Full Judgment Text
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PETITIONER:
M. PENTIAH AND OTHERS
Vs.
RESPONDENT:
MUDDALA VEERAMALLAPPA AND OTHERS.
DATE OF JUDGMENT:
07/11/1960
BENCH:
SUBBARAO, K.
BENCH:
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION:
1961 AIR 1107 1961 SCR (2) 295
CITATOR INFO :
R 1977 SC 536 (16)
RF 1977 SC2328 (11)
RF 1978 SC 548 (3)
R 1982 SC 149 (223)
R 1986 SC 137 (66)
RF 1988 SC1060 (12)
F 1990 SC 933 (14)
F 1991 SC 101 (30)
RF 1992 SC 1 (60)
RF 1992 SC 573 (33)
ACT:
Municipality--Committee constituted under old Act continued
by repealing Act--Term of office--Power--If can effect sale
of municipal land--Interpretation of statute--Power of
Court--Hyderabad District Municipalities Act, 1956 (Hyd.
XVIII of 1956), ss. 16, 17, 18, 20, 32, 34, 35, 76, 77 and
320.
HEADNOTE:
The respondents were the elected members of the Vicarabad
296
Municipal Committee, constituted in 1953, under the Hydera-
bad Municipal and Town Committees Act, 1951 That Act was
repealed by s. 320 of the Hyderabad District Municipalities
Act, 1956, which came into force in 1956. That section
provided that the committee constituted under the repealed
enactment was to be deemed to have been constituted under
the Act and the members thereof should hold office till the
first meeting of the committee was called under S. 35 of the
Act. No election was held under the new Act; the old
committee, which continued to function, after duly passing a
resolution and obtaining the necessary sanction from the
Government, sold certain municipal lands to third parties.
The appellants, who were rate-payers of the said
Municipality, moved the High Court for-the issue of a writ
of quo warranto challenging the said sales under Art. 226 of
the Constitution. The High Court dismissed the petition.
The contention of the appellants in this Court was that the
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members of the said committee were functus officio on expiry
of three years from the commencement of the Act for s. 34 of
the Act prescribed a term of three years and S. 320 of the
Act did not provide any definite term for them. But if S.
34 was held to be inapplicable, neither could the first
general election under the Act, for which s. 16 of the Act
was the only provision, be held, nor could the first meeting
of the committee called under s. 35 of the Act and the
result would be that the old committee would continue
indefinitely.
Held, that the contention must be negatived.
The word ’committee’ in s. 320 of the Hyderabad District
Municipalities Act, 1956, did not mean a committee elected
under the Act and the term of three years prescribed by s.
34 of the Act could not, therefore, apply to it.
Construed in the light of well-recognised principles of
interpretation of statutes and the scheme as envisaged by
ss. 16, 17, 18, 20, 32, 34, and 320 of the Act, s. 320 of
the Act could be no more than a transitory provision and it
would be unreasonable to suggest that the Legislature which
repealed the earlier Act with the express intention of
constituting committees on broad-based democratic
principles, intended to perpetuate old committees
constituted under the repealed Act.
Section 16(1) of the Act, properly construed, was clearly
inapplicable to the first general election under the Act and
could apply only to subsequent elections. So far as the
first general election under the Act was concerned, ss. 17
and 20 of the Act provided a self-contained and integrated
machinery therefor independent of s. 16(1) of the Act.
Canada Sugar Refining Co. v. R., [1898] A.C. 735, referred
to.
The Legislature in enacting the new Act assumed and expected
that the Government would, within a reasonable time issue
notifications for holding the first general election under
S. 17 of the Act and its failure to do so and thus
implement the
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Act, and not any inherent inconsistency in the Act itself,
prolonged the life of the old committee.
Since S. 77 of the Act expressly authorised the Municipal
Committee to sell municipal property subject to the
conditions specified therein, no prohibition could be
implied from the provisions of s 76 of the Act and the
impugned sales, effected in conformity with the conditions
precedent laid down by s. 77 of the Act, could not be said
to be ultra vires the powers of the committee.
Elizabeth Dowager Baroness Wenlock v. The River Dee Company,
(1885) 10 A.C. 354 and Attorney-General v. Fulhan Corpora-
tion, (1921) 1 Ch. D. 440, considered.
Per Sarkar, J.-It is well settled that where the language of
a statute leads to manifest contradiction of the apparent
purpose of the enactment, as the language of s. 16(i) does
in the present case, the Court has the power so to read it
as to carry out the obvious intention of the Legislature.
The intention of the Legislature in enacting the new Act
clearly was that elections should be held and committees
constituted under it.
Seaford Court Estates Ltd. v. Asher, [1949] 2 All E.R. 155,
referred to.
