MODI, J. - (1.) THIS is a writ application by Arjandas under Art. 226 of the Constitution by which an order of the State Government dated the 30th January, 1961 superseding the Municipal Council of the City of Ajmer and appointing the Collector, Ajmer, to exercise during the period of the supersession all powers and duties of the said Council is sought to be quashed.
(2.) THE petitioner was a member of the Ajmer Municipal Council having been elected to the Ajmer Municipal Committee as it was then called at the last general election held on the 31st January, 1957, under the Ajmer-Merwara Municipalities Regulation No. VI of 1925. It is not in dispute that the first meeting of the aforesaid Municipal Committee was held on the 10th February, 1957, and its normal term of three years was due to expire on the 9th February, 1960. Meanwhile the Rajasthan Municipalities Act, 1960 (Act No. 38 of 1959) (hereinafter called the Rajasthan Act) had come into force and the Ajmer Municipal Committee was to be known as the Ajmer Municipal Council under the new Act. It is common ground that by a notification dated the 23rd February, 1960, published in an Extraordinary issue of the Rajasthan Rajpatra the term of this Council was extended under Sec. 11 of the Rajasthan Act upto the 30th June, 1960, or the formation of the new Council whichever was earlier. That this notification was issued after the normal three-year term of the Council had ended on the 9th February 1960 is not disputed before us. By another notification dated the 14th June, the term of the Council was further extended upto the 30th September, 1960 until the formation of the new Board whichever was to be earlier. No new Council was, however, formed, with the result that a further extension in the term of the Council was granted upto the 31st January, 1961, by a notification dated the 31st October, 1960 published in the Rajasthan Rajpatra dated the 1st November, 1960. It may be noted in passing that the term of the Council had expired on the 30th September, 1960, and the last-mentioned notification was issued not earlier than the 31st October, 1960, after the expiry of the extended term. THEn by a notification dated the 30th January, 1961 which is impugned before us, the State Government superseded this Council and appointed the Collector Ajmer by virtue of his office to exercise all the powers and duties thereof. This notification is in the following terms: - "notification. Jaipur, January 30, 1960. No. F. 1 (36) L. S. G. /60- Whereas the term of the Municipal Council of the City of Ajmer will expire on 31st January, 1961; And whereas the State Government is satisfied that the new Municipal Council of the City of Ajmer is not likely to be formed shortly; Now, therefore, in exercise of the powers conferred by sub-sec. (1) read with sub-sec. (2) of Sec. 295 of the Rajasthan Municipalities Act, 1959 (Rajasthan Act 38 of 1959), the State Government hereby supersedes the said Municipal Council of the City of Ajmer with immediate effect for a period of six months or till the day immediately preceding the date of the first meeting of the said Council to be re-constituted whichever may be earlier. Further, in exercise of the powers conferred by sub-sec (5) of the said Sec. 295 of the said Act, the State Government hereby appoints the Collector, Ajmer, by virtue of his office to exercise, during the aforesaid period of supersession, all powers and duties of the said Council. " By Order of the Governor, A. K. Roy, Secretary of the Government. " THE case of the petitioner is that the aforesaid notification was entirely illegal and of no effect and deserves to be quashed. This contention, broadly speaking, is sought to be supported on two grounds. THE first is that the order of supersession was illegal inasmuch as by virtue of the provisions of Sec. 11 (2) of the Rajasthan Act, the term of the members of the Council must be deemed to have been extended to, and so as to expire with the day immediately preceding the date of first meeting of the new Board when it is formed. It is further argued in this connection that by virtue of the Rajasthan Municipalities (Transitory Provisions) Order 1960 (No. III) of 1960 issued under Sec. 301 of the Rajasthan Act, the term of the superseded Ajmer Municipal Council was extensible upto a period of two years instead of only one year with effect from the date of the expiry of its original term with the result that there was no legal hindrance to this Council working upto the 9th February, 1962. That being so, it is contended that the term of this Council stood automatically extended upto the 9th February, 1962, or the date of the first meeting of the new Council whenever it should come into existence by virtue of the provision contained in sub-sec. (2) of Sec. 11 and that the State Govt. , had no jurisdiction to order the supersession of the Council as it has done apparently on the ground that its term had come to an end. It was also brought to our notice in this connection that the Govt. , had granted extensions to this Council from time to time so long as its chairman was a nominee of the ruling party in the State upto the 24th Nov. , 1960, and that it resorted to the expedient of supersession simply because at the election for the office of the Chairman held on the 6th November, 1960, in consequence of the removal of the aforesaid chairman by a motion of