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Judgment
Dipak Misra, J.
Invoking the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India the petitioners have prayed for declaration of Sections 13, 21, 43, 51, 51-A, 52, 175, 176 and 274 of the Cantonment Act, 1924 (for brevity ''the Act'') as ultra vires the Constitution and further to issue appropriate writ restraining the President of the Cantonment Board, Jabalpur from functioning as President of the Board and to exercise powers conferred u/s 51 of the Act. In addition, there is a prayer to declare that after coming into force Part IX-A of the Constitution the Cantonment Board stands dissolved and nullified.
Shorn of unnecessary details the requisite facts which are essential to be stated are that the Cantonment Board, Jabalpur has been constituted u/s 10 of the Act. In the pre-independent India the Cantonment was conceived and established as permanent military station created by the British Government in India for location of military formations, away from civilian towns or villages with a view to keep the Imperialist armed forces insulated from Indian nationalist influences. The Cantonments were constructed in the early 18th Century to keep the British Army of occupation away from civilian influences. With the passage of time civil or municipal administration of the Cantonment was provided for, but it was kept as a close preserve for the Imperialist administration of the British Rule. In the first half of 19th Century the concept of local government in civilian towns was developed as a measure of decentralization but, however, in Cantonment towns which had big civilian population continued to be ruled by military authorities. The consolidated Cantonment Act (XXIII of 1989) was passed for whole of India and this Act was repealed by the Cantonment Act XV of 1910 which gave municipal powers for taxation and administration of Cantonment Funds. All other matters regarding administration were left to be regulated by rules, named, Cantonment Code, 1912. Under the aforesaid Code committees were constituted which were entrusted with local administration of the Cantonment area. After the First World War certain events took place and the local administration of the cantonment and the civilian population gave rise to an agitation which culminated in formation of Committee, which submitted its report in 1921 known as Cantonment Reforms Committee. As pleaded, keeping in view the recommendation of the Committee the Legislature enacted Cantonment Act II of 1924. The said Act was passed by the Central Legislature under the Government of India Act, 1919. Though said Act was supposed to bring changes which were municipal in character having consensus with the concept of local self government it failed in its purpose as the powers of administration of Cantonment remained vested in the Military Officers and the rights of the civilian population were completely ignored. The elected element of the Cantonment had no voice in administration and the Constitution of the Board was so provided with the powers that confined to military officials.
According to the writ petitioners the object of creating Cantonment area is linked with the stationing of forces at a particular place and the surrounding vicinity reasonably for the services of such forces. Section 10 lays down that in every cantonment there shall be Cantonment Board. Section 13 deals with constitution of Cantonment Boards. It is contended that the Cantonment is divided into three classes, namely, Class-I, Class-II and Class-Ill and there is a base for such categorisation. The composition of Board is so provided that elected representatives of civilian are always in minority and the officials commanding the station enjoy such power that they can influence the decision and discretion of the other members and tilt the majority in their favour. It is put forth that such composition of Board is more of bureaucratic in nature rather than democratic. It is put forth that Cantonment Board is a local authority entrusted with municipal and governmental functions and it is constituted as a unit of self Government in respect of area which comprises of urban population. It is put forth that the local body has to be a democratic institution but the Cantonment Board is an anathema to democratic process. It has been pleaded that Entry 3 of List 1 of Seventh Schedule of the Constitution confers legislative powers on Parliament in respect of local self government in Cantonment area and the said constitutional provision clearly emphasizes the character of the Cantonment Authority as local self government but the same is not the position of the Cantonment under 1924 Act. It is urged that constitution of Cantonment Board as provided under sub-section 3 of section 13, has to be tested on the touchstone of democratic concept and though it is a part of local self government but its constitution still bears the seal of bureaucratic characteristics dominated by military officials and does not have the elected persons of the inhabitants of the area and it further does not enjoy the complete autonomy and, therefore, the constitution of the Board is ultra vires the Constitution of India as the democracy is the basic feature of Constitution. It is put forth that the rule of military officers is trusted upon the civilians who live in the Cantonment area and are subjected to various actions which are basically non-democratic in nature. It is also highlighted that the President of the Cantonment Board enjoys complete immunity from being made accountable for his acts whereas the Vice-President who is an elected person of Board is liable for removal. Criticism has been advanced in respect of Section 51 of the Act on the bedrock that it confers unbridled power on the President of the Board to overreach the decision of the Board and, thus, it ushers in total undemocratic scenario. A comparison has been made of the Cantonment Board with Municipal Corporations, Municipal Council and District Boards which also carry out the governmental function in the respective areas but a different activity is carried out by the Cantonment Board which is bereft of sufficient safeguards, and it fails to exercise properly the powers of other local authorities and there is encroachment in the rights of the civilians. There is assail to Section 52 of the Act on the foundation that it confers unanalyzed and unfettered powers on the Officers Commanding-in-Chief of the Command to issue directions for reconsideration of any proposal adopted by the Board despite resolution having been adopted by the Board in a valid manner in collective decision. There is no guidance or guidelines and it gives room for exercising of powers in a whimsical or fanciful manner which makes the provisions violative of Article 14 of the Constitution. There is absence of fairness in action and the civilian rights are constricted by the imposition of personal views. It is also averred that there is abuse of powers conferred under Sections 51 and 52 and sub-section (2) of Section 52 suffers from vice of excessive delegation of powers to an executive authority without providing any guidelines. It is also put forth that no duty is cast upon the Officer Commanding-in-Chief to record reasons for suspending, canceling the resolution of the Board or to extend the same for any duration. It is contended that Section 52 of the Act is antithesis to the conception of rule of law and good conscience and runs counter to the second limb of Article 14 of the Constitution and it destroys the basic feature of the Constitution. It is also put forth that Section 52 is repugnant to other provisions of the Act and there is obvious anomaly between the scheme of the Act and the said provisions. It is also set forth that Section 176 of the Act confers power on the President of the Cantonment Board to exclude from Cantonment persons refusing to attend hospital or dispensary. It is contended that conferral of such power is absolutely drastic and arbitrary and there is no rationale for the same and it suffers from the total arbitrariness and violates Article 19(1) of the Constitution of India. It also imposes unreasonable restrictions in fundamental rights guaranteed under the aforesaid Article. It is also pleaded that the said provision invites wrath of Article 21 of the Constitution. It is asseverated in the petition that Section 272 of the Act provides for appeal from executive orders and lays down a postulate that any person aggrieved by an order described in third column of Schedule-V may appeal to the authorities specified in that behalf in the fourth column which is actually an exercise in futility inasmuch as the right and procedure of appeal provided in the Act are unreasonable as it does not provide for effective and fair procedure in preferring the appeal. It is also contended that the executive authority is also the appellate authority, a part of same executive and military establishment and does not have the basic knowledge in law to acquit himself of functioning in a just, fair and reasonable manner and does not have proper instructions in law and judicial training. An example has been given how the power of appeal is totally a sysphean endeavour as General Officer Command-in-Chief of the command can pass order u/s 52 of the Act to suspend a resolution of the Board granting permission to erect a Building and the said order is appeasable u/s 274 to the same authority which makes the right of appeal illusory and fundamentally an erroneous one.
