule 11(2) being in conflict with section 11A(2), the same has to be struck down. Hence we have to see whether there is any conflict between Rule 11(2) and S. 11A(2). The pronounce on this contention we have to take into consideration Ss. 11(1) and(2) and 11A(1) to (3) Section 11 reads :

'(1) This electoral roll of the Bombay Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a ward of a municipal borough shall, for the purpose of this Act, be deemed to be the list of voters for such ward.

(2) The Officer designated by the Collector in this behalf in respect of a municipal borough shall maintain a list of voters for such municipal borough.

Explanation : For the purposes of this section, electoral roll shall mean an electoral roll prepared under the provisions of the Representation of the People Act, 1950.'

Section 11A reads:

'(1) Every person whose name is in the list of voters referred to in S. 11 shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote, and every person whose name is not in such list shall not be 'qualified to vote, at the election of a member for the ward to which such list pertains'.

(2) 'Every person whose name is in the list of voters shall', unless disqualified under this Act, or any other law for the time being in force, be qualified to be elected, and every person whose name is not in such list shall not be 'qualified to be elected, at the election for any ward of the municipal borough'.

(3) Subject to any disqualification incurred by a person, the list of voters shall be conclusive evidence for the purpose of determining under this section whether the purpose is qualified or is not qualified to vote or is not qualified to be elected, as the case may be, at any election.'

(Underlining(here in ' ') is mine)

(7) Let us now proceed to ascertain the true scope of section 11A(2) in order to find out whether the impugned Rule 11(2) is in conflict with that sub-section. If we leave aside the words which are unnecessary for our present purpose that section would read :

'Every person whose name is in the list of voters shall be qualified to be elected at the election for any ward of the Municipal Borough.'

The key words are : 'qualified to be elected at the election for any ward of the Municipal Borough' and 'every person whose name is in the list of voters.' If the words 'qualified to be elected at the election for any ward at the Municipal Borough' mean that a person is qualified to be elected either in the ward in which his name is entered or any other ward, then that is what the impugned rule says.

(8) The word 'any' is a word which excludes limitation or qualification. It connotes wide generality. Its use points to distributive construction. (Vide Stroud's judicial Dictionary--see also Veeraswamy v. State of Andhra Pradesh, : AIR1959AP413 (FB).) In Pershad Singh v. Ram Pertab Roy, ILR 22 Cal 77 the expression 'in any case' was interpreted as being qualified to 'in every case'. In Mooler v. North Eastern Breweries,(1910) I K B 247 the expression 'any agreement to the contrary' was held to apply to any agreement whether made before or after the Act. In Keshaw v. Jairam, ILR 36 Bom 123 the Bombay High Court refused to apply the ejusdem generis principle in interpreting the word 'any'. From these decisions, it is clear that the word 'any' should be given a meaning as wide as possible in the context. Hence in the case before us, the words 'any ward of the Municipal Borough' should be understood to mean 'every ward of the Municipal Borough.' Further there is material difference in the language employed in S. 11A(1) and that employed in S. 11A(2). The former says that

'every person whose name is in the list of voters referred to in S. 11 shall be qualified to vote at the election of a member for the ward to which such list pertains',

Whereas the latter provision says 'qualified to be elected in any ward of the Municipal Borough'.

If the Legislature intended that only persons who are registered as voters in the list of voters pertaining to a ward should be candidates only in that ward, then firstly there was no need to have two different sub-sections, namely, sub-sections (1) and (2) in section 11A. Sub-section (1) could have been worded in the following manner:

'Every person whose name is in the list of voters referred to in S. 11 shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote and qualified to be elected at the election of a member for the ward to which such list pertains.'

Secondly, in S. 11A(2) instead of the words 'qualified to be elected at the election for any ward of the Municipal Borough' the words 'qualified to be elected at the election of a member for the ward to which such list pertains', should have been used. The Legislatures are deemed to be precise in the language employed by them. Maxwell on Interpretation of Statutes (Eleventh Edition) observes at Page 311:

'It has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events, reasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be ascertain that meaning if possible from a consideration of the section itself, yet, if the meaning cannot be so ascertained other sections may be looked at to fix the sense in which the word is there used.'

