Keshwa Nand, Municipal Commissioner and Others vs Tejwant Singh and Others

V.K. Bali, J.—Keshwa Nand and three others, who are Municipal Commissioners from various wards of Municipal Committee, Amloh, and who were respondents in Civil Writ Petition 13433 of 1992, appellants herein, seek setting aside of judgment passed by the learned Single Judge of this Court dated December 23, 1993 directing the Deputy Commissioner, Fatehgarh Sahib to take appropriate steps for convening a meeting of the Municipal Committee, Amloh for the purpose of completion of process of co-option within the time frame as prescribed under the Rules and further directing the Deputy Commissioner, Amloh, to ensure that the meeting is conducted in an orderly manner, in this Letters Patent Appeal filed by them under Clause X of the Letters Patent.

The precise grievance of the appellants is that when the convener had cancelled the meeting scheduled for co-opting the persons belonging to Schedule Caste of Balmiki, Chura or Bhangi by elected members of the Committee, it then lay in the entire Jurisdiction and domain of the State Government to nominate such persons who were eligible to be co-opted. The defence projected by the appellants on the aforesaid plea it is contender was not discussed, thus, resulting into non-determination of this crucial issue a he learned Single Judge, under the circumstances, held that the meeting called for co-option was not canceled but only postponed. Since the plea that it is the Government alone which could nominate the persons eligible for cooption is largely dependent upon the meeting being postponed or cancelled, the appellants challenge the findings of the learned Single Judge on that count as well. Added to this, a new plea has become available to the appellants during the pendency of the appeal. The Punjab Municipal (Amendment) Act, 1994 which came into force w.e.f. June 1, 1994, has repealed Section 12-A, 12-B, 12-C, 12-D and 12-E which provisions alone envisage co-option of persons belonging to scheduled caste etc.. It is contended that in view of the repealing of the sections aforesaid, the directions issued by the learned Single Judge have out-lived their utility and cannot as such be enforced. Before, however, the points noticed above are discussed any further, it will be useful to extract facts of the case, although briefly.

Tejwant Singh and six other municipal commissioners from various wards of Municipal Committee, Amloh, Distt. Fatehgarh Sahib, sought writ in the nature of mandamus directing respondents - Deputy Commissioner, Fatehgarh Sahib and Sub Divisional Officer (Civil) - Convener to convene a meeting of the newly elected members of the Municipal Committee, Amloh, for the purpose of co-option of Balmikies, women and Backward Class members as required u/s 12-A of the Punjab Municipal Act 1911. Petitioners and respondents 5 to 8 were elected as Municipal Commissioners from Municipal Committee, Amloh and a notification regarding their election was published in the Punjab Government Gazette on September 14, 1992. Under Sections 12-A, 12-B and 12-C of the 1911 Act, two members from Balmikies, Churas or Bhangies, two women and one member from Backward Classes, if not already elected in the election, were to be co-opted by the elected members in a meeting which was to be convened by the Deputy Commissioner or any other Gazetted Officer appointed as convener for the purpose of administering oath to the newly elected members. The said meeting had to be held within 14 days from the date of notification. Respondent No. 3 was appointed as convener and he did convene the meeting which was to be held on September 25, 1992 at 3 PM in the office of the Municipal Committee, Amloh. On the date fixed, all the elected members were present and they were administered oath as required by law. The pleaded case of the petitioners is that when the convener started enquiring about the fact as to whether any of the members mentioned in Sections 12-A, 12-B and 12-C has already been elected or not, which he had to enquire under the Rules, the meeting was disturbed on account of pre-calculated conspiracy. Keshwa Nand - respondent No. 5, first appellant herein, started raising hue and cry on the pretext that a member from Backward Classes had been elected and that the notice stating that the cooption from Balmikies, women and Backward Classes was to be made, was bad and that meeting should be cancelled. The entreaties of petitioners to respondent-appellants to calm down and let the proceedings of the meeting be conducted properly failed. The appellants even went to the extent of assaulting the petitioners as they were in minority and knew that they would not be able to co-opt any member of their choice. The convener did not make any serious effort to control the meeting and rather cancelled the same and gave a note in the proceedings book that Keshwa Nand appellant was extending threats that he would not allow the meeting to proceed. The convener, however, fixed the second meeting for September 30, 1992 but the same too was cancelled for non-service of notice of the meeting to the members. Apprehending that concerted effort shall now be made by the appellants to do away with the right of elected members to co-opt and further see through that this exercise was taken-over by the Government as envisaged u/s 12-E of 1911 Act, the writ giving rise to the present Letters Patent Appeal was filed seeking directions in the manner, the same have been issued by the learned Single Judge.

