SATINDER SINGH V. UNION OF INDIA AND ORS

CWP/20346/2016

AI Insights

The case revolves around the constitutional validity of Section 4(3)(ii) of the Punjab Municipal Corporation Act, 1976, as extended to Chandigarh, which allowed nominated members of the Municipal Corporation to vote in meetings. The petitioner, Satinder Singh, challenged this provision, arguing it was contrary to Article 243 R of the Constitution, which prohibits such voting rights for nominated members. The respondents, including the Union of India and the Chandigarh Administration, defended the provision citing the President's notification dated 24.05.1994 and the applicability of Article 243 ZB, which they argued allowed for such exceptions in Union Territories. The court, after detailed examination of the constitutional provisions and legislative intent, concluded that the voting rights conferred on nominated members were in violation of the Constitution and thus invalidated the provision.

• Counselvise Citation: [2017] 140 COUNSELVISE.COM (IT) 722781 (HC-CHANDIGARH)
• Appeal Type: Others
• Pronouncement Date: 23-08-2017
• Assessment Year: misc
• Other Referred Cases: Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, Vasu Dev Singh v. Union of India, In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., Rajnarain Singh v. Chairman, Patna Administration Committee, Patna and another, Hamdard Dawakhana v. Union of India, Sanjeev Kumar Verma v. Director, Urban Local Bodies, Chandigarh and others, Krishan Kumar Singla v. State of Haryana and others
• Laws Referred To: Punjab Municipal Corporation Act, 1976, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: SATYA PAL JAIN; SUVIR SEHGAL; DEEPALI PURI; BRIJESHWAR SINGH JASWAL
• Assessee Lawyers: BALTEJ SIDHU
• Keywords: Certiorari; Certiorari; Chandigarh; Mandamus; Municipal Corporation; Ultra Vires; Unconstitutional; Voting rights; Nominated members
• Section: 4(3)(ii); 243R; 243ZB

Judgement Text

"CWP No.20346 of 2016 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20346 of 2016 (O&M) Date of decision: 23.08.2017 Satinder Singh …. Petitioner Versus Union of India and Others …. Respondents CORAM: Hon’ble Mr. Justice S.S. Saron, Acting Chief Justice. Hon’ble Mr. Justice Avneesh Jhingan. Present: Mr. Baltej Singh Sidhu, Advocate for the petitioner in CWP No.20346 of 2016. Mr. H.C. Arora, Advocate – petitioner in person in CWP No.6095 of 2017. Mr. Satya Pal Jain, Senior Advocate/Additional Solicitor General of India with Mr. Dheeraj Jain, Advocate for respondent No.1. Mr. Suvir Sehgal, Senior Standing Counsel and Mr. Sanjiv Ghai, Advocate for respondent No.2. Ms. Deepali Puri, Advocate for respondent No.3. Mr. Brijeshwar Singh Jaswal, Advocate for Mr. G.S. Jaswal, Advocate for respondents No.4 to 12. *** S.S. Saron, ACJ. The petitioner Satinder Singh by way of the present petition under Articles 226/227 of the Constitution of India seeks issuance of a writ in the nature of certiorari/mandamus for declaring the provisions of Section 4 (3) (ii) of the Punjab Municipal Corporation Act, 1976 (as extended to the Union Territory, Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [2] Chandigarh),1 (‘MC Act’ - for short) as ultra vires and unconstitutional; besides, being totally contrary to the provisions of Article 243 R of the Constitution of India. The petitioner is a law graduate and is practising as an advocate at the District Courts, Chandigarh. He was elected as a Municipal Councillor of the Municipal Corporation, Chandigarh in the elections held in December, 2011. He is an income tax payee and a committed social worker. He has been raising issues relating to society and the common man. He has donated blood more than 60 times till date. Keeping in view his keen interest in the cause of social service, he was elected as a Municipal Councillor from Ward No.18 of the Municipal Corporation, Chandigarh. Mr. H.C. Arora, Advocate filed CWP No.6095 of 2017 claiming the same relief. An objection has been raised by the respondents that Sh. Arora had earlier filed CWP No.5552 of 2007 on the same subject matter, which was withdrawn by him on 16.12.2008 and therefore, he is not entitled to file a fresh petition. Sh. Arora submitted that his intention is to press before this Court that nominated members of the House of Municipal Corporation are not entitled to vote in the meetings of the House. Since the said cause is being pursued in the present petition, he does not press his petition i.e. CWP No.6095 of 2017 which may be dismissed as withdrawn. However, he be given liberty to assist the Court in the present case. Liberty is granted to Sh. Arora, Advocate to assist the Court in the present case. 1 Extended to Chandigarh by: ‘The Punjab Municipal Corporation Law (Extension to Chandigarh) Act, 1994 (Act No.45 of 1994)’ w.e.f. 24th May, 1994. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [3] The respondents No.4 to 12 in the petition were nominated Councillors of the Municipal Corporation, Chandigarh; however, their term has since expired. The nominated Members who are at present working and functioning as such were arrayed as parties in CWP No.6095 of 2017 filed by Sh. H.C. Arora, Advocate. In the circumstances, Sh. Baltej Singh Sidhu, Advocate for the petitioner Satinder Singh on 20.04.2017 submitted that the names of respondents No.4 to 12 in his petition be struck off from the array of respondents and on his oral request, respondents No.4 to 12 in CWP No.6095 of 2017 were impleaded as respondents No.4 to 12 in the present petition on 20.04.2017 itself. Mr. Baltej Singh Sidhu, Advocate was asked to file fresh memo of parties, which amended memo of parties has since been filed. Mr. Brijeshwar Singh Jaswal, Advocate appearing for respondents No.4 to 12 in the connected CWP No.6095 of 2017 accepted notice on behalf of respondents No.4 to 12 in the present petition as well. The grievance of the petitioner Satinder Singh is that the nominated members of the House of the Municipal Corporation, Chandigarh have been given the right to vote in proceedings of the House, which according to him is impermissible in law and the notification dated 24.05.1994 issued by the Government of India, Ministry of Home Affairs in this regard is contrary to and in conflict with the provisions of Article 243 R of the Constitution. Therefore, the same is liable to be invalidated to the extent right of vote has been given to the nominated Members in the meetings House of the Municipal Corporation, Chandigarh. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [4] Written statement of Sh. KPS Mahi, Additional Secretary, Department of Local Government, UT, Administration, Chandigarh has been filed on behalf of respondent No.2; besides, written statement of Sh. Manoj Khatri, HCS, Joint Commissioner-I, Municipal Corporation, Chandigarh on behalf of respondent No.3 has also been filed. In the written statement filed on behalf of the Department of Local Government, UT Administration, Chandigarh, it is stated that there is no infirmity or illegality in making a provision for providing a ‘right of vote’ to the nine nominated Members of the Municipal Corporation in terms of Section 4 (3) (ii) of the MC Act issued vide notification dated 24.5.1994. The same, it is submitted, has been made by making proper legislation by the Parliament. The very power of ‘right to vote’ to the nominated Members in the House of the Municipal Corporation, Chandigarh, it is submitted, flows by a legislative Act of the Parliament by passing a proper legislation in this regard, that is, the MC Act which empowers the nominated Members in the composition of the Municipal Corporation of Chandigarh with a right of vote. The Parliament, it is stated, has unbridled power to legislate with respect to the Union Territory, Chandigarh which comes within its ambit and jurisdiction unlike in the case of a State. A reference has been made to Article 243 ZB which falls under Part IX A of the Constitution under the heading ‘The Municipalities’ and relates to, ‘application to Union Territories’. It is submitted that the said provision empowers the President to apply the provisions of Part IX A, Articles 243 P to Article 243 ZG or part thereof to the Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [5] Union Territories subject to such exceptions and modifications, as he may specify in the notification. Therefore, according to the UT, Chandigarh (respondent No.2), the proviso to Article 243 ZB is an exception to the proviso to Article 243 R (2) (a) of the Constitution in the case of Union Territories where the President has been empowered to exempt any provision of Part IX A of the Constitution for its application to the Union Territories. It is submitted by UT, Chandigarh (respondent No.2) that the proviso to Article 243 R (2) of the Constitution with respect to composition of Municipalities in the Union Territory is different. Besides, an exception has been granted by the proviso to Article 243 ZB to make the provisions of Chapter IX A of the Constitution apply to Union Territories with such exceptions and modification as the President may specify in the notification. It is submitted that the situation in the case of Union Territories cannot be compared with the restrictions imposed under the proviso to Article 243 R (2) (a) of the Constitution with regard to not granting voting rights to the nominated members who have special knowledge or experience in the Municipal Administration. In short, it is submitted that the nominated Members in a Municipality do not have a right to vote but in view of the exception carved out by the proviso to Article 243 ZB, such a power can be conferred in Municipal Corporations situated in Union Territories like the Union Territory, Chandigarh. The stand of respondent No.3 is also somewhat similar. Sh. Baltej Singh Sidhu, Advocate learned Counsel appearing for the petitioner and Sh. H.C. Arora, Advocate have submitted that the constitutional mandate is clear that nominated Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [6] Members of the House of a Municipality are not to be conferred a ‘right to vote’ and therefore, the exception which is sought to be carved out in the case of Municipal Corporation, Chandigarh is impermissible in law; besides, being contrary to the specific provisions of the proviso to Article 243 R (2) (a) of the Constitution. Such a power, it is submitted, cannot be conferred by resort to Article 243 ZB of the Constitution in the case of Union Territory, Chandigarh. In response, Sh. Satya Pal Jain, Senior Advocate/ Additional Solicitor General of India with Mr. Dheeraj Jain, Advocate learned counsel appearing for the Union of India (respondent No.1) has referred to the Presidential notification dated 24.05.1994 and contended that the President has provided representation in the composition of the Municipal Corporation to nine members to be nominated by the Administrator either by name or by office. Therefore, it is on the strength of the said notification that right to vote has been given to the nominated members by the Parliament in terms of Section 4 (3) (ii) of the MC Act. Sh. Suvir Sehgal, Senior Standing Counsel and Mr. Sanjiv Ghai, Advocate for UT, Chandigarh (respondent No.2), Ms. Deepali Puri, Advocate for Municipal Corporation, Chandigarh (respondent No.3) and Mr. Brijeshwar Singh Jaswal, Advocate for respondents No.4 to 12 have submitted that though in terms of the proviso to Article 243 R (2) (a), the nominated members referred to in paragraph (i) do not have a right to vote but nevertheless such an exception can be carved out and is even permissible in the cases of Union Territories like Union Territory, Chandigarh in view of the provisions mentioned in the proviso to Article 243 ZB and the same Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [7] has been done by way of a notification dated 24.5.1994 read with the provisions of Section 4 (3) (ii) of the MC Act. We have given our thoughtful consideration to the contentions as raised by the learned counsel appearing for the parties and with their assistance, perused the records. The issue which is involved in the case is whether the nominated members of the Municipal Corporation, Chandigarh which is situated in a Union Territory have the right to vote in meetings of the House of Municipal Corporation. In order to examine the issue on the basis of respective contentions of the parties, the provisions of Articles 243 R, 243 ZB of the Constitution; besides, the provisions of Section 4 (3) (ii) of the MC Act as also the notification dated 24.05.1994 may be noticed. The provisions of Article 243 R of the Constitution read as follows:- “243 R. Composition of Municipalities – (1) Save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide- (a) for the representation in a Municipality of – Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [8] (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of article 243 (S): Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality; (Emphasis added). (b) the manner of election of the Chairperson of a Municipality.” Article 243 ZB of the Constitution reads as under:- “243 ZB. Application to Union Territories:- The provisions of this Part shall apply to the Union Territories and shall, in their Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [9] application to a Union Territory, have effect as if the references to the Governor of a State were references to the Administrator of the Union Territory appointed under Article 239 and references to the Legislature or the Legislative Assembly of a State were references in relation to a Union Territory having a Legislative Assembly, to that Legislative Assembly; Provided that the President may, by public notification, direct that the provisions of this Part shall apply to any Union territory or part thereof subject to such exceptions and