Waman Shivram Mahadik vs M.W. Desai

J.L. Nain, J.—This is a petition filed by one Waman Shivram Mahadik a sitting Councillor of the Municipal Corporation of Greater Bombay (hereinafter referred to as "the Municipal Corporation"). He prays that an appropriate Write, order or direction be issued by this Court striking down section 2 of the Bombay Municipal Corporation (Second Amendment) Act, 1972 being Maharashtra Act IV of 1973 (hereinafter for the sake of brevity referred to as "the Amendment Act") as invalid and ultra vires the Constitution of India. Respondent No. 1 is the Municipal Commissioner. Respondent No. 2 is the Municipal Corporation. As the vires of a provision in a State Act was being impugned, I had issued notice to the Advocate General of Maharashtra under the provisions of order XXVIIA, Civil Procedure Code. Thereafter the State of Maharashtra applied to be joined as party respondents and by my order dated February 5, 1973 they were ordered to be added as and are now respondents No. 3.

It appears that the Municipal Corporation is not only the owner of large areas of unbuilt land in Greater Bombay, but is also a landlord in respect of a large number of constructed tenements. It owns about 56 colonies containing approximately 40,000 hutments and about 2316 buildings containing about 37,000 tenements. It has also let out over 6000 plots of land According to the petitioner the Municipal Corporation owns a much larger number of hutments, tenements and plots. But it will be sufficient for the purpose of this petition to state that the Municipal Corporation is a landlord in the City of Bombay in a large way.

The Municipal Corporation is constituted under the Bombay Municipal Corporation Act, III of 1888 (hereinafter referred to as "the Municipal Act") which has been amended from time to time. Section 3 (c) defines a "Councillor" as a person who is duly elected as a member of the Corporation under the Municipal Act. u/s 14 a person who is enrolled as a voter is qualified to be elected as a Councillor. Section 19 (1) (b) provides that the Maharashtra Legislative Assembly roll for the time being in force in respect of Greater Bombay shall be the roll of voters for the purpose of municipal elections in Greater Bombay. Section 17 provides that on incurring a disqualification u/s 16 a Councillor shall cease to be a Councillor.

Section 16 of the Municipal Act prescribes the disqualifications for being a Councillor. Prior to January 12, 1973 the material part of section 16 read as follows:

(1) A person shall be disqualified for being elected and for being a councillor if such person-

(f) has directly or indirectly, by himself or his partner, any share or interest in any contract or employment with, by or on behalf of, the corporation ; or

(2) But a person shall not be so disqualified or be deemed to have any share or interest in such a contract or employment by reason only of his receiving fees for attendance at meetings of the Bombay Electric Supply and Transport Committee or of his having any share or interest in-

(g) any lease, sale or purchase of land or any agreement for the same; or.

It would appear from the above section that a person was disqualified from being elected and also for continuing as a Councillor if such person [(sub-section (1) clause (f)] had directly or indirectly by himself or by his partner any share or interest in any contract or employment with, by or on behalf of the corporation. Sub-section (2) (g) of section 16, however, removed the disqualification of a person who had such share or interest in any lease, or purchase of land or any agreement for the same. Section 3 (r) defines "land" so as to include land which is built upon. In the result, a person could be elected and could continue as a Councillor notwithstanding the fact that he had a share or interest in a lease, sale or purchase of land or any agreement for the same from the Municipal Corporation. In August 1972 the Minister for Urban Development introduced Bill No. LIV of 1972 in the Maharashtra Assembly for amending the Municipal Act. In respect of section 16 of the Municipal Act, the Bill provided that in section 16 (2)(g) after the words "for the same" the words "where such share or interest is not acquired by him by virtue or by reason of his being a Councillor" were sought to be added retrospectively from January 1, 1971. The obvious purpose of the amendment was to disqualify a person from being elected or continuing as a Councillor if he had taken undue advantage by virtue of his office and had obtained a lease or sale of land or had entered into an agreement for such purposes. The Bill was however not passed by the Maharashtra Assembly in the same terms in which it was introduced. It was materially altered. The Amendment Act was assented to by the Governor on January 5, 1973 and was published in the Maharashtra Government Gazette on January 12, 1973 when it came into force. Section 2 of the Amendment Act which is the impugned provision reads as under:

