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Bishnu Charan Mukherjee and anr. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberM.J.C. Nos. 49 and 60 of 1951
Judge
Reported inAIR1952Ori11
ActsOrissa Municipal Act, 1950 - Sections 1, 1(3), 1(5) and 16(1); Orissa General Clauses Act - Sections 3(1); Code of Civil Procedure (CPC) , 1908; Constitution of India - Article 19, 19(1) and 19(2)
AppellantBishnu Charan Mukherjee and anr.
RespondentState of Orissa
Appellant AdvocateH. Mohapatra, ;R.N. Misra, ;B. Mohapatra and ;N.K. Das, Advs.
Respondent AdvocateAdv.-General
DispositionPetition dismissed
Cases ReferredCharanjit Lal v. Union of India
Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot.....jagannadhadas, j.1. these two applns. arise out of municipal elections contemplated to be held on the 20th instant in this state, in cut-lack and kendrapara respectively in accordance with the recent orissa municipal act, 1950, (orissa act xxiii of 1950) which will hereafter be referred to as the municipal act in this judgment. the petitioner in each of the cases is a candidate for election to the respective municipal councils and they are both legal practitioners. the petitioner in m. j. c. 49/51 filed his application on 12-3-1951 praying for directions to the state government, the district magistrate and the election officer, cuttack municipality, not to hold the election on various grounds set out by him in his application. in substance the grounds state that the municipal act contains.....
Judgment:

Jagannadhadas, J.

1. These two applns. arise out of municipal elections contemplated to be held on the 20th instant in this State, in Cut-lack and Kendrapara respectively in accordance with the recent Orissa Municipal Act, 1950, (Orissa Act XXIII of 1950) which will hereafter be referred to as the Municipal Act in this judgment. The petitioner in each of the cases is a candidate for election to the respective Municipal Councils and they are both legal practitioners. The petitioner in M. J. C. 49/51 filed his application on 12-3-1951 praying for directions to the State Government, the District Magistrate and the Election Officer, Cuttack Municipality, not to hold the election on various grounds set out by him in his application. In substance the grounds state that the Municipal Act contains various illegal provisions in particular, a provision disqualifying a legal practitioner who has at the time, an engagement against the Municipality and that the Act is accordingly ultra vires and that no election can be held thereunder. He states that he would be disqualified from standing as a candidate on account of his being at the time engaged by the Cuttack Municipality in Cri. Mics. Case 1 of 1950, in the Court of Additional District Magistrate, Cuttack. He appears however to have since filed his nomination and the same is said to have been accepted by the Election Officer after scrutiny on the due date. The petitioner in M. J. C. 60 of 1951, filed his nomination for election to the Kendrapara Municipality and the same was rejected by the Election Officer by his order dated 25-3-1951 on the ground that he is employed as a legal practitioner against the Municipality in a pending case, under Section 198 of the Bihar Orissa Municipal Act, and that he is therefore not qualified. He has accordingly filed his application on 4-4-1951 in this Court i'or the issue of directions prohibiting the State Government and the Elections Oilicer from holding the election to Kendrapara Municipality. This petition also raised various grounds, but the substantial question raised is about the validity of the rejection of his nomination on the ground stated.

2. It is necessary to state a few further undisputed facts which have preceded these applications. The Municipalities in Orissa State have been since its formation in 1936, functioning upto date under the different Acts. The Madras portion of Orissa is governed by the Madras District Municipalities Act of 1921 and the rest of Orissa is governed by the Bihar and Orissa Municipal Act, 1922. There have been attempts since about the year 1937-38 to co-ordinate those Acts and to bring into operation one uniform Municipal Code lor the State. The Orissa legislature has accordingly passed recently the Orissa Municipal Act of 1950 (Orissa Act XXIII of 1950) which received the assent of the Governor on the 7th of November, 1950, and was published in the Orissa Gazette on 11th November, 1950. Under Section 1 (3) thereof, the Act is to come into force in such area or areas on such date or dates as the State Government may appoint from time to time. It is common ground that the Act has not yet been brought into force by any notification in any area of the State. But it has been stated to us by the learned Advocate-General on behalf of the State that it has been decided 1o bring the Act into force by a notification on the 16th of this month. Copies of certain proceedings and notifications and rules have been filed before us at the hearing on behalf of the Government. They show that the following steps have been taken in anticipation of the bringing into force of the Act. From letter No. 13361-L. S. G. from the Secretary to Government, Local self Government Department, dated llth November, 1950, to all the District Magistrates of the State, it would appear that the Government have decided that general elections should be held on the basis of adult suffrage as provided in the 1950 Municipal Act in the 12 following Municipalities, Cuttack, Puri, Balasore, Sambalpur, Kendrapara, Jajpur. Berhampur, Parlakimedi, Baripada, Bolangir, Bhawanipatna, Talchor. On 13-12-1950 the government issued notification No. 2015-L.S.G. under Section 13 read with Section 1 (5) of the Municipal Act fixing the 1st day of March, 1950, as the relevant date for voters in the election as regards their residenial qualification in the municipality. On 4-1-1951, the Government under notification No. G5-L.S.G., published rules made in exercise of powers conferred by Clauses 1 and 2 of Sub-section (2) of Section 387 of the Municipal Act called the 'Municipal Election Rules, 1950'. By notification No. 167-L.S.G., dated 10th January 1951, made in exercise of powers conferred by Sub-section (2) of Section 12 of the said Act read with Section 1 (5), there was a redistribution of the wards for the Cuttack Municipality. There were presumably simitar notifications for other municipalities where considered necessary though they have not been filed before us. By notification No. Section 519, 521, L.S.G., dated 24-1-1951 issued under Sections 8 and11 of the Municipal Act read with Section 12 (3) and Section 1 (5) of the Municipal Act, the number of councillors and the number of reserved seats for each municipality were fixed. Copy of the proceedings of the conference of the executives of the municipalities in the State held on 23rd November, 1950, filed before us, shows that in four out of the eight municipalities in the old Districts of the State, the normally constituted Municipal Councils were not functioning and that they were Government-controlled through executive officers, that in the other four the terms of the old Municipal councils were being extended from time to time pending enactment of a uniform Orissa Municipal Code, and that so far as the Municipal bodies in the integrated States areas are concerned, they were recently declared Municipalities under the pre-existing Bihar and Orissa Act. These proceedings also state that the Government was anxious that as quickly as possible all the Municipalities above stated should pass over into popular hands by means of general elections on the basis of adult suffrage under the Municipal Act recently passed and that the said elections should be held without delay. The said proceedings also fixed up a timetable for the various steps in the election and fixed the date for nomination proposals on 15-3-1951 and the polling date as 20-4-1951 and the election of the Chairman and the Vice-Chairman as 30-4-1951.

3. The objections raised in both these applications, though not identical, may be clubbed together and may be classified and dealt with under two heads: (1) General and (2) Individual. The objections of a general nature are (a) The Act itself not having been brought into force, the various steps so far taken by way of issue of notifications, framing of rules, fixing of dates, appointment of elections officers, preparation of electoral rolls, scrutiny of, and acceptance and rejection of nomination papers are all of them void and no elections can be held on the basis of these void preliminaries, even if the Act itself should be brought into force prior to the actual date of polling, (b) Various provisions in the Act relating to the disqualifications of voters or the disqualifications of candidates, are repugnant to the fundamental rights guaranteed by the Constitution or the adult suffrage provided by the Act itself and accordingly the said disqualifications are illegal. An election based on such disqualifications is therefore void.

4. The objection of an individual nature is the following: Section 16 (1) (IX) provides that a

'person who is employed as a paid legal practitioner on behalf of the municipality, or as legal practitioner against the municipality shall not be qualified for election to a seat in the municipality.'

As already stated both the applicants are legal practitioners who at the date of their filing nominations as candidates for the election, had cases against the respective municipalities. The point raised is that the above-mentioned disqualification provided in Section 16 (1) (IX) of the Act is repugnant to Article 14 and Article 19(1)(g) of the constitution.

5. Taking up first the objection (b) of a general nature specified above, we do not feel called upon to pronounce any opinion on the somewhat vague objection raised that a number of provisions in the Act relating to disqualifications of voters or candidates are illegal and that accordingly no election can be proceeded with. These two applicants are apparently not hit personally by any of those disqualifications excepting the one under Section 16 (1) (IX), which will be considered under a separate head. The question raised may arise for consideration, if at all, only on applications of persons directly hit by them. As at present advised, we can see no reason to think that the various steps in the election already taken should be declared to be void on account of the existence of the said provisions even if they are found to be repugnant as alleged and that the polling should be held up on any such ground.