Section 16(1) is the only section of the Act which
authorises the holding of a general election but, since the
requirements as to time in s. 16(i) of the Act could not
apply to the first general election, that section must be
read to carry out the obvious intention of the Legislature
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as if there was no such requirement in the case of the first
general election under the Act. Although this would not
indicate when that election was to be held, the obvious
implication would be that it must be held within a
reasonable time of the commencement of the Act. Section 20
of the Act does not authorise the holding of a general
election.
Salmon v. Duncombe, (1886) 11 App. Cas. 627, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 387 of 1960.
Appeal by special leave from the judgment and order dated
February 12, 1960, of the Andhra Pradesh High Court, in Writ
Petition No. 5 of 1960.
P. A. Choudhuri and K. R. Choudhuri, for the appellants.
P. Ram Reddy, for respondents Nos. 1, 2 and 6 to 11.
1960. November 7. The Judgment of Gajendragadkar, Subha
Rao, Wanchoo and,. Mudholkar, JJ.,
38
298
was delivered by Subba Rao, J. Sarkar, J., delivered a
separate judgment.
SUBBA RAO J.-This appeal by special leave is directed
against the judgment of the High Court of Judicature at
Hyderabad dismissing the petition filed by the appellants
under Art. 226 of the Constitution to issue a writ of quo
warranto against respondents 1 to 10 directing them to
exhibit an information as to the authority under which they
are functioning as members of the Vicarabad Municipal
Committee and to restrain them from selling certain plots of
land belonging to the Municipality to third parties. Vica-
rabad was originally situate in the Part B State of
Hyderabad and is now in the State of Andhra Pradesh. The
Municipal Committee of Vicarabad was constituted under the
Hyderabad Municipal and Town Committees Act (XXVII of 1951).
In the year 1953 respondents 1 to 10 were elected, and five
others, who are not parties before us, were nominated, to
that Committee. On November 27, 1953, the Rajpramukh of the
State of Hyderabad published a notification under the
relevant Acts in the Hyderabad Government Gazette
Extraordinary notifying the above persons as members of the
said Committee. Presumably with a view to democratize the
local institutions in that part of the country and to bring
them on a par with those prevailing in the neighbouring
States, the Hyderabad District Municipalities Act, 1956
(XVIII of 1956), (hereinafter referred to as the Act), was
passed by the Hyderabad _ Legislature and it received the
assent of the President on August 9, 1956. Under s. 320 of
the Act the Hyderabad Municipal and Town Committees Act,
1951 (XXVII of 1951) and other connected Acts were repealed.
As a transitory measure, under the same section any
Committee constituted under the enactment so repealed was
deemed to have been constituted under the Act and the
members of the said Committee were to continue to hold
office till the first meeting of the Committee was called
under s. 35 of the Act. Under that provision respondents 1
to 10 and the five nominated members continued to function
as members
299
of the Municipal Committee. In or about the year 1958 the
said Committee acquired land measuring acres 15-7 guntas
described as " Varad Raja Omar Bagh " for Rs. 18,000 for the
purpose of establishing a grain market (gunj). For one
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reason or other, the Municipal Committee was not in a
position to construct the grain market and run it
departmentally. The Committee, therefore, after taking the
permission of the Government, resolved by a requisite
majority to sell the said land to third parties with a
condition that the vendee or vendees should construct a
building or buildings for running a grain market. There-
after the Committee sold the land in different plots to
third parties ; but the sale deeds were not executed in view
of the interim order made in the writ petition by the High
Court and subsequently in the appeal by this Court.
In the writ petition the appellants contended, inter alia,
that the respondents ceased to be members of the Municipal
Committee on the expiry of three years from the date the new
Act came into force and that, therefore, they had no right
to sell the land, and that, in any view, the sale made by
the Committee of the property acquired for the purpose of
constructing a market was ultra vires the provisions of the
Act. The respondents contested the petition on various
grounds. The learned Judges of the High Court dismissed the
petition with costs for the following reasons:
1. The old Committee will continue to function till a new
Committee comes into existence.
2. " Section 76 contemplates that property vested in it
under s. 72(f), 73 and 74 should be transferred only to
Government. Here, the transfer is not in favour of the
Government. That apart we are told that in this case
sanction of the Government was obtained at every stage. It
cannot be predicated that the purpose for which the
properties are being disposed of is not for a, public
purpose. It is not disputed that the properties are being
sold only to persons who are required to build grain market
".
3. The act now opposed is not in any way in conflict with
the provisions of ss. 244, 245 and 247.
300
4. " It looks to us that the petitioners lack in bona
fides and that this petition is not conceived in the
interests of the public ".
The present appeal, as aforesaid, was filed by special leave
granted by this Court.
Mr. P. A. Chowdury, learned counsel for the appellants,
canvassed the correctness of the findings of the High Court.