In section 16 of the Bombay Municipal Corporation Act (hereinafter referred to as ''the principal Act''),

(a) in sub-section (1), after clause (f), the following clause shall be deemed to have been inserted on the 1st day of April 1968, namely:-

(fa) having been elected a Councillor, during his term of office as a Councillor, has directly or indirectly, by himself or his partner, any share or interest in any lease including any leave or licence (but excluding any official residence provided by the Corporation), sale or purchase of land or any agreement for the same, by or on behalf of, the Corporation; Or;

(b) in sub-section (2), clause (g) shall be deemed to have been deleted on the 1st day of April 1968.

It will be noticed that the scope of Amendment Act is much wider than the scope of the Bill that was introduced in the Legislature. The Amendment Act is made, retrospective from April 1, 1968. In sub-section (2) of section 16 of the Municipal Act, clause (g) has been retrospectively deleted. The result is that having any share or interest in a contract of lease or sale or purchase of land or in any agreement for the same at any time after April 1, 1968 is also made a disqualification. Not only that but the words "including any leave or licence" have been added. Thus, disqualification is created not only, in respect of leases but ostensibly the definition of a lease is sought to be expanded. There is considerable controversy about the interpretation of the added words with which I shall deal later.

The petitioner became an employee of the Municipal Corporation in 1949. As such employee he became a tenant of the Municipal Corporation in respect of a single room bearing No. 2, in block No. 8 in New Municipal Tenements at Mahajan Path, Sewri in 1949 The present standard rent of the said room is Rs. 27.75 per mensem. The petitioner resigned his job in the Municipal Corporation in 1968 and was elected as a Councillor of the Municipal Corporation at the general election held in that year with effect from April 1, 1968 for a term of five years. He is a sitting Councillor and his term of office expires on March 31, 1973. The fresh municipal elections are fixed for March 9, 1973, and persons elected as Councillors thereat will take office from April 1, 1973. The Amendment Bill was introduced in the Legislative Assembly in August 1972. After that in October 1972 the petitioner surrendered his tenancy to the Municipal Corporation and the Corporation granted tenancy of the same room to the petitioner''s wife Mrs. Laxmi Waman Mahadik.

On January 12, 1971 the Improvement Committee of the Municipal Corporation passed Resolution No. 455 sanctioning a scheme for forming a Co-operative Housing Society for employees, ex employees and Councillors. Under the said scheme, the Municipal Corporation agreed to give construction loan to such Co-operative Society. Pursuant to the said Resolution, Usha Bahar Co-operative Housing Society was formed which has taken land on lease from the Municipal Corporation at Mahajan Path, Sewri, Greater Bombay. The said Co-operative Housing Society has taken possession of the land and has started construction of residential flats thereon. The agreement is to grant lease of land for sixty years. The petitioner is a member of Usha Bahar Cooperative Housing Society.

There are about 4000 hutments on municipal land at Bhoiwada, Bombay. The said area is known as 2nd October Colony. In 1970 the petitioner''s wife Mrs. Laxmi Waman Mahadik bought two sheds bearing Nos. 57 and 58 in the said Colony, put up a flour mill in the sheds and on January 22, 1973 sold the said sheds along with the flour mill to her father.

