P.S. Kailasam, J.
1. This petition is filed by the Chairman of the Panchayat Union Council, Rishivandyam, against whom a motion of no-confidence had been passed for the issue of a writ of certiorari calling for the records of the Rishivandyam Panchayat Union Council relating to the proceedings of the Council at the meeting convened by the Revenue Divisional Officer, Vridhachalam, on 5th May, 1966, and for quashing the same as illegal.
2. The petitioner was elected as the Chairman of the Rishivandyam Panchayat Union Council in 1961. On 30th April, 1965, he was re-elected as Chairman. On 24th March, 1966, 29 members of the Rishivandyam Panchayat Union Council gave notice to the first respondent, the Revenue Divisional Officer, Vridhachalam, expressing their intention to make a motion of no-confidence in the Chairman of the Council, the present petitioner. A copy of the statement of charges along with the motion was sent to the Chairman by the Revenue Divisional Officer, Vridhachalam, on 31st March, 1966, and the petitioner was required to give a statement in reply. The petitioner furnished the statement on nth April, 1966. Notices for convening a special meeting on 5th May, 1966, at 11 A.M. at the Panchayat Union Office for the consideration of the motion against the Chairman, the petitioner, were served on 51 members. On 5th May, 1966 at 11 A.M. the meeting was held. The no-confidence motion was put to vote and out of the 39 members present 35 members voted infavour of the motion and two members voted against the motion and one member remained neutral.
3. The proceedings of the meeting, which passed the motion of no-confidence, are attacked as illegal and void. In this petition Mr. V.V. Raghavan, the learned Counsel for the petitioner, submitted that of the 35 members, who voted in favour of the motion 4 persons were co-opted members and as such they should not have been allowed to vote. If their votes had been excluded, it is submitted that there were only 31 votes, which was less than two-thirds of the strength of the Panchayat Council, which is 48. It is alleged that the President of Mandakapadi Panchayat illegally participated in the election, as his election as member of the Mandakapadi Panchay at was declared void by the Election Commissioner. The fact that he had filed a writ petition and obtained stay of the order of the Election Commissioner would not enable him to vote in favour of the resolution of no-confidence. Thirdly, it was ' contended that the proviso to Section 12 of the Panchayats Act (XXXV of 1958) should be construed as only qualifying or restricting the main section and, therefore, could not have the effect of enlarging the scope of the main section and when so construed the proviso, which enables the co-option of women and scheduled caste members, would be invalid.
4. The submission that a co-opted member is not entitled to vote is without substance, as the word member is defined in Section 2(17) of the Act as meaning a member of a panchayat or of a panchayat union council as the case may be, and includes a co-opted member. Section 153 provides that a motion expressing want of confidence in the chairman or vice-chairman of a panchayat union council may be made by giving written notice of intention to make the motion signed by members of the panchayat union council. Apart from the definition which clearly includes co-opted members, there is no thing in Section 153 which restricts the meaning of the word member only to elected members. This contention will have to be rejected.
5. Equally untenable is the contention that the president of the Mandakapadi Panchayat should not have been allowed to vote. Though his election as member was set aside, he filed writ petition to this Court, which gave interim stay of the operation of the order of the Election Commissioner, which would imply that the member could function as if the Election Commissioner had not passed any order. It was contended that the effect of the interim order was only to restore the membership of the panchayat and this could not restore his presidentship, which would entitle him to vote in the motion of no-confidence. In support of this contention learned Counsel for the petitioner relied on a decision of this Court in Devasigamony v. Sethuratna Iyer A.I.R. 1935 Mad. 1034, where it was held that the effect of restoration under Section 56 (4) of the Madras Local Boards Act, 1920 was not as if the member never lost his office and that hence, where a member of a taluk board, who was also the president of the board lost his membership and consequently his presidentship and was restored to the membership, the restoration did not confer the presidentship also on him. 'This decision will not have any application, as the president of Mandakapadi Panchayat did not lose his presidentship by virtue of the order of the Election Commissioner. The effect of the stay order of the High Court was that the member would be in the same position in which he would have been but for the order of the Election 'Commissioner. It is not the case of the petitioner that after the order of the Election Commissioner the president of Mandakapadi Panchayat was removed from office.
7. The next contention of the learned Counsel for the petitioner is more important and involves the construction of Section 12 of the Madras Panchayats Act. Sub-section (1) and proviso to Section 12 as amended by Act XVIII of 1964, with which we are concerned, may be extracted:
(1) A panchayat union council constituted for any panchayat union shall consist of:
(i) the presidents of all panchayats in the panchayat union; and
(ii) One non-official member of each township committee in the panchayat union chosen in the prescribed manner:Provided that if among the members of a panchayat union council, there are no women or members of the Scheduled Castes or Scheduled Tribes or the number whether of woman or of the members of the Scheduled Castes or Scheduled Tribes is less than three, the panchayat union council may co-opt such member of women or members of the Scheduled Castes or Scheduled Tribes as may be necessary to ensure that the Council includes three women and three members of the Scheduled Castes and Scheduled Tribes.
Reading the section and the proviso together the intention of the Legislature is clear in that, if among the members of the panchayat union council, there is no proper representation for women or members of the scheduled castes or scheduled tribes such number of woman or members of the Scheduled caste or scheduled tribes would be co-opted so that there are three women and three members of the scheduled castes and scheduled tribes in the Council. Mr. V.V. Raghavan, learned Counsel for the petitioner submitted that the proviso should be construed according to the rules of construction to except out of the preceding portion of the enactment or to qualify something enacted therein, which but for the proviso would be within it. In other words the contention is that the proviso cannot be construed as enlarging the scope of the enactment. If so construed, the strength of the council cannot be enlarged than that Which is given in the main section, that is the presidents of all panchayats in the panchayat union and one non-official member of each township committee in the panchayat union as provided in Section 12, Sub-sections (1) (i) and (i) (ii). This construction if accepted, would be opposed to the meaning which is clear when the section and the proviso are read together. Such a construction would clearly render the proviso nugatory. In construing a section the entire section including the proviso should be read as a whole. Maxwell on Interpretation of Statutes, Eleventh Edition, at page 155, has stated the rule thus:
There is no rule that the first or enacting part is to be construed without reference to the proviso. ' The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light, if need be, on the rest.