His first argument may be summarized thus: Under s. 320 of
the Act any Committee constituted under the repealed
enactment shall be deemed to have been constituted under the
Act and the members of the said Committee shall continue to
hold office till the first meeting of the Committee is
called under s. 35 of the Act. Under s. 35 of the Act, the
first meeting of the Committee shall not be held on a date
prior to the date on which the term of the outgoing members
expires under s. 34. Section 34 of the Act provides that
the members shall hold office for a term of three years.
Therefore, the term of the members of the Committee deemed
to have been constituted under s. 320 is three years from
the date on which the Act came into force. If the term
fixed Under s. 34 does not apply to the members of the said
Committee, the result will be that the said members will
continue to hold office indefinitely, for the first meeting
of the Committee could not be legally convened under the Act
as s. 16 which enables the Collector to do so imposes a duty
on him to hold a general election within three months before
the expiry of the term of office of the members of the
Committee as specified in s. 34, and, as no definite term
has been prescribed for the members of the Committee under
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s. 320, the election machinery fails, with the result that
the members of the " deemed " Committee would continue to be
members of the said Committee indefinitely. On this inter-
pretation learned counsel contends that the section would be
void for the following reasons: (1) s. 320(1)(a) of the Act
would be ultra vires the powers of the State Legislature
under Art. 246 of the Constitution, read with entry 5, List
II, VII Schedule; (2) the said section deprives the
appellants of the right to equality and protection of the
laws guaranteed under Art. 14
301
of the Constitution; (3) s. 320 would be void also as
inconsistent with the entire scheme of the provisions of the
Act.
Let us first test the validity of the construction of s. 320
of the Act suggested by the learned counsel. The material
part of s. 320 reads:
" (1) The Hyderabad Municipal and Town Committees Act, 1951,
(XXVII of 1951)........................ (is) hereby repealed
; provided that:-
(a) any Committee constituted under the enactment so repealed
(hereinafter referred to in this section as the said
Committee) shall be deemed to have been constituted under
this Act, and Members of the said Committee shall continue
to hold office till the first meeting of the Committee is
called under section 35;".
The terms of the section are clear and do not lend any scope
for argument. The section makes a distinction between the "
said" Committee and the Committee elected under the. Act
and says, " Members of the said Committee shall continue to
hold office till the first meeting of the Committee is
called under s. 35 ". Though the word " Committee" is
defined in s. 2(5) to mean a Municipal or Town Committee
established or deemed to be established under the Act, that
definition must give way if there is anything repugnant in
the subject or context. As the section makes a clear
distinction between the " said " Committee and the Committee
elected under the Act, in the context, the Committee in s.
320 cannot mean the Committee elected under the Act. The
term fixed for the members of the Committee constituted
under the Act cannot apply to the members of the Committee
deemed to have been constituted under the Act. Section 32
which provides for the culminating stage of the process of
election under the Act says that the names of all members
finally elected to any Committee shall be forthwith
published in the official Gazette. Section 34 prescribes
the term of office of the members so elected. Under it, "
except as is otherwise provided in this Act, members shall
hold office for a term of three years." Section 320(1)(a)
provides a different term for the
302
members of the Committee deemed to have been constituted
under the Act. Thereunder, the term is fixed not by any
number of years but by the happening of an event. The
Committee constituted under s. 320 clearly falls under the
exception. But it is suggested that the exception refers
only to s. 28 whereunder a member of a, Committee ceases to
be one by a supervening disqualification. Firstly, this
section does not fix a term but only imposes a
disqualification on the basis of a term fixed under s. 34;
secondly, assuming that the said section also fixes a term,
the exception may as well cover both the deviations from the
normal rule. That apart, sub-s. (2) of s. 34 dispels any
doubt that may arise on the construction of sub-section (1)
of the section. Under sub-s. (2), the term of office of
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such members shall be deemed to commence on the date of the
first meeting called by the Collector under s. 35. Section
35 directs the Collector to call a meeting after giving at
least five clear days notice within thirty days from the
date of the publication of the names of members under s. 32.
This provision clearly indicates that the members of the
Committee mentioned in s. 34 are only the members elected
under the Act and not members of tile Committee deemed to
have been elected under the Act, for, in the case of the
latter Committee, no publication under s. 32 is provided for
and therefore the provisions of s. 35 cannot apply to them.
It is, therefore, manifest that the term prescribed in s. 34
cannot apply to a member of the deemed " Committee.
Let us now see whether this interpretation would necessarily
lead us to hold that the members of the " deemed " Committee
under s. 320(1)(a) would have an indefinite duration. This
result, it is suggested, would flow from a correct
interpretation of the relevant provisions of s. 16 of the
Act. The judgment of the High Court does not disclose that
any argument was addressed before that Court on the basis of
s. 16 of the Act. But we allowed the learned counsel to
raise the point as in effect it is only a link in the chain
of his argument to persuade us to hold in his favour on the
construction of s. 320.
303
Before we consider this argument in some detail, it will be
convenient at this stage to notice some of the well
established rules of Construction which would help us to
steer clear of the complications created by the Act.