Inasmuch as the meeting fixed for cooption was disturbed, the learned Single Judge framed the question involved in the petition as to what was meant by the term, ''in the event of failure to co-opt due to disturbance'' as used in Section 12-E of the Punjab Municipal Act, 1911 and after discussion relevant provisions of the Act and taking into account the meaning of word ''cancelled'', in the context and facts and circumstances of the present case, came to a positive conclusion that "the failure contemplated u/s 12-E would be something which is a positive act on the part of the members and they cannot be put to a disadvantageous position because of the failure on the part of the convener to take appropriate steps. If the meeting could not be held in an orderly manner, the proper course was to adjourn the same and if in any case even if the word ''cancelled'' was used, it would not make any difference". While so deciding, learned Single Judge relied upon the word ''cancelled'' as defined in Chambers Twentieth Century Dictionary wherein it has been described as "to cross out, to annul or suppress, to abolish or wipe out, to counterbalance or compensate for, to remove as balancing each other e.g. like quantities from opposite sides of an equation, like factors from numerator and denominator of a fraction," as also on Division Bench judgment of this Court in Roshan Lal Singla Vs. Deputy Commissioner, Bhatinda and Ors, . The Division Bench in the aforesaid case observed that "under the circumstances, the Committee of the elected members did not forfeit their right to resort to the method of co-option and second meeting was in continuation of the original meeting and that meeting would have same character as the first meeting would have same character as the first meeting for the purpose of co-option." The learned Single Judge, on account of the fact that there was no provision in the Punjab Municipal Act which might confer power on the convener to cancel or adjourn a meeting, came to the conclusion that even if the expression ''cancelled'' was used by the convener, it would make no difference. Reliance was placed upon the Supreme Court judgment in Chandra Kama Khaire v. Dr. Shanta Ram Kale and Ors. AIR 1988 S.C. 1165 in which various shades of term ''adjournment'' came to be discussed and a conclusion was arrived at that "properly convened meeting could not be postponed and proper course was to hold the meeting as originally intended and then and there adjourn it to a more suitable date. If this course was not adopted, then the members had a right to go-ahead with the process of transacting the business which was originally supposed to be transacted." While concluding the matter, learned Single Judge also held that "an omission which is not act or failure on the part of the person himself was beyond the scope of contemplated action and, therefore, the failure contemplated by Section 12-E would be something which is a positive act on the part of the members".

Mr. Jasbir Singh, learned counsel appearing on behalf of the appellants was unable to point out any fault with the elaborate reasons given by the learned Single Judge for arriving at the conclusions, referred to above, except�that the learned Single Judge determined the matter by construing the word ''cancelled'' in the note given by the convener in the proceedings of the meeting that was held on September 25, 1992 whereas word mentioned therein is ''finished'' (SAMAPAT). If the meeting had finished or come to an end, the elected members had forfeited their right of coopting the persons belonging to Scheduled Caste and others and the elected members then had no choice in the matter as in that case it is the Government alone which had to nominate a person who is eligible to be co-opted under Sections 12-A, 12-B and 12-C as per provisions contained in Section 12-E of the Act, contends the learned counsel. For his afore stated contention, learned counsel relies upon a Division Bench judgment of this Court in Gurtej Singh v. The Punjab State and Ors. (1976) 78 P.L.R. 837. As mentioned in the earlier part of the judgment, the second contention of the learned counsel appearing for the appellants is that in view of repealing of Sections 12-A to 12-E of 1911 Act by virtue of Punjab Municipal (Amendment) Act, 1994 and there being no provision now in the Amended Act for co-option, the directions issued by the learned Single Judge can not possibly be complied with.

We have given our anxious thought to the points canvassed by the learned counsel for the appellants but find no merit in either of them. The facts, as have been narrated above, would manifest that the first meeting for cooption as provided u/s 12-A of the Act was convened on September 25,1992. No cooption could take place on the said date as there was disturbance created by the appellants. However, it is an admitted position that the meeting was then convened for September 30,1992 which, of course, too could not take place permitting cooption. The fact, however, remains that meeting for cooption was fixed by the convener for September 30,1992. The word mentioned in the proceedings dated September 25, 1992, be it ''finished'' or ''cancelled'', in view of the stark reality that another meeting was actually fixed for cooption, pales into complete in-significance. Whatever be the word used, in the context of facts of the present case, it has to be construed that the meetings was adjourned. There was no necessity nor any occasion for the convener to have fixed another meeting for the same purpose if the earlier meeting i.e. the one scheduled for September 25, 1992, was either cancelled or finished. That apart, the convener-respondent No. 3, in the written statement has admitted that the meeting was actually adjourned. In this back-drop of the events, there was perhaps no necessity of going into the meaning of word ''cancelled''. However, the learned Single Judge determined the said question and, in our considered view, rightly came to the conclusion that the meeting was only adjourned and not cancelled. No infirmity at all could be pointed out by learned counsel for the appellants in the reasons given by the learned Single Judge with which we completely concur.