no-confidence, its nominee was defeated and another chairman not belonging to the ruling party happened to be elected. THE second contention was that the State Government had indicated no reason or reasons for the supersession of this Council in its impugned order, and that there was nothing to indicate that the Government was satisfied that the Council had defaulted in the performance of its lawful duties or had exceeded or abused its powers. It was further submitted in this connection that no action could be taken against the Council under Sec. 295 of the Rajasthan Act unless it had been afforded a reasonable opportunity of being heard in defence of the action that was sought to be taken against it. We shall now proceed to consider both these grounds in the order in which they have been set out above. But before we do so, we think it proper to reproduce Secs. 11, 23 and 295 in so far as they are material for the purpose of the determination of the questions which have arisen before us: - 11. Term of office.- Except as provided in Sec. 295, every board shall continue for three years from the date of the first meeting thereof; Provided that the State Government may, by order published in the official Gazette, extend the term of a board from time to time so however that the total extension does not in the aggregate exceed one year. (2) Notwithstanding anything contained in sub-sec. (1), the term of the members of an outgoing board shall be deemed to extend to and expire with the day immediately preceding the date of the first meeting of the newly constituted board. 23. General electrons.- (1) Except as provided in Sec. 295 there shall be general election or appointment, co-option or nomination, as the case may be, to a board before the expiry of the term or extended term, as the case may be, of the board under Sec. 11 on such date or dates as the State Government may, by notification in the official Gazette appoint in that behalf. 295. Power of Government to dissolve or supersede board in case of incompetency: - (1) If at any time the State Government is satisfied that the board is not competent to perform, or persistently makes default in the performance of, the duties imposed on it by or under this Act or otherwise by law, or has exceeded or abused its powers, the State Govt. may, by an order published, along with the reasons thereof, in the official Gazette declare , the board to be incompetent or in default, or to have exceeded or abused its powers, as the case may be, and may - (a) dissolve such board as from a date to be specified in the Order of dissolution, or (b) supersede it for a period, not exceeding six months to be specified in the order of supersession; Provided that no action shall be taken under this sub-section unless the board has been afforded a reasonable opportunity of submitting an explanation and of being heard if the board so desires; Provided further that an order under clause (a) shall not be passed - (i) unless the State Government has drawn up a statement setting out distinctly the charges against the board and sent the same for inquiry in the prescribed manner and findings to a tribunal consisting of a chairman and not less than two members, constituted in the prescribed manner, or (it) otherwise than in conformity with such findings. (2) The provisions to sub-section (1) shall not apply when a board is dissolved or superseded for the reason that all or a majority of its members have resigned or that the term of office thereof has expired. (3 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (4 ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (5) When a board is superseded under sub-sec. (1), the following consequences shall enuse: (a) all members of the board including the chairman and the vice-chairman shall forthwith vacate their respective offices but without prejudice to their eligibility for re-election or re-appointment; (b) all powers and duties of the board shall, during the period of supersession specified under clause (b) of sub-sec. (1), as calculated in accordance with sub-sec. (3), be exercised by such person or persons as the State Government may from time to time appoint in that behalf; (c) all property vested in the board shall, during such period vest in the State Govt. ; and (d) the board shall be reconstituted in the manner laid down in clause (b) of sub-sec. (4) before the expiry of such period and start functioning immediately upon such expiry. Now the first and the foremost question which falls for determination before us is what is the precise meaning of sub-sec. (2) of Sec. 11. Let it be remembered that its sub-sec. (1) lays down that every board shall continue in office for three years from the date of the first meeting thereof subject to the provisions of Sec. 295, and further that the prescribed period of three years could be extended from time to time untill it does not in the aggregate exceed one year. We pause here for a moment to point out that by clause (3) of the Raj. Municipalities (Transitory provisions) Order of 1960, for the words 'one year' in the proviso to sub-sec. (1) of Sec. 11, the following words have been substituted, namely, "two years, the expiry of the term of any board or council notwithstanding. " Then comes sub-sec. (2 ). At first sight, it seems to provide that irrespective of the provision contained in sub-sec. (1) an outgoing board shall continue in office