It would, therefore, appear that the petitioner has interest in the tenancy in room No. 2 of block No. 8 at Mahajan Path, Sewri, Bombay, indirectly through his wife. It is not necessary for me to decide in this petition whether the petitioner''s membership of Usha Bahar Co-operative Housing Society would constitute a share or interest in a lease granted by the Municipal Corporation to the said Society within the meaning of clause (fa) introduced in section 16 (1) of the Municipal Act by the Amendment Act. It is also not necessary for me to decide whether the interest of the petitioner''s wife in the two sheds in the 2nd October Colony up to January 22, 1973 or her father''s interest thereafter would be an indirect share or interest of the petitioner''s in a lease or license from the Municipal Corporation within the meaning of the said clause (fa). On September 18, 1972 the petitioner himself wrote to the Municipal Commissioner disclosing the above facts and after getting the reply dated October 31, 1972 and after the Amendment Act came into force the petitioner has filed the present petition impugning the validity of the said Amendment Act.

I might here mention that there are 140 Councillors of the Municipal Corporation. Out of them eight are tenants of the Municipal Corporation, twenty are licensees, eleven own flats in Co-operative Societies which have entered on land and constructed buildings thereon under agreements to grant lease. There is no material before me to show whether in alt or any of these cases leases have been granted. One N.L. Pujari claiming to be a rate payer and voter of the Municipal Corporation has filed petition No. 55 of 1973 against V.M. Parvatkar for a writ of quo warrant on the allegation that Parvatkar is disqualified by section 2 of the Amendment Act which is the impugned provision from being a Municipal Councillor. One B. J. Worlikar similarly claiming to be a rate-payer and voter has filed eighteen writ petitions bearing Miscellaneous Petitions No. 65 of 1973 to 84 of 1973 against eighteen Municipal Councillors for writs of quo warranto on similar grounds. In all these petitions the Councillors concerned are challenging the validity of section 2 of the Amendment Act on the ground that the said provision is ultra vires certain provisions of the Constitution of India. The decision as to the validity of the said provision in this petition will, therefore, affect the decision of the other nineteen petitions referred to by me above. In all the nineteen petitions against Councillors the same counsel appear for N. L. Pujari and B. J. Worlikar who have appeared in this petition and argued against the petitioner as Intervenors. Similarly, same counsel appear for Mahadik and the remaining nineteen Councillors whose continuance as Councillors of the Corporation is challenged. Same counsel appear for the Municipal Corporation and similarly same counsel appear for the Advocate General in all the matters. All these matter are on my board today.

The first contention taken by Mr. K. K. Singhvi on behalf of the petitioner is that section 2 of the Amendment Act is ultra vires Article 20 (1) of the Constitution of India. He states that upto January 12, 1973 it was permissible for a Municipal Councillor u/s 16 of the Municipal Act to have a share or interest directly or indirectly in any lease of municipal land and having such share or interest did not disqualify him from being elected or continuing as a Councillor. Section 2 (b) of the Amendment Act repeals clause (g) of sub-section (2) of section 16 of the Municipal Act retrospectively from April 1, 1968. Clause (a) of section 2 of the Amendment Act makes the having of a share or interest in such lease at any time after April 1, 1968 retrospectively a disqualification for being elected or continuing as a Councillor. He states that this has been sought to be achieved by a "deeming" provision which by a fiction of law introduces the disqualification retrospectively in section 16 of the Municipal Act (vide AIR 1930 54 (Privy Council) , St. Aubyn v. Attorney-General 1952 A C 15 and Chipping and Painting Employers, Association Private Limited Vs. A.T. Zambre and Another, ). He contends that because of the deeming provision the disqualification clause (fa) in section 16 (1) of the Municipal Act introduced by clause (a) of section 2 of the Amendment Act should be read as if it existed from April 1, 1968 and clause (g) in sub-section (2) of section 16 in the Municipal Act should be deemed not to have existed in section 16 from April 1, 1968. In other words, from April 1, 1968 it has not been permissible u/s 16 of the Municipal Act for a Municipal Councillor to be lessee or tenant of the Municipal Corporation. Section 474 of the Municipal Act provides for punishment for acquiring any share or interest in contract with the Municipal Corporation. The said section reads as under:

Any Councillor who knowingly acquires, directly or indirectly, any share or interest in any contract or employment with, by or on behalf of the corporation, not being a share or interest such as, u/s 16, it is permissible for a Councillor to have, without being thereby disqualified for being a Councillor, and any Commissioner, Deputy Commissioner, municipal officer or servant who knowingly acquires directly or indirectly, any share or interest in any contract or employment with, by or on behalf of the corporation, not being a share or interest such as under clauses (h) and (k) of section 16, it is permissible for a Councillor to have, without being thereby disqualified for being a Councillor, shall be deemed to have committed the offence made punishable by section 168 of the Indian Penal Code.