6. As regards contention (a) above, under the heading of general nature, a wide field has been covered before us in the course of arguments. But towards the concluding stage of the argument, the learned Advocate-General stated before us, as already mentioned above, that the Government are definitely bringing the Act into operation on the 16th of this month in all the areas in which the polling is to be held on the 20th. This statement substantially narrows the controversy. What we are therefore called upon to decide is the validity in a general way of the steps so far taken in anticipation of the polling which is to be held on the 20th, after the Act itself has been brought into force, and it is this question that has now to be dealt with.

7. Section 1 of the Orissa Municipal Act, 1950, runs as follows:

'1. This Act may be called the Orissa Municipal Act, 1950.

2. It shall extend to the whole of the State of Orissa.

3. It shall come into force in such area or areas on such date or dates as the State Government may appoint from time to time.

4. Notwithstanding anything contained in Sub-section (3) it shall not take effect in any cantonment or part of a cantonment.

5. Any notification, order or rule and any appointment to an office, may be made or election held under this Act, after it shall have received the assent of the Governor and shall take effect on this Act coming into force.'

8. On behalf of the Government, the validity of the actions so far taken is supported with reference to Sub-section (5) above quoted and with reference to Section 23 of the Orissa General Clauses Act (Orissa Act I of 1937) which runs as follows:

'Where, by any Orissa Act, which is not to come into operation on the passing thereof, a power is conferred to make rules or by-laws or to issue orders with respect to the application of the Act or with respect to the establishment of any Court or office or the appointment of any judge or officer there-under, or with respect to the person by whom or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act, then that power may be exercised, at any time after the passing thereof, but rules, by-laws or orders so made or issued shall not take effect till the commencement of the Act.'

9. The objections raised on the other side are (a) since the Act has not yet been broughtinto force, Section 1 (5) of the Orissa Municipal Act relied upon is not now in force and cannot therefore form the basis for any valid action taken thereunder, (b) Even if any notifications, orders, rules etc. can be issued or made relying on Sub-section (5) of Section 1 the very terms of that section show that none of them can take effect until the Act is brought into force and therefore the preparation of electoral rolls, scrutiny, rejection or acceptance of nominations and other steps already taken which effectively deal with the franchise of the voters or candidates can have no operativeness at the time and cannot be retrospectively brought into operation by bringing the Act into force on 16th so as to serve as a basis for polling on 20th (c) Sub-section (5) in terms, refers to an election to be held under the Act and not with reference to any statutory rules framed in accordance with the rule-making-power given by the Act and therefore various steps taken under the rules are invalid. This last contention may be summarily over-ruled. There can be no doubt that the phrase 'under the Act' is one that connotes in the appropriate context, not merely the provisions of the Act, but other statutory rules framed by the appropriate authority in accordance with the rule-making-power conferred by the Act which when framed, must be deemed to be part of the Act itself. There is no substance in this objection. There is also no force in the argument raised that the Act itself not having been brought into force, Sub-section (5) of Section 1 is not yet operative and cannot give any legal validity for any action taken thereunder. This argument is fallacious. If no action can be taken at the present moment under Sub-section (5) of Section 1, it would equally follow that no action can be taken under Sub-section (3) of Section 1. This would amount to saying that the legislature while it has passed the Act, has stultified itself by rendering it impossible to bring the Act into force. This is a construction which cannot be entertained. The very terms of Sub-section (3) and of Sub-section (5) show that the action contemplated thereunder is to precede the coming into force of the Act itself. If must, therefore, follow as a matter of necessary and inevitable consequence by way of construction that those two provisions in the Act are to be taken in operation from the moment when the assent of the Governor is first published in the Gazette. Section 3 (1) of the Orissa General Clauses Act (or, at any rate, the principle underlying it) would apply to such a situation if Section 1 of the Municipal Act is treated as substantially standing apart from the rest of the Act. For this purpose, Sub-section (5) of Section 1 of the Municipal Act has in the circumstances to be treated as a proviso to Sub-section (3) thereof. It is to be noticed that even the commencement of an Act is to be understood as being the day on which the Act comes into force only when there is nothing repugnant in the subject or context (vide Section 2 (8) of the Orissa General Clauses Act). It has been brought to our notice that in some other Acts, in similar contingencies a specific provison is made that the particular section which provides for the Act itself being brought into force by a later notification, in terms, provides that, that section is to come into force at once. As a illustration, it has been pointed out that Orissa Act VI of 1939 (Sambalpur Local self Government Act) provides by Section 1 thereof that the Act as passedis to be brought into force in the Sambalpur District on such date as the Government may by notification appoint, but that it specifically provides that the Section 1 itself is to come into force at once. Undoubtedly, not only the Sambalpur Act, but various other Acts have also made similar provisions. But this is not invariably so. For instance, the Calcutta Municipal Act of 1923, which was passed on 18th July, 1923, was to come into force later on 1-4-1924, but Section 1 thereof contained a provision authorising, as in this case, certain anticipatory action being taken in the interval. There is, however, nothing in terms, to show that this provision is to come into force at once. I am therefore not prepared to hold that the legislature has defeated itself by failing to say expressly what undoubtedly it did mean and by not incorporating a provision that Section 1 is to come into force at once. It appears to me to be merely a question of the draftsman's varying technique. A provision, like that in sub-section 3 of Section 1 must therefore be taken to apply to the rest of the Act, i.e. from Section 2 onwards and not to that 1st section itself.

10. The only substantial point therefore that arises under this head and which has to be considered is what is the exact meaning that can be imputed to and the power to be derived under Sub-section (5) of Section 1. That sub-section in terms, authorises certain action to be taken in anticipation of the Act being brought into force and to be kept ready for operation simultaneously with the bringing into force of the Act. This is a fairly common provision in many of the Acts, where a certain interval of time is contemplated by the legislature between the date of the passing of the Act and the commencement of the operation of the Act. This legislative practice appears, so far as the English law is concerned, to have had its origin since 1889, i.e., since the English Interpretation Act of 1889 had been passed. Halsbury's Laws of England, Vol. 31, II Edn., P. 511, paragraph 662 shows that

'A statute passed since 1889, which is not to come into operation immediately on its passing may, nevertheless, confer powers to be exercised for the purpose of bringing it into operation at the appointed time. Such powers may, unless a contrary intention appears, be exercised immediately after the passing of the statute, so long as any instrument made thereunder does not in the absence of necessity or of express enactment, come into operation before the statute itself.'

This provision is to be found in Section 37 of the Interpretation Act of 1889. The same legislative practice appears to have been adopted in India as appears from Section 22 of the General Clauses Act (Act X of 1897) and from the almost identical provision in Section 23 of the Orissa General Clauses Act of 1937. This legislative practice is so well-established that the validity thereof is not open to any challenge or doubt. Exercise of the stated powers under the Act in anticipation of the commencement of the Act is therefore legally valid. Normally such exercise derives its validity from the relevant section of the General Clauses Act itself. But in the present case, such validity is further based on the terms of Sub-section (5) of Section 1 of the Municipal Act of 1950. The question therefore is whether the section so far taken and which is challenged as invalid can reasonably be supportedwith reference to the terms of Sub-section (1) of Section 5 (sic) or Section 23 of the General Clauses Act. The said sub-section has already been quoted. In terms, the issuing of various notifications, orders and rules and the appointment of Elections Officers preparation of election are all clearly valid each one of them being based on the power given by virtue of the appropriate sections in the Act or of the rules thereunder. This position is indeed not seriously contested But what is said is, that those notifications, orders, rules or appointments have not taken effect yet and cannot therefore be acted upon as the regulating basis for the election to be held. This argument is fallacious and ignores the distinction between the general opera-tiveness of the said orders and the rules an-J the mere application thereof as necessary and incidental to anticipatory action authorised by the Act itself. Sub-section (5) authorises, in terms, not merely the above notifications orders, etc., but also the holding of elections under the Act. It in terms states 'election (may be) held under this Act.' As already stated, the provisions of the Act in this context include the rules also and are, for instance 88.13, 14,15 and 16 and the municipal election rules notified on 4th January, .1951. The power to help the elections under these various provisions, must necessarily imply the power in the appropriate officer to apply and act upon the relevant sections, rules and notifications anc other material incidental thereto for the pur pose of holding the elections. It has been urged that to imply such a power is to imply something which is contrary to the express provision in the same sub-section viz., that the said notifications, orders, etc., 'shall take effect on the coming into force of the Act' and is therefore not permissible. I am of opinion that this contention is not correct. The phrase in Sub-section (5) 'shall take effect on this Act coming into force' must be read subject to what all precedes it. To construe it as negativing the power to apply to provisions and rules under the Act, for the purpose of holding of the elections, authorised by that sub-section itself is to negative the very power to hold the election. It is not permissible to construe one portion of the sub-section as nullifying what in terms has been authorised by the other portion of the very same sub-section. It is impossible +o conceive of the holding of an election under the Act without applying the relevant provisions of the Act and the rules for that purpose. Such application, for the limited purpose of a future and anticipatory election, does not amount to bringing into force the various relevant provisions, rules etc., since the election itself is not thereby brought into effect, or in the alternative the bringing into operation of the relevant material for that limited purpose must he deemed to have been impliedly authorised.