This rule of interpretation must have greater efficacy when we have to deal with words found in one and the same section. The first and the foremost rule of construction of a statute is the rule of literal construction. It is only when that rule fails, other rules of construction are availed of. As observed in Jugalkishore Saraf v. M/S. Raw Cotton Co., Ltd., (S) AIR 1955 SC 376 the cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the Legislature their ordinary, natural and grammatical meaning; if however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same; but, if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation.

(9) I see no reason why that rule should be inapplicable to the facts of the present case. It was contended on behalf of the respondents that the rule of literal interpretation is inapplicable in the present case as there is conflict between the first and the last portions of S. 11A(2); while the first portion of that section refers to the person whose name is 'in the list of voters' the last portion of that section says that he can stand as a candidate 'in any ward of the Municipal Borough'. Is there any such conflict? To pronounce on this question, it is necessary to see, what is the meaning we should give to the words 'the list' found in S. 11A(2). The contention on behalf of the respondents was that 'the list' referred to in S. 11A(2) is the one mentioned in S. 11(1), and hence before a person can be a candidate in any ward, his name must find a place in the list of voters pertaining to that ward.

(10) There is no doubt that the words 'the list' found in S. 11A(2) are ambiguous. Ordinarily, the definite article 'the' must be taken to refer to something in particular. But, the words 'the list' include 'the lists,' The expression 'the list of voters' is not defined in the 'Act'. Section 11(1) does not define 'the list of voters.' All that it says is that

'the electoral roll of the Bombay Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is included in a ward of a Municipal Borough shall, for the purposes of this Act, be deemed to be list of voters for such ward.'

From this it does not follow that wherever there is a reference in the 'Act' to 'the list of voters', it means 'the list of voters pertaining to any particular ward.' This conclusion of mine gains support from the language of S. 11A(1). If the contention of the respondents is correct, then that sub-section should have read:

'Every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote, and every person whose name is not in such list shall not be qualified to vote at the election of a member of the ward.'

(11) If 'the list of voters' referred in sub-section(2) of Section 11A is the very list mentioned in sub-section (1) of that section, then there was no need to have sub-section (2) separately, it would have been sufficient if the Legislature had used the conjunctive 'and' at the end of sub-sec.(1) and thereafter added the provision contained in sub-section (2). It may be noticed in sub-section (2) that there is no reference to section 11. Nor does that sub-section speak of 'the list pertaining to any ward.' In my view, 'the list' mentioned in sub-section (2) of S. 11 A refers to 'the lists' pertaining to the wards of any particular Municipal Borough. But, there is no doubt sub-section is not happily worded. It is thought that there is any ambiguity, then we have to apply the rule of harmonious construction. We must reconcile the two portions of the sub-section. In so doing, it is not proper to ignore any word found therein. If we are to accept the contention of the respondents we must ignore the word 'any'. There is no justification for so doing.

(12) After a careful examination of the relevant provisions in the 'Act'and the 'Rules', I have come to the conclusion that any person who is registered as a voter in any one of the wards of a Municipal Borough can stand as a candidate for election in any of the wards of that Borough.

(13) The above conclusion of mine is opposed to the decision of this Court in Gadigeppa's case, (1963) 2 Mys LJ 83. Therein, a Bench of this Court struck down Rule 11(2) framed under the Bombay District Municipal Act, 1901, which rule is identical with the impugned Rule as being inconsistent with S. 13(2) of the Bombay District Municipal Act, 1901. Section 11A(2) of the 'Act' is a faithful reproduction of section 13(2) of the Bombay District Municipal Act, 1901. The Bombay District Municipal Act, 1901, is the parent Act. Till the 'Act' was enacted in 1925, the Bombay District Municipal Act, 1901 dealt with all the Municipalities in the former State of Bombay. The 'Act' applies to only some major Municipalities. Many of the provisions in the 'Act' are borrowed from the Bombay District Municipalities Act, 1901. Therefore, if my decision is held to be correct, it necessarily follows that the decision in Gadigeppa's case(1963) 2 Mys LJ 83 does not lay down the law correctly.