It is asseverated in the petition that the petitioner No.5 had applied for building sanction to erect a building complex on his land and after due consideration on his application the Board passed the resolution dated 27.1.89 granting sanction. The Board also recovered fee amounting to Rs. 1,11,020/ - in lieu of granting building permission on 29.4.89. On the basis of permission granted to the petitioner No. 5 he started construction on his land but to his utter surprise he received a notice u/s 185(1) of the Act on 28.12.90 ordering demolition of the building. A further notice dated 31.12.90 was served informing that the earlier resolution of the Board was cancelled in the Board''s meeting dated 28.12.90. Against the aforesaid order the petitioner preferred an appeal u/s 274 of the Act but there is no hope that the appeal would be dealt with fairly. Various aspects have been highlighted to show that how erroneously the Act has been working and no efforts have been made to change the provisions to bring it in consonance with the constitutional provisions. In this backdrop the prayers have been made as has been indicated hereinabove.
A counter affidavit has been filed by the respondent No. 3, Cantonment Board, Jabalpur. It is contended in the return that the Cantonment Act was repealed by the Act of 1910 and the Cantonment Code 1912 came into existence to deal with the matter of taxation and administration of Cantonment Board. It is put forth that there are always efforts on behalf of the Government to decentralize the municipal administration in the cantonments and as such cantonment Reformation Committee was formed in 1921 and submitted its report in October, 1921. The recommendations of the said Committee led to enactment of Cantonments Act, 1924. It is set forth that it is a misconception that the Military Officers have got more powers and the right of civilian is ignored. It is to be kept in mind that the Military Officers who have been vested with powers under the Act are acting in civil and not in military capacity. The Cantonment Board does not work in the interest of the military officers but acts for welfare of the residents and troops in the Cantonment. The allegation that the Health Officer and the Executive Engineer who are the ex- officio members of Class I Cantonment Board are employees of the Board and, therefore, they are subordinates to the President, Cantonment Board, is not correct, as they are statutory authorities and function under the Statute and, therefore, there is no jeopardy to the concept of rule of law. It is the further stand of the respondents that the Cantonments Act is totally a different and separate statute and its comparison with any other municipal law is inappropriate. Reliance has been placed on Entry 3 in List 1 of the Seventh Schedule and as such the constitution of the Cantonment Board is not unconstitutional. The Cantonment Board has a definite area with elected/nominated members and the Board is enjoying certain degree of autonomy being entrusted by such function and duties as usually entrusted to municipal bodies. It is put forth that functioning of the Cantonment Board is not undemocratic as similar provisions are in existence in Municipal Corporation Act, 1956. Reference has been made to Section 22 of the Act to highlight that President only regulates the conduct of the business in the Board meeting. It is put forth that special characteristics of certain provisions under the Act are in existence as the Army, Navy, Air Force or any part or any one are situated in the Cantonment for which a special regulatory framework has been provided under the Act and the paramount importance of the same cannot be allowed to go unchecked. The powers given to the President u/s 51 of the Act are stated to be essential and therefore justified. It is further put forth that the Board is also placed under limited control of the District Magistrate who is empowered u/s 51(2) of the Act to suspend action on a decision of the Cantonment Board if he considers it to be prejudicial to public health, safety or convenience. The powers of superintendence, control and direction as exercisable by the military authorities cannot be termed as unbridled. Emphasis has been laid u/s 52(1) (ii) of the Act to highlight that the concept of grant of reasonable opportunity is provided therein and, therefore, there is no anathema to the pristine doctrine of natural justice. The building restrictions put forth under the Act have been justified by highlighting that they have been made to avoid concrete jungle because of environmental pollution and health hazards to the residents in the Board. A reference has been made to the civilization that had developed as seen in Mohanzodaro and Harappa which existed almost in 3250 BC and on the planning features in the days of Mahabharat where there is a reference to Maya Sabha of Maya Mahal. There is also mention of Matsya Puran and 18 Vastu Shastra teachers out of which Kasyapa Maharshi and Brighu were famous who wrote Kasyapa Shilpa and Brighu Samhita.