11. It has been very strenuously urged on behalf of the appellants that to construe Sub-section (5) as giving any such implied power to apply the relevant provisions of the Act, rules etc., would be supplying an important and radical omission and ia not permissible as a matter of legitimate construction. I am not prepared to agree with this contention. That the terms of a statute vesting certain powers and authority may be construed as giving by implication other necessary and incidental powers is a well-known rule of construction. Craies on Statute Law, page 106 shows that

'If a statute is passed for purpose of enabling something to be done, but omits to mention in terms some details, which is of great importance (if not actually essential) to all proper and effectual performance of the work which the statute has in contemplation, the Courts are at liberty to infer that the statute by implication empowers that detail to be carried out.'

Similarly, Maxwell on Interpretation of Statutes, pp. 360-365 says as follows :

'Where an Act confers a jurisdiction, it impliedly also grants the power of doing all such acts or employing such means as are essentially necessary to its execution.'

Pages 360-365 give a number of cases which show the application and the limits of this rule. In construing a statutory provision, which, in terms, confers only a specified power, on an authority, as giving certain other powers by implication, the canon to be applied has been laid down as follows by Lord Selborne in 'Attorney-General v. G. E. Rly. Co.', (1879) 5 A C 473 at p. 478 :

'I agree with Lord Justice James that this doctrine ought to be reasonably, and not unreasonably understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held by Judicial construction, to be ultra vires.'

See also 'Deuchar v. Gas Light and Coke Co.', (1024) 2 Ch D 426 at p. 432. In 'Commerell v. Beanderk', (1852) 21 LJQB 137 at p. 144, Lord Campbell, Chief Justice, in implying one statutory provision from another express statutory provision refers to it as a strange mode of Legislation, but has given the weight of his authority in favour of the implication which was in question in that particular case in the following terms : 'however strange it may be, still we do not see how we can give effect to the Act without the (said implication)'. There can therefore be no doubt that where the intention of an Act in conferring an express power is frustrated by not construing it as necessarily implying another incidental power, of however substantial in nature, the same must be implied in order not to bring about frustration of the express intention. It appears to me therefore that the power to hold the elections expressly given under Sub-section (5) must necessarily be held to imply the power to apply the various relevant provisions of the Act and the rules notwithstanding that the Act itself, in its general application, has not been brought into force. I may also point out that in the present case the opposite construction would have the unfortunate result of further delaying the transfer of the municipalities to popular control undar adult suffrage, an achievement particularly desired by the legislature. The Courts would ordinarily be reluctant to bring about such a result unless the alleged legal impediment is almost insuperable. I hold, therefore, that the Elections Officer had the power to receive the nominations of the petitioners and to scrutinise the same and to accept or reject them with reference to the qualifications and disqualifications set out in the Act.

12. This leads us to the next and the more important and substantial question as to the validity of the statutory provision in Section 16 (1) (ix) disqualifying from candidature to themunicipal council a legal practitioner, who at the time is employed against the municipality. It is argued that this disqualifying provision of the Municipal Act offends against Article 14 and Article 19(1)(g) of the Constitution. Article 14 says that

'The state shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.'

Article 19(1)(g) says :

'All citizens shall have the right to practise any profession or to carry on any occupation, trade or business'.

It is urged that the provision in the Municipal Act disqualifying a legal practitioner who is employed as a paid legal practitioner on behalf of the Municipality is discriminatory in character and is a restraint on the freedom of the, legal practitioner to practise his profession. In so far as this provision is said to be inconsistent with the freedom to practise the profession I am not sure that the argument is tenable at all. This disqualification for nomination as a candidate, in its direct operation and import does not require a legal practitioner to give up his engagement against the municipality, but only says that if he has any such engagement, he cannot stand as a candidate for the municipality. So if he gives up his engagement it is ultimately his choice. It may however be possible to suggest that such disqualification virtually compels an intending candidate to give up his professional engagement and is therefore in its operation, if not in its direct intendment, a restraint on the practice of the profession. will assume without deciding, that such an indirect restraint is well within the prohibition of Article 19(1)(g) of the Constitution. The question then to be decided is whether the disqualification is inconsistent with the said Article. The right to practise any profession guaranteed by Article 19(1)(g) is by the very terms of that Article, subject to the provision that nothing in Sub-clause (g) of Clause (i) would prevent the state from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause. As regards, Act. 14 though there is no specific provision as in Article 19(2)(vi) providing for reasonable restrictions on the right as such in public interest, the nature of the very right implies it. The fundamental right guaranteed by, way of equality before the law or the equal protection of the laws has always been understood as not implying an identity of laws as regards all citizens in respect of any particular subject-matter of legislation, but as meaning only that the relevant law must operate equally as regards all persons in the same situation with reference to the subject-matter of the particular legislative provision. So understood, it has been repeatedly held by the highest authority that equality of laws and equal protection of laws is consistent with classification having a reasonable and just relation to the subject of the particular legislation. As has been laid down, the guarantee of equal protection of laws means the protection of equal laws applying alike to all in the same situation. This necessarily implies the validity of classification. All that is necessary is that the classification must have a reasonable and just relation to the purposes sought to be achieved by the Act.

13. Thus it will be seen that whether it is Article 19(1)(g) or Article 14 of the Constitution that is said to have been infringed by the provision relating to disqualification in question, what the Court has substantially to consider is whether the disqualification and the classification on which the disqualification rests is a reasonable one, having regard to the interests of the general public and whether it has any just relation to the object and purposes sought to be achieved by the Municipal Act which are also public purposes.

13a The argument of the learned counsel for the applicants is that while under the Municipal Act any lawyer would be entitled to stand as a candidate, there is no particular reason why a lawyer having an engagement either for or against the municipality should be disqualified except probably for a vague fear or suspicion that such a lawyer may have an advantage in the elections which others may not have. The discrimination is said to be arbitrary. The suggestion of the learned counsel, though not presented as such and in so many words, appears to be that the provision is conceived in a spirit of suspicion or jealousy against the lawyers of the class concerned. In order to substantiate the argument that the disqualification in question is entirely arbitrary, learned counsel for the applicants, has attempted an analysis of the possible reason for all the other disqualifications in Section 16 of the Act with a view to persuade us that the particular disqualification which is under consideration cannot be related to any reasonable category. According to that analysis, it is suggested that out of the disqualifications mentioned in Section 16 (1) Clauses (i) (ii) and (iii) are founded on, what may be called, basic incompetence, Clause (iv) on physical incompetence and Clauses (v) (xii) & (xiii) on moral incompetence. Clauses (vi) and (vii), it is said, have in view dereliction in respect of financial obligations towards ihe municipality and consequential lack of civic duty. Clauses (viii), (x) arid (xi) are said to provide . against the likelihood of the course of the elections being affected, by persons having financial interest in the municipal administration or having executive connection with it or of being effected by governmental interference. It is suggested that the disqualification in Clause (ix) cannot be related to any of these heads and that no other conceivable reason can be suggested for the same.

14. In a matter of this kind, it would have been distinctly helpful if there were material on record showing what exactly was the reason for the legislature enacting the impugned provision. For that purpose, we have tried to look into the statement of objects and reasons, the notes on clauses and the select committee's report of the Act. Nothing could be gathered except that this particular provision has been adopted from Section 49 (1) (cc) of the Madras District Municipalities Act of 1920. That clause itself, was the result of an amendment made in 1930, by Madras Act X of 1930. We have attempted to ascertain what was the reason behind that amendment in 1930 by the Madras legislature, but we have been unable to obtain any clear elucidation of that matter. It appears to us however that the suggestion of the learned counsel for the applicants that this disqualification is entirely arbitrary in nature cannot be accepted. In considering this aspect of thematter, a passage from the treatise on American Constitutional Law by Professor Will is cited in the judgment of His Lordship Justice Fazl Ali, in 'Charanjit Lal v. Union of India', 1951 SCJ 29 at p. 33 is very instructive and helpful :

'The guarantee of the equal protection of the laws means the protection of equal laws. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation. It does not take from the states the power to classify either in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. Mathematical nicety and perfect equality are not required. Similarity, not identity of treatment, is enough. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification, must carry the burden of showing that it does not rest upon any reasonable basis'.