The contention of Mr. Singhvi is that any Councillor who has directly or indirectly any share or interest in a lease from the Municipal Corporation not being a share or interest which is permissible u/s 16 to have without being thereby disqualified for being a Councillor, shall be deemed to have committed the offence made punishable u/s 168 of the Indian Penal Code. He contends that having such a share or interest in a lease did not create a disqualification upto January 12, 1973 and that it was permissible to have such share or interest upto that date. But after January 12, 1973 having such share or interest in such lease has been made a disqualification retrospectively and has been taken away from permissible interest retrospectively. He contends that thereby the having of such share or interest at any time after April 1, 1968 has been made retrospectively an offence punishable u/s 168, Indian Penal Code. He contends that the petitioner has thereby been made liable to be convicted for an offence u/s 168, Indian Penal Code after January 12, 1973 when at the time of the acquisition of such interest prior to January 12, 1973 he was not under the law in force at that time liable to be convicted for such offence. He further contends that Article 13 (2) of the Constitution provides that the State shall not make any law which takes away or abridges the rights conferred by Part III of the Constitution which pertains to fundamental rights and covers Articles 12 to 35 and any law made in contravention Article 13 (2) shall to the extent of contravention be void. Mr. Singhvi contends that section 2 of the Amendment Act creates a retrospective or ex post facto offence contrary to Article 20 (1) and is void under Article 13 (2) of the Constitution.

As against the above contention of the petitioner the respondents contend that section 2 of the Amendment Act which is the impugned provision neither creates an offence nor provides that a certain act shall be an offence. It merely creates retrospectively a disqualification for being elected or continuing as a Councillor. A deeming provision does introduce retrospectively a legal fiction which has to be carried to its logical conclusion but that has to be done only for the field of the definite purpose for which the fiction is created. The field for which the impugned provision is created is to create a disqualification for being elected and continuing as a Councillor. The field is not created for punishing a person for incurring such disqualification retrospectively. Mr. Joshi, therefore, contends that white the new clause (fa) does create a disqualification retrospectively from April 1, 1968 it does not create an offence retrospectively for the purpose of section 474 of the Municipal Act and neither the petitioner nor any other person can be convicted or sentenced for incurring a retrospective disqualification. He contends that Article 20 (1) of the Constitution is not violated and section 2 of the Amendment Act is not void under Article 13 (2) of the Constitution.

At this stage it will be relevant to refer to a controversy with regard to the interpretation of the impugned provision and section 474 of the Municipal Act.

Mr. Singhvi first suggests that the word "has" in clause (fa) should be read as "has acquired". As the clause stands a Councillor will have incurred disqualification under the impugned provision if he has a share or interest in a lease even if he acquired it before April 1, 1968 and even if he acquired it when he was not a Councillor if he continues to have such share or interest after having been elected a Councillor after April 1, 1963. This in my opinion is the true interpretation of the clause. If the suggestion of Mr. Singhvi is accepted only acquisition of interest by a Councillor as such after April 1, 1968 will be a disqualification. This result can only be achieved by addition of the word "acquired" in the clause for which there appears to be no warrant. Mr. Singhvi argued that if this word is not added the words "having been elected a Councillor" will become redundant, as even without these words the clause will be capable of bearing the interpretation put by me. This is true. But on the other hand if the word "acquired" is added the disqualification will be narrowed down and exclude from its operation having of an interest acquired by a person before April 1, 1968 when he was not a Councillor which may be inconsistent with his duty as a Councillor after he is elected. If the Legislature desired this result, it could have added the word "acquired" at the appropriate place in the clause and can do so even now. I find no warrant for accepting this suggestion.