The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail.
If this rule is observed, there is no difficulty at all in construing the section and the meaning is very clear. In support of the contention that the proviso should only be read as restricting or qualifying the main eanactment, learned Counsel for the petitioner relied on certain authorities which may now be referred to. In Halsbury's Laws of England (Third Edition, Volume XXXVI) at page 399 it is stated:
A proviso prima facie excepts out of a previous enacting part of a statute something which but for the proviso would have been within the enacting part.... Therefore where an enactment is ambiguous, a proviso to it may be a useful guide to its meaning; but where the meaning of an enactment is clear and unambiguous, it should not be construed as modified by any implication derived from a proviso which is a mere qualification of or exception from it.
To the same effect is the passage in Craies on Statute Law, Sixth Edition, where the learned author has stated the rule at page 217 thus:
The effect of an excepting or qualifying proviso according to the ordinary rules-of construction, is to except out of the preceding portion of the enactment, or to qualify something enacted therein, which but for the proviso would be within it; and such a proviso cannot be construed as enlarging the scope of an enactment when it can be fairly and properly construed without attributing to it that effect.
While stating this general principle it has to be seen that Halsbury's Laws of England (Third Edition, Volume XXXVI) at page 400 has qualified the principle:
The substance, and not the form, must, however, be looked at, and that which is in form a proviso may in substance be a fresh enactment, adding to and not merely qualifying that which goes before.
This statement is made on the authority of the decision in Rhondda Urban Council v. Toff Vale Railway L.R..(1909) A.C. 253, where Lord Loreburn, L.C., in construing Section 51 of the Railway Clauses Act, 1845 observed at page 258:
It is true that Section 51 is framed as a proviso upon preceding sections. But it is also true that the latter half of it, though in form a proviso, is in substance a fresh enactment, adding to and not merely qualifying that which goes before.. So the question really turns upon Section 51 itself. It must be read in the light of what goes before and with a close regard to the purpose of the group of sections to which it belongs....
Craies on Statute Law, Sixth Edition, refers to this decision at page 218 and observes:
But sections, though framed as provisos upon preceding sections, may exceptionally contain matter which is in substance a fresh enactment adding to and not merely qualifying what goes before.
The question, therefore, is whether a particular proviso is an excepting or qualifying proviso or one which is in substance a fresh enactment adding to and not qualifying what goes before it. As for the proviso with which we are concerned, there can be no difficulty in coming to the conclusion that it belongs to the latter class, which is a fresh enactment having the effect of adding to the section. If construed in any other manner, the entire section will lose all its meaning and the proviso will become nugatory. Reliance was placed on a decision of the Supreme Court in I.T. Commissioner v. I. M. Bank, Ltd. : 36ITR1(SC) , The Supreme Court was considering Section 32 (1) of the Travancore Income-tax Act and the proviso to it which are as follows:
Where any assessee sustains a loss of profits or gains in any year under any of the heads mentioned in Section 9 (section 6) he shall be entitled to have the amount of loss set off against this income, profits or gains under any other head in that year;Provided that where the loss sustained is a loss of profits or gains which would but for the loss have accrued or arisen within British India or in an Indian State and would under the provisions of Clause (c) of Sub-section (2) of Section 18 (section 14 (2) (c)), have been exempted from tax, such loss shall not be set off except against profits or gains accruing or arising within British India or in an Indian State and exempt from tax under the said provisions.
The Court after referring to the rule laid down in Rhondda Urban Council v. Taff Vale Railway L.R. (1909) A.C. 253, that a proviso may in substance be a fresh enactment, adding to and not merely qualifying that which goes before it proceeded to consider whether the proviso to Section 32 (1) fell under the rule laid down in that case, or whether the proviso would be a qualifying and restricting proviso. The Court held that it was a restricting proviso. The decision of the Supreme Court lays down that a proviso can either be a restricting or qualifying proviso or that it may be a fresh enactment adding to and not merely qualifying that goes before it. The decision cannot, therefore, help the learned Counsel for the petitioner.
8. In Abdul Jabar v. State of J. & K. : 1957CriLJ404 , it is stated:
In the first place it is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore, the priviso in question has to be construed harmoniously with the provision....
In Kedarnath J. M. Co. v. C. T. Officer : 3SCR626 , Subba Rao, J. (as he then was) approved the rule in Craies on Statute Law, Sixth Edition, at page 217, extracted above. Reliance was placed on a decision of a Bench of this Court in Ramkishan v. Commissioner of Commercial Taxes (1965) I.T.J. 178 : I.L.R. (1966) Mad. 267, where in construing Sub-section (2) of Section 41 of the Madras General Sales Tax Act, it was held that the proviso to the section could not expand, enlarge or amplify the scope and ambit of the main provision Section 41, Sub-section (2) provided that the books of the business would be open to inspection at all reasonable times. The proviso enabled the officer to search under certain circumstances. It was held that the power of search could not be conferred by means of a proviso. It was not contended before the Bench that the proviso would be a fresh enactment adding to what was stated before. The decision cannot be construed as ruling out the possibility of a proviso being afresh enactment adding to what was stated before in the section.
9. In the result all the contentions raised by the learned Counsel for the petitioner fail and the writ petition is dismissed with costs of the fourth respondent.