The Coimbatore Municipal Council and Another vs The State of Tamilnadu

M.M. Ismail, J.—According to the averments in the affidavit filed in support of this writ petition, the Municipal Council, Coimbatore consists

of 36 councillors elected from 30 wards and the last of the elections was held in February, 1964. u/s 8(1) of the Madras District Municipalities

Act, 1920 as it stood then,

The term of office of councillors shall, save as otherwise expressly provided in this Act, be three years beginning and expiring at noon on the first

day of November.

However, the Madras Legislature passed the Madras Municipal Authorities (Term of Office and Election of Councillors) Act, 1963 (Madras Act

XXII of 1963). u/s 3(c) of that Act, it was provided:

Notwithstanding anything contained in the Corporation Act, the Municipalities Act or the Extension of Term of Office Act, the term of office of the

councillors newly elected under Clause (b) shall expire at noon on the first day of November immediately succeeding the expiry of three years from

the date on which such councillors come into office;

Provided that the Government may, from time to time, by notification, for sufficient cause, direct that the term of office of such councillors as a

whole be extended or reduced by such period as may be specified in the notification but such period or periods shall not, in the aggregate, exceed

one year.

In view of this statutory provision, the term of office of the councillors elected in February, 1964 was to expire on 1st November, 1967.

Meanwhile, Madras Act XI of 1968, namely, the Madras Municipal Authorities (Term of Office and Election of Councillors) Amendment Act,

1968, amended the proviso to Section 3(c) of the Madras Act XXII of 1963 by substituting the words '' two years '' for '' one year.'' By virtue of

this amendment, the term of the councillors was extended to 28th, February, 1959. Subsequently it has been further extended to 28th April, 1969.

In the meantime the Government for the purpose of conducting fresh elections to the Municipality re-divided the wards. The Municipal Council

filed Writ Petition No. 4565 of 1968 on the file of this Court questioning such re-division. The said Writ Petition was admitted on 3rd December,

1968, and this Court granted interim stay of the notification dated 14th December, 1967, wherein the re-division of the wards had been effected.

According to the affidavit, on 21st January, 1969, the State Government issued a memorandum directing the holding of elections to all municipal

councils in the State except eight municipalities named in the said memorandum in respect of which writ petitions have been filed relating to the re-

division of wards, where such writ petitions were either pending disposal or had already been disposed of; one such municipality was the

Coimbatore Municipality; the concluding Part of the memorandum stated that in respect of the aforesaid eight municipalities, Special Officers

would take over and represent the municipal councils; on 22nd January, 1969, G.O.Ms. No. 108 was issued by the State Government approving

a programme of elections to be held to all the municipal councils in the State in the last week of February, 1969, except in the case of the said eight

municipal councils; and on 30th January, 1969, the State Government purporting to exercise power u/s 8(4-A) of the Act, (which is:

Notwithstanding anything contained in this Act, the State Government may, for sufficient cause, direct from time to time the postponement or

alteration of the date of an ordinary or casual election or any stage of any such election.""...)

directed that the elections which should have been held to the municipal councils in the last week of February, 1969, would stand postponed sine

die. It was in view of this postponement, the, term of the municipal councillors was extended to 28th April, 1969. On 4th March, 1969, the State

Government issued G.O.Ms. No. 385 directing that elections would be held in the last week of April, 1969, except in the case of ten municipalities

including the Coimbatore municipality, which municipal councils have in the meanwhile filed writ petitions challenging the re-division of wards in the

case of the respective municipalities and the said Government order stated that the question of holding elections to the said ten municipal councils

would be considered later.

The affidavit further states that the petitioners herein were awaiting further orders, in pursuance of the statement made by the Government in

G.O.Ms. No. 385 dated 4th March, 1969, that the question of holding elections to the ten municipalities would be considered later; in the first

week of April, 1969, the Chairman of the Coimbatore Municipal Council met the then Secretary to the Government in the Local Administration

Department, Thiru A.S. Balakrishnan and requested him to inform him about the position of the Government In respect of holding elections to the

ten municipal councils including the Coimbatore Municipal Council; he however, informed that no decision had been taken in the matter as yet;. on

15th April, 1909, the chairman met Thiru E. C. P. Prabhakar, Secretary to Government in the said Department and again asked him for

clarification about the position relating to the 1st petitioner municipal council and nine other municipal councils which were similarly placed; Thiru

Prabhakar informed the Chairman that no elections would be held to these ten municipal councils before the expiry of the term on 28th April,

1969, nor would the terms of office of these councils be extended since Special Officers would be taking over these municipal councils on and

from the noon of 28th April, 1969; and the petitioners have not received any written orders upto this date.