(14) The learned Judges who decided Gadigeppa's case, if I may say so with respect, laid undue emphasis on the words 'the list' found in S. 13(2) of the Bombay District Municipal Act, 1901, and overlooked the importance of the words 'any ward' found in that sub-section. Further, they overlooked the difference in the language of sub-sections (1) and (2) of S. 13. Evidently, their attention was not invited to S. 22(1) of the Bombay District Municipal Act, 1901. That section deals with the determination of validity of elections. It reads:

'If the validity of any election of a councillor is brought in question by 'any person qualified either to be elected or to vote at the election' to which such question refers, such person may, at any time within ten days after the date of the declaration of the result of the election, apply to the District Judge of the district within which the election has been or should have been held.'

[Underlining(here in ' ') is mine]

From this provision, it is seen that two classes of people can challenge the validity of an election namely (1) any person qualified to be elected at the election in question; and (2) any person qualified to vote at that election. If a voter in a ward alone can stand for election in that ward, there was no purpose in the Legislature enumerating two classes of persons who can challenge the validity of he election, ward must also be a person qualified to vote in that ward.

(15) The Bench of this Court which decided Gadigeppa's case(1963) 2 Mys LJ 83 thought that

'It is common knowledge that no person can be ordinarily a candidate for election unless he has also the right to vote at that election.'

Proceeding further, it observed:

'The acceptance of the proposition of Mrs. Deshpande would be to recognise the possibility of a person being able to be a candidate without his being able to vote at the election. An interpretation leading to such consequences cannot, in my opinion, be a sound one.'

With great respect to the learned Judges, I do not think that the common knowledge is what is stated by them. The pattern of Election law in this country is just the opposite of what the learned Judges thought it to be. I requested the learned Counsel appearing for the respondents to show us a provision in any of the statutes bearing on Election in support of the view contended for by him. No such provision was brought to our notice. In this country, as far as I am aware, the general pattern of Election law is that while a person can vote only in the ward of a Municipal Council or Borough where he is registered as a voter, he can stand as a candidate in any of the wards of that Municipal Council or Borough. Same is the position as regards any constituency of a Legislative Assembly or even Parliament. See Representation of People Act, the Mysore Town Municipalities Act, Madras Local Boards Act, etc.

(16) For the reasons mentioned above, in my opinion, the decision in Gadigeppa's case(1963) 2 Mys LJ 83 does not lay down the law correctly and hence it has to be overruled.

(17) My answer to the question of law referred is that Rule 11(2) of the Rules framed under the 'Act' is a valid rule.

(18-19) The papers will now go back to the original bench for deciding these petitions.

(20) NARAYANA PAI, J.--I regret I am unable to agree with the opinion just expressed by my learned brother, Hegde, J. After careful and respectful consideration of the discussion contained in my learned brother's opinion and the arguments advanced by several learned counsel before the Full Bench, I am not persuaded that there are sufficient grounds to dissent from the previous decision of this Court in Gadigeppa's Gurupadappa Vadakkanavar v. The Divisional Commr. Belgaum, 1963 Mys LJ 83, I therefore proceed to state briefly my reasons for preferring to follow the said decision.

(21) The facts relevant to the question referred to the Full Bench are fully set out by my learned brother. It is therefore unnecessary for me to repeat them.

(22) The sections of the Bombay Municipal Boroughs Act (XVIII of 1925) and the rules made thereunder which are of relevance to the question are Ss. 11 and 11A of the said Act and Rule 11(2) of the Bombay Borough Municipalities Election Rules, 1950. They read as follows:

'11. (1) The electoral roll of the Bombay Legislative Assembly for the time being in force for such part of the constituency of the Assembly as is including in a ward of a municipal Borough shall, for the purposes of this Act, be deemed to be the list of voters for such ward.

(2) The officer designated by the Collector in this behalf in respect of a municipal borough shall maintain a list of voters for each ward of such municipal borough.

EXPLANATION:--For the purposes of this section, electoral roll shall mean an electoral roll prepared under the provisions of the Representation of the People Act,1950.'

'11A. (1) Every person whose name is in the list of voters referred to in section 11 shall, unless disqualified under this Act or any other law for the time being in force, be qualified to vote, and every person whose name is not in such list shall not be qualified to vote, at the election of a member for the ward to which such list pertains.