Insofar as reliance of the learned counsel for the appellants on Gurtej Singh''s case (supra) is concerned, it shall be seen that the facts of the said case are totally distinguishable. The facts therein were that the elections to the Municipal Committee, Giddarbaha were held in May, 1974 and 13 persons were elected as members of the Municipal Committee. A meeting of the elected members was called by the Sub Divisional Officer under the orders of the Deputy Commissioner for administering oath of allegiance to them for August 5, 1974, and in this respect, a notice was issued to the elected members. On receipt of notice, petitioner submitted an application on August 1, 1974, pointing out that the meeting called was illegal and irregular as in the meeting in which oath of allegiance was to be administered to the members, co-option of members is simultaneously to take place. No action was taken on the said application and the meeting was held on August 5, 1974 in which the oath of allegiance was administered to the members elected. Another notice was received by the petitioner from the S.D.O. (Civil) saying that another meeting had been called for October 28, 1975, to co-opt the members. In the meeting an objection was raised to the effect that the meeting held on August 5,1974 was illegal and meeting could not be legally held on October 28,1975 for co-option as administering the oath of allegiance and the co-option had to take place simultaneously in the first meeting called for the purpose of administering oath. The objection was not decided and the cooption was made in the meeting held on October 28, 1975. It is in these circumstances that the said petition was filed calling in question the legality of the proceedings of meeting held on August 5, 1979 and October 28T 1975. On the basis of provisions contained in Section 12-D, 12-E and Rule 5, sub rules (1), (2), (9) and (10) of the 1911 Act, the main question that came to be focused before the Division Bench was as to whether the co-option had to take place in the meeting held on August 5, 1974 in which oath of allegiance was administered to the elected members, failing which no cooption could legally be held later on and that the meeting held subsequently on October 28, 1975, in which co-option took place, was legally bad. The court, on the basis of the statutory provisions, as mentioned above, came to the conclusion that "the co-option had to take place in a meeting of the elected members held for the purpose of administering oath of allegiance to them. The committee in the case was a newly constituted committee and was required to co-opt members in the meeting held for the purpose of administering the oath of allegiance and that separate meetings could not be held for administering the oath of allegiance as well as for co-option. It shall, thus, be seen from the narration of the facts of the case relied upon by the learned counsel for the appellants that it is the legality of the meeting which was in question and inasmuch as the requirement of statute was to hold a meeting for administering oath of allegiance and co-option of members simultaneously, the meetings held separately were not legal being against the mandate of statute. The learned counsel, however, while relying upon the observations of the Division Bench, quoted below:-

"However, whether there was sufficient ground or not to hold the co-options in the meeting in which the oath of allegiance was administered to the elected members, the fact remains that there has been a failure to co-opt members in accordance with the provisions of Section 12-D and in the event of such failure, as positively laid down in Section 12-E, the elected members cease to have a right of co-option and thereupon it was only the State Government which was entitled to nominate eligible persons to be co-opted contends that whatever be the grounds for non-making of co-option in the meeting in which the oath of allegiance is to be administered, provisions of Section 12-E would be attracted. The contention, in our considered view, is devoid of any merit. The emphasis is on ''failure to co-opt the members in accordance with the provisions of Section 12-D'' and as has been noticed above, the Division Bench was dealing with a case where co-options were not to be held in the meeting in which the oath of allegiance was administered and for which purpose a second meeting was held and co-options were made."

Insofar as the second and last contention of the learned counsel for the appellants that in view of Punjab Municipal (Amendment) Act, 1994, vice which Sections 12 A to 12-E dealing with the co-options have been repealed and, therefore, as on today there is no provision of co-option, the directions issued by the learned Single Judge can not possibly be complied with, is concerned, we find the same to be attractive in the first flush but on deeper examination the same is found to be equally devoid of any merit. It is an admitted position that in the Amended Act, there is no repealing and/or saving clause. It is also admitted that there is no provision of co-option of persons belonging to scheduled caste, backward classes or women and after the amendments have been brought about in the statute, such categories of persons have also to contest the elections, even though there are reservations made for them. Insofar as filling of vacancies is concerned, the matter is dealt with by Section 17 of the Act which reads thus:-

"17(1). Filling of casual vacancies of Members:- Whenever a vacancy occurs by death, resignation, removal or otherwise of a member, the same shall be filled up by way of election :

Provided that if the vacancy so occurred relates to the scheduled castes, backward classes or to women it shall be filled up out of the persons belonging to the category to which it relates.