According to the respondents the personal grievance that has been put forth in the writ petition would be dealt with appropriately. It is also stated that the petitioner No.5 has preferred an appeal as well as a writ petition.
It is noteworthy to mention here that during the pendency of the writ petition an amendment was filed which was allowed and while stating the facts of the writ petition it had been mentioned in a consolidated maner. Consequently an amendment to the return has been filed stating inter alia, that 73rd and 74th amendment of the Constitution are only guidelines for the local self government in the urban and rural areas and the said constitutional provisions do not affect the Cantonment Act and do not make the provision enshrined therein as null and void.
We have heard Mr. Ravindra Shrivastava, learned Senior Counsel for the petitioners and Mrs. Indira Nair, learned Senior Counsel and Mr. K.C. Ghildiyal, learned counsel for the respondents.
Mr. Shrivastava, learned Senior Counsel appearing for the petitioners has raised the following contentions:
(a) The Cantonment Act 1924 being a pre-constitutional law it has to be tested on the anvil of Article 372 of the Constitution and as the various provisions of the Act that are assailed cannot co-exist in harmony with the constitutional provisions the same are to be declared ultravires.
(b) Parts IX and IX-A of the Constitution which have been brought into existence by 73rd and 74th Amendment nullify the provisions of the Act and, therefore, the said Act cannot be allowed to operate.
(c) Under Article 243 there is conception of rural and urban areas and there is no contemplation of any other areas and hence, the Board which stands with a different phenomenon has to form a part of either of the areas.
(d) The concept of local self governance is paramount under the Constitution and the local bodies have autonomy and sovereign powers but the said power being not available under the provisions of the Act the said provisions are to be struck down being ultravires.
(e) If Articles 243B, 243C, 243D and 243M are studied with proper scrutiny they convey the idea that there are rural areas, urban areas and transitional areas and, therefore, the concept of Cantonment Board is an anathema to the framework of the constitution mandate.
(f) Article 5 243ZB, 243ZD and 243ZF do not admit of any Cantonment Board and the industrial township stand in a different footing altogether than the Board. The constitution of the Cantonment Board is absolutely undemocratic and hence, against the Preamble of the Constitution. It does not solve the purpose of local self government as no civilians are allowed to participate in a purposeful manner and even if there is any participation it is perfunctory in nature.
(g) Though at a first glance it may look that there are provisions for electing the Members of the Board but on a deeper probe it is perceivable that they are essentially undemocratic.
(h) The power of Management is peremptory to be rested with subject to supervision by the State Government but in the 1924 Act it is the reverse and such conceptual reversion cannot be given the sanction of law and cannot be countenanced in the Constitution prism, despite a positive, purposive and perceptual shift. The functioning of the Board exposits the necessity of administration by bureaucrats of the days of Yore and not that of collective participation which is the legislative necessity of democracy.
(i) The power conferred on the President u/s 51 of the Act is in unfettered, uncanalised and unbridled and in the absence of guidance it invites the wrath of Article 14 of the Constitution. If Section 52 of the Act is dissected it becomes quite clear that the powers so conferred on the authority are without any guidance and against the principles of fair play and thus violates the second limb of Article 14 of the Constitution. The power can be exercised in a capricious, cavalier and fanciful manner and the same tantamount to excessive delegation. Section 51A of the Act is also unconstitutional as there is no adequate check in exercise of said power.
(j) There is numerous and excessive delegation of power which is inconceivable in a democratic set up as bureaucracy cannot usurp the powers of Legislature. Section 174 has been couched in such a manner that there is no effective option except following the same.
(k) Section 176 suffers from the vice of unconstitutionality as total power has been conferred on the authority which plays foul to Articles 14 and 21 of the Constitution of India. In addition, they also spell disproportionate propensity.
(l) The provision of appeal provided in the Statute lunder the Act is an assail casesar to caesar''s wife and hence, the fundamental concept of adjudication has been given an unceremonious burial and judicial review being a part of basic structure of the Constitution, the provision dealing with the appeal is to be struck down as ultravires.
Combatting the aforesaid submissions it is contended by Mrs. Indira Nair, learned Senior Counsel and Mr. K.C. Ghildiyal, learned counsel for the respondents as under:
(i) The purpose of Cantonments Act 1924 rests in a different fulcrum and it cannot be adjudged as an ordinary enactment as concept of security is involved.
(ii) The concept of security and protection of territory which runs through the entire scheme of the Act the same cannot be regarded as arbitrary, and in any case there are elected members and hence, it is unseemly to state that there is no participation of the civilians.
The provisions which have been attacked on the bedrock that they do not have guidelines and confer unbridled powers are not so, as there is inherent safeguards when the provisions are read or construed properly.
(iv) There are provisions of appeal and it is not condign to contend that would not be effective; and a purfunctery exercise is being done.
(v) There is total control by the Central Government and, therefore, the cavil over the conferral of unbridled and uncanalised power is unsupportable.
(vi) The amended Constitutional provisions do not destroy the existence of Cantonment Board and to conceive or harbour such an idea is not sound but in a way tantamounts to procrast an scanning of law.
To appreciate the rivalised submissions raised at the Bar and to understand the basic attack, it is appropriate to refer to certain provisions of the Act. Section 3 of the Act reads as under:
Definition of cantonments.- (1) The Central Government may, by notification in the (official Gazette), declare any place or places in which any part of the Forces is quartered or which, being in the vicinity of any such place or places, is or are required for the service of such forces to be cantoment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment.