(2) Every person whose name is in the list of voters shall, unless disqualified under this Act or any other law for the tome being in force, be qualified to be elected, and every person whose name is not in such list shall not be qualified to be elected, at the election for any ward of the municipal borough.

(3) Subject to any disqualification incurred by a person, the list of voters shall be conclusive evidence for the purpose of determining under this section whether the person is qualified or is not qualified to vote or is qualified or is not qualified to be elected, as the case may be, at any election.

Rule 11(2): Any person whose name is entered in the list of voters for a ward as entitled to vote in that ward may (if duly qualified) be a candidate for election either in the ward for which his name is so entered or any other ward.'

(23) Sections 11 and 1A of the Bombay Municipal Boroughs Act correspond to Sections 12 and 13 of the Bombay District Municipal Act(III of 1901), and Rule 11 of the Bombay Borough Municipalities Election Rules, 1950, corresponds to Rule 11 of the Bombay District Municipal Act. The wording of the corresponding provisions is identical.

(24) Gadigeppa's case(1933) 2 Mys LJ 83 dealt with the position under the District Municipal Act and held that Rule 11(2) was ultra vires as being repugnant to the provisions of Section 13(2) of the District Municipal Act.

(25) In arriving at that conclusion, the basic assumption made by the Court is found stated in the following sentence in the judgment of that case which appears at page 87 of the Report :--

'It will be seen from the provisions of Ss. 11, 12 and 13 of the Act that the scheme of the Act is to divide the area of the municipal district into wards and to direct the preparation of voters lists for each of those wards and that each ward must elect its own municipal councillors and each ward must have its own representation.

(26) The provisions of Section 11 of the Bombay District Municipal Act, referred to and relied upon in the above sentence are those which require that the State Government shall from time to time, generally or specially for each Municipality, determine the number of councillors and make rules consistent with the Act prescribing the number and extent of the wards to be constituted in each municipal district, the number of seats, if any, to be reserved for the representation of women, Scheduled Castes and Scheduled Tribes. Similar provisions in identical terms are contained in Section 10 of the Bombay Municipal Boroughs Act.

(27) I am of the opinion that the basic assumption made by the Bench of this Court, which decided Gadigeppa's case,(1963) 2 Mys LJ 83 as to the scheme of elections under the Bombay District Municipal Act is a correct one to make, that the scheme under the Bombay Municipal Boroughs Act is the same and that the said scheme furnishes the key for the proper interpretation of sub-section (2) of Section 11A which is the subject of controversy before us.

(28) In ascertaining the essential features of the scheme, we may start with Section 8 of the Boroughs Act. That section states that in every Municipal Borough there shall be a Municipality and that every such Municipality shall be a body corporate with a perpetual succession and a common seal. Section 9 states that every such Municipality shall consist of elected councillors,--subject of course to the provisions of sub-section (2) for nomination in the event of failure to elect full number of councillors. Section 10 requires the Government to determine the number of councillors and proceeds to state that the Government shall make rules dividing each municipal borough into several wards specifying the number and extent of the wards and also specifying the number of councillors to be elected by each ward. Section 11 requires the preparation and maintenance of a list of voters for each ward. There is no such thing as a general electoral roll for the entire municipal borough.

Although headings and marginal notes do not control the clear effect of the languages of the sections, they are of some assistance in identifying the general topics dealt with by the statute. Viewed in that light, the headings of the relevant sections of the Boroughs Act are significant. The heading of Section 8 is 'municipalities', and the heading of the group of sections consisting of Sections 9 to 17 I is 'Election of Councillors'. The Municipality is a body corporate in which the administration of the municipal borough is vested by the Act. It is to consist of councillors. The election is not to the municipality but of councillors. The rule-making authority, viz., the State Government, which is required to make rules consistent with the Act, is called upon by Section 10 firstly to determine the total number of councillors to be elected and secondly to determine the number of councillors to be elected by each of the wards into which the municipal borough is divided. If so, there is little difficulty in holding that each ward is a separate electoral area distinct and different from every other ward. Election therefore is by each ward separately, each of them electing its own councillor or councillors allotted to it by the rules.