Maxwell " On the Interpretation of Statutes", 10th Edn.,
says at p. 7 thus:
".............. if the choice is between two inter-
pretations, the narrower of which would fail to achieve the
manifest purpose of the legislation, we should avoid a
construction which would reduce the legislation to futility
and should rather accept the bolder construction based on
the view that Parliament would legislate only for the
purpose of bringing about an effective result."
It is said in Craies on Statute Law, 5th Edn., at p. 82--
Manifest absurdity or futility, palpable injustice, or
absurd inconvenience or anomaly to be avoided.’)
Lord Davey in Canada Sugar Refining Co. v. R. provides
another useful guide of correct perspective to such a
problem in the following words:
" Every clause of a statute should be construed with
reference to the context and the other clauses of the Act,
so as, so far as possible, to make a consistent enactment of
the whole statute or series of statutes relating to the
subject-matter."
To appreciate the problem presented and to give an adequate
answer to the same, it would be necessary and convenient to
notice the scheme of the Act as reflected in the relevant
sections, namely, ss. 16, 17, 18, 20, 32, 34 and 320. The
said scheme of the Act may be stated thus: Under the Act,
there are general elections and elections to casual
vacancies. The general elections may be in regard to the
first election after the Act came into force or to the
subsequent elections under the Act. Section 5 imposes a
duty on the Government to constitute a Municipal Committee
for each town and notify the date when it shall come into
existence. Section 17 enjoins on the Government to issue a
notification calling upon all the constituencies to elect
members in accordance
(1) [1898] A.C. 735.
304
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with the provisions of the, Act on or before such date or
dates as may be specified in the said notification. Section
16 imposes a duty upon the Collector to hold a general
election in the manner prescribed within three months before
the expiry of the term of office of the members of the
Committee as specified in s. 34 of the Act. Sub-section (2)
of s. 16 provides for a bye-election for filling up of a
casual vacancy. Section 18 enables the Collector with the
approval of the Government to designate or nominate a
Returning Officer. Section 19 imposes a duty upon such an
officer to do all such acts and things as may be necessary
for effectually conducting the election in the manner
provided by the Act and the rules made there under. Section
20 authorizes the Collector to issue a notification in the
Official Gazette appointing the dates for making
nominations, for the scrutiny of nominations, for the
withdrawal of candidatures and for the holding of the poll.
After the elections are held in the manner prescribed, the
names of all the members finally elected to any Committee
shall be published in the Official Gazette. Except as
other,wise provided in the Act, s. 34 prescribes the term of
three years for a member so elected. As a transitory
provision till such an election is held, s. 320 says that
the members of the previous Committee constituted under the
earlier Act shall be deemed to be constituted under the Act
and the members thereof shall hold office till the first
meeting of the Committee is called under s. 35 of the Act.
It is clear from the aforesaid provisions that the
Government notifies the dates calling upon all the
constituencies to elect the members before such date or
dates prescribed; the Collector holds the election and fixes
the dates for the various stages of the process of election
; the Returning Officer appointed by the Collector does all
acts and things necessary for effectually conducting the
election.
On the general scheme of the Act we do not see any legal
objection to the Collector holding the first elections under
the Act. The legal obstacle for such a course is sought to
be raised on the wording of s. 16(1).
305
Every general election requisite for the purpose of this Act
shall be held by the Collector in the manner prescribed
within three months before the expiry of the term of office
of the members of the Committee as specified in section 34."
The argument is that the Collector’s power to hold a general
election is confined to s. 16(1) and, as in the case of the
members of the Committee deemed to have been constituted
under the Act the second limb of the section cannot apply
and as the Collector’s power is limited by the second limb
of the section, the Collector has no power to hold the first
general election under the Act. If this interpretation be
accepted, the Act would become a dead-letter and-the obvious
intention of the Legislature would be defeated. Such a
construction cannot be accepted except in cases of absolute
intractability of the language used.
While the Legislature repealed the earlier Act with an
express intention to constitute new Committees on broad
based democratic principles, by this interpretation the
Committee under the old Act perpetuates itself indefinitely.
In our view, s. 16(1) does not have any such effect.
Section 16(1) may be read along with the aforesaid other
relevant provisions of the Act. If so read, it would be
clear that it could not apply to the first election after
the Act came into force, but should be confined to
subsequent elections. So far as the first general election
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is concerned, there is a self-contained and integrated
machinery for holding the election without in any way
calling in aid the provisions of s. 16(1). Section 17
applies to all elections, that is, general as well as bye-
elections. It applies to the first general election as well
as subsequent general elections. The proviso to that
section says that for the purpose of holding elections under
sub-s. (1) of s. 16 no such notification shall be issued at
any time earlier than four months before the expiry of the
term of office of the members of the Committee as specified
in s. 34. The proviso can be given full meaning, for it
provides only for a case covered by s. 16(1) and, as the
first general election is outside the scope of s. 16(1),
39
306
it also falls outside the scope of the proviso to S. 17.