It is under these circumstances, the petitioners, the 1st petitioner being the Coimbatore Municipal Council represented by Chairman and the 2nd

petitioner-being the Chairman himself, have filed this writ petition praying for, the issue of a writ of mandamus or any other appropriate writ, order

or direction, directing the State of Tamil Nadu, the respondent herein, to extend the term of the office of the Coimbatore Municipal Council, the 1st

petitioner herein upto 1st November, 1969, and to hold elections to the said Municipal Council before the expiry of its term of office.

Before proceeding to deal with the contentions of the learned Counsel for the petitioners, I must refer to one or two other statutory provisions

on which reliance has been placed. Section 368 of the District Municipalities Act provides for the appointment of a Special Officer in relation to a

newly constituted and reconstituted municipal councils. Sub-sections (1) to (5) deal with the cases of new constituted municipalities and Sub-

section (6) thereof applies the provisions of Sub-sections (1) to (5) to all cases of reconstitution of municipal councils. The Madras Act X of 1968,

namely, the Madras City Municipal Corporation and District Municipalities (Amendment) Act, 1968, amended Sub-section (5) of Section 368 as

well as sub-, section (6) of Section 368. It is the amendment of Sub-section (6) of Section 368 which is relevant for the purpose of this writ

petition and by that amendment the following expression was added at the and of Sub-section (6)

and to all cases where ordinary vacancies in the ''office of councillors have not been filled.

The result of this amendment is that the provisions, of Sub-sections (1)to (5) dealing with the appointment of a Special Officer in respect of the

newly constituted municipal councils will apply to old municipal councils also where ordinary vacancies in the office of councillors have not been

filled.

Another provision to which attention must be drawn is Section 8 of the District Municipalities Act. Sub-section (1) of that section has already

been extracted. Sub-section (2) of that section is:

Ordinary vacancies in the office of councillors shall be filled at ordinary elections which shall, subject to the. approval of the ,State Government be

fixed by the election authority to take place on such days within three months before the occurrence of the vacancies as he thinks fit:

Provided that the State Government may, for sufficient cause, direct or permit the holding of any ordinary election after the occurrence of the

vacancy.

The prayer in the present writ petition is essentially based upon Section 8(2) of the Act. According to Mr. K. K. Venugopal, learned Counsel for

the petitioners, Section 8(2) of the Act imposes an obligation on the authorities concerned to hold ordinary elections for the office of the councillors

of a municipality within three months before the occurrence of the vacancies and the object of such a provision is not to allow for a hiatus or

vacuum in the office of the councillors and therefore before the expiry of the term of the present councillors the authorities must hold the election.

As the present term of the councillors is to expire on 28th April, 1969, and from the very nature of the case the elections cannot beheld before that

date, the further prayer of the petitioners is that the authorities should extend the term of the office of the present councillors upto 1st November,

1969, and hold the elections u/s 8(2) within three months before the occurrence of the vacancies, namely, three months before 1st November,

1969. This petition for the issue of a writ of mandamus for the purpose of a direction to the authorities to hold the elections and to extend the term

of office of the present councillors can lie only, if the petitioners can satisfy the Court that there is statutory obligation imposed on the authorities

concerned to hold the election and there is no scope in the statute itself for escaping from that obligation. As far as the extension of the period of

the councillors upto 1st November, 1969, is concerned, certainly the language of the proviso to Section 3(c) of the Madras Act XXII of 1963

which has been amended by the Madras Act XI of 1968, merely states that the Government may from time to time by notification, for sufficient

cause direct that the term of office of such councillors as a whole be extended or reduced by such period to may be specified in the notification,

but such period or periods shall not in the aggregate, exceed two years. From the very language of the section, this statutory provision is an

enabling one and it does not impose an Obligation on the Government to extend or reduce the term of the councillors as a whole. Consequently,

there cannot be a prayer For the issue of a Writ of mandamus to extend the term of the present councillors upto 1st November, 1969, solely on

the basis of the provisions contained in the proviso to Section 3(c) of the Madras Act ,XXII of 1963, as amended by Act XI of 1968. Further, this

prayer is coupled with the prayer for, holding the elections, because of the argument of the learned Counsel for the petitioner that Section 8(2) of

the Act contemplates that elections should be held within three months from the date of the expiry of the term of the councillors. Consequently, the