(2) Central Government may, by a like notification, define the limits of any cantonment for the aforesaid purposes.
(3) When any place is declared a cantonment for the first time, the Central Government may, until a Board is constituted in accordance with the provisions of this Act, by order make any provision which appears necessary to it either for the administration of the cantonment or for the constitution of the Board.
(4) Central Government may, by notification in the official gazette direct that in any place declared a cantoment under sub-section (1) the provisions of any enactment relating to local self-government other than this Act shall have effect only to such extent or subject to such modifications, or that any authority constituted under any such enactment shall exercise authority only to such extent, as may be specified in the notification.
Section 13 of the Act deals with constitution of cantonment boards. The said provision being relevant for the present purpose is reproduced below:
Constitution of Cantonment Board.-
(1) Cantonments shall be divided into three classes, namely:
(i) Class I Cantonments, in which the civil population exceeds ten thousand.
(ii) Class II Cantonments, in which the civil population exceeds two thousand five hundred, but does not exceed ten thousand; and
(iii) Class III Cantonments, in which the civil population does not exceed two thousand five hundred:
(2) For the purposes of sub-section (1), the civil population shall be calculated in accordance with the latest official census, or, if the (Central Government), by general or special order, so directs, in accordance with a special census taken for the purpose.
(3) In Class I Cantonments, the Board shall consist of the following members, namely:
(a) the Official Commanding the station or, if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Official Commanding-in-Chief, the command;
(b) an Executive Magistrate nominated by the District Magistrate;
(c) the Health Officer;
(d) the Executive Engineer;
(e) four military officers nominated by name by the Officer Commanding the station by order in writing;
(f) seven members elected under this Act;
(4) In Class II Cantonment, the Board shall consist of the following members, namely:
(a) the Officer Commanding the station, or, if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Official Commanding-in-Chief, the Command;
(b) an Executive Magistrate nominated by the District Magistrate;
(c) the Health Officer;
(d) the Executive Engineer;
(e) (i) in cantonments of which the civil population exceeds seven thousand five hundred, three military officers;
(ii) in cantonments of which the civil population exceeds five thousand, but does not exceed seven thousand five hundred, two military officers.
(iii) in cantonments of which the civil population does not exceed five thousand, one military officer nominated by name by the Officer Commanding the station by order in writing.
(f) such number of members elected under this Act as is equal to the number of members constituted or nominated by or under clauses (b) to (e).
(5) In Class III Cantonments, the Board shall consist of the following members, namely;
(a) the Officer Commanding the Station, or if the Central Government so directs in respect of any cantonment, such other military officer as may be nominated in his place by the Officer Commanding-in-Chief, the Command;
(b) one military officer nominated by name by the Officer Commanding the station by order in writing.
(c) one member elected under this Act.
(6) The Officer Commanding the station may, if he thinks fit, with the sanction of the Officer Commanding-in-Chief, the Command, nominate in place of any military officer whom he is empowered to nominate under clause (e) of sub-section (3), clause (e) of sub-section (4) or clause (b) of sub-section (5) any person, whether in the service of the Government or not, who is ordinarily resident in the cantonment or in the vicinity thereof.
(7) Every election or nomination of a member of a Board and every vacancy in the membership thereof shall be notified by the Central Government in the Official Gazette.
Section 20 which is also referred to is reproduced below :
President and Vice-President.- (1) The Officer Commanding the station if a member of the Board shall be the President of the Board:
Provided that when a military officer holding the office of President ceases to be the Officer Commanding the station merely by reason of a temporary absence from the station for a period not exceeding thirty consecutive days he shall not vacate the office of President.
(2) Where the Officer Commanding the station is not a member of the Board, the military officer nominated m his place under CI. (a) of sub-section (3), sub-section (4) or sub-section (5) of Sec. 13 shall be the President of the board.
(3) In every Board in which there is more than one elected member, there shall be a Vice-President elected by the elected members only and from amount their number in accordance with such procedure as the Central government may by rule prescribe.
Sections 21 and 43 are also to be quoted at this juncture for proper appreciation:
Term of office of Vice-President.-
(1) The term of office of a Vice-President shall be five years or the residue of his term of office as a member whichever is less.
(2) A Vice-President may resign his office by notice in writing to the President and, on the resignation being accepted by the Board, the office shall become vacant.
(3) A Vice-President may be removed from his office, at a special meeting convened for the purpose on a requisition for the same by not less than one-half of the elected members of the Board holding office, by a resolution passed by a majority of not less than two-thirds of the total number of elected members then holding office and attending and no member, other than an elected member, shall have the right to vote on the resolution.
Method of deciding questions.-(1) All questions coming before a meeting shall be decided by the majority of the votes of the members present and voting.
(2) In the case of equality of votes, the person presiding over the meeting shall have a second or casting vote.
(3) The dissent of any members from any decision of the Board shall, if the member so requests, be entered in the minutes, together with a short statement of the grounds for such dissent.
As there is assail to the provisions contained in Sections 51, 51A and 52 of the Act, we proceed to reproduce the same:
Power to override decision of Board.- (1) If the President dissents from any decision of the Board, which he considers prejudicial to the health, welfare, discipline or security of the Forces in the cantonment, he may, for reasons to be recorded in the minutes by order in writing, direct the suspension of action thereon for any period not exceeding one month and, if he does so, shall forthwith refer the matter to the Officer Commanding-in-Chief, the Command, the reference being made, save in cases where the Officer Commanding the area is himself the Officer Commanding-in-chief, the Command for the purposes of this Act, through the Officer Commanding the area who may make such recommendations thereon as he thinks fit.