Under s. 17, therefore, the Government, in respect of the
first general election, calls upon all the constituencies to
elect members before the date or dates fixed by it. Under
s. 20, the Collector fixes the dates for the various stages
of the election. The Returning Officer does all the acts
and things necessary for conducting the election and when
the election process is completed, the names of the members
elected are published. All these can be done without
reference to s. 16(1), for the Collector is also empowered
under s. 20 to hold the elections. In this view, there
cannot be any legal difficulty for conducting the first
election, after the Act came into force. If so, the term of
the members of the Committee deemed to have been elected
would come to an end when the first meeting of the Committee
was called under s. 35. The Legislature in enacting the law
not only assumed but also expected that the Government would
issue the requisite notification under s. 17 of the Act
within a reasonable time from the date when the Act came
into force. The scheme of the Act should be judged on that
basis; if so judged, the sections disclose an integrated
scheme giving s. 320 a transitory character.
It is conceded by learned counsel that if s. 320(1)(a) is
constructed in the manner we do, the other points
particularised above do not arise for consideration.
Before leaving this part of the case we must observe that
the difficulty is created not by the provisions of the Act
but by the fact of the Government not proceeding under s. 17
of the Act within a reasonable time from the date on which
the Act came into force. This is a typical case of the
legislative intention being obstructed or deflected by the
inaction of the executive.
Mr. Ram Reddy, learned counsel for the respondents, states
that there are many good reasons why the Government did not
implement the Act. There may be many such reasons, but when
the Legislature made an Act in 1956, with a view to
democratize municipal administration in that part of the
country so as to bring it on a par with that obtaining in
other
307
States, it is no answer to say that the Government had good
reasons for not implementing the Act. If the Government had
any such reasons, that might be an occasion for moving the
Legislature to repeal the Act or to amend it. If the
affected parties had filed a writ of mandamus in time, this
situation could have been avoided ; but it was not done. We
hope and trust that the Government would take immediate
steps to hold elections to the Municipal Committee so that
the body constituted as early as 1953, under a different Act
could be replaced by an elected body under the Act.
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Even so, learned counsel for the appellants contends that
the Municipal Committee had no power to sell the land
acquired by it for constructing a market. To appreciate
this contention it would be convenient to notice the
relevant provisions of the Act. Under s. 72(f) all land or
other property transferred to the Committee by the
Government or the District Board or acquired by gift,
purchase, or otherwise for local purposes shall vest in and
be under the control of the Committee. Section 73 enables
the Government, in consultation with the Committee, to
direct that any property, movable or immovable, which is
vested in it, shall vest in such Committee. Section 74
empowers the Government on the request of the Committee to
acquire any land for the purposes of the Act. Under s. 76,
the Committee may, with the sanction of the Government,
transfer to the Government any property vested in the
Committee under ss. 72(f), 73 and 74, but not so as to
affect any trust or public right subject to which the
property is held. Learned counsel contends that, as the
land was acquired by the Committee for the construction of a
market, the Committee has power to transfer the same to the
Government only subject to the conditions laid down in s.
76, and that it has no power to sell the land to third
parties. This argument ignores the express intention of s.
77 of the Act. Section 77 says:
" Subject to such exceptions as the Government may by
general or special order direct, no Committee shall transfer
any immovable property except in pursuance of a resolution
passed at a meeting by a
308
majority of not less than two-third of the whole number of
members and in accordance with rules made under this Act,
and no Committee shall transfer any property which has been
vested in it by the Government except with the sanction of
the Government:
Provided that nothing in this section shall apply to leases
of immovable property for a term not exceeding three years
".
This section confers on the Committee an express power
couched in a negative form. Negative words are clearly
prohibitory and are ordinarily used as a legislative device
to make a statute imperative. If the section is recast in
an affirmative form, it reads to the effect that the
Committee shall have power to transfer any immovable
property, if the conditions laid down under the section are
complied with. The conditions laid down are: (1) there
shall be a resolution passed at a meeting by a majority of
not less than two-third of the whole number of members of
the Committee; (2) it shall be in accordance with the rules
made under the Act; (3) in the case of a property vested in
it by the Government, the transfer can be made only with the
sanction of the Government; and (4) the sale is not exempted
by the Government, by general or special order, from the
operation of s. 77 of the Act. It is not disputed that the
relevant conditions have been complied with in the present
case. If so, the power of the Committee to alienate the
property cannot be questioned.