Mr. Singhvi next contends that in section 474 the word "acquires" is synonymous with the word "has" in the impugned provision. He, therefore, contends that u/s 474 a person can be convicted even if he has acquired a share or interest in the lease before April 1, 1968 but continues to have the share or interest as a Councillor after April 1, 1968. I am unable to accept this interpretation. The use of the word "acquires" in section 474 can only relate to acquisitions after January 12, 1973.

The most elementary rule of interpretation is that words and phrases have to be construed in their ordinary meaning and that phrases and sentences are to be construed according to the rules of grammar. What has been made a disqualification retrospectively is "having" a share or interest in any lease. The word used is "has". If a person acquired a share or interest in a lease even prior to April l, 1968 he still "has" the share or interest after April 1, 1968 unless by surrender, forfeiture, transfer or otherwise he has ceased to have such share or interest. Whensoever acquired, if the Councillor "has" the share or interest after April 1, 1968 he is disqualified. Such share or interest may have been acquired before or after April 1, 1968. The material point is whether after April 1, 1968 and after having been elected a Councillor he has such interest or not. If he has such interest after April 1, 1968, even if he ceases to have such interest, he still incurs the disqualification and ceases to be a Councillor. In section 474 of the Municipal Act the word used is not "has" but "acquires". A Councillor can be punished u/s 168, Indian Penal Code if he "acquires" a share or interest in a lease. The word "acquires" can only relate to the present or the future after January 12, 1973. The acquisition must be of a share or interest which is not permissible for a Councillor to "have" without being thereby disqualified, If the interest was acquired before January 12, 1973 it would have incurred a disqualification u/s 16 of the Municipal Act at the date of acquisition. In any case, even if the deeming provision in the impugned provision is to be read with effect from April 1, 1968 acquisition of such interest prior to that date may incur a disqualification if the Councillor continues to have that interest after April 1, 1968 but will not expose the Councillor for the prosecution of an offence if the interest was acquired before April 1, 1968. I shall now deal with the contention of the respondents that the impugned provision merely creates a disqualification and not an ex post facto offence.

Both sides have relied upon the case of Rao Shiv Bahadur Singh and Another Vs. The State of Vindhya Pradesh, . In this case charges against the two appellants were in respect of offences committed as having been under the various sections of the Indian Penal Code as adapted in the United States of Vindhya Pradesh by Ordinance No. 48 of 1949. This Ordinance was passed on September 11, 1949, while the offences themselves were said to have been committed in the months of February, March and April 1949 i.e. months prior to the Ordinance, It was urged that the convictions in the case which were after the Constitution came into force were in respect of an ex post facto law creating offences after the commission of the acts charged as such offences and hence unconstitutional. The judgment of Jagannadhadas J. discusses the English and the American Law on the subject, points out that in U. S. A. there being a written Constitution the ex post facto law creating an offence retrospectively is itself invalid whereas in English system of Jurisprudence the Courts are not competent to invalidate laws passed by the Parliament and will, therefore, on the ground of repugnance of ex post facto laws creating retrospective offences to universal notions of fairness and justice merely refuse to convict in respect of such offences. The Supreme Court decided that the phrase "law in force" as used in Article 20 (1) must be understood in its natural sense as being the law in fact in existence and in operation at the time of the commission of the offence as distinct from the law "deemed" to have become operative by virtue of the power of Legislature to pass retrospective laws. It was further held that Article 20 (1) in its broad import has been enacted to prohibit convictions and sentences under ex post facto laws and that the Article must be taken to prohibit all convictions or subjections to penalty after the Constitution in respect of ex post facto laws whether the same was a post-Constitutional law or a pre-Constitutional law. It would appear from this decision of the Supreme Court that the present petitioner could not be convicted u/s 474 of the Municipal Act for acquiring a share or interest in a lease contrary to section 16 of the Municipal Act as it would read by virtue of the deeming provision. It is only the "law in force" which is in fact in existence and in operation at the time of the commission of the offence which would be invalid under Article 13 (2) if it created an ex post facto offence, and not if it is introduced retrospectively by a deeming provision.