See also 'Lindsley v. Natural Carbonic Gas Co.', (1910) 220 U S 61 at p. 78 where similar principles have been laid down. Inspite therefore of the absence of positive material to show as a fact the principle or the policy which operated in fact on the mind of the legislature in introducing this disqualification into the municipal law, a disqualification hitherto unknown in the major part of the state and particularly in the two municipalities from which these applications come up--the burden is upon the applicants who impugn the validity of this provision to make out that the disqualification cannot be sustained on any reasonable basis that the Court can conceive, as having relation to the object and purposes of the Act.

15. To arrive at a proper estimate of the reason it would be helpful in this context to consider the similar disqualifications in the Municipal Act as regards the continuance of functioning by municipal councillors. The corresponding disqualification is to be found in Clause (g) of Sub-section (1) of Section 17. A close scrutiny of Sections 16 and 17 of the Act clearly shows that the disqualifications both under Sections 16 and 17 are substantially identical. If the relevant disqualification under Section 17 is considered, there cannot be any serious doubt that that disqualification is a reasonable one. It would be difficult to maintain, for instance, that a person who has an engagement against the municipality in his professional capacity as a legal practitioner can continue to function as a municipal councillor. Not only is it inconsistent with professional standards, inasmuch as a practitioner cannot appear against the very organisation of which he is a component part and whose interests he is bound to protect, but such a provision is quite legitimate having regard to municipal purposes. The situation ofa legal practitioner who has an engagement against the municipality and yet continues to function as a councillor is one of obvious conflict between interest and duty and is such as is likely to give room for exploitation of municipal interests for professional ends. The purity of municipal administration would demand that such a person should cease functioning as a councillor. A provision, therefore, disqualifying such a person from continuing to function as a councillor cannot at all be said to be unreasonable. The provision is not based on any gratuitous will as a matter of fact misbehave. Nor is it necessary to assume that it is based on the knowledge or experience of the legislature as regards any such misbehaviour in the past. Such a provision would be quite legitimate on the ground that it is the proper object of the legislature to make provisions which would ensure the municipal administration being above reproach. I may add that it is a wholesome provision as regards the legal profession to which any lawyer can take legitimate objection since as it is consistent with the high standard of professional conduct which is demanded of him. It is urged that if this is the reason behind the disqualification in Section 17 (1) (e) of the Municipal Act, there is no reason why persons belonging to other professions in similar situations should not be equally disqualified by the legislature. The absence of such prohibition as regards other professions is suggested as a ground for urging that what is guessed above as the justification could not have been the real intention of the legislature. It is however necessary to remember that in applying the principle of equal protection of laws which, as already above stated, permits reasonable classification is not all-embracing, (sic) having regard to the reason behind it. In 'Fram Nusserwanji v. State of Bombay', AIR (38) 1951 Bom 210 at p. 221, His Lordship Chief Justice Chagla has cited the following passage from 'West Coast Hotel Co. v. Parrish', (1936) 300 U S 379 a decision of the Supreme Court in the United States from the answer therein given by Chief Justice Hughes which is instructive :

'This Court has frequently held that the legislative authority acting within its proper field is not bound to extend its regulation to all cases which it might possibly reach. The legislature is free to recognise degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to bo clearest. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. There is no doctrinaire requirement that the legislation should be couched in all embracing terms.'

Similarly in 'Middleton v. Texas Power & Light Co.', (1918) 249 US 152 at p. 157 it is laid down as follows :

'The equal protection clause does not require that state laws shall cover the entire field of proper legislation in a single enactment. If one entertained the view that the Act might as well have been extended to other classes of employment, this would not amount to a constitutional objection.'

(1923) 264 US 297 refers to the well established principle that

'the legislature is not bound in order to support the constitutional validity of its regulation to extend it to all cases which it might possibly reach.'

If therefore the likelihood of conflict between interest and duty, as I am inclined to think, is the reason behind the rule disqualifying a legal practitioner having an engagement against the municipal council from continuing to function as a councillor it cannot be contended that the provision is unreasonable because it does not embrace other classes and situations where a similar conflict between interest and duty may arise. As a matter of fact, I am inclined to think that that other disqualifications in Section 17 are also based on the same reason partly or wholly for instance Section (1) (d) and (f). Learned counsel for the applicants has drawn our attention to a number of provisions of the Municipal Act in an attempt to persuade us that, having regard to the actual functions and powers of a municipal councillor, the suggested conflict does not exist or is not of any serious nature and that the possibility of exploitation against the municipal interests in such a situation is remote. I consider it unnecessary to notice those provisions at length because I feel quite clear, in my mind, that there is clear conflict of interest and duty of likelihood of exploitation in such situations. It has been further suggested that a provision going to the extent of disqualifying a councillor from functioning is in excess of the requirements of the situation and such a situation could well have been met by Section 67 of the Municipal Act or a provision analogous to it, i.e., by merely prohibiting a councillor taking part in the discussion on the particular subject-matter. We are however not concerned with the question as to what alternative provision, to achieve the object in view the legislature might have made. It is also extremely doubtful to my mind whether an alternative provision of the kind suggested would have been adequate to achieve the object in view.

16. It may be mentioned that Mr. H. Mohapatra learned counsel for one of the applicants almost conceded at one stage of the argument that the disqualification in Section 17 (1) (e) second half is reasonable but at a later stage he withdrew from that position. I have therefore not based my view on any such concession. I have dealt at some length with the disqualification under Section 17 (1) (e) which relates to a sitting councillor, who accepts employment as a legal practitioner against the municipality, as this appears to me to have a substantial bearing in the consideration of the validity of the identical provision in Section 16 (1) (ix) I may also add that the observations I have made above apply in terms only to the case of a legal practitioner who has taken up a case against the municipality, but not to one who takes up a case on behalf of the municipality. I have confined the discussion to the former as that is the only direct question that arises before us. But similar considerations would probably be found to be applicable to the case of a legal practitioner who accepts a brief for the municipality. My attention has also been drawn to the fact that as regards a legal practitioner appearing for the municipality the disqualification attaches only if he is paid while it is not so in the converse case. This however has not been shown to have any relevant bearing as regards the above discussion.

17. This being my view as to the reasonableness of the provision relating to disqualification of a sitting municipal councillor in a similar situation, the question I have to consider is whether it is reasonable or legitimate to extend that disqualification to a citizen who intends to stand as a candidate. It is this part of the case which has caused some hesitation in my mind at one stage. It has been strongly urged on behalf of the applicants that no situation of conflict between duty and interest or likelihood of exploitation against municipal interests can be predicated at a stage when the person is only a candidate. It is therefore urged that the provision in question is unreasonable inasmuch as it compels a person who is legitimately anxious to discharge his civic responsibilities by becoming a municipal councillor to make his choice prematurely and give up his engagement even before he is actually successful in the election which may be uncertain, It is urged with some force that this is in excess of the requirements and is a hardship to the individual concerned and is therefore unreasonable. It is said that the disqualification cannot be supported on any grounds having relation to the municipal purposes then in view, namely, the purity or the freedom of the elections themselves. There can be no doubt that in judging of the constitutionality of a provision which is alleged to be inconsistent with a fundamental right, what has to be judged is not merely whether the impugned provision can be supported with reference to some adequate reason, but that the actual provision should not be in excess of a requirement of the reason behind the rule. This appears to be the implication of the principle laid down by His Lordship Justice Manajan in delivering the judgment of the Court in 'Chintamanrao v. State of Madhya Pradesh', 1950 SC J 571 at p. 57:5 where His Lordship has laid down as follows :

'Legislation which arbitrarily or excessively invades the right, cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guranteed in Article 19(1)(g) and the social control permitted by Clause (6) of Article 29 it must be held to be wanting in that quality.'