until the day next preceding the date of the first meeting of the new board whenever it is formed. One can hardly fail to be struck by the incongruity of such a provision when in the first sub-section of this very section, the Legislature has thought fit to provide that the normal term of a board shall be three years from the date of its first meeting and that this term may be extended from time to time so as to extend to one year in the aggregate or upto two years during the transitory period of one year as provided under the Rajasthan Municipalities (Transitory Provisions) Order, 1960 and no more. In other words, if sub-sec. (2) makes a sweeping provision that the term of an outgoing board shall extend to and expire with the day immediately preceding the date of the first meeting of the new board whenever it comes into existence, then a serious question arises, what is the use of providing for extensions at all, nay, for putting a limit to the maximum period for which an extension could be granted. Read in this extensive way, we have no doubt whatsoever that sub-sec. (2) of sec. 11 would render the proviso to sub-sec. (1) almost meaningless. Then a further difficulty appears to us to arise, if this provision is interpreted so as to support the theory of automatic extension in view of its wide language, and that is that a board or council could not be superseded or dissolved for any reason whatever within such an extended period. On general principles, we have no manner of doubt that the State Government would be perfectly empowered to do so, for the simple reason that if the ordinary term of a board or council which is of three years' duration could be curtailed by an order of supersession lawfully made, say, for misconduct under Sec. 295, we can see no valid justification why the same body could not be superseded during its extended term, provided that the Government should be satisfied that such a course was called for. Our difficulties do not end here. A critical reading of sec. 295 shows (this provision may appear to be somewhat unusual) that one of the grounds on which a municipal board or council may be superseded under the Rajasthan Act is that its term of office has come to an end for some reason it has not been possible to hold a fresh general election under sec. 23. See sub-section (2) of of Sec. 295. Now, this provision would be completely annihilated if the broad meaning, which sub-section (2) seems prima facie to bear, is put on it. Because, in that case the term of the sitting board could hardly be said to "expire" within the meaning of S. 295 on the doctrine of automatic extension supposed under sec. 11 (2) as the passing out of the existing board would always be contemporaneous with the coming in of the new board, and no opportunity or occasion for supersession on the ground of expiry of the term could possibly arise. If that was so, we are disposed to think that it should have been entirely futile for the Legislature to provide for supersession of a board on the ground that its term had expired. Sec. 23 of the Rajasthan Act also provides that subject to the provisions of sec. 295 a general election shall be held prior to the expiry of the normal term of a board or the expiry of the term as extended under sec. 11. This in our view unmistakably reflects the intention of the Legislature that normally speaking a municipal board or council must cease to exist on the expiry of its ordinary term of three years unless the same is extended by a positive order under the proviso to sec. 11 (1), and before the expiry of either term as the case may be, a fresh general election must be held except where the board has been superseded under sec. 295 in the meantime. This is a further provision which, in our opinion, goes a long way to show that the Legislature could not have provided for or favoured an automatic wholesale extension of the life of a board until the first meeting of the succeeding board whenever it may come into existence in a sweeping fashion such as a superficial reading of sec. 11 (2) might suggest. Having regard to all these considerations, we feel quite justified in thinking that the provision contained in sub-sec. (2) of Sec. 11 should be so interpreted as to be in harmony with sub-sec. (1) thereof and the cognate provisions contained in Secs. 23 and 295. Learned counsel for the petitioner frankly conceded that, interpreted in its wide sweep, sub-sec. (2) of Sec. 11 is bound to come into conflict with sub-s. (1) thereof and further that a case for harmonious interpretation of these two provisions clearly arose even according to him. The view which learned counsel then strongly pressed for our acceptance as a way out of the aforementioned difficulties was that the proviso to sub-sec. (1) was really intended to govern cases where extension may have been granted from time to time in the term of a board, and where such was the case, sub-sec. (2) would not come into play at all. But where no extension had been granted, and, due to some lapse on the part of the Government, the term of a board had expired and a general election had not been held and the board continued in existence, the Legislature thought fit to provide that the term of the members of an outgoing board was to be deemed to extend to and expire with the first meeting of the next or the succeeding board so as to provide for continuity of municipal