The above case was followed by the Supreme Court itself in the case of West Ramnad Electric Distribution Co. Ltd. Vs. State of Madras, . The Madras Electricity Supply Undertaking (Acquisition) Act, 1954 was retrospective in operation and section 24 thereof had been enacted for the purpose of retrospectively validating actions taken under the provisions of the earlier invalid Madras Electricity Supply Undertakings (Acquisition) Act, 1949. The Supreme Court held that by the very retrospective operation of the relevant provisions that at the time when the Notification under the prior invalid Act was issued, the provisions of the 1954 Act were in existence and it must be assumed that for the purpose of compliance with Article 31 (1) of the Constitution the Notification was issued under the earlier Act. The Supreme Court held that this did not extend to creating ex post facto offences. It held that the expression "law in force" is used in Article 20 (1) of the Constitution indicating that if a criminal law is enacted by any Legislature retrospectively, its retrospective operation will be controlled by Article 20 (1). A law in force at the time postulates actual factual existence of the law at the relevant time and that excludes the retrospective application of any subsequent law.

In the case of The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , the Supreme Court held that a legal fiction is to be limited to the purpose for which it was created and should not be extended beyond that legitimate field. Similarly in the case of Commissioner of Income Tax, Gujarat Vs. Bai Vina, , a Division Bench of the Gujarat High Court consisting of J. M. Shelat C. J. (as he then was) and P. N. Bhagwati J. (as he then was) held that legal fictions are created only for a definite purpose and they are limited to the purpose for which they are created and should not be extended beyond their legitimate field. The definite purpose for which the impugned provision in the case before me was enacted was to create a disqualification for being elected or continuing as a Councillor. The purpose of the provision was not to create an ex post facto offence. The legal fiction of giving retrospective effect to the impugned provision from April 1, 1968 must be limited to the purpose of creating disqualification and not for the purpose of section 474 of the Municipal Act. To do so would be to extend the legal fiction beyond its legitimate field.

Mr. Joshi invited my attention to the case of Milakhraj Vs. Jagdish Chandra and Others, . There a Municipal Act had been retrospectively validated. The Act naturally contained certain penal provisions also. The argument was that by reason of creating ex post facto offences the validating Act was itself invalid. The Division Bench consisting of Wanchoo C. J. and Modi J. held (p. 294):

There is, in our opinion, no force in this contention. It is enough to point out that this Act does not directly provide for any penal provisions of a retrospective nature. The argument that its effect would be to provide such penal provisions retrospectively is, in our opinion, of no force, for Article 20 would immediately come to the rescue of any one who is prosecuted on the basis of any retrospective effect of this Act so far as penal provisions in the Rajasthan Town Municipalities Act are concerned. Article 20 lays down that no person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence. Therefore, if any person is prosecuted on the supposed retrospective effect of the Validating Act with respect to penal provisions in the Rajasthan Town Municipalities Act, he can always claim the protection of Article 20 which in effect prohibits the retrospective creation of offences. The protection of Article 20 being thus available in case some one takes it into his head to use this Validating Act as a retrospective Act for the provision of offences under the Rajasthan Town Municipalities Act, there is no question of the Validating Act itself being hit by Article 20 read with Article 13, for the Validating Act nowhere provides directly for any such retrospective creation of offences. We are, therefore, of the opinion that the Validating Act is valid and is not hit by Article 20.