Learned counsel contends that the provisions of s. 76 govern
the situation and that s. 77 may apply only to a property
vested in the Committee under provisions other than those of
ss. 72(f), 73 and 74, and that further, if a wider
interpretation was given to s. 77, while under s. 76 the
transfer in favour of the Government would be subject to a
trust or public right, under s. 77 it would be free from it
if it was transferred to a private party. The first
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objection has no force, as there are no sections other than
ss. 72, 73 and 74 whereunder the Government vests property
in a Committee. The second objection also has no merits,
for the trust or public right-mentioned in s. 76
309
does not appear to relate to the purpose for which the
property is purchased but to the trust or public right
existing over the property so alienated by the Committee.
Further the proviso to s. 77, which says, " nothing in this
section shall apply to leases of immovable property for a
term not exceeding three years ", indicates that the main
section applies also to the property vested in the Committee
under the previous section, for it exempts from the
operation of the operative part of s. 77 leases for a term
not exceeding three years in respect of properties covered
by the preceding section and other sections. This
interpretation need not cause any apprehension that a Com-
mittee may squander away the municipal property, for s. 77
is hedged in by four conditions and the conditions afford
sufficient guarantee against improper and improvident
alienations.
In this context learned counsel for the appellants invoked
the doctrine of law that an action of a statutory
corporation may be ultra vires its powers without being
illegal and also the principle that when a statute confers
an express power, a power inconsistent with that expressly
given cannot be implied. It is not necessary to consider
all the decisions cited, as learned counsel for the
respondents does not canvass the correctness of the said
principles. It would, therefore, be sufficient to notice
two of the decisions cited at the Bar. The decision in
Elizabeth Dowager Baroness Wenlock v. The River Dee Company
(1) is relied upon in support of the proposition that when a
corporation is authorised to do an act subject to certain
conditions, it must be deemed to have been prohibited to do
the said act except in accordance with the provisions of
that Act which confers the authority on it. Where by Act 14
& 15 Viet. a company was empowered to borrow at interest for
the purposes of the concerned Acts, subject to certain
conditions, it was held that the company was prohibited by
the said Act from borrowing except in accordance with the
provisions of that Act. Strong reliance is placed on the
decision in Attorney-General v. Fulham Corporation
(1) (1885) 10 A.C. 354.
(2) (1921) 1 Ch.D. 440.
310
There, in exercise of the powers conferred under the Baths
and Wash-houses Acts the Metropolitan Borough of Fulham
propounded a scheme in substitution of an earlier one
whereunder it installed a wash-house to which persons
resorted for washing their clothes bringing their own wash
materials and utilised the facilities offered by the
municipality on payment of the prescribed charges. Sarjant,
J., held that the object of the legislation was to provide
for persons who became customers facilities for doing their
own washing, but the scheme provided for washing by the
municipality itself and that, therefore, it was ultra vires
the statute. In coming to that conclusion the learned
Judge, after considering an earlier decision on the subject,
applied the following principle to the facts of the case
before him :
" That recognises that in every case it is for a corporation
of this kind to show that it has affirmatively an authority
to do particular acts; but that in applying that principle,
the rule is not to be applied too narrowly, and the
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corporation is entitled to do not only that which is
expressly authorised but that which is reasonably incidental
to or consequential upon that which is in terms authorized."
The principle so stated is unobjectionable.
The correctness of these principles also need not be
canvassed, for the construction we have placed on the
provisions of the Act does not run counter to any of these
principles. We have held that s. 77 confers an express
power on the Municipal Committee to sell property subject to
the conditions mentioned therein. Therefore, the impugned
sales are not ultra vires the powers of the Committee. In
view of the said express power, no prohibition can be
implied from the provisions of s. 76.
Learned counsel further contends that the statutory power
can be exercised only for the purposes sanctioned by the
statute, that the sales of the acquired land to private
persons were not for one of such purposes, and that,
therefore, they were void. The principle that a statutory
body can only function within the statute is
unexcecutionable; but the
311
Legislature can confer a power on a statutory corporation to
sell its land is equally uncontestable. In this case we
have held that the statute conferred such a power on the
Municipal Committee, subject to stringent limitations. Many
situations can be visualized when such a sale would be
necessary and would be to the benefit of the corporation.
of course the price fetched by such sales can only be
utilised for the purposes sanctioned by the Act.
The last point raised is that the learned Judges of the High
Court were not justified in holding on the materials placed
before them that the appellants lacked bona fides and that
the petition filed by them was not conceived in the
interests of the public. We do not find any material on the
record to sustain this finding. Indeed, but for the
petitioner-appellants the extraordinary situation created by
the inaction of the Government in the matter of implementing
the Act, affecting thereby the municipal administration of
all the districts in Telangana area, might not have been
brought to light. We cannot describe the action of the
appellants either mala fide or frivolous.
In the result, the appeal fails and is dismissed but, in the
circumstances, without costs.