administration. Such an interpretation is undoubtedly, plausible but, in our opinion, it is open to the various objections which we have set out above. It seems to us that, in essence, it is a representation in a modified form of the same interpretation which we have discussed and rejected above. We should also like to point out here that the acceptance of this interpretation may lead to abuse, and it may be possible for the party in power to interminably continue in power a municipal board or council by simply not holding elections in the case of such municipal councils wherein its representatives may be in majority or otherwise hold a predominant position. On having carefully weighed the pros and cons, we have definitely come to the conclusion that the intention of the Legislature in enacting this provision was not and could not have been to provide for an automatic extension of the term of a municipal board or council where the Government might have failed or forgotten to extend its term by an affirmative order to that effect and that the meaning of this provision is a very limited one. The real import and effect of this provision, to our mind, is to regularise the interregnum which may conceivably pass between the term of the outgoing board and the coming in of a new board which has already been elected, and is waiting to come into office. Not inconceivably, occasions would arise where the existing board's term of office has come to an end and a new board has come to be elected, but there is time lag between the expiry of the normal or extended term of that board and the holding of the first meeting of the new board which has already been elected but has not actually got into office by holding its first meeting. It is in this type of cases that the Legislature has thought fit to provide by a legal fiction that even though the term of the outgoing board had expired and it would normally not be open to it to function after such expiry, it shall still be deemed that its term would extend to and expire only with the day immediately preceding the date of the first meeting of the new board. In other words, this provision is called into operation only in those cases where a new board has already been constituted but is still waiting to hold its first meeting and get into office while the old board has out-lived its term but has not been actually replaced by the new one. The key to proper meaning of this provision in our opinion rests in the phrase "preceding the date of the first meeting of the newly constituted board". It speaks of not a board which has yet to be formed in futuro but the board which has been already constituted albeit incapable of functioning and there is a short duration of time may be of a few days in between because the new board has not been able to hold its first meeting for one reason or another and the Legislature seems to have made this provision to enable the outgoing Board to function in the meantime to bridge a gap and provide for the continuity of the municipal administration which otherwise may possibly lead to untoward consequences in the absence of such a provision. Viewed in this limited perspective, sub-sec. (2) seems to us to make, on the whole, a useful provision without in any way impinging upon the territory of sec. 11 (1) or of secs. 23 and 295 of the Rajasthan Act. We hold accordingly.
(3.) IF this then is the correct meaning to put on sub-sec. (2) as we think it is, the petitioner cannot receive any assistance from it. Here was a case of a board whose term of office as extended had expired and there was no newly constituted board waiting to take office and hold its first meeting, and, consequently, there was no question of any automatic extension of its term within the meaning of sec. 11 (2) as we have felt persuaded to interpret above. And that being so, we hold that it is entirely fallacious to think that its term was automatically extended to an indefinite point of time which would be in the womb of future depending upon the pleasure of the Government of the day to hold new elections and bring into existence a new council. It is true that its term could yet be extended by the State Government up till the 9th February 1962 if the latter so thought fit; but that is a very different thing from saying that its term would necessarily enure without an affirmative or positive order of extension up to that date or that the Government was legally bound to extend it until that date. At this stage, we may also dispose of a subsidiary argument which learned counsel for the petitioner raised before us to bring his case within sub-sec. 11 of the Rajasthan Act on the interpretation that he sought to place on it. Quite obviously the Ajmer Municipal Council was granted more than one extension after the expiry of its normal term on the 9th February, 1960. If so, even on his own interpretation, sub-sec. (2) of Sec. 11 would not be called into operation at all. Learned counsel, however, endeavoured to surmount this difficulty by saying that the very first extension which was given to this council on the 23rd February, 1960, came to be given to it after the expiry of its term on the 9th February, 1960, and such an extension was valid in law, and, therefore, of no effect. See Arjun Singh Vs. Tek Chand (1) wherein the principle is laid down that the term of a board cannot be extended by the Government by a notification