modifications as he may specify in the notification.” (Emphasis added) The notification that has been issued in exercise of powers conferred by the proviso to Article 243 ZB of the Constitution in part II, Section 3, Sub-Section (11) dated the 24th May, 1994 by the Government of India, Ministry of Home Affairs reads as follows:- “Government of India Ministry of Home Affairs New Delhi, the 24th May, 1994 Notification S.O (E), - In exercise of the powers conferred by the proviso to article 243 ZB of the Constitution, the President hereby directed that the provisions of Part IX-A of the Constitution shall apply to the Municipal Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [10] Corporation, Chandigarh subject to the following exceptions and modifications, namely:- 1. In Article 243 R, in clause (1), for the words “all the seats in a Municipality shall be filled by persons chosen by direct election”, the words “the Municipal Corporation of Chandigarh may comprise of nine members to be nominated by the Administrator either by name or by office and ten members chosen by direct election” shall be substituted; 2. In Article 243 V, in clause (1) after proviso to sub-clause (a), the following shall be inserted, namely:- “Provided further that no person shall be disqualified for being nominated as member of the Municipal Corporation of Chandigarh on the ground that he holds an office of profit for purpose of election to the House of the People under any law for the time being in force.” 3. In article 243 Y, for the word “Governor”, wherever it occurs, the word “President” shall be substituted. (R.K. Ahooja) Special Secretary to the Government of India.” (Emphasis have been added) Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [11] The provisions of Article 243 R (2) (a) (i) of the Constitution do clearly provide that the legislature of a State may by law provide for the representation in a Municipality of persons having special knowledge or experience in Municipal administration. The purpose of the same is to have experienced persons in a Municipality for running its affairs. Such persons with special knowledge or experience are made members of the House of a Municipality by way of nominations by the competent authority. However, in terms of the proviso to Article 243 R (2) (a) of the Constitution, the persons referred to in paragraph (i), i.e. persons having special knowledge or experience, do not have the right to vote in the meetings of the Municipality. The respondents seek to carve out an exception to the said rule by resort to the proviso to Article 243 ZB of the Constitution, which relates to application of Part IX A of the Constitution to the Union Territories. Specific emphasis is laid on the proviso to Article 243 ZB of the Constitution, which enjoins that the President may, by public notification, direct that the provisions of this Part shall apply to any Union Territory or part thereof subject to such exceptions and modifications as he may specify in the notification. It is this exception which has been pressed and on the strength of the same it is submitted that exceptions can be carved out for Union Territories, which in the case of Union Territory, Chandigarh has been carved out by the afore-referred notification dated 24.05.1994, issued in exercise of powers conferred by the proviso to Article 243 ZB and in terms thereof, it is provided that in Article 243 R Clause (1) for the words; Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [12] “all the seats in a Municipality shall be filled by persons chosen by direct election”, the words: “the Municipal Corporation of Chandigarh may comprise of nine members to be nominated by the Administrator either by name or by office and ten members chosen by direct election”, are to be substituted. Therefore, with the substitution of the aforesaid words in Article 243 R of the Constitution, insofar as the Union Territory, Chandigarh is concerned the said Article i.e. Article 243 R would read as follows:- “243 R. Composition of Municipalities – (1) Save as provided in clause (2), 2[the Municipal Corporation of Chandigarh may comprise of nine members to be nominated by the Administrator either by name or by office and ten members chosen by direct election] from the territorial constituencies in the Municipal area and for this purpose each Municipal area shall be divided into territorial constituencies to be known as wards. (2) The Legislature of a State may, by law, provide- 2 For the words; “all the seats in a Municipality shall be filled by persons chosen by direct election” Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [13] (a) for the representation in a Municipality of – (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (Emphasis added) (iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of article 243 S: Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality; (Emphasis added). Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [14] (b) the manner of election of the Chairperson of a Municipality.” It is in consequence of the substituted Article 243 R (1) of the Constitution, which substitution has been done in exercise of powers conferred by Article 243 ZB of the Constitution that the MC Act has been framed. The provisions of Section 4 (1), (3) (i), (ii) and (iii) of the MC Act read as follows:- “Chapter II Constitution of Corporation 4. Constitution of Corporation and interim arrangement for carrying on its functions till its constitution: (1) For the purposes of carrying out the provisions with this Act, there shall be a Corporation charged with the Municipal Government, to be known as the Municipal Corporation of Chandigarh. (2) xxx xxx xxx (3) The Corporation shall be composed of the following members, namely:- (i) members to be directly elected, representing wards: (ii) nine members with voting rights to be nominated by the Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [15] Administrator, from amongst the persons who are eminent or distinguished in public affairs or those who have special knowledge or practical experience in respect of municipal administration; and (emphasis added) (iii) the member of the House of the People representing the constituency which comprises wholly or partly, the municipal area, with the right to vote.” It is to be noticed that the limited amendment that has been carried out in Article 243 R (1) in exercise of powers conferred by proviso to Article 243 ZB of the Constitution is to the effect that instead of having all the seats in a Municipality to be filled by persons chosen by direct election from the territorial constituencies in the municipal area; it is provided that the Municipal Corporation of Chandigarh may comprise of nine members to be nominated by the Administrator either by name or by office and ten members chosen by direct elections. Article 243 R (2) (a) envisages that the legislature of a State may, by law, provide for the representation