(2) If the District Magistrate considers any decision of a Board to be prejudicial to the public health, safety or convenience, he may, after giving notice in writing of his detention to the Board refer the matter to the Central Government; and pending the disposal of the reference to the Central Government, no action shall be taken on the decision.
(3) If any Magistrate who is a member of a Board, being present at a meeting, dissents from any decision which he considers prejudicial to the public health, safety or convenience, he may for reasons to be recorded in the minutes and after giving notice in writing of his intention to the President, report the matter to the District Magistrate; and the President shall, on receipt of the such notice, direct the suspension of action on the decision for a period sufficient to allow of a communication being made to the District Magistrate and of his proceedings as provided by sub-section (2)
51-A. Power of Central Government to review. - The Central Government may, at any-time, review any decision or order of the Board or the Officer Commanding-in-chief, the Command, and pass such orders thereon as it may deem fit:
Provided that where it is proposed to modify a decision or order of the Board, reasonable opportunity shall be given to the Board to show cause why the decision or order in question should not be modified.
Powers of Officer Commanding-in-Chief, the Command, on reference under Sec. 51 or otherwise.- (1) The Officer Commanding-in-Chief, the Command, may at any time -
(a) direct that any matter or any specific proposal other than one which has been referred to the Central Government under subsection (2) of Sec. 51 be considered or reconsidered by the Board; or
(b) direct the suspension, for such period as may be stated in the order of action on any decision of a Board, other than a decision which has been referred to him under sub-section (1) of Sec. 51; and thereafter cancel the suspension or after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect, or that it shall be carried into effect with such modifications as he may specify.
(2) When any decision of a Board has been referred to him under sub-section (1) of Sec.51, the Officer Commanding-in-Chief, the Command, may, by order in writing.-
(a) Cancel the order given by the President directing the suspension of action; or
(b) extend the duration of the order for such period as he thinks fit; or
(c) after giving the Board a reasonable opportunity of showing cause why such direction should not be made, direct that the decision shall not be carried into effect or that it shall be carried into effect by the Board with such modification as he may specify.
Submission of Mr. Shrivastava, as has been indicated hereinbefore, that the said provisions and the provisions relating to appeal do not withstand scrutiny on the anvil of the constitutional provisions and being a pre-constitutional law it has to succumb to its corrosion.
At this juncture we think it condign to refer to Article 372 of the Constitution. The said Article deals with continuous in force of existing laws and it cannot contravene any provision of the Constitution. It was so stated in the case of Rabindranath Bose and Others Vs. The Union of India (UOI) and Others, . In this context we also refer with profit the view expressed by the Apex Court in the case of South India Corporation (P) Ltd. Vs. Secretary, Board of Revenue, Trivandrum and another, AIR 964 SC 207 wherein the Apex Court expressed the view that if there is any kind of irreconcilability between pre constitutional law and a provision of the Constitution, the latter shall prevail but such inconsistency must be spelt out from the express provisions of the Constitution.
Submission of Mr. Shrivastava is that after the amendments to the constitution have come into force the provisions which have been assailed in the writ petition run counter to the fundamental rights and various sub-articles of Article 243 of the Constitution. The learned Senior Counsel has laid immense emphasis on the concept of self governance. To pyramid the aforesaid submission he has placed reliance on the decision rendered in the case of Municipal Corporation of Delhi Vs. Birla Cotton, Spinning and Weaving Mills, Delhi and Another, . He has drawn our attention to a part of the paragraph 58 at page 1254 which reads as under:
(58) Local bodies are subordinate branches of governmental activity. They are democratic institutions managed by the representatives of the people. They function for public purposes and take away a part of the government affairs in local areas. They are political sub-divisions and agencies which exercise a part of State functions. As they are intended to carry on local self government the power of taxation is a necessary adjunct to their other powers. They function under the supervision of the Government.
He has also commended us to Entry 3 of List 1. The said entry reads as under:
Delimitation of cantonment areas, local self-government in such areas, the Constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.