(29) The idea of a municipality as a corporate body and the idea of each ward being an electoral area by itself and electing its own councillor or councillors are neither new nor inconsistent with the fundamental notions relating to local self government. Municipalities which are corporate bodies are not law making bodies in the sense that the Parliament and Legislatures under the Constitution are. They are vested with what are in essence administrative functions in a sphere exclusively allotted to them. The continuity of such administration is assured by constituting the principal administrative body into a body corporate with a perpetual succession and a common seal. The interest looked after by such bodies being purely local interests or the well-being of the residents of a given locality, the wisdom or necessity of providing the residents of each locality with their own representative also residing in the same locality is obvious and unexceptional.

(30) I may with advantage refer to the position in England from which country we have borrowed largely our ideas of local self-government.

(31) The history of local Government in that country start with defining or determining the powers of local authorities like the sheriff of the middle ages who in course of time got replaced by another functionary called the Justice of the Peace, a country gentleman commissioned by the Crown to keep the peace. The idea of countries, boroughs and parishes as units functioning for various local purposes also appears to be an ancient one. The period from the middle ages down to the early 19th century also saw a great growth in the size and number of towns which in due course led to the formation of boroughs or corporations of burgesses or townsmen who discharge several functions like the upkeep of the highways, the relief of the poor, discouragement of vagrants, the carrying on of trade and industries in their respective areas. Statutes were from time to time passed prescribing the conditions for or restricting the activities of these various boroughs and other local authorities. Among them may be mentioned the Poor Law Amendment Act, 1834, the Municipal Corporations Act of 1835.

In 1933 there was enacted the Local Government Act (23 &24 Geo. 5c. 51) consolidating the law relating to local Government outside London and amending various earlier statutes. Under that statute, England and Wales excluding London were for the purposes of local government divided into administrative countries and country boroughs with further sub-divisions in each category like urban districts, rural districts, parishes, etc. Under this statute, various local bodies are constituted into corporate bodies with a perpetual succession and a common seal and various offices or authorities of local government like mayor, eldermen, councillors, are called corporate offices. The statute also makes provision for ward by ward election of councillors. Section 24, for example, reads :--

'24. (1) Where a borough is not divided into wards, there shall be one election of councillors for the whole borough.

(2) Where a borough is divided into wards, there shall be a separate election of councillors for, each ward.'

Likewise, Section 36 says:--

'36.(1) Where the urban district is not divided into wards, there shall be one election of councillors for the whole district.

(2) Where an urban district is divided into wards there shall be a separate election of councillors for each ward.'

(32)Hood Philips in his book on Constitutional and Administrative Law, Third Edition, states as page 530:

'The qualifications for election as councillor are narrower than those sufficient for a member of Parliament. A councillor must have some connection with the area for which he seeks election, while a member of Parliament need not.'

In Halsbury's Laws of England, Third Edition Volume 14, at page 10, while referring to local Government election in any electoral area, it is pointed out that 'electoral area' means any electoral division borough, ward district, parish or other areas for which an election of councillors is held under the Local Government Act of 1933 or other similar Acts.

(33) If the scheme of election under the Bombay Municipal Boroughs Act as understood by me is borne in mind, the language of Section 11 A(2) need not create any such difficulty as is sought to be made on behalf of the petitioners before us who question the correctness of the previous decision of this Court in Gadigeppa's case, (1963) 2 Mys LJ 83.

(34) It is not and cannot be disputed that a list of voters under S. 11 is a list with respect to each ward. Sub-section (1) of S. 11A deals with the right to vote and sub-s. (2) deals with the right to get elected as councillor. There is no dispute that the first sub-section refers to the same ward when it deals with the positive aspect of the matter, viz., the qualification to vote, and also the negative aspect thereof, viz., ineligibility to vote. Likewise, the second sub-section must also, in my opinion, be taken to deal with the same ward both in regard to the positive and negative aspect of the right to get elected. Although the words 'the ward to which such list pertains' appearing in the first sub-section do not appear in the second sub-section, there could be no difficulty in reading the expression 'the list of voters' occurring at the commencement of the second sub-section as referring to the very list which pertains to the ward in question, especially because the only list of voters known to the statute and prepared under S. 11 is the list pertaining to each ward for the time being under reference. Indeed, the entire S. 11A must in the light of the scheme be taken as dealing with both the right to vote and the right to get elected in relation to one and the same ward.