(2) A person elected to fill up a casual vacancy shall be elected for the remainder of his successors'' term of office:

Provided that where the remainder of the period for which a member is to be elected, is less than six months, it shall not be necessary to hold any election to fill up such a vacancy."

Mr. Jasbir Singh, learned counsel for the appellants, vehemently contends that whenever a vacancy occurs by death, resignation, removal or otherwise of a member, the same has to be filled up by election and that inasmuch as there is no provision for co-option and the vacancies occurring for any reason whatsoever, have to the filled up by elections, the directions issued by the learned Single Judge directing co-options can not, possibly sustain. There is inherent falsity in the contention raised by the learned counsel. Section 17 deals with a vacancy occurred in either of the eventualities mentioned therein of a member. In the present case, no person became a member on account of non-cooptions. The provisions of Section 17 of the Act would have been attracted only if co-option had taken place and the vacancies had then been caused in any manner enumerated in the said Section.

The fact that there is no repleading or saving clause and the Sections 12-A to 12-E have been repealed would not make any difference as Section 4 of the Punjab General Clauses Act, 1898 adequately deals with the situation of this kind. Unless a different intention appears, the repeal does not affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed nor does it affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment. The Section further provides that any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed. It is not disputed that the elected members of the Municipal Committee by virtue of Section 12-A of the un-amended Act had right to co-opt persons belonging to scheduled caste of Balmiki, Chura or Bhangi. This right which had accrued to respondent-petitioners could not be taken away on account of the repealing of Sections 12-A to 12B as is clearly saved vide Section 4 of the Punjab General Clauses Act, 1898 which reads thus:-

"4. Effect of repeal:- Where this Act or any Punjab Act (-) repeals any enactment, then, unless a different intention appears, the repeal shall not:

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed, or anything duly done or suffered thereunder; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or

(e) affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.

and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the Repealing Act had not been passed."

Dealing with Section 6 of the General Clause Act, 1898 provisions whereof are parimateria to Section 4 of the Punjab General Clauses Act, 1898 the apex Court in State of Punjab v. Mohar Singh AIR 1955 SC 84, held that "no such inadvertance can be presumed where there has been a fresh legislation on the subject and if the new Act does not deal with the matter, it may be presumed that the legislature did not deem it fit to keep alive the liability incurred under the old Act. Whenever there is an repeal of an enactment, the consequences laid down in Section 6 of the General Clauses Act will follow unless, as the section itself says, a different intention appears. In the case of a simple repeal there is scarcely any room for expression of a contrary opinion. But when the repeal is followed by fresh legislation on the same subject we would undoubtedly have to look to the provisions of the new Act. but only for the purpose of determining whether they indicate a different intention. The line of enquiry would be, not whether the new Act expressly keeps alive old rights and liabilities but whether it manifests an intention to destroy them. We cannot, therefore, subscribe to the broad proposition that section 6 of the General Clause Act is ruled out when there is repeal of an enactment followed by a fresh legislation. Section 6 would be applicable in such cases also unless the new legislation manifests an intention incompatible with or contrary to the provisions of the section. Such incompatibility would have to be ascertained from a consideration of all the relevant previsions of the new Saw and the mere absence of a saving clause is by itself not material." Nothing at all has been pointed out to us that the new legislation repealing Sections 12-A to 12-E manifests an intention incompatible with or contrary to the provisions of the said section.

It is an admitted position that the tenure of the Committee is to expire in 1997. There are still almost three years and its constitution is not complete till such time members are co-opted. There is no provision whatsoever in the Amended Act covering a situation of this kind as is faced in the present case. The only available provision is Section 17 which deals with the vacancies caused on either of the events mentioned in the said Section, but as mentioned above, the same is with regard to the members and not those who were to be members. If the co-options do not take place, the Committee can not probably be constituted and such a situation has to be avoided, both under law and equity.

No other point has been raised before us. Finding no merit in this Letters Patent Appeal, we dismiss the same, leaving, however, the parties to bear their own Costs. The directions given by the Id. Single Judge be now compiled with within one month from today.