It is proponed by him that if the Entry is understood in proper perspective it becomes luminescent that the cantonment authority is a local self government and the incorporation of Cantonment Board is provided for local self government within the cantonment area. In this regard he has also placed reliance upon the decision rendered in the case of Union of India (UOI) and Others Vs. Shri R.C. Jain and Others, . It is put forth by him that in the aforesaid case certain principles were culled out, namely, local self government must be a local independent entity; it must function in a definite area and must be directly or indirectly constituted of elected members of the inhabitants of the area; it must enjoy certain degree of autonomy and freedom to decide policy matters relating to administration; it must be entrusted by the statute with such governmental function and duties which are usual entrusted to Municipal body; and it must have to raise funds to raise their activities. The learned counsel has also commended us to the concept of self government as laid down in the case of State of U.P. and others etc. Vs. Pradhan Sangh Kshettra Samiti and others etc., wherein in paragraph 10 the apex Court ruled thus:
The High Court has also held that there is a substantial difference between the definition of ''gram sabha'' in Article 243 (b) of the Constitution and that in Section 2(g) of the Act and, therefore, the latter definition is ultra vires the provisions of the Constitution. Frankly, we have been unable to understand the reasoning of the High Court in that behalf. Article 243(b) of the Constitution defines ''gram sabha'' to mean "a body consisting of persons registered in the electoral rolls relating to a village comprised within the area of panchayat at the village level" whereas Section 2(g), of the Act defines ''gram sabha'' to mean(s) "a body established u/s 3, of the Act consisting of persons registered in the electoral rolls relating to village comprised within the area of a gram panchyat." The High Court has taken exception to the word ''established'' in Section 2(g), of the Act. It must be remembered in this connection that there is no provision in Part IX of the Constitution such as Section 3, of the Act for establishing a gram sabha for a village or a group of villages by such name as may be specified, and to name the gram sabha in the name of the village having the largest population when the gram sabha is established for a group of villages. One may have quarrel with the use of the expression ''established'' in this connection. For it is true to say that gram sabha is nothing but the electorate of the village or villages comprised within the area of a gram panchayat and in that sense there is nothing to be established as far as gram sabha is concerned. What is to be established is the panchayat for a particular area and for the electorate constituted in that area. The moment the panchayat area is declared the electorate comprised in it gets automatically constituted into the gram sabha. It no longer remains merely an electorate. Whether such constitution is called establishment is immaterial. These are matters of description. Having followed a particular pattern, the legislature has used the expression ''established'' also in connection with the gram sabha along with the panchayat. We, however, do not see how the use of the said expression makes any difference to the intendment of the said provision and how the said provision goes counter to the provisons of the Constitution. Surely, it is not suggested that the gram sabha that the Act seeks to establish does not consist of the entire electorate in the panchayat area or excludes some of it. So long as, therefore, the definition given in Section 2(g) and the provisions of Section 3, of the Act do not in any way detract from the provisions of Article 243 (b) or their intendment, they cannot be held ultra vires, the provisions of the Constitution. We are, therefore, unable to agree with the finding of the High Court in that respect.
The decision rendered in the case of Cantonment Board, Secunderabad Vs. G. Venketram Reddy and Others, has also been pressed into service. The learned Senior Counsel has specifically drawn our attention to paragraph 3 which reads as under:
Section 60 of the Act reads as under:
S.60. General power of taxation:- (1) The Board may impose with the previous sanction of the Central Government in any Cantonment any tax which under any enactment for the time being in force may be imposed in any Municipality in the State wherein such cantonment is situate.
A very perusal of it would indicate that this is a general power of taxation which is enjoyed by the Board which can be exercised with the previous sanction of the Central Government. There was no dispute that the octroi was levied by the Cantonment Board after obtaining sanction of the Central Government. But what has been found is that the ambit of the power being restricted to only those taxes which for the time being in force could be imposed by any Municipality in the State wherein such cantonment was situated, the appellant was precluded from imposing octroi as no such octroi was being levied by any Municipality in the State. How the expression, Municipality in the State'' should be understood? The word ''Municipality'' has been defined in Webster''s New Dictionary as, a town, city or borough which has local self government''. In Black''s Law Dictionary it is extended to legally incorporated or duly authorised association of inhabitants of limited area for local government or other public purposes. A body politic created by the incorporation of the People of a prescribed locality invested with the subordinate powers of legislation to assist in the civil government of the State and to regulate and administer local and internal affairs of the community''. This word thus has a wide connotation. The Constitution also understands it in broad sense. Chapter (IX-A) deals with Municipality. Clause (e) of Article 243-P defines Municipality to mean, ''an institution of self-government constituted under Article 243-Q''.
Thus, their Lordships have expressed the view that the expression Municipality in the state has to be read in broad and larger sense.
We may note with profit that Mr. Shrivastava has also highlighted the conception enshrined by their Lordships in the case of Saij Gram Panchayat Vs. The State of Gujarat and Others, . We have noted the aforesaid decisions to understand the specific, precise and the exact assail and attack of the learned Senior Counsel in regard to the provisions of the Act. It has been urged by Mr. Shrivastava that the provisions are undemocratic and democracy is the basic structure or fundamental feature of the Constitution. It has been held in the cases of His Holiness Kesavananda Bharati Sripadagalvaru Vs. State of Kerala, , State of Rajasthan and Others Vs. Union of India and Others, , Shri Kihota Hollohon Vs. Mr. Zachilhu and others, and R.C. Poudyal and Others Vs. Union of India and others, that democratic set up is the basic feature of the Constitution. The contention put forth by Mr. Shrivastava is that the indpendent local self governance with statutory powers has to have a democratic foundation to be in tune or in consonance with the primay constitutional goal of the Constitution of India. To highlight the same he has also referred to various Sub-Articles of the Article 243 of the Constitution. We think it appropriate to refer to Article 243 of the Constitution of India. Article 243 occurs in Part IX of the Constitution which came into force with effect from 24-4-1993. The same deals with ''Panchayat''. The learned counsel has also laid emphasis on Article 243B which deals with constitution of ''Panchayat''. Article 243D provides for reservation of seats.
As far as Part IX A is concerned, he has referred to Sub-Articles 243Z, 243ZB, 243ZC and 243ZF to highlight that a broad classification also does not admit of this kind of cantonment board. He has referred to Article 243Q which reads as under:
243-Q. Constitution of Municipalities: (1) There shall be constituted in every, State,- (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area;
(b) a Municipal Council for a smaller urban area; and
(c) a Municipal Corporation for a larger urban area, in accordance with the provisions of this Part:
Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township.
(2) In this article, "a transitional area", "a smaller urban area" or "a larger urban area" means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other facts as he may deem fit specify by public notification for the purposes of this Part.