(35) The use of the expression 'any ward' towards the end of the second sub-section of S. 11A does not, in my opinion, render the above interpretation unacceptable. 'Any ward', in my opinion, merely means 'a ward' or 'a given ward' or 'a ward which is for the time being taken up for consideration.' Even assuming that 'any ward' may mean 'every ward' the word 'every' could only mean a single ward and not more wards than one. Neither the expression 'any ward' nor the expression 'every ward' can, in my opinion, be treated as equivalent to either 'any ward' or 'every other ward.' The addition of the word 'other' makes all the difference to the meaning. It is not open, in my opinion, to make such an addition to a section by way of interpretation.

(36) When there are more lists of voters that one, each pertaining to an individual or separate ward, the idea that a person whose name appears in one list pertaining to one ward can stand for election as councillor for another or a different ward cannot possibly be expressed by or read into the language actually used by the second sub-section. Such idea could be expressed only by employing different language like the language actually found employed in the impugned R. 11(2). A mere comparison between the language of S. 11A(2) and that of R. 11(2) is sufficient, in my opinion, to make out that the rule says something different from what the section has stated. If, as I have stated, the Scheme is of an election of a councillor or councillors by each ward separately, S. 11A(2) must be read consistently with that scheme and hence as meaning that the right to get elected as councillor of a ward is necessarily dependent upon the name of the candidate appearing as a voter in the list of voters pertaining to that ward. The language of R. 11(2) is clearly not consistent with the scheme of the Act, but on the contrary, operates to defeat the very basis of that scheme. A rule of that character cannot but be held to be repugnant to the statute and ultra vires because the rule making power conferred by S. 10 of the Act authorises or empowers the Government to make only such rules as are consistent with the Act.

(37) It was argued by one of the learned counsel that where the language of a statute is ambiguous or difficult, one may have recourse to the rules made under it to understand or ascertain its correct meaning, and reliance was placed on a passage occurring at pages 157 and 158 of Craies on Statute Law. My learned brother has accepted that argument though of course recognising the principle that a statutory rule which is plainly opposed to any provision of the statute under which it is made will have to be struck down as ultra vires even though all formalities prescribed for making the said rule have been duly observed.

(38) There are weighty reasons, in my opinion, why the above rule of interpretation cannot be relied upon or resorted in this case. The rule of interpretation itself, as pointed out in Craise, is subject to certain limitations. Where the vires of the rule itself is questioned on the ground that it is inconsistent with the statute or repugnant to the statute, to rely upon the impugned rule itself as a guide for the interpretation of the statute would in effect mean that the rule is the principal legislation and the statute the subsidiary one, and may lead in conceivable circumstances to a position is that statutory rule can ever be declared invalid. The correct legal or constitutional position is that statutory rule are a species of subordinate or delegated legislation and nonetheless so even if the procedure for making those rules requires them to be placed, on the table of the legislature may, if it thinks fit, alter or rescind them and even if the statute provides that on being duly promulgated rules are to be read as part of the statute. One of the recognised limits of a valid delegation of legislative power is that the essential and fundamental policy of legislation must be declared by the Legislature itself, and it could validly delegate only the power to fill in the details in such a way as to give effect to but not to defeat the policy of the statute.

(39) The limits of the rule of interpretation stated in the passage from Craise relied upon are found stated in the later portion of the same at page 158. So that full effect of the rule of interpretation may be correctly understood, I am quoting below the entire passage:--

'Where the language of an Act is ambiguous and difficult to construe the Court may for assistance in its construction refer to rules made under the provisions of the Act, especially where such rules are by the statute authorising them directed to be read as part of the Act.

For not only is every part of the statute itself to be taken into consideration in order to ascertain the meaning of any obscure expression, but 'recourse may also be had to rules which have been made under the authority of the Act, if the construction of the Act is ambiguous and doubtful on any point, and if we find that in the rules any particular construction has been put on the Act, it is our duty to adopt and follow that construction.' These rules form a sort of contemporanea expositio. But it is not clear whether they are to be deemed--

(a) the practise of conveyancers;

(b) parliamentary exposition; or

(c) administrative exposition.