in a Municipality of (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area; (iii) the members of the Council of States and the Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [16] members of the Legislative Council of the State registered as electors within the Municipal area; (iv) the Chairpersons of the Committees constituted under clause (5) of Article 243 S. The proviso envisages that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality. There is admittedly no amendment to the provisions of Article 243 R (2) (a) in terms of Article 243 ZB of the Constitution and neither is there any amendment to the proviso to the effect that the persons referred to in paragraph (i) shall not have the right to vote in meetings of the Municipality. Besides, there is no legislative assembly in the Union Territory, Chandigarh but nevertheless Part IX A of the Constitution is applicable to the Union Territory, Chandigarh in terms of Article 243 ZB of the Constitution. The provisions of Part IX A of the Constitution are to apply to the Union Territories and in their application to a Union Territory are to have effect as if the references to the Governor of a State were references to the Administrator of the Union Territory appointed under Article 239 and references to the Legislature or Legislative Assembly of a State were references in relation to a Union Territory having a Legislative Assembly, to that Legislative Assembly. In terms of the proviso, the President may, by public notification, direct that the provisions of Part IX A of the Constitution are to apply to any Union Territory or part thereof subject to such exceptions and modifications as he may specify in the notification. It is in terms of the proviso that the President has issued the notification dated 24.05.1994 which inter alia provides that the Municipal Corporation of Chandigarh may comprise of nine members to be nominated by the Administrator either by name or Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [17] by office and ten members chosen by direct election. The MC Act has been framed by an enactment of the Parliament and Section 4 (3) (ii) thereof envisages that the Corporation shall be composed of nine members ‘with voting rights’ to be nominated by the Administrator, from amongst the persons who are eminent or distinguished in public affairs or those who have special knowledge or practical experience in respect of Municipal Administration. There is no dispute to the nine members being nominated to the Municipal Corporation, Chandigarh by the Administrator of the Union Territory, Chandigarh from amongst the persons who are eminent or distinguished in public affairs or those who have special knowledge or practical experience in respect of Municipal Administration. The dispute is regarding conferring of voting rights on the said nominated members, which according to the petitioner, cannot be conferred in view of the proviso to Article 243 R (2) of the Constitution but according to the Chandigarh Administration they can be given voting rights in view of the exceptions and modifications carved out by the proviso to Article 243 ZB of the Constitution and in consequence of which the notification dated 24.05.1994 has been issued and the provisions of Section 4 (3) (ii) of the MC Act have been framed. As already noticed, there is no Legislative Assembly in the Union Territory of Chandigarh. However, the MC Act has been enacted by the Parliament which is the legislature for the Union Territory, Chandigarh. Therefore, Sub-Article (2) of Article 243 R which enjoins that the Legislature of a State may, by law provide for the categories of persons mentioned in Clauses (i) to (iv) to be represented in the composition of the Municipality, though may be Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [18] said to be strictly not applicable but nevertheless the said function is in terms of Article 243 ZB to be performed by the Administrator of the Union Territory, Chandigarh appointed under Article 239 of the Constitution. This is the true intent and spirit of Article 243 ZB of the Constitution. In fact the nominated members for which a provision has been made in Section 4 (3) (ii) of the MC Act is by virtue of Article 243 R (2) (a) (i) of the Constitution, which provides for having representation of persons with special knowledge or experience in municipal administration in the composition of the municipality. It is, therefore, provided in Section 4 (3) (ii) of the MC Act that nine members with voting rights to be nominated by the Administrator from amongst the persons who are eminent or distinguished in public affairs or those who have special knowledge or practical experience in respect of municipal administration shall form part of the composition of the Municipal Corporation, Chandigarh. However, the proviso to Article 243 R (2) (a) of the Constitution does not provide for voting rights in the meetings of the Municipality for the nominated members of the Municipal Corporation inasmuch as it says that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the municipality. The said proviso is not liable to be ignored, circumvented or side stepped by resort to Article 243 ZB of the Constitution. The normal function of a proviso is to except something out of the enactment which but for the proviso would be within the purview of the enactment. The proviso, therefore, excepts the general application of the enactment. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [19] In Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash Chandra Yograj Sinha, AIR 1961 SC 1596 it was said that as a general rule, a proviso is added to an enactment to qualify or create an exception as to what is in the enactment, and ordinarily, a proviso is not interpreted as stating a general rule. But provisos are often added not as exceptions or qualifications to the main enactment but as saving clauses in which cases they will not be construed as controlled by the Section. Therefore, the proviso which carves out an exception to the general rule, which exception is to the effect that the nominated members of a House of a Municipal Corporation are not to have voting rights is to be enforced especially when it is the constitutional mandate provided for under the Constitution itself. An act which provides for something in derogation of the proviso to an enactment would clearly be an act which would be in excess of the delegated authority conferred on the legislature in enacting Section 4 (3) (ii) of the MC Act to the extent voting rights have been conferred on the nominated members of the House of the Municipal Corporation, Chandigarh. In fact, even the notification dated 24.05.1994 does not provide for the conferment of voting rights on the nine members to be nominated by the Administrator in the composition of the Municipal Corporation, Chandigarh. The Municipal Corporation, Chandigarh which is to be composed under Section 4 (3) of the MC Act may comprise of nine members to be nominated by the Administrator but the voting rights conferred on them would be in excess of the delegated authority that has been conferred by Article 243 ZB as also the Presidential notification dated 24.05.1994. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [20] In Vasu Dev Singh v. Union of India, (2006) 12 SCC 753, the Administrator, Union Territory, Chandigarh in exercise of powers conferred upon him by Section 3 of the East Punjab Urban Rent Restriction Act, 1949 (‘Rent Act’ - for short), by a notification dated 07.11.2002 directed that the provisions of the said Rent Act would not apply to buildings whereof the monthly rent exceeded Rs.1500/-. Section 3 of the Rent Act provides that the State Government may direct that all or any of the provisions of the said Rent Act shall not apply to any particular building or rented land or any class of building or rented lands. The tenants aggrieved with the said notification issued under the Rent Act, which Act had been enacted to restrict the increase of rent of certain premises situated within the limits of urban areas and eviction of tenants there-from, filed a writ petition assailing the said notification. The Supreme Court considered the difference between the conditional legislation and delegated legislation. It was said that it was not possible to uphold the contention of the respondents in the said case that the impugned notification was in effect and substance a conditional legislation and not a delegated legislation. The distinction between the two, that is, the conditional legislation and the delegated legislation was clear and unambiguous. In conditional legislation, the delegatee has to apply the law to an area or to determine the time and manner of carrying it into effect or at such time, as it decides. The legislature in such a case makes the law, which is complete in all respects but the same is not brought into operation immediately. The enforcement of the law would depend upon the fulfillment of a condition and what is delegated to the executive is the authority to determine by exercising its own Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [21] judgment as to whether such conditions have been fulfilled and/or the time had come when such legislation should be brought into force. The taking effect of legislation, therefore, is made dependent upon the determination of such fact or condition by executive organ of the government. Delegated legislation, however, involves delegation of rule making power of legislation and authorizes an executive authority to bring in force such an area by reason thereof. The discretion conferred on the executive by way of delegated legislation is much wider. Such power to make rules or regulations, however, must be exercised within the four corners of the Rent Act. Delegated legislation, it was said, thus, was a device which had been fashioned by the legislature to be exercised in the manner laid down in the legislature itself. By reason of Section 3 of the Rent Act, the Administrator, however, had been empowered to issue a notification whereby and where-under, an exemption was granted for application of the Rent Act itself. It was further held that the legislative objective and policy indisputably must be considered having regard to the Preamble and other core provisions of the Rent Act. Section 3 although was a part of the Rent Act, but the same could not be said to contain an inbuilt policy so as to empower the Administrator to do all such things which could be done by the legislature itself. By taking recourse to the Preamble of the Rent Act, it was held that it could not be said that the power to exclude the tenanted premises could be exercised without taking into consideration the legislative policy and the object of the Rent Act. It was further said that it may be true that by reason of Section 3 of the Rent Act, no arbitrary power as such had been conferred in view of the fact that Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [22] the Rent Act applied only to certain classes of land and building but the same would not mean that the Administrator was free to take any action in any manner he liked. The action of the Administrator, it was held, was indisputably subject to judicial review. Moreover, the notification had not been issued for a limited period and it would, therefore, have a permanent effect. The notification was accordingly struck down. From the above, it follows that delegated legislation does not confer powers on the executive to issue notification which are in derogation of the legislative intent itself. Delegated legislation involves delegation of rule making power of legislation and authorizes an executive authority to bring in force such rules, regulations and notifications for which it is authorized. The discretion conferred on the executive by way of delegated legislation is much wider. Such power to do acts by making rules, regulations and issuing notifications, however, are to be exercised within the four corners of the powers that are conferred. Besides, these do not empower the executive to do all such things which could be done by the legislature itself. In re Article 143, Constitution of India and Delhi Laws Act (1912) etc., AIR 1951 SC 332, a seven Judge Bench of Hon’ble the Supreme Court dealt with the power of modification which depended on the meaning of the words, “with such modification as it thinks fit”. These it was said were not unfamiliar words and were often used by careful draftsmen to enable laws which are applicable to one place or object to so adapted as to apply to another. The power of introducing necessary restrictions and modifications it was said was incidental to the power to apply or adapt the law and in Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [23] the context in which the provision as to modification occurs, it cannot bear the sinister sense attributed to it. The modifications are to be made within the framework of the Act and they cannot be such as to affect the identity or the structure or the essential purpose to be served by it. The power to modify certainly involves discretion to make suitable changes, but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes. The provision empowering an extraneous authority to introduce modifications in an Act had been nicknamed in England as “Henry VIII clause”, because that monarch was regarded popularly as the personification of executive autocracy. It was further said that it is to be borne in mind that the discretion given to modify a statue is by no means absolute or irrevocable in strict legal sense, with which aspect alone their Lordships were principally concerned in dealing with a purely legal question. In Rajnarain Singh v. Chairman, Patna Administration Committee, Patna and another, AIR 1954 SC 569 a five Judge Bench of Hon’ble the Supreme Court held