It is highlighted by Mr. Shrivastava that if these provisions are read in a cohesive whole three areas, namely, rural areas, urban areas and transitional areas are provided and thus, it eliminates any kind of cantonment board. To appreciate the aforesaid submission, we have carefully perused Article 243B of the Constitution. It deals with Panchayat. The mandate of the said provision is that in every State Panchayat at the village, intermediate and district levels in accordance with the provision, of the said part of the Constitution shall be constituted. Article 243Q deals with constitution of municipality. It provides that there should be Nagar Panchayat, a Municipal Council and a Municipal Corporation. Various areas have been demarcated in the said bodies. Article 243Q(2) defines the transitional area. If both the provisions are read in proper juxtaposition it would mean that there would be a Panchayat, a Municipal Council and a Municipal Corporation. The conception of transitional area, smaller urban area, larger urban area are dependent upon the population, the revenue and certain other factors. It is urged by Mr. Shrivastava that areas have been provided in the aforesaid provision of the Constitution and they can be allowed to continue, function or come into being but apart from that no other area like the cantonment area can be conceived of. On a perusal of the aforesaid provisions we do not find that there is any kind of prohibition to have a Cantonment Board. In this context we may profitably refer to the decision rendered in the case of Saij Gram Panchayat (supra). In the aforesaid case a two-judge Bench of the Apex Court was dealing with the Gujarat Municipality Act, 1962 that was amended on 20th August, 1993 in view of the insertion of Part IX-A of the Constitution. Their Lordships repelled the contention that the notifications issued were contrary to the Part IX and IXA of the Constitution. In paragraph 16 their Lordships expressed the view that the contention is based on misconceived notion about the relationship to the provision of Part IX and IXA of the Constitution. Gujarat Industrial Development Act operates in a different sphere from Part IX and Part IXA of the Constitution as well as Gujarat Panchayat Act and Gujarat Municipalities Act. Their Lordships referred to the case of Solapur MIDC Industries Association Vs. State of Maharashtra, AIR 1996 SCW 4154 that the Municipal Corporation Act and Industrial Development Act have distinct fields of operation and there is no interse conflict between the two. At this juncture, we may refer with profit to the judgment of the Apex Court rendered in the case of G. Venketram Reddy (supra) wherein the Apex Court held that Section 60 of the Cantonment Act has the power to impose the tax which may be imposed by Municipality. We have referred to the aforesaid decisions only to show that there can be other areas and it cannot be said the concept of cantonment area gets obliterated by introduction of Articles IX and IXA of the Constitution. The bringing in of the said provision into the Constitution does not militate against the concept of Cantonment Board. On the Contrary, in the absence of any prohibition in the Constitution the challenge on that score is totally unsustainable.
Another facet of submission of Mr. Shrivastava is worth noticing. What is put forth by him that by virtue of amendment brought into the Constitution the Cantonment Board has become non-existent. This, in a way, is a submission in the realm of repeal by implication. In this regard we may profitably refer to the decision rendered in the case of Kishore Bhai Khamanchand Goyal Vs. State of Gujarat and another, AIR 2003 SCW 6638 wherein the Apex Court in paragraph 6 held thus:
There is presumption against the repeal by implication; and the reason of this rule is based on the theory that the Legislature while enacting a law has a complete knowledge of the existing laws on the subject-matter, and therefore, when it does not provide a repealing provision, the intention is clear not to repeal the existing legislation. (See Municipal Council Palai Vs. T.J. Joseph and Others, , Northern India Caterers Private Ltd. and Another Vs. State of Punjab and Another, , Municipal Corporation of Delhi Vs. Shiv Shanker, and Ratan Lal Adukia and Another Vs. Union of India, . When the new Act contains a repealing section mentioning the Acts which it expressely repeals, the presumption against implied repeal of other law is further strengthened on the principle expressio unius (persone vel rei) est exlusio alterius (The express intention of one person or thing is the exclusion of another), as illuminatingly stated in Garnett v. Bradley, (1878) 3 AC 944 (HL). The continuance of existing legislation, in the absence of an express provisions of repeal by implication lies on the party asserting the same. The presumption is, however, rebutted and a repeal is inferred by necessary implication when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act and that the two cannot stand together. But, if the two can be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred.
If the amended provisions are read in a purposive and harmonious manner we find nothing to indicate dissolution of Cantonment Board. No contrary intention is also indicated. Thus, the said submission of Mr. Shrivastava is not acceptable.
Presently we shall refer to other submissions of Mr. Shrivastava. He has given immense emphasis on the aspect of arbitrariness, artificial show of democracy and further highlighted that provisions of the Act being pre constitutional do not withstand scrutiny of the essence of the Constitutional provisions. He has mainly assailed those provisions of the ground that they are arbitrary, unreasonable, irrational and in the absence of representative character the basic tenet of the democracy is violated. It is canvassed by him that the constitution of the Cantonment Board is undemocratic in nature inasmuch as it provides that in Class I Cantonment Board shall consist of Officer Commanding the Station, Executive Magistrate nominated by the Magistrate, Health Officer, the Executive Officer, four Military Officers nominated by the name of the Officer Commanding Station by order in writing and seven members elected under the Act. He has criticised the Constitution of the Board on the ground that it is basically the nomination that matters. To appreciate the aforesaid provision we have thoroughly perused the same and x-rayed its fundamental character. It is noticeable that it is consisting of nominated members and elected members. The composition does not appear to tilted. One cannot forget the function and role of the Cantonment. It has been continuing for long. The Constitution, the continumace and the purpose are not undemocratic as the Board fulfils the concept of nomination and the conception of election. The democratic feature is not shattered when studied on the anvil of security.