Rules made for the Courts by the Judges who are to administer them may be regarded as judicial exposition of the Act. But too much stress cannot be rested upon rules, inasmuch as they may be questioned as being in excess of the powers of the subordinate body to which Parliament has delegated authority to make them.'

(40) The basis of this rule is the sentence placed by Craise within the inverted commas, which is taken from the judgment of Mellish, L. J, in In re Wier, (1871) 6 Ch. A875 at page 879. That case did not concern itself with the vires or validity of any rule. It came to be so stated by Mellish, L. J., in the following circumstances:

Section 6 of the English Bankruptcy Act of 1869 which enumerates acts of bankruptcy describes the following in its sixth sub-section as one of the acts of bankruptcy:

'That the creditor presenting the petition has served in the prescribed manner on the debtor a debtor's summons requiring the debtor to pay a sum due of an amount not less than 50, and the debtor, being a trader, has, for the space of three weeks, succeeding the service of such summons, neglected to pay such sum, or to secure or compound for the same.'

The latter part of the next or the 7th Section reads as follows:--

'Any debtor served with a debtor's summons may apply to the Court, in the prescribed manner and within the prescribed time, to dismiss such summons, on the ground that he is not indebted to the creditor serving such summons, or that he is not indebted to such amount as will justify such creditor in presenting a bankruptcy petition against him; and the Court may dismiss the summons with or without costs, if satisfied with the allegations made by the debtor, or it may upon such security(if any) being given as the Court may require for payment to the creditor of the debt alleged by him to be due, and the costs of establishing such debt, stay all proceedings on the summons for such time as will be required for the trial of the question relating to such debt.'

A petition to adjudicate a debtor insolvent has to be filed under the statute within six months of the completion of the act of bankruptcy relied upon for adjudication. The question in the case was whether the act if bankruptcy mentioned in sub-s. (6) of S. 6 was complete on the expiration of three weeks from the service of summons referred to therein or whether it was not complete until a debtor makes default in giving security in compliance with the order of the Court under S. 7. In holding that the former position was correct in law, the Court relied upon Rule 41 made by the Lord Chancellor under the authority of the Act which is as follows :--

'A debtor shall not be adjudged bankrupt on a petition in which the act of bankruptcy stated to have been committed by him is, that the debtor has neglected to pay secure, or compound with the petitioner a sum mentioned in a debtor's summons within seven days, or three weeks, as the case may be, where such debtor shall have applied for the dismissal of such summons, until after the hearing of the application, or where the summons has been dismissed, or during a stay of the proceedings thereon.'

It will be seen that if Section 6(6) stood by itself there could be no doubt that the act of bankruptcy mentioned therein would complete at the expiration of three weeks, the party concerned in that case not having been a trader. The argument was that Section 7 would modify the provisions of Section 6(6). After pointing out that the object of Section 7 was that the proceedings in bankruptcy should not go on until the question as to the existence of the debt is determined and that the said object may be achieved in three different ways, viz., by treating the completion of the act of bankruptcy as postponed till such determination of the existence of debt or by prohibiting the presentation of a petition for adjudication until such determination or by permitting such petition to be filed but refraining from making an order of adjudication till such determination, Mellish L. J., preferred to accept the third alternative in the light of Rule 41 mentioned above. It would be seen that the rule did not defeat the object of the statute but actually operated to give effect to the provisions of both Section 6(6) and Section 7.

(41) The position in the case now before us is quite different from the position in the case decided by Mellish L. J. Firstly, if the scheme of the statute is taken into account, as it should be, for understanding the meaning of section 11A(2) of the Boroughs Act, no ambiguity in the language nor any difficulty in understanding or construing the language can arise. Secondly, Rule 11(2), unlike the rule relied upon by Mellish L. J., is demonstrably opposed to the scheme or object of the statute as explained by me.

(42) Regarding the argument that two interpretations are equally possible,--which I see no reason to accept,--the simplest answer is that the interpretation which advances the scheme or object of the statute should be preferred to the one which defeats it.

(43) It has been suggested that the words 'the list' may be read as including the plural 'the lists'. According to the General Clauses Act, words importing singular can be read as importing the plural also only if the context does not indicate the contrary or such implication is not repugnant to the context. The case on hand, in my opinion, is one in which the context prevents the importation of the idea of plurality.