that an executive authority can be authorized to modify either existing or future laws but not in any essential feature. Exactly what constitutes essential feature cannot be enunciated in general terms. But this much was clear that it could not include a change of policy. It was said that as a part of an Act could be extended by an executive authority it followed that a Section or Sections also could be picked out and applied. Also for the same reason that the whole or a part of an Act could be modified, it followed that a Section also could be modified. But when a Section of an Act was selected for application, whether it was modified or not, it was to be done so as not to affect any Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [24] change of policy, or any essential change in the Act regarded as a whole. In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554 a five Judge Bench of Hon’ble the Supreme Court held that the distinction between conditional legislation and delegated legislation was that, that in the former the delegate’s power was that of determining when a legislative declared rule of conduct would become effective and the latter involved delegation of rule making power which constitutionally might be exercised by the administrative agent. This meant that the legislature having laid down the broad principles of its policy in the legislation could then leave the details to be supplied by the administrative authority. In other words by delegated legislation the delegate completed the legislation by supplying details within the limits prescribed by the statute and in the case of conditional legislation the power of legislation was exercised by the legislature conditionally leaving to the discretion of an external authority the time and manner of carrying its legislation into effect as also the determination of the area to which it was to extend. Thus when the delegate was given the power of making rules and regulations in order to fill in the details to carry out and sub-serve the purposes of the legislation the manner in which the requirements of the statute were to be met and the rights therein created to be enjoyed, it is an exercise of delegated legislation. But when the legislation was complete in itself and the legislature had itself made the law and the only function left to the delegate was to apply the law to an area or to determine the time and manner of carrying it into effect, it is conditional legislation. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [25] A Full Bench of this Court in Sehajdari Sikh Federation v. Union of India, 2012 (1) RCR (Civil) 384 considered the entire law on the aspect of delegated legislation where voting rights in Shiromani Gurudwara Prabandhak Committee polls were denied to Sehajdari Sikhs by a notification. The notification denying such rights was quashed in the said case. The Full Bench found it to be wholly illogical to say that an action taken by the executive as a delegate under the Punjab Reorganization Act, 1966 would become a part of the Constitution. It was said that since a reorganization law itself was the creation of the Constitution, an administrative or a quasi-judicial action taken therein could be equated even to a degree with any provision of the Constitution. It was said that the notification, order or a direction issued by a delegate under the Reorganization Act neither acquired the status of neither a constitutional provision nor a parliamentary legislation. Such a decision, even if it categorized as legislative or administrative or quasi-judicial, could be quizzed on any of the grounds on which a plenary legislation could be assailed, in addition to the plea that such a decision also ran counter to the statue under which it was made or that it was per se arbitrary, unreasonable, violative of the land or had been issued in colourable exercise of power. In the circumstances, it is to be noticed that the mandate of the constitutional provision of the proviso to Article 243 R (2) (a) of the Constitution is clear to the effect that persons referred to in paragraph (i) of Article 243 (2) (a), that is, persons having special knowledge or experience in Municipal Administration may have representation in the composition of the Municipality; however, in view of the proviso below Article 243 R (2) (a) the said Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [26] persons referred to in paragraph (i) would not have the right to vote in the meetings of the Municipality. These words are clear and the delegated authorities are to act in consonance with the spirit and intent of the constitutional provisions. The Presidential notification dated 24.05.1994 issued by the Executive in exercise of powers conferred by proviso to Article 243 ZB does modify Article 243 R of the Constitution by providing that in clause (1) of Article 243 R for the words, “all the seats in a Municipality shall be filled by persons chosen by direct election”, the words, “Municipal Corporation, Chandigarh may comprise of nine members to be nominated by the Administrator either by name or by the office and ten members chosen by direct election” are to be substituted. However, the said notification does not confer any voting right to the nine members to be nominated by the Administrator either by name or by the office. The voting rights have been conferred by the Parliament by enacting Section 4 (3) (ii) of the MC Act, which envisages that the Corporation, i.e. the Municipal Corporation, Chandigarh shall be composed inter alia of nine members with ‘voting rights’ to be nominated by the Administrator, from amongst the persons who are eminent or distinguished in public affairs or those who have special knowledge or practical experience in respect of Municipal Administration. The conferring of voting rights on the nominated members in fact is specifically prohibited by the proviso to Article 243 R (2) (a) of the Constitution and cannot be enacted indirectly by way of a Legislative Act in violation of the Constitutional provisions. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [27] Even otherwise, the right to vote is not a fundamental or a civil right and is a statutory right and outside the statute, there is no right. In N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem Dist., and others, AIR 1952 SC 64, a five Judge Bench of the Supreme Court said that the right to vote or stand as a candidate for election is not a civil right but a creature of statute or special law and must be subject to the limitations imposed by it. It was further said that strictly speaking it is the sole right of the legislature to examine and determine all matters relating to elections of its own members, and if the legislature takes it out of its own hands and vests it in a special tribunal and entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it. In Jyoti Basu v. Debi Ghosal, AIR 1982 SC 983, it was held that a right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So, is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. Therefore, rights relating to elections are not fundamental or for that matter even civil rights. These are purely creature of the statutes and outside them, there is no right. From this, it would follow that the legislature has in terms of the proviso to Article 243 R (2) (a) of the Constitution clearly provided that the persons referred to in paragraph (i) of Article 243 R (2) (a), i.e. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [28] persons having special knowledge or experience in Municipal administration, i.e. the nominated members, which the legislature of a State may by law provide for the representation in the municipality, shall not have the right to vote. A Five Judge Bench of this Court in Sanjeev Kumar Verma v. Director, Urban Local Bodies, Chandigarh and others, 2015 (1) R.C.R. (Civil) 991, considered the case of the President of Municipal Committee, Naraingarh against whom in a meeting of the Municipal Committee held on 03.08.2012, a ‘No Confidence Motion’ under Section 21 of the Haryana Municipal Act, 1973 read with Rule 72-A of the Haryana Municipal Election Rules, 1978 for his removal as President, was passed. Notices for the meeting for removal were given to fifteen members, i.e. thirteen elected and two nominated members. Only nine elected members came present in the meeting and unanimously passed the ‘No Confidence Motion’ against the appellant in the said case namely Sanjeev Kumar Verma by way of secret ballot. Since the ‘No Confidence Motion’ was passed by nine out of the thirteen elected members of the Municipal Committee, it was declared to be carried out with support of two-thirds of the elected members of the Committee. On the passing of the resolution, the appellant was deemed to have vacated his office. The appellant by way of a writ petition in this Court challenged his removal which was dismissed by the learned Single Judge by holding that for the purpose of carrying out ‘No Confidence Motion’, two-third majority of the elected members, as envisaged under Section 21 (3) of the Haryana Municipal Act was required and the members nominated under Section 9 (3) (ii) of the said Act were not to be taken as elected members for the purpose Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [29] of counting two-third of the total members of the Committee for passing ‘No Confidence Motion’. It was held that such an interpretation would be contrary to the plain language of Section 21 (3)3 of the Haryana Municipal Act and would further run counter to the true spirit of the legislative intent in framing the said Haryana Municipal Act. The appellant challenged the said order of the learned Single Judge by way of a Letters Patent Appeal, which was considered by the Full Bench. It was contended on his behalf that the resolution of no confidence was not passed against the appellant with the support of two-thirds ‘elected members of the Committee’. According to him, ‘elected members’ would include the two nominated members who were elected from larger constituencies, thus, the total elected members came to fifteen and two-thirds of which would be ten while the resolution of no confidence was passed only by nine elected members. A Full Bench of this Court in the said case inter alia considered the question whether in counting/calculating ‘not less than two-thirds of the elected members of the Committee’ for successful carrying out the ‘No Confidence Motion’ against the President or Vice-President, as provided under Section 21 (3), the nominated members who had been nominated under clauses (ii) and (iii) of Section 9 (3) by virtue of their being Members of the House of People and the Legislative Assembly, or Members of the Council of States, were to be taken into consideration. The further question that was considered was whether the Members of the State Legislative Assembly, the House of People or the Members of 3 Section 21 of the Haryana Municipal Act relates to motion of no confidence against the President or Vice President. It is provided that a motion of no confidence against the President or Vice President may be made in accordance with the procedure laid down in the Rules. Sub Section (3) envisages that if the motion is carried with the support of not less than two-third of the elected members of the Committee, the President or Vice President, as the case may be, shall be deemed to have vacated his office. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [30] the Council of States, who had been nominated as members of the Committee under clause (ii) and (iii) of Section 9 (3) by virtue of their being Members of the House of People and Legislative Assembly, or the Council of States, could be deemed to be the ‘elected members of the Committee’ merely because they were elected Members of the House of People and Legislative Assembly, or the Council of States, particularly in view of Section 13-B of the Haryana Municipal Act. The Five Judge Bench of this Court referred to Article 243 R of the Constitution and held that the said Article provides that all the seats in the municipality shall be filled by the persons chosen by direct election from the territorial constituencies in the Municipal area. This part of Article 243 R of the Constitution, it was held, was mandatory as the word ‘shall’ had been used. In Sub- Article (2) of Article 243 R, the State Legislation had been given the power to enact laws with regard to the manner of election of the Chairperson of a Municipality and also for providing representation in a Municipality of - (i) persons having special knowledge or experience in Municipal administration; (ii) the members of the House of the People and Members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area. Insofar as the voting rights of such nominated members in the meetings of the Committee were concerned, it was said, that it had been categorically stated that the persons mentioned in clause (i) of Article 243 R (2) (a) shall not be given the right to vote in the meetings of the Municipality. However, with regard to the persons mentioned in clauses (ii), (iii) and (iv) thereof, nothing had been mentioned and it had been left to the Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [31] wisdom of the State Legislature whether to give them the voting rights in the meetings of the Municipality or not. Thus it was clear that Article 243 R recognized two types of members, i.e., the elected members and the nominated members of the Municipality. There was nothing in Article 243 R which provided that the nominated members of the Municipality were to be considered as elected members of the Municipality. Rather, it was said that sub Article (1) provided that save as provided in clause (2), all the seats in a Municipality shall be filled by persons chosen by direct elections from the territorial