SARKAR, J.-The first question is whether the first ten
respondents are still members of the Municipal Committee of
Vicarabad. These persons had been elected to the Committee
in the elections held in 1953 under the Hyderabad
Municipal and Town Commit tees Act, 1951 (Hyderabad Act
XXVII of 1951), hereafter called the repealed Act. That Act
was repealed by the Hyderabad District Municipalities Act
(Hyderabad Act XVIII of 1956), hereafter called the new Act,
which came into force in August 1956. The appellants, who
are rate-payers of the Municipality, contend that on a
proper reading of the new Act, it must be held that these
ten respondents have ceased to be members of the Committee,
and they seek a writ of quo warranto against the
respondents.
Section 320 of the new Act provides that any Committee
constituted under the repealed Act shall be deemed to have
been constituted under the new Act
312
and its members shall continue to hold office till the first
meeting of the Committee is called under s. 35 of the new
Act. The ten respondents contend that as admittedly the
meeting under s. 35 has not been called, their term of
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office has not yet expired.
Now s. 35, so far as is material, provides that the first
meeting of the Committee shall be called by the Collector
within thirty days of the date of publication of the names
of members under s. 32. Section 32 states that the names of
members finally elected to any Committee shall be forthwith
published in the official Gazette. It is quite clear,
therefore, that the Committee mentioned in this section, is
a Committee constituted by an election held under the new
Act. It would follow that the meeting contemplated in s. 35
is a meeting of a Committee constituted by an election held
under the new Act. The provisions of that section put this
beyond doubt.
In order, therefore, that a meeting of the Committee
contemplated in s. 35 may be held, there has first to be an
election under the new Act to constitute the Committee. No
such election has yet been held. It is the provision
concerning election in the new Act that has given rise to
the difficulty that arises in this case. Section 16, sub-s.
(1), gives the power to hold the general elections. It is
in these words:
Every general election requisite for the purpose of this Act
shall be held by the Collector in the manner prescribed
within three months before the expiry of the term of office
of the members of the Committee as specified in section 34
".
Section 34 in substance states that except as other. wise
provided members of the Committee shall hold office for a
term of three years and that term of office shall be deemed
to commence on the date of the first meeting called under s.
35. It would therefore appear that the members whose term
of office is sought to be specified by s. 34 are members
elected under the new Act, for their term is to commence on
the date that they first meet under s. 35 and as earlier
stated, the meeting under s. 35 is a meeting of members
elected under the new Act.
313
The contention for the appellants is that if a. 34 is
construed in the way mentioned above, the first general
election under the new Act cannot be held under s. 16, for
an election can be held under that section only within three
months before the expiry of the term of office of members
elected under the new Act and in the case of first election
there are ex hypothesi, no such members. It is said that as
there is no other provision in the new Act for holding a
general election, the Act would then become unworkable, for
if the first general election cannot be held no subsequent
election can be held either., The result, it is contended,
is that the Committee elected under the repealed Act would
continue for ever by virtue of s. 320. Such a situation, it
is said, could not have been intended by the new Act. It is
therefore suggested that s. 34 should be construed as
specifying a term of office of three years from the
commencement of the new Act for members elected under the
repealed Act who are under s. 320, to be deemed to form a
Committee constituted under the new Act. If s. 34 is so
construed, then the first general election under the new Act
can properly be held under s. 16. It is on this basis that
the appellants contend that the ten respondents’ term of
office expired in August, 1959, and they are in possession
of the office now without any warrant.
There is no doubt that the Act raises some difficulty. It
was certainly not intended that the members elected to the
Committee under the repealed Act should be given a permanent
tenure of office nor that there would be no elections under
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the new Act. Yet such a result would appear to follow if
the language used in the new Act is strictly and literally
interpreted. It is however well established that " Where
the language of a statute, in its ordinary meaning and
grammatical construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or in justice,
presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the
structure of the sentence..................
40
314
Where the main object and intention of a statute are clear,
it must not be reduced to a nullity by the draftsman’s
unskilfulness or ignorance of the law, except in a case of
necessity, or the absolute intractability of the language
used. Nevertheless, the courts are very reluctant to
substitute words in a Statute, or to add words to it, and it
has been said that they will only do so where there is a
repugnancy to good Bense.": see Maxwell on Statutes (10th
ed.) p. 229. In Seaford Court Estates Ltd. v. Asher (1),
Denning, L. J., said,
" when a defect appears a judge cannot simply fold his hands
and blame the draftsman. He must set to work on the
constructive task of finding the intention of
Parliament.............. and then he must supplement the
written word so as to give " force and life " to the
intention of the legislature............... A judge should
ask himself the question how, if the makers of the Act had
themselves come across this ruck in the texture of it, they
would have straightened it out ? He must then do as they
would have done. A judge must not alter the material of
which the Act is woven, but he can and should iron out the
creases."