It must also be remembered that in considering whether what may appear to be an excess, is in fact reasonable, the legislature may well have regard to larger considerations of a public nature than that of individual hardship. It appears to me that though at first sight the imposition of this disqualification at the stage of nomination may appear to be rather hard on the individual and may be arguably not necessary at that stage, it cannot be said to be an unreasonable provision. If such a person, that is, a person who at the time of the nominations has an engagement as a legal practitioner against the municipality is allowed to stand for election as a candidate and wins in the elections he cannot obviously be permitted to function as a councillor by virtue of the principle underlying the disqualifications under Section 17 (1) (e) is to be maintained. A statutory provision to that effect has therefore to be made. It would accordingly necessitate his being unseated immediately after the election and this would fores a by-election for the concerned ward. The legislature might well have thought that in the larger public interests of avoiding the necessity of expenditure of public time and money involved in a by-election so soon after the general election, it is not unreasonable to ask the individual candidate to make his choice at the time of the nomination itself. It is to be remembered thatnormally the interval of time between the date of nomination and the date of polling in any election is not very substantial. It is generally about a month as it actually is in the present case. Also in the normal case the candidates selected start functioning as councillors almost immediately after the results of the polling are gazetted. I think it is in view of these considerations that it is found to be almost the invariable practice in legislative provisions relating to elections to various bodies to make the disqualifications for candidature the same us those for the functioning of councillors. This has been the uniform practice all over so far as one can gather and indeed in some legislative provisions the same section comprehensively combines the disqualification for candidature and for continuance of functioning after the elections. Thus as regards the parliamentary elections in England, Halsbury's Laws of England Vol. 12 p. 239 paragraph 494 shows that

'No one is entitled to be a candidate at a parliamentary election unless he is duly qualified according to law to be a member of parliament.'

Similarly the Government of India Act Section 69 shows that the disqualifications of a person for being chosen and for being a member of the provincial legislative assembly or legislative council are identical and in fact are expressed in the same section. Similarly in the present Constitution of India, Articles 84, 102, 173 and 191 have enacted the same provisions as regards the disqualifications for being chosen as a candidate and for being a member. Such legislative provisions which have received long standing and uniform recognition are undoubtedly based on larger principles of public policy. A disqualification which is found to be reasonable with reference to actual membership cannot therefore be pronounced to be unreasonable if insisted on at the stage of candidature.

18. I am therefore clearly of the opinion that Section 16 (1) (ix) in so far as it disqualifies the petitioner in M..T.C. 60/51 cannot be said to be unreasonable and must be held to be not in conflict with the fundamental rights guaranteed by Article 14 and Article 19(1)(g) of the Constitution. The rejection of his nomination is accordingly valid. M.J.C. 60 of 1951 must therefore be rejected.

19. As regards M.J.C. 49/51 the applicant's nomination having as a fact been accepted by the Elections Officer, as stated to us at the hearing, no question as regards any individual right of his arises on this application. His application must therefore be rejected.

20. In the circumstances both the applications are dismissed without costs.

21. It has been brought to my notice that Government have issued a notification since, bringing the Act into force on 16-4-1951.

Narasimham, J.

22. The Orissa Municipal Act, 1950 was passed by the Legislative Assembly and received the assent of the Governor on the 7th November, 1950. The object of that Act as disclosed in the preamble is 'to consolidate and amend the Law relating to municipalities in the State of Orissa.'

23. The necessity for such consolidation arose because two different Acts were in force in the two parts of Orissa, namely, the Madras Municipalities Act, 1920 in South Orissa and the Bihar and Orissa Municipal Act, 1922 in North Orissa. The Orissa Legislature unified the law on the subject and included in the Orissa Municipal Act, 1950 (hereinafter referred to as the Act) many of the provisions of the Madras Act and the B & O Act which they considered to be useful and desirable. Some new provisions were also added; but for the purpose of the present case it is unnecessary to consider them. Section 49 of the Madras District Municipalities Act enumerated various disqualifications for election as a councillor of any municipality. One of such disqualifications is contained in Clause (cc) of Sub-section (2) of that section which runs as follows :

'49 (2). A person shall be disqualified for election as a councillor if such person is atthe date of nomination or election;

* * * *(cc) employed as paid legal practitioner on behalf of the council or as legal practitioner against the council.'

In the B & O Municipal Act also there were provisions (Sections 16 and 17) dealing with the disqualifications for election as municipal councillor, (referred to as commissioner in the B & O Act); but there was no provision corresponding to the aforesaid clause of Section 49 (2) of the Madras Act. The Orissa Legislature adopted the provisions of the Madras Act and in Section 16 while enumerating the various disqualifications for a person to stand for election to a seat in a municipality included the following clause :

'16 (1) No person shall be qualified for election to a seat in a municipality, if such person;

* * * *(ix) is employed as a paid legal practitioner on behalf of the municipality or as legal practitioner against the municipality.'

The aforesaid clause has been impugned as inconsistent with the fundamental rights guaranteed by Articles 14 and 19 of the Constitution and consequently void. That clause will be referred to hereinafter in this judgment as 'the impugned clause'.

24. Section 1 of the Act runs as follows :

'1 (1). This Act may be called the Orissa Municipal Act, 1950.

(2) It shall extend to the whole of the State of Orissa.

(3) It shall come into force in such area or areas on such date or dates as the State Government may appoint from time to time.

(4) Notwithstanding anything contained in Sub-section (3) it shall not take effect in any cantonment or part of a cantonment.

(5) Any notification, order or rule and any appointment to an office, may be made or election held under this Act, after it shall have received the assent of the Governor and shall take effect on this Act coming into force.'

The Act has been brought into force in the state of Orissa on 16-4-51 by the issue of a notification under Sub-section (3) of Section 1 (see notification No. 300 L.S.G. of that date). But the state Government had taken necessary action for the purpose of holding elections in the municipalities of Orissa including Cuttack and Kendrapara long before the commencement of the Act. On 13-12-50 the Government issued a notification (No. 2015-L.S.G.) in pursuance of Section 13 of the Act fixing the 1st day of March 1951 as the date on which a resident, within a municipality who is not l'ess than 21 years of age shall be entitled to be registered as a voter at municipal election. On the 4thJanuary, 1951 the Government made and published the Orissa Municipal Election Rules 1950, which contain detailed provisions for holding elections under the Act (Vide notification No. L.S.G.). On 10-1-51 they issued another notification (No. 167-L.S.G.) dividing Cuttack municipality into various wards in exercise of the powers conferred on them by Section 12 (2) of the Act. A similar notification appears to have been issued in respect of Kendrapara municipality though that notification was not produced before us. On the 23rd and 24th of January, 1951 the Government issued further notifications (Nos. 519-L.S.G. and 521-L.S.G.) fixing the number of councillors in the various municipalities ox Orissa including Cuttack and Kendrapara and also specifying the number of seats reserved for Scheduled castes and Scheduled tribes. These notifications were issued in exercise of the powers conferred by sections 8 and 11 of the Act. The Government also prepared a programme for holding the elections under the Act on the basis of a decision arrived at in a conference held on the 23rd November, 1950 attended by the Executives of all the Municipalities of Orissa and presided over by the Hon'ble Minister for the local Self-Government. In accordance with that programme the electoral rolls were finally published on 5-3-51, nominations of candidates for election were filed on 15-3-51 and the scrutiny of the nominations took place on 25-3-51. The date of polling has been fixed on the 20th April 1951, This programme has been adhered to till now. Petitioner Sakhawat All in M.J.C. No. GO of 1951 is a Muktear practising in Kendrapara. His nomination for election to Kendrapara municipality was rejected by the Election Officer on 25-3-51 on the ground that he was employed as a legal practitioner against the municipality and as such was subject to the disqualification contained in the impugned clause. Petitioner Bishnu Chandra Mukherji in M.J.C, No. 49 of 1951 is a legal practitioner of Cuttack. His nomination for election to Cuttack municipality was accepted by the Election Officer though according to his own admission he has been engaged in a case against the municipality (Crl. Misc. No. 1 of 1951) in the Court of the Additional District Magistrate of Cuttack. It is not for us to consider at this stage whether the election Officer was justified in accepting his nomination in face of the clear provisions contained in the impugned clause. This petitioner has no present grievance but he apprehends that when he is elected, his election may be challenged by an election petition under Section 18 (1) (c) of the Act on the ground of the disqualification contained in the impugned clause. This apprehension is at present somewhat premature because if he is not elected this question may not arise. But the points raised in the petition of Sakhawat Ali (M.J.C. No. 60 of 1951) are identical with those raised in M.J.C. No. 49 of 1951 and as the rejection of the nomination of the former adversely affects his rights, if any, and enables him to apply to this Court for relief under Article 226 it is unnecessary to consider whether petitioner Bishnu Charan Mukherji has any locus standi to apply for a writ now.