(44) For the reasons fully discussed by me, it also appears that the interpretation placed on Section 11A(2) by this Court in Gadigeppa's case gives full effect to all the words of the section in question as well as to the scheme of elections envisaged by the statute, whereas the interpretation to the contrary tends to defeat the scheme.

(45) My learned brother has referred to Section 22(1) of the Bombay District Municipal Act of 1901 which permits not merely persons qualified to vote but also persons qualified to be elected to question the validity of an election of a councillor, and has taken the view that reference to the person qualified to be elected in the said section is indicative of the fact that such person may be other than a person entitled to vote at the election and that therefore the person entitled to be elected may be different from the person entitled to vote. With respect, it appears to me that this is reading too much into the section. If it is correct to say that a person who is a voter in any of the wards can stand for election as a councillor even in a ward in which he is not a voter, then every voter in every ward may question the validity of election of any councillor, whether of his own ward or any other ward, such a result cannot in my opinion be rightly taken to be within the contemplation of the statute. In my opinion, the expression 'any person qualified to be elected' appearing in Section 22(1) of the Bombay District Municipal Act clearly refers to contesting candidates, who as candidates have a right to question the election, apart from their right as mere electors.

(46) My learned brother has stated that the interpretation suggested by him is in accord with what he calls the general pattern of election law in this country, and refers to the position as under the Representation of the People Act, 1951, and statutes relating to municipalities or local bodies in Madras and Mysore.

(47) It appears to me that electoral right being a creature of the statute, its content and the conditions of its exercise should be ascertained from the particular statute which creates or confers that right. It is not open to interpret one statute in the light of the provisions of another statute.

(48) According to the scheme of the Representation of the People Act, though the right to vote is limited to a constituency, the right to get elected is not necessarily so limited. Whereas section 62 provides that every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency, section 4 dealing with qualifications for membership of the House of the People and section 5 dealing with qualifications for membership of a Legislative Assembly of a State provide that a person shall be qualified to fill a seat in the House of the People or a Legislative Assembly of a State as the case may be, if he is an elector in any Parliamentary constituency or any Assembly Constituency in the State as the case may be. It may, however, be noticed that in the case of a Legislative Assembly of a State, the constituency in which a candidate is an elector should be a constituency of the State in question and further that in the case of a seat reserved for Scheduled Tribes in the autonomous districts of Assam, the candidate should be an elector for the Parliamentary constituency in which the seat is reserved or any other Parliamentary constituency comprising any such autonomous district in the case of Parliament and should be an elector in the Assembly constituency in which such seat or any other seat is reserved for the District in the case of Assam Legislative Assembly. Thus even in the case of elections under the Representation of the People Act, a certain territorial nexus is recognised as necessary even for passive franchise, the nature of the nexus necessarily being different from the nexus required for an election to a local body.

(49) So far as the Madras District Municipalities Act is concerned, Section 44(1) provides for a single electoral roll for the entire municipality and Section 44(3) states that when municipality is divided into wards, the electoral roll for the municipality should be divided into separate lists for each ward. Further, whereas Section 43(3) states that all the electors of a ward shall be entitled to vote an election to any seat in that ward, Section 48(1) states the qualification for election as a councillor to be that the name of such person appears on the electoral roll of the Municipality. The scheme therefore is quite different from the scheme as under the Bombay Municipal Boroughs Act.

(50) The position under the Mysore City Municipalities Act is similarly one in which there is a single electoral roll for the entire municipality called the Municipal Election Roll--vide Section 11--and is which the right to vote is limited to a division under Section 10B, but the right to get elected is enrolment in the municipal Election roll--vide Section 11(3).

(51) I therefore hold that the interpretation suggested by this Court in Gadigappa's case is the correct one, and no case has been made out to depart from that view.

(52) My answer to the question referred to the Full Bench therefore is that Rule 11(2) of the Bombay Borough Municipalities Election Rules, 1950, is invalid as being repugnant to Section 11A(2) of the Bombay Municipal Boroughs Act.

ORDER OF THE COURT

(53) Our answer to the question of law referred to is that Rule 11(2) of the Rules framed under the Bombay Municipal Boroughs Act is a valid Rule.

(54) Question answered in affirmative.


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