principal question for determination is, is there an obligation on the State Government, which has been impleaded as the respondent, to held

ordinary elections to the Coimbatore Municipal Council before the expiry of the term of office of the present councillors. It is only with reference to

this point, the learned Counsel for the petitioners contended that proviso to Section 8(2) which I have already extracted does not cover a case of

this nature and therefore the main Part of Section 8(2) will impose an obligation on the Government to hold the elections. The learned Counsel

contended that proviso to Section 8(2) does not apply to the holding of ordinary elections for the entirety of the councillors of the Municipality and

it applies only to the holding of stray elections to fill up stray vacancies. In support of this contention, the learned Counsel put forward three

grounds : The first ground is that while Section 8(2) uses the expression ''ordinary vacancies,""'' the proviso uses the word '' vacancy'', that is, While

the main sub-section uses the plural, the proviso uses the singular. The second submission is that if the proviso is held to apply and cover the case

of holding ordinary elections for the office of all the councillors of a municipality, there will be a hiatus between the coming to the end of the term of

the previous councillors and the commencement of the term of the subsequent councillors to be elected and such a hiatus was not contemplated

and provided for in the Act itself. The learned Counsel put forward the third ground relying upon the language of Section 9(1) of the Act which is ;

If at an ordinary or casual election held u/s 8, no councillor is a elected, a fresh election shall be held on such day as the Election Authority may fix.

In my view, none of these grounds is tenable. As far as the first ground is concerned, the proviso has to be read in the context of the main sub-

section; The main sub-section deals with the holding of ordinary elections to fill ordinary vacancies in the office of councillors as a whole with

regard to municipal councils, and if that is so, there is no reason to confine the operation of the provision not to such vacancies, but only to stray

vacancies. The learned Counsel for the petitioner conceded that generally a singular will include plural, but in this context that general presumption

cannot be given effect to. I am unable to accept this, argument as well. The proviso has been so worded in order to cover all cases that may fall

under the main part of Section 8(2). It may be with regard to ordinary vacancies occurring, in the office of the councillors as a whole or it may be

even with regard to such ordinary vacancies in relation to particular councillors, a direction or permission may be given by the State Government.

As a matter of fact, the argument ''based'' upon the use of singular is itself not consistent with the argument that the proviso will cover the case of

stray "" vacancies.

The second ground also is equally untenable. It is based purely on the assumption that the councillors constitute the body corporate and

therefore once the term of the councillors comes to an end, the body corporate also comes to an end. ""Such coming to an end of the body

corporate is not contemplated by the Act. Section 6(1) of the Act states that the municipal authorities'' charged with carrying out the provisions of

this Act are--(a) a Council; (b) a Chairman; and (c) an Executive Authority. Sub-section (2) of that section states:

The Municipal Council shall by the name of the Municipality be a body corporate, shall have perpetual succession and a common seal and subject

to any restriction or qualification imposed by this or any other enactment shall be vested with the capacity of suing or being sued in its corporate

name of acquiring, holding and transferring property movable or immovable, of entering into contracts and of doing all things necessary for the

purpose of its constitution.

However, the real point to be noted is that the Municipal Council as a body corporate is different from the municipal councillors who constitute

such a body corporate. Even if the entire office of the councillors is vacant, still the body corporate will continue to be in existence till the existence

of the body corporate is brought to an end by any special provision made in the Act itself. Therefore, I am unable to accept the argument of the

learned Counsel for the petitioners based upon the submission that if elections are to be held after the occurrence of vacancies to the entirety of the

office of the councillors, there will be a hiatus in the corporate existence of the council, but such hiatus is not contemplated by the Act itself.

With regard to the third ground mentioned by the learned Counsel relying on Section 9(1) of the Act, I am of the view, that proviso to Section

8(2) cannot be interpreted or considered in terms of Section 9(1) of the Act. Section 9(1) of the Act deals not only with ordinary election but also

deals-with casual election. At the same time, the section refers to the case where ''no councillor is elected'' at an ordinary or casual election, The

coupling of casual election with, an ordinary election in Section 9(1) is a clear indication that its scope cannot be the same as the scope of proviso

to, Section 8(2). Consequently, I am unable to accept the contention of the learned Counsel that proviso to Section 8(a) covers only the cases of

stray vacancies by applying the language of Section 9(1) of the Act.