25. The main points advanced by the learned counsel for the two petitioners are these. (i) As the Act itself was not brought into force till 16-4-51, neither the rules nor the notifications issued under the Act were effective before that date and consequently the action taken bythe Election Officer till then in calling for nomination for election as councillors, scrutinising the same and rejecting the nomination of Sakhawat Ali was invalid; and (ii) In any case the impugned clause is invalid as being opposed to the fundamental rights guaranteed in Articles 14 and 19 of the constitution.

26. Point No. (i). It is a well-known rule of legislative practice to postpone the bringing into force of an Act which involves many administrative changes. In C. T. Car's Delegated Legislation Cambridge University Press, 1921, this device is referred to as the 'appointed day clause' and it is pointed out

'...When Parliament makes big constitutional or administrative changes, it is convenient to take time over the various stages rather than to bring them into force immediately on the passing of the Act or on any hard and fast date...Such a device is particularly useful and appropriate to the introduction of

(a) constitutional changes.....

(b) administration by the Local Government Acts of 1888 and 1894, the Education Acts of 1902, 1903 and 1918.........

The Government of India Act, 1935 is itself a typical illustration of this device. Part III of that Act came into force only on the 1st April, 1937 though the various Orders in council were made under that Act and the first elections to the Provincial Assemblies were also held prior to that date. This 'appointed day clause' has been adopted by the draftsmen in India also in those statutes in which appointments have to be made, rules have to be framed, or other preliminary arrangements carried out before the statutes can be worked or where new conditions are imposed on a section of the public which it is desirable they should have time to adjust themselves to. An appreciable interval is allowed to elapse between the date of the passing of the Act and the date on which it is actually brought into force. Section 22 of the General Clauses Act, 1897 and Section 23 of the Orissa General Clauses Act, 1937 are intended to facilitate such practice and they are both modelled on Section 37 of the Interpretation Act. Section 23 of the Orissa General Clauses Act is as follows :

'23. Where, by any Orissa Act, which is not to come into operation on the passing thereof, a power is conferred to make rules or bylaws or to issue orders with respect to the application of the Act or with respect to the establishment of any Court or office or the appointment of any judge or officer thereunder, or with respect to the person by whom or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under the Act, then that power may be exercised at any time after the passing thereof, but rules, by-laws or orders so made or issued shall not take effect till the commencement of the Act.'

By this section rules may be made under the Act, orders issued with respect to the application of the Act, or the appointment of an officer thereunder or the manner in which anything is to be done under the Act. But such rules or orders shall not take effect till the date on which the Act comes into force. Therefore the Municipal Election Rules, 1950 and the various notifications issued by the Government in December 1950 and January 1951 under Sections 8 11, 12 and 13 of the Act were validly issued andwould become effective from 16-4-51. But the question arises whether any action can be taken in pursuance of the said Rules and the notifications for the purpose of holding an election so long as those Rules and notifications remained ineffective till the date of the coming into force of the Act. For instance, the power of the Election Officer to publish the electoral rolls, to call for nominations, scrutinise the same and reject those which he considers to be invalid are all derived from Rules 3 to 28 of the Municipal Election Rules. It was urged that no valid action under those rules could be taken till 16-4-51 inasmuch as Section 23 of the Orissa General Clauses Act expressly says that the rules shall not become effective until the Act itself is brought into force. It is true that Section 23 of the Orissa General Clauses Act alone would not suffice for enabling the Election Officer to take all preliminary steps for holding the election before the Act itself comes into force. But I think this power is conferred by Sub-section (5) of Section 1 of the Act which expressly says that election may be held under the Act after it shall have received the assent of the Governor and that it shall take effect on the Act coming into force. This sub-section therefore expressly confers power for the holding of elections under the Act at any time between the date on which the Act received the assent of the Governor and the date on which the Act comes into force, when a statute confers power to hold elections it necessarily follows that all other powers incidental or essential for the exercise of that power are also conferred by implication (Maxwell on Interpretation of Statutes, 9th edition, pages 360-365).

27. Mr. H. Mohapatra however urged that if there was any provision in the Act itself conferring power for holding elections then by virtue of Sub-section (5) of Section 1 such power may be validly exercised but that as most of the powers for holding the elections were conferred not by any provision of the Act but by the provisions of the Municipal Election Rules those powers cannot be exercised under Subsection (5) of Section 1. According to him the expression 'election held under this Act' in Subsection (5) of Section 1 would not include 'elections held in accordance with the rules framed under the Act'. He urged that the words 'under this Act' refer to the provisions contained in the Act itself and cannot refer to the provisions contained in the rules made under the Act. This argument however unduly narrows down the meaning of the word 'under' when used with reference to an Act. It is true that in ordinary language any action said to be done under an Act refers to action taken in exercise of the powers conferred by the provisions of the Act itself. But the words 'under an Act' are wide enough to embrace not only the provisions of the Act but also the rules, notifications etc. made under the provisions of the Act, unless there is anything repugnant in the subject or context. A typical example is found in Section 50(1) of the Government of India Act, 1935 (unadapted) which says;

'50. (1) There shall be a council of ministers to aid and advise the Governor in the exercise of his functions, except in so far as he is 'by or under this Act' required to exercise his functions or any of them in his discretion :Provided that nothing in this sub-section shall be construed as preventing the Governorfrom exercising his individual judgment in any case where 'by or under this Act' he is required so to do.'

Here the words 'by' and 'under' have been used to refer to the provisions of the said Act on the one hand and rules, orders and other subsidiary legislation made under the said Act on the other. Moreover Section 10 of the Act says;

'All the councillors of a municipality shall be elected in the manner laid down in this Act and the proscribed rules.'

When the legislature inserted the words 'election held under this Act' in Sub-section (5) of Section 1, it was obviously referring to the provisions of Section 10 and other provisions contained in Chapter III. The power of the Government to make rules for holding elections in itself is derived from Section 10 read with Clauses (i) and (ii) of Sub-section (2) of Section 387. The Legislature know that detailed provisions for holding elections would be made in the rules and not in the Act. Hence when ii authorised the holding of an election under the Act before its commencement it is reasonable to infer that it was referring to an election to be held 'under the provisions of the Act and the rules framed thereunder'. By holding such an election the rules are not 'brought into force' prior to the commencement of the Act. They are merely 'applied' for the limited purpose of holding elections and such elections do not become effective until the Act itself comes into force. Any other construction would defeat the express purpose for which Sub-section (5) was inserted in Section 1 of the Act. I would therefore hold that the words 'election under this Act' occurring in Sub-section (5) of Section 1 refer to the election that may be held in accordance with the provisions of the Act and the rules or notifications issued thereunder.

28. It may look somewhat anomalous that though neither any provision of the Act nor the rules or orders or notifications issued thereunder were effective till the date on which the Act came into force yet elections should be permitted lo be held before that date. But it is a well-known legislative practice to make anticipatory provisions to enable an election to be held in the manner provided by an Act which has not yet come into force. For instance Section 1 (3) of the Calcutta Municipal Act, 1923, Section 365 of the Madras District Municipalities Act and Section 1 (3) of the Assam Local Self-Government Act, 1915 contain the following provisions. Section 1 (3) of the Calcutta Municipal Act, 1923.

'It shall come into force on the first day of April, 1924 :Provided that before the said first day of April 1924, and at such time (after this Act is published in the Official Gazette after having received the assent of the Governor General) as the Provincial Government shall appoint, a general election and appointment of Councillors shall be held and made in the manner provided in this Act, and such election and appointment shall be deemed to have been hold and mode under the provisions of this Act, but such election or appointment shall not take effect until the said first day of April. For the purposes of such election, the Chairman of the Corporation shall exercise and perform the same powers and duties in Calcutta, as are conferred or imposed by or under this Act on the Executive Officer.'

'Section 365 of the Madras District Municipalities Act, 1920.'

'This Act shall come into force on such date as the Provincial Government may by notification direct:Provided that the power to make or approve rules, by-laws and regulations may be exercised at any time after the publication of the assent of the Governor General under Section 81 of the Government of India Act, 1915, and that any election or appointment or chairman, or councillors under this Act, or under the rules made under this Act, may be held or made at any time after such publication, but such election or appointment shall not take effect until the commencement of the Act.'

'Section 1(3) of the Assam Local Self-Government Act, 1915.'

'It shall come into force in any district, or part of a district on such date as the Local Government may by notification direct : provided that Chapter VIII shall not apply to any area unless it has been specially extended thereto under Section 71, and

Provided that it shall be lawful, any time after the passing of this Act, to hold any election in manner therein provided, but such election shall not take effect till the commencement of this Act.'