constituencies in the Municipal area. Thus, it was held that no intention was found in Article 243 R that the nominated members would be deemed to be the elected members of the Committee. Besides, there was also no mandate under Article 243 R that such kind of nominated members under clauses (ii) and (iii) must be given the right to vote in the election and removal of President and Vice-President of the Committee. It was finally concluded by the Full Bench that in the opinion of their Lordships, the expression \"elected members\" did not require any further interpretation. These words were plain and simple. Elected members meant the members of the Committee who had been chosen through direct election from the territorial jurisdiction of the Municipality in the municipal area. It could not be said that the elected members naturally would include the members who became members of the Committee by virtue of they having been nominated as members of the Committee being elected Members of the House of People, Legislative Assembly or Council, as the case may be. Merely because the nominated member may be having better understanding of issues when considered in a larger Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [32] perspective being member of Parliament and Legislative Assembly, they could not be given the status of 'elected member of the Committee' and included in the expression \"elected member\" used in Section 21 (3) of the Haryana Municipal Act. The law laid down by the Full Bench of this Court in the case of Krishan Kumar Singla v. State of Haryana and others, 2000 (2) RCR (Civil) 101, was held to be contrary to the plain provisions of Sections 13-B and 21 (3) of the Haryana Municipal Act. In the light of the above, the questions that were referred were answered by holding that, (1) the members of the House of People and the Legislative Assembly of the State or the Council of the States, who had been nominated as members of the Committee under clauses (ii) and (iii) of Section 9 (3) of the Haryana Municipal Act by virtue of their being members of the House of People, Legislative Assembly of the State or the Council of the States, could not be deemed to be `elected members of the Committee'; besides, (2) in counting/calculating not less than two- third of `the elected members of the Committee' for successfully carrying out the ‘No Confidence Motion’ against the President or Vice-President as provided under Section 21 (3) of the Haryana Municipal Act, the nominated members who had been nominated under clauses (ii) and (iii) of Section 9 (3) could not be taken into consideration. Therefore, the clear intent of constitutional provision of the proviso to Article 243 R (2) (a) is that the nominated members referred to in paragraph (i) thereof do not have the right to vote in the meetings of the municipality and this cannot be incorporated in a legislation in derogation to the constitutional mandate. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [33] This would be applicable even for the election of the Mayor of the Municipal Corporation, Chandigarh as Section 60 of the MC Act envisages that the meeting for election of a Mayor is to be convened by the Divisional Commissioner who is to also nominate Councillor who is not a candidate for such election to preside over the meeting. As has already been noticed that the proviso to Article 243 R (2) (a) enjoins that the persons referred to in paragraph (i), i.e., the nominated members do not have the right to vote in the meetings of the municipalities; therefore, it follows that in the meetings to be convened for election of Mayor, the nominated members who have no right to vote in the meetings of the municipalities would have no right to vote even in the meetings for the election of the Mayor of the Municipal Corporation, Chandigarh. From the above discussions, it follows that:- (a) The constitutional mandate of the proviso to Article 243 R (2) (a) is that the persons mentioned in paragraph (i) i.e. relating to representation in a municipality of persons having special knowledge or experience in Municipal Administration or the nominated members of the Municipal Corporation, Chandigarh do not have the right of voting in the meetings of the Municipality. (b) In the meeting to be convened for the election of Mayor, the nominated members who have no right to vote in the meetings of the municipalities would have no right to vote even in the meetings for the election of the Mayor of the Municipal Corporation, Chandigarh Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [34] (c) The proviso to Article 243 ZB of the Constitution in its application to the Union Territories enables the President by notification to direct that the provisions of Part IX A of the Constitution shall apply to Union Territory or part thereof subject to such exceptions, modifications as he may specify in the notification. However, the exceptions and modifications that are to be specified are not to be contrary to or in derogation to the provisions of the Constitutional scheme. (d) The exceptions and modifications that are to be specified by the President in terms of the proviso to Article 243 ZB are to be in consonance with the Constitutional scheme and exercise of excessive delegation, is impermissible and is to be invalidated. (e) A delegatee can exercise the powers to the extent of the delegation as held in Delhi Laws (supra). (f) The Presidential notification dated 24.05.1994 does not in any manner confer on the legislature to make laws conferring voting rights to the nominated members. (g) The nominated members to the House of the Municipal Corporation not having the right to vote by the prohibitive provisions of the Constitution cannot be conferred such rights in exercise of a legislative enactment. Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document CWP No.20346 of 2016 (O&M) [35] (h) The Parliament would be a legislature for the Union Territory and would be controlled by the provisions of Article 243 ZB insofar as the Union Territory of Chandigarh is concerned. In view of the above, the provisions of Section 4 (3) (ii) of the MC Act are liable to be invalidated to the extent voting rights have been conferred on the nominated members of the Municipal Corporation, Chandigarh as these are clearly in violation of the Constitutional mandate of the proviso to Article 243 R (2) (a). In the circumstances, the writ petition is allowed and the provisions of Section 4 (3) (ii) of the MC Act to the extent these provide voting rights to the nominated members of the Municipal Corporation, Chandigarh are invalidated and are quashed. There shall be no order as to costs. (S.S. Saron) Acting Chief Justice (Avneesh Jhingan) Judge 23.8.2017 amit/A.Kaundal Note:- (a) Whether the order is speaking/reasoned: Yes (b) Whether the order is reportable : Yes Amit Kaundal 2017.09.08 18:09 I attest to the accuracy and integrity of this document "