For these reasons I am of the view that the proviso to Section 8(2) will cover the case of ordinary elections to fill up vacancies in the office of

councillors as a whole with regard to any municipality as well therefore because of this proviso, it is not correct to contend that the statute has

imposed an obligation on the Government to conduct the elections with in three months before the occurrence of the vacancies but on the other

hand, the proviso enables the Government, for sufficient cause, to direct or permit the holding of the ordinary elections after the occurrence of the

vacancies. In view of this enabling provision contained in proviso to Section 8(2), I am unable to accept the argument of the learned Counsel for

the petitioners that the Government is under an obligation to hold the elections to the Municipal Council of Coimbatore before the occurrence of

the vacancies and that obligation can be enforced by the issue of a Writ of mandamus. As I pointed out already the prayer for extending the term

of the present councillors upto 1st November; 1969, under proviso to Section 3(c) of the Madras Act XXII of 1963, as amended by Madras Act

XI of 1968 was coupled with and was made to depend upon the proviso to Section 8(2). Since I have already held that proviso to Section 8(2)

applies to the occurrence of ordinary vacancies in the office of the councillors as a whole, the petitioners are not entitled to a writ of mandamus to

direct the State Government to extend the term of the office of the councillors of the Coimbatore Municipal Council upto 1st November, 1969.

Mr. Venugopal further contended that notwithstanding the pendency of the Writ Petition No, 4565 of 1968, the Government should have

conducted the elections, on the basis of the old division of wards, after obtaining the permission of this Court, that in case the writ petition was

dismissed, such elections would not stand, I am unable to appreciate this contention. If, during the pendency of the Writ Petition No. 4565 of

1968, elections are held on the basis of the old division of the wards and ultimately the writ petition is dismissed, the entire election and the

expenses incurred therewith would have been a complete waste, Consequently, if the Government thought that for the purpose of holding the

elections it was; desirable to wait the final determination of the validity of the fresh division of wards by this Court, I cannot say that the

Government are not entitled to do so; nor can I say that it will not constitute sufficient cause for holding the elections, after the disposal of the writ

petition, with reference to the power contained in the proviso to Section 8(2) of : the Act.

Mr. Venugopal, learned Counsel for the petitioners, then questioned the validity of the amendment of Section 368(6) of the Madras District

Municipalities Act, 1920 effected by Madras Act X of 1968. The argument is that the Government is given arbitrary power to pick and choose,

namely, with reference to which municipalities it will appoint a Special Officer and with reference to which municipalities it will extend the term of

the councillors. As far as the present writ petition is concerned, in my opinion, that question does not really arise. This argument is based solely on

the averment contained in the affidavit that when the Chairman of the Coimbatore Municipal Council met the Secretary to the Department

concerned on 15th April, 1969, that officer told him that no elections would be held to the ten Municipal Councils before the expiry of the term on

28th April, 1969 ; nor would the term of office of these Councils be extended since Special Officers would be taking over these Municipal

Councils on and from the noon of 28th April, 1969. I am Unable to accept this oral statement of the Secretary to the Department made to the

Chairman of the Municipal Council as constituting the decision or order or notification of the State of Tamil Nadu. If and when the State of Tamil

Nadu takes action in a proper manner and according to the procedure known to law, there will be time enough for the petitioners to question such

action. Therefore, it is hot necessary for me in this writ-petition to consider the argument of the learned, Counsel for the petitioners regarding the

validity of the amendment elected by Madras Act X of 1968, to Section 368(6) of the Madras District Municipalities Act 1920, as yet, there has

been to identification of the Government brought to my notice as to whether they have decided to extent the term of the office of the present

councillors or to appoint ''Special Officers. Whether the Government will extend the term of the present councillors or appoint Special Officers is a

thing which has to be decided by the Government with regard to the facts and circumstances of each Case.

Though I am dismissing this writ petition on the ground that the petitioners herein are not entitled to the issue of a writ of mandamus, still I wish

to make it clear that I am not holding that the Government need not extend the term of the office of the present councillors and as I said already this

is an enabling power which it is open to the Government to exercise at any time, for sufficient cause.

Under these circumstances, this writ petition fails on the sole ground that the petitioners are not entitled to the issue of a writ of mandamus to

compel the Government to extend the term of the office of the councillors of the Municipal Council upto 1st November, 1969, and to hold the

elections to the said Municipal Council before the expiry of its term of office, and accordingly it is dismissed.

Since I am dismissing the writ petition on merits, it is unnecessary to consider whether the 1st petitioner has been properly represented and

validly authorised to institute this writ petition along with the second petitioner, since the learned Counsel for the petitioner admitted that there has

been no resolution of the Municipal Council for the purpose of filing the present writ petition.