If Sub-section (5) of Section 1 of the Act had been drafted in such a careful manner as has been done in the said provisions of the Calcutta Act or the Madras Act there would undoubtedly be no room for argument. But though the Orissa Act is extremely cryptic in saying that election may be held under the Act it is very similar to Section 1 (3) of the Assam L. S. G. Act and I think the meaning is clear. No two Draftsmen will use the same language and even if there is any lack of clarity it should not be permitted to defeat the object of the Legislature (see Maxwell on Interpretation of Statutes, 9th edition, pages 258 & 259).

29. It was then urged that as Section 1 of the Act was not separately brought into force on the date of the passing of the Act the power conferred by Sub-section (5) of that section could not be exercised on any date prior to 16-4-51. In support of this argument reliance was placed on Sub-section (3) of Section 1 of the Sambalpur Municipal Act, 1939 which contains the following provision.

'Sections 1 and 3 of the Act shall come intoforce at once.'

It was urged that if the Legislature had provided that Section 1 of the Act would come into force at once the power under Sub-section (5) of that section may be exercised but as no provision of the Act was brought into force till 16-4-51 no power under Sub-section (5) of Section 1 was available before that date. This argument however overlooks the terms of Sub-section (5) which expressly authorise the holding of an election before the Act comes into force. To that extent that sub-section must be construed as a proviso to Sub-section (3) of Section 1 which says that the Act shall come into force on such date as the state Government may appoint. In other words the Legislature while not saying expressly that Section 1 shall come into force at once authorises the taking of power under Sub-section (5) of that section before the date on which that section as well as the other sections of the Act actually come into force, Any other construction would lead to an absurdity, because by parity of reasoning the powerto bring the Act into force conferred by Subsection (3) of that section cannot be exercised at all inasmuch as that section was not brought into force. The result would be that the Act would remain a dead letter on the Statute Book.

30. For the aforesaid reasons I find no invalidity in the action taken by the Government till now for holding elections to the municipalities in accordance with the provisions of the Act and the rules framed thereunder.

31. 'Point No. ii.' This depends on the constructions of Articles 14 and 19 of the Constitution. It was urged that Article 19(1)(g) conferred on a legal practitioner the freedom to carry on his profession and that the only restriction permitted by the Constitution was that provided in Clause (6) of that Article under which the State may impose reasonable restrictions in the interests of the general public. The disqualification contained in the impugned clause has the effect of preventing a legal practitioner from accepting a brief for or against a municipality if he wants to stand as a municipal councillor. It has therefore the indirect effect of restricting his freedom to choose any client he likes and such restriction was not reasonable or in public interests. It was further urged that in any case the impugned clause offended Article 14 inasmuch as it discriminated unreasonably between those legal practitioners who accept briefs for or against a municipality on the one hand and those who do riot accept such briefs.

32. Before discussing the scope of the aforesaid two Articles it is useful to examine the purpose for which the impugned clause was inserted by the Legislature. To some extent, any discussion about that purpose must be based on surmise because the Statement of Objects and Reasons of the Bill does not disclose the reasons for the ('sic') could not throw any light on the subject. I may now quote the provisions of Section 16, omitting portions which are not material for the present discussion.

'16. (I) No person shall be qualified for election to a seat in a municipality, if such person;

(i) is not included in the electoral roll of that municipality, or

(ii) is not a resident within the municipality; or

(iii) is unable to read and write either English, Hindi or the Language of the state; or

(iv) has been adjudged by a competent Court to be of unsound mind or is a deaf-mute, a leprosy or a tuberculosis patient; or

(v) is an undischarged insolvent or being a discharged insolvent has not obtained from the Court, a certificate that insolvency was caused by misfortune without misconduct on his part; or

(vi) Is in arrear of any dues payable to the municipality, without sufficient cause shown to the satisfaction of the Election Officer, for a period of one yenr immediately preceding the year in which the election is held; or

(vii) is a person against whom an order of surcharge for wilful negligence or misconduct has either been certified for payment or confirmed in case of an appeal in respect of any money or property of a municipality, under the provisions of the Orissa Local Fund Audit Act, 1948, or a person againstwhom a decree has been passed under Section 375; or

(viii) is interested in a subsisting contract, either directly or indirectly made with or any work being done for the municipality, except as a share-holder, in a registered joint-stock company or co-operative society, constituted under the laws for the time being in force; or

(ix) is employed as a paid legal practitioner on behalf of the municipality or as legal practitioner against the municipality; or

(x) is an officer or servant holding office under the municipality or an Honorary Magistrate with jurisdiction over any part of the area of the Municipality; or

(xi) is a Government servant either whole-time or part-time or has been dismissed from Government service; or

(xii) has been sentenced by a Criminal Court to transportation or to imprisonment for a period of more than six months for any offence, other than an offence of a political character, or an offence not involving moral delinquency (such sentence not having been reversed or the offence pardoned) so long as he is undergoing the sentence and for three years from the date of the expiration of the sentence; or

(xiii) has been convicted or found to have been guilty of any offence of corrupt or illegal practice relating to elections, which has been declared, by the State Government under prescribed rules, to be an offence or practice entailing disqualification of membership unless such period elapsed as may be prescribed in that behalf.

A close scrutiny of the various clauses of Section 16 of the Act reveals that the Legislature considered certain persons to be unsuitable for being chosen as councillors of a municipality on account of their not possessing the minimum, general qualifications Clauses (i), (ii) and (iii) or on account of their infirmity of mind or body (Clause (vi) or past bad conduct (Clauses (v), (vi), (vii), (xii) and (xiii)) or the likelihood of a conflict between their public duty and personal interests (Clauses (viii) and (ix)) or the likelihood of the freedom of the electorate to choose any candidate being interfered with (Clauses (x) and (xi)). Clauses (viii) and (ix) to my mind appear to have been deliberately inserted because the Legislature thought that a conflict between the public duty of a person as a municipal councillor and his personal interest should be avoided as far as possible. If a paid legal practitioner on behalf of the municipality is allowed to get elected as a councillor there is a likelihood of his misusing his position for the purpose of monopolising the municipal briefs for himself and for persuading the municipality to sanction unreasonable fees. An unpaid legal practitioner engaged on behalf of the municipality may not misuse his position as he stands to gain nothing, and hence he has been exempted. Similarly if a legal practitioner (whether paid or unpaid) engaged against the municipality is permitted to get elected as a councillor he may in the interests of his client misuse any knowledge which he might have obtained as a councillor through his access to the municipal records. Moreover, there is a danger of his sacrificing the interests of the municipality for those of his client. I am fully aware that many legal practitioners are men of great integrity who would scrupulously keepapart their duty as municipal councillors from their duty towards their clients. But the Legislature in making this provision is keen on eleminating any possibility of a conflict between interest and duty so that legal practitioners of a lesser calibre may not succumb to temptation and thereby jeopardise the interests of the municipality.

33. The petitioners' reliance on Article 19 is I think quite futile. The impugned clause does not restrict the right of a legal practitioner to carry on his profession. All that it says is that if he chooses to stand as a councillor he must not accept brief for or against the municipality at the time of his filing his nomination paper. The restriction, if any, is on a candidate standing for election and not on a legal practitioner practising his profession. Nobody has a fundamental right to stand as a candidate for election and there is no provision either in the constitution or in the Act recognising such a right. Consequently the restriction on the right to stand as a candidate cannot be said to be hit by any of the provisions of Article 19. It was however urged that the indirect effect of the impugned clause was to restrict the obtaining of briefs for or against the municipality by those classes of legal practitioners who want to stand for election, and that to that limited extent there was indirect restriction on their practising their profession. This indirect effect is I think too remote to come within the scope of Article 19(1)(g) read with Clause 6 of the Article. Even if it be assumed that there is such indirect restriction I think it must be held to be reasonable in the interest of the general public. The general public are interested in seeing that men of integrity are elected to the municipality so that they may discharge their duties as municipal councillors in a disinterested manner. For that purpose it is reasonable to say that those persons from whom a conflict between interest and duty may reasonably be anticipated should not be permitted to stand for election to the municipality at all. I would therefore hold that in any view of the case the remote restriction contained in the impugned clause comes within the scope of the saving provision contained in Clause (6) of Article 19.