after it has expired and that such extension has to be made before the term of the board expires. On this reasoning, according, to learned counsel, the further extension granted was of no legal efficacy. It was submitted that the extension granted by the notification dated the 1st November, 1960, after the expiry of the board on the extended term of the board on the 30th September, 1960 was open to the same objection. The contention, therefore, was that these extensions being illegal, this was a case where the term of the board had not been extended at all under the proviso to sub sec. (1) of sec. 11, and, therefore, on the interpretation of sub-sec. (2) which we were strenuously pressed to accept by learned counsel for the petitioner, it was a case where no extension was really granted, and the board simply continued to exist and, therefore, it was entitled to the benefit of sub-sec. (2) as so interpreted. We have carefully considered this argument and think that it is devoid of all force. We wish in this connection to invite attention to clause {3} of the Rajasthan Municipalities (Transitory Provisions) Order, 1960 by which the phrase "one year" occurring in the proviso to sub-sec. (1) of sec. 11 has been substituted by the following words viz. "two years, the expiry of the term of any board or council notwithstanding" We may also point out here that the order of 1960 has been made under sec. 301 of the Rajasthan Act, which arms the Government with fairly extensive powers to make such adaptations alterations or modifications in the Rajasthan Act or make such other temporary provision as may be necessary for the purpose of facilitating the transition from the provisions of the old laws which have been repealed under the new Act to the new provisions of this Act. There is a proviso to this section which lays down that the Government shall not exercise the powers conferred by this section after the constitution of the first board under this Act. Thus the order of 1960 has been enacted to remain in force for a period of one year from the date of its publication in the Rajasthan Rajpatra which is the 27th May, 1960. The provisions of this Order would, therefore, remain in force upto the 27th May, 1961. Now as the proviso to sec. 11 has been amended in the manner we have set out above, we think that an extension could be granted by the Government during this transitory period even though the Board had already ceased to exist and its original or extended term had already expired. In this state of the law, the contention of learned counsel that this was a case not of a valid extension at all; and, therefore, it will be covered by sub-sec. (2) of sec. 11 is bound to lose all support even on the interpretation which he seeks to put on this subsection, and that being so, the case of this Council would still be covered by the proviso and not by sub-sec. (2 ). We may, however, make it clear that we mention this merely to point out that petitioner is not entitled to succeed even on the interpretation which he would have us accept and we should not be understood to say that we accept his interpretation as correct which as we have fully discussed above would lead to a highly anomalous situation. To conclude our discussion on this aspect of the case, it merely remains for us to say that the last extension granted by the State Government to the Ajmer Municipal Council expired on the 31st January, 1961, and that it was within its jurisdiction to extend it further or not and it is not for us to question the manner in which it has exercised its discretion in the present case. This brings us to the next contention namely whether the State Government was competent to supersede the board and appoint the Collector to exercise the powers and duties of the board in accordance with the provisions contained in Sec. 295 of the Rajasthan Act. A critical examination of Sec. 295 would show that certain conditions must be fulfilled before the Government could dissolve or supersede a board. As we are concerned with supersession here, we shall confine ourselves to a discussion of the provisions relating to supersession only. Broadly speaking, the scheme of this section is that a supersession may be ordered for a two-fold reason (1) incompetency to perform the duties imposed on the board by or under the Act or otherwise by law and (2) persistent default in the performance of its duties or exceeding or abusing its powers. If the State Government is satisfied that any of these conditions is fulfilled, then it is required to publish an order along with its reasons thereof in the official Gazette declaring the Board to be incompetent or in default or to have exceeded or abused its powers and supersede it for a period to be mentioned in the order of supersession but in no case can it exceed six months. Then there is a proviso which says that no supersession shall be ordered unless the board has been afforded a reasonable opportunity of submitting its defence. We must then note sub-sec. (2) which is very important for our present purposes. The effect of this provision is that the requirement of affording a reasonable opportunity of submitting a defence shall not be applicable when the board is superseded "for the reason that all or a majority of its members have resigned or that the term of office thereof has expired. " (The underlining, printed in italic, is ours ). " ;