I conceive it my duty, therefore, so to read the new Act,
unless I am prevented by the intractability of the language
used, as to make it carry out the obvious intention of the
legislature. Now there does not seem to be the slightest
doubt that the intention of the makers of the new Act was
that there should be elections held under it and that the
Municipal Committees should be constituted by such elections
to run the administration of the municipalities. The
sections to which I have so far referred and the other
provisions of the new Act make this perfectly plain. Thus
s. 5 provides for the establishment of municipal committees
and s. 8 states that the committees shall consist of a
certain number of elected members. The other sections show
that the Committees shall have charge of the administration
of the municipalities for the benefit of the dwellers within
them. It is plain
(1) [1949] 2 All E.R. 155 ,164.
351
that the entire object of the new Act would fail if no
general election could be held under it.
The question then is, How should the Act be read so as to
make it possible to hold general elections under it ? I
agree with the learned advocate for the appellants that the
only section in the new Act providing for general elections
being held, is s. 16(1). In my view, s. 20 does not
authorise the holding of any general election; it only
provides for a notification of the date on which the poll
shall, if necessary, be taken. There is no doubt that under
s. 16(1) the second and all subsequent general elections can
be held ; in regard to such general elections, no difficulty
is created by the language of the section. It would be
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curious if s. 20 also provided for general elections, for
then there would be two provisions in the Act authorising
general elections other than the first. Then I find hat all
the sections referring to general elections refer to such
elections being held under s. 16(1) and not under s. 20.
Thus s. 31 provides that if at a general election held under
s. 16, no member is elected, a fresh election shall be held.
It would follow that if in an election under s. 20, assuming
that that section authorises an election, no member is
elected, no fresh election can be held. There would be no
reason to make this distinction between elections held under
s. 16 and under s. 20. Again the proviso to s. 17 requires
a certain notification to be issued within a prescribed time
for holding elections under s. 16(1). If an election can be
held under s. 20, no such notification need be issued for
there is no provision requiring it. This could not have
been intended. For all these reasons it seems to me that s.
20 does not confer any power to hold any election.
I have earlier said that the suggestion for the appellants
is that the best way out of the difficulty is to read s. 34
as specifying a term of office of three years commencing
from the coming into force of the new Act, for the members
elected under the repealed Act who are to be deemed under s.
320 to be a committee constituted under the new Act. It
seems to me that this is not a correct solution of the
problem. First,
316
the object of continuing the members elected under the
repealed Act in office is clearly to have, what may be
called a caretaker committee to do the work of the
Municipality till a committee is constituted by election
under the new Act. It could not have been intended that the
committee of the members elected under the repealed Act
would function for three years after the new Act has come
into operation nor that such members would have the same
term of office as members elected under the new Act.
Secondly, I do not find the language used in s. 34
sufficiently tractable to cover by any alteration, a member
elected under the repealed Act. To meet the suggestion of
the appellants, a new provision would have really to be
enacted and added to s. 34 and this I do not think is
permissible. It would be necessary to add to the section a
provision that in the case of members elected under the old
Act the term of office of three years would start running
from the commencement of the new Act, a provision which is
wholly absent in the section as it stands. Lastly, so read,
s. 34 would come into conflict with s. 320 which expressly
provides that the term of office of the members elected
under the repealed Act would continue till the first meeting
of the committee constituted under the new Act is held under
s. 35. This portion of s. 320 would have to be completely
struck out.
It seems to me that the real solution of the difficulty lies
in construing s. 16(1) so as to authorise the holding of the
first general election under it and remove the absurdity of
there being no provision directing the first general
election to be held. Now that section applies to ,every
general election requisite for the purpose of this Act." It
therefore applies to the first and all other general
elections. The clear intention hence is that the first
general election will also be held under this provision.
But such election cannot be held within the time mentioned
therein for that time has to be calculated from the expiry
of the term of office of the Committee elected under the Act
and in the case of the first general election under the new
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Act, there is no such Committee. The requirement
317
as to time cannot apply to the first general election. The
section has therefore to be read as if there was no such
requirement in the case of the first general election. It
will have to be read with the addition of the words "
provided that every general election excepting the first
general election shall be held " between the words "
prescribed " and " within ". That would ’carry out the
intention of the legislature and do the least violence to
the language used. So read, there would be clear power
under the Act to hold the first general meeting. There
would of course then be no indication as to when this
election is to be held but that would only mean that it has
to be held within a reasonable time of the commencement of
the new Act.
The course suggested by me is not without the support of
precedents. Thus in Salmon v. Duncombe (1), the Judicial
Committee in construing a statute omitted from it the words
" as if such natural born subject resided in England "
because the retention of those words would have prevented
the person contemplated getting full power to dispose of his
immovable property by his will which it was held, the object
of the statute was, he should get.
With regard to the other point argued in this .appeal,
namely, whether the Municipal Committee even if properly
constituted, has power to sell the land mentioned in the
petition, I agree, for the reasons mentioned in the judgment
delivered by the majority of the members of the bench, that
it has such power and have nothing to add.
The appeal therefore fails.
Appeal dismissed.
(1) (1886) 11 App. Cas. 627.
318