34. It was next urged that the impugned clause offended Article 14 because it did not apply equally between all classes of legal practitioners and unreasonably discriminated against those who accepted briefs for or against a municipality. Article 14 consists of two parts, the first part dealing with equality before law and the second part with equal protection of the laws. The latter part is almost identical with the similar provision in the 14th amendment to the Constitution of the United States. The former part is apparently based on the English Common Law of equality before law as emphasised in Jennings Law of Constitution, 3rd edition, page 49 and Dicey's Law of Constitution 1939, page 47. The former part is a negative concept emphasising the absence of any special privilege in favour of any individual and the equal subjection of all classes to the ordinary law whereas the latter part emphasises equality of treatment in equal circumstances. But in both the parts the fundamental concept is the same, namely, equal justice to all classes of people. The present case must obviously come within the latter part because all that can be said is that there is a discrimination against a class of lawyers. But it should be rememberedthat the Constitution itself recognises discrimination and in Article 15 prohibits discrimination on specified grounds such as religion, race, caste, sex, place of birth or any of them. Therefore discrimination on other grounds is not expressly prohibited and so long as it does not offend Article 14 it cannot be said to violate the fundamental rights.

35. In U.S.A. it is well settled that the rule of equality may permit many practical inequalities :

'In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things.' 'Magoun v. 111-nois Trust, etc. Bank', (1898) 170 US 283 at p. 294.

Similarly in 'Orient Ins. Co. v. Robert E. Daggs', (1898) 172 US 557 it was pointed out that;

'...the legislature of a state has necessarily a wide range of discretion in distinguishing, selecting, and classifying.'

and that

'it was sufficient to satisfy the demand of the constitution if a classification was practical, and not palpably arbitrary'.

'The decision of the legislature as to what is a sufficient distinction to warrant classification will not be overthrown by the Courts unless it is palpably arbitrary.' ('People v. Mon-terey Fish Products Co.', 195 Cal 548),

'...a state may classify with reference to an evil to be prevented, and if the class discriminated against is, or reasonably might be, considered to define those from whom the evil mainly is to be feared, it properly may be picked out.....It is not enough to invalidatethe law that others may do the same thing and go unpunished, if, as a matter of fact, it is found that the danger is characteristic of the class named. The State may direct its law against what it deems the evil as it actually exists without covering the whole field of possible abuses'. ('Per Justice Holmes in Patsone v. Pennsylvania', (1914) 232 US 138.

As regards the power of the state to classify for purposes of discrimination in 'Magoun v. Illnois', (1898) 170 US 283 it was pointed out that;

'The state may distinguish, select, and classify objects of legislation, and necessarily the power must have a wide range of discretion, and this because of the function of legislation and the purposes to which it is addressed. Classification for such purposes is not invalid, because not depending on scientific or marked differences in things or persons or their relations. It suffices if it is practical, and is not reviewable unless palpably arbitrary.'

In 'Southern Rly. Co. v. Greene', (1910) 216 US 400 it was observed;

'while reasonable classification is permitted without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis.'

It will thus be seen what the American decisions indicate is that where the legislature considers that a particular evil should be remedied and for that purpose classifies persons and selects some for the purpose of legislation such classification if not palpably arbitrary cannot be reviewed by the Courts on the ground of unreasonableness. It may be that the classification is not exhaustive in the sense that it maynot cover all classes of persons from whom the evil may be apprehended but some discretion must be left to the legislature, and the Court will not interfere except on the ground of arbitrariness of the classification or else on the ground that there is no reasonable or just relation between the classification on the one hand and the evil to be prevented on the other.

36. Article 14 has been recently construed by the Supreme Court in 'Charanjit Lal v. Union of India', 1951 S C J 29 and though the Judges differed in its applicability to that case they were unanimous as regards the general principle to be observed in construing that Article, namely, that a classification which is not arbitrary but based on reasonable grounds would be justified for the purpose of discriminating legislation provided it bears 'a reasonable and just relation to the things in respect of which it is proposed'. Fazl Ali J. further observed;

'a law may be constitutional even though it relates to a single individual, in those cases where on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself.'

Similarly Patanjali Sastri J. observed :

'If a law is made applicable to a class of persons or things and the classification is based upon differentia having a rational relation to the object sought to be attained, it can be no objection to its constitutional validity that its application is found to affect only one person or thing.'

Mukherjea J. also pointed out :

'...there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same.'

Das J. further observed :

'If there is a classification the Court will not hold it invalid merely because the law might have been extended to other persons who in some respects might resemble the class for which the law was made, for the legislature is the best judge of the needs of the particular classes and to estimate the degree of evil so as to adjust its legislation according to the exigency found to exist.'

37. I think the impugned clause comes well within the test of 'reasonable classification' permitted by the aforesaid authorities. The misuse by a municipal councillor of his position as a councillor for furthering his personal interests is undoubtedly a serious evil which the legislature must suppress. For that purpose while prescribing the disqualifications of a councillor the legislature classified those persons from whom due to the possibility of conflict between public duty and private interest such evil may be reasonably expected. Such a classification unless palpably arbitrary will not be interfered with by the Court nor will the Court interfere merely because the classification is not exhaustive and does not cover all persons from whom that evil may be expected. In Clauses (viii) and (ix) of Section 16 the legislature had two classes of people in view from whom it apprehended the said evil. It may be that there are other persons from whom also the said conflict between duty and interest may arise such as persons who may be litigating against the municipality. But the observations of Das J. in the Supreme Court case, cited in the preceding paragraph is a complete answer to any argument about the unreasonableness of the classification on account of the omission of those persons. In the impugned clause there is no discrimination against legal practitioners as such but only against a specified class of legal practitioners from whom the possibility of the conflict may be reasonably expected. It cannot be said that it is arbitrary or unreasonable to say that a legal practitioner engaged for fees on behalf of the municipality or engaged against the municipality may be tempted to further his personal interest while working as a councillor. It cannot also be said that the complete disqualification of such a legal practitioner from standing for election does not bear a 'reasonable and just relation to the evil proposed to be remedied.' In fact the only effective way of suppressing the aforesaid evil is to disqualify such classes of persons.

38. It was then urged that it was unreasonable to disqualify such legal practitioners from standing for election though there may be some reasonable basis for disqualifying them from continuing to remain as councillors. Section 17 of the Act contains a similar provision (Clause (e) of Sub-section (1)) by which a councillor shall cease to hold his office :

'if he is employed as a paid legal practitioner on behalf of the municipality or accepts employment as a legal practitioner against the municipality.'

It was urged that this disqualification in Section 17 would have sufficed for the purpose of suppressing the evil and the legislature acted unreasonably in putting similar disqualification prior to the election. This argument however seems very weak. I may refer to Articles 102: and 191 of the constitution which specify disqualifications on a person 'for being chosen as and for being a member' either of a House of Parliament or a Legislative Assembly of a State. It will be noticed that the disqualifications are identical both in respect of a person standing as a candidate and in respect of a person who having been elected continues to be a member of the legislative body. The said two Articles thus indicate that the makers of the Constitution did not consider it unreasonable to equate the disqualifications before and after election to Legislative bodies and the same principle may reasonably be applied to municipal councillors also. Similarly the disqualifications, on members of Parliament both at the time of their standing for election and while continuing as members are identical (Halsbury, 2nd edition. Vol. 12 p. 239). It is unnecessary for us to speculate as to why the Constitution makers considered that the disqualifications should be similar at both stages. It may be a matter of public policy because if a person so disqualified is permitted to stand for election, on his subsequent disqualification a fresh election may have to be held involving the state in heavy expenditure. Whatever that may be the provisions of Articles 102 and 191 are I think sufficient to show that it is not unreasonable for a legislature to prescribe similar disqualifications while a person stands as a municipal councillor and also when he wants to continue as a municipal councillor. There is therefore nothing unreasonable in the insertion of the impugned clause in Section 16 of the Act itself.

39. It is true that all the disqualifications contained in Section 16 have not been repeated in Section 17. Some of these are in the nature of minimum qualifications which all municipalcouncillors must possess. For instance, Clauses (i), (ii) and (iii) of Section 16 (1) say that no person shall be qualified for the election unless he; (i) is included in the electoral roll; (ii) is a resident within the municipality; and (iii) is able to read and write either English, Hindi or the language of the State. These provisions correspond to the minimum qualifications for a person to be a member of the Parliament or a member of the State Assembly as prescribed in Articles 84 and 173. But excluding such minimum qualifications it will be noticed that the remaining provisions of Sections 16 and 17 are almost identical except for slight differences that are inevitable in the context.

40. For the aforesaid reasons I would rejectthe two petitions. But in the circumstances ofthe case there will be no order for costs.


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