A similar view was taken by a Division Bench of the Madhya Pradesh High Court in the case of Madhya Pradesh Transport Co. (Pvt.) Ltd. and Others Vs. State of Madhya Pradesh and Others, .

Mr. Singhvi invited my attention to the case of Kanaiyalal Chandulal Monim Vs. Indumati T. Potdar and Another, . This was a case from Bombay and the question was whether section 24 of the Bombay Rent Act created an offence, if an essential supply enjoyed before the Act came into force was cut off and was, therefore, ex post facto legislation. The Supreme Court held that section 24 must be construed in accordance with the intention of the Legislature which would not be to violate Article 20 (1) of the Constitution, This case does not support the argument of Mr. Singhvi that the Amendment Act must be struck down as invalid. Mr. Singhvi also cited the case of Hatisingh Mfg. Co. Ltd. and Another Vs. Union of India (UOI) and Others, where the question was whether imprisonment in recovery proceedings was a punishment and violated Article 20 (1) of the Constitution. It was held that such imprisonment was not a penalty under Article 20 (1). The question of validity of the impugned law was therefore not decided. He also cited the case of Narottamdas Vs. State of Madhya Pradesh, wherein the attack on the validity of the impugned provision on the ground of Article 20 (1) of the Constitution failed.

In the result I hold that section 2 of the Amendment Act merely creates a disqualification for being elected or continuing as a Councillor of the Municipal Corporation and is not an ex post facto law creating an offence retrospectively. What can be punished u/s 474 of the Municipal Act is acquisition after January 12, 1973 of a share or interest which is not permissible u/s 16 of the Municipal Act. The retrospective effect given to the impugned provision by the deeming provision or the legal fiction created thereby is confined only to the field of the purpose for which the said provision was created, viz the creation of a disqualification. In cannot be extended to creating an ex post facto offence. Section 2 of the Amendment Act is, therefore, not invalid on the ground that it violates Article 20 (1) of the Constitution of India.

The second contention taken by Mr. Singhvi on behalf of the petitioner is that section 2 of the Amendment Act is discriminatory and therefore violates Article 14 of the Constitution. He divided the discrimination in the following categories:

(1) Discrimination inter se between sitting Councillors;

(2) Discrimination inter se between voters in Bombay;

(3) Discrimination between Councillors of the Bombay Municipal Corporation and Councillors of other local bodies of Maharashtra;

(4) Discrimination between voters and citizens of Greater Bombay and voters and citizens of local bodies in the rest of Maharashtra; and

(5) that there was no proper classification and all persons irrespective of their varying interest were lumped together.

On the above point, a reference to the pleadings will be necessary. The petitioner contends that there is no rational reason why section 2 of the Amendment Act has been made retrospective with effect from April 1, 1968. According to him, the said date has no rational nexus with the object sought to be achieved. If the object was to disqualify Councillors who by reason of their office obtained undue advantage or interest in any lease, sale or purchase of land by or on behalf of the Corporation, there was no reason why only those Councillors who had taken an advantage after April 1, 1968 should be disqualified and not those who had during their term as Councillors in the earlier years obtained such advantage and continue to have those advantages during their term as Councillors even after April 1, 1968. This, according to him, creates discrimination between sitting Councillors inter se and between voters and citizens in Bombay inter se by virtue of the date of the retrospective effect which, according to the petitioner, has been "picked out of a hat". In my opinion, this contention fails on the interpretation that I have put on clause (fa) of section 16 (1) of the Municipal Act viz., that the disqualification is incurred whensoever the share or interest is acquired even if it is before April 1, 1968 if the Councillor has such interest after April 1, 1968. On the said interpretation, there is no discrimination on that ground, I may also add that April 1, 1968 is the date when as a result of previous general election the present Councillors were elected for a term of five years which comes to an end on March 31, 1973. The date has neither been picked out of a hat nor pulled out of the air. The idea is to disqualify the sitting Councillors in respect of share or interest acquired at any time in the past if such share or interest is either acquired or retained during the term of the office.