The senior learned counsel has critcized the provisions contained in Sections 51 and 52 of the Act. Section 51 postulates if the President dissents from any decision of the Board, which he considers prejudicial to the health, welfare, discipline or security of the Forces in the Cantonment, he may for reasons to be recorded in the minutes, by order in writing, direct the suspension of action thereon for any period not exceeding one month and, if he does so. shall forthwith refer the matter to the Officer Commanding-in-Chief, the recommendation shall be made to the Officer commanding the area. We notice that u/s 51A the Central Government has been given the power to review any decision or order of the Board or the Officer Commanding-in-Chief, the Command, and pass such orders thereon as it may deem fit. There is proviso the section 51A which lays a postulate that when it is proposed to modify a decision or order of the Board, a reasonable opportunity shall be given to the Board to show cause why the decision or order in question should not be modified. On a perusal of the aforesaid provisions it is clear as noon day there are three safeguards, namely, (i) the President or the District Magistrate has to ascribe reason that the decision of the Board is prejudicial to the health, welfare, discipline or security of the forces of the Cantonment; (ii) the decision is not final as it is subject to scrutiny by the Central Government and (iii) that the Central Government is bound by law to afford an opportunity of hearing to the Board. In our view, they are reasonable as emphasis have been given on health and security, doctrine of audi alteram parten has been incorporated by the Act 15 of 1983 with effect from 1.10.1983 and the purpose is laudable and wholesome. In view of the aforesaid analysis, we do not find any substance in the submission of Mr. Shrivastava.
The learned Senior counsel has also commented upon Section 52 of the Act. On a perusal of the said provision we find that there is also a provision for affording opportunity and there is guidance. There is no unguided or unbridled power which has been conferred on any authority.
Mr. Shrivastava has also criticised Section 176 of the Act that the same is arbitrary and violative of Article 21 of the Constitution. On a perusal of the aforesaid provision which has been reproduced above we notice that the Health Officer must be such an officer who shall give notice to the patient concerned to attend hospital and dispensary and if he fails to do so he can be removed from the Cantonment. On a scrutiny of the same we find there is also stress on health and security. Cantonment Board has a different significance. It has a purpose to serve in respect of the defense. A person who is suffering from any kind of contagious disease and it comes to the notice of the Health Officer he is given powers to report the same. In this backdrop the provision cannot be regarded as violative of Article 19 and 21 of the Constitution. It is not unguided. The interest of collective or community at large matters. An individual may feel disturbed on being asked to leave but it is not at the whim or fancy of the Health Officer. It is done on the ground of safety and security which paramount to the State. Hence, we do not find that the said provision to be ultravires.
Another provision which is attacked by Mr. Shrivastava is the provision relating to appeal. Section 274 of the Act deals with appeal from executive order. Section 275 provides procedure for filing an appeal and Section 276 deals with suspension of action pending appeal. Section 279 deals with right of appellant to be heard. It is proponed by Mr. Shrivastava the provisions are absolutely inefficacious and artificial exposition of appeal because the appeal lies to the same authority. To appreciate the aforesaid submission we have perused the aforesaid provision and have seen the column of Schedule V. The authority is different. Schedule V prescribes the name of the appellate authority u/s 274. On a perusal of said Schedule we are absolutely convinced it is not appeal from caesar to caesar''s wife. Ergo, we do not find the said provision to be ultravires the Constitution.
Before parting with the case we may state here that Mr. Shrivastava has submitted that democratic set up and concept of local self governance being the basic feature of Constitution they are to be followed strictly. It is also submitted that if any provision is arbitrary or discriminatory the same has to be declared as ultra vires. In effect the submission of learned senior counsel is that the test of strict scrutiny is to be followed. In this regard we may refer with profit to the decision rendered in the case of Saurabha Chaudhari Vs. Union of India. AIR 2003 SC 6407 wherein their Lordships in paragraph 36 expressed thus:
The strict scrutiny test or the intermediate scrutiny test applicable in the United States of America as argued by Shri Salve cannot be applied in this case. Such a test is not applied in Indian Courts. In any event, such a test may be applied in a case where a legislation ex facie is found to be unreasonable. Such a test may also be applied in a case where by reason of a statute the life and liberty of a citizen is put in jeopardy. This Court since its inception apart from a few cases where the legislation was found to be ex facie wholly is to be presumed and the burden to prove contra is on him who asserts the same. The Courts always lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effect and operative "on the principles expressed in the maxim: us rest magis valeat quam pereat.
If tested on the aforesaid pronouncement of law we find the aforesaid submission of Mr. Shrivastava is not acceptable and accordingly we repel the same.
The whole case can be seen from another angle. The Cantonment, as has been indicated hereinbefore, pertains to security. It has a role to play. In the case of People''s Union for Civil Liberties and Another Vs. Union of India (UOI) and Others, while dealing with Section 18 of the Atomic Energy Act, 1962 the Apex Court held as under:
The question as to whether a statute is ultra vires Constitution of India having conferred unguided, uncanalised or wide power cannot be determined in vacuum. It has to be considered having regard to the text and context of the State as also the character thereof. It deals with a sensitive subject.
Section 18 has been enacted for the purpose specified therein. It is well settled that guidelines for enacting the said provision must be found out from the subject-matter covering the field. For the said purpose even the preamble of the Act may be looked into.
If the challenge is perceived in this backdrop, we have also no doubt that the provision of the Act can not be treated to be unconstitutional.
Though we have declined to declare the provisions as ultra vires, we are inclined to direct that if an appeal has been preferred by the petitioner and the same is pending for adjudication it shall be dealt with and disposed of in accordance with law as expeditiously as possible, preferably within a period of two months from today.
In view of the preceding analysis the writ petition, being devoid of merit, stands dismissed without any order as to costs.