Then we come to the contention as to whether there is discrimination between Councillors of Bombay Municipal Corporation and voters and citizens in Greater Bombay on the one hand and Councillors of other local bodies in Maharashtra and voters and citizens of that area and whether there is any proper classification. Mr. P. C. Pandya, Deputy Municipal Commissioner of the Municipal Corporation has made an affidavit in reply dated February 3, 1973, wherein he has stated that all local authorities in the State of Maharashtra are not similarly placed or circumstanced. He states that the Municipal Corporation owns a large number of plots and buildings in the City and there is acute scarcity of accommodation in the City. He submits that the impugned provisions have been enacted so that Councillors may not take undue advantage of their position or office.

In determining the problems of Greater Bombay, the object sought to be achieved by the impugned legislation and the intention of the Legislature in enacting the impugned provision, one cannot ignore matters of common knowledge. Greater Bombay has grown recently mainly on two islands with a limited area. The population has grown to about six millions who have to live within this limited area. This had led to acute scarcity of accommodation in the City. Notwithstanding the provisions of the Bombay Rent Act, accommodation of whatsoever sort whether residential or for business or manufacturing purposes can only be acquired in Bombay on payment of heavy purchase price on ownership basis or exorbitant key money, which is known locally as ''Pugree'' and in various other parts of India as ''Salami'' or by other names. The amounts of ''Pugree'' and the prices of ownership flats are fantastic. In the matter of accommodation, the problems of Greater Bombay have no resemblance with the problems of any other town or city in Maharashtra or even in India. If at all, they can be compared to be problems of New York which due to its vertical growth has overcome its problems of accommodation. Acquisition of accommodation being so valuable, there is a possibility of temptation in the way of Councillors in acquiring accommodation on leases or licenses from the Municipal Corporation which has become the biggest landlord in the City. Such acquisition would amount to taking an advantage of the office of a Councillor. Similarly there is a possibility of a Councillor using his office to get reduction of rent or frequent repairs or amenities and services if he is already a lessee or licensee. The intention of the Legislature obviously is to disqualify Councillors who acquire or retain such accommodation so as to put these temptations out of their way. We will have to see whether the impugned provision is discriminatory in light of these matters of common knowledge.

At this stage it will be pertinent to refer to the intention the Legislature appears to have had in mind in enacting the Amendment Act. Prior to January 12, 1973 having a share in any contract with the Municipal Corporation was a disqualification u/s 16 (1) (f) of the Municipal Act. But sub-section (2) (g) exempted from this disqualification leases and sales or purchases of land or agreements for the same. The Bill introduced in the Legislative Assembly sought to do away with the exemption. The Amendment Act deletes the exemption retrospectively with effect from April 1, 1968. This indicates that the intention of the Legislature is not to exempt leases etc. from the disqualification incurred by having a contract with the Municipal Corporation. Sub-section (1) (fa) of section 16 of the Municipal Act achieves in a positive manner what deletion of clause (g) of sub-section (2) of section 16 achieves negatively. It goes further and adds "including any leave of licence". The intention of the Legislature and the object sought to be achieved by the Amendment Act obviously is firstly that those who have an interest in leases, licences and agreements and contracts with the Municipal Corporation pertaining to land and tenements should be disqualified on being elected Councillors so that there is no conflict between duty and interest. A Municipal Councillor is certainly in a position to take advantage of his Councillorship in respect of his contracts of immovable property with the Municipal Corporation by getting reduction of rent, frequent repairs and other amenities and services. The second object is that a Councillor should not take undue advantage of his office during his term by getting leases, agreements or contracts relating to improvable property from the Municipal Corporation in his favour. This is for maintaining purity in the administration of municipal affairs. We have to consider the question of discrimination bearing in mind the intention of the Legislature and the object sought to be achieved by it.

Both for the purpose of considering the contentions of the petitioner that the impugned provision violates Article 14 and Article 19 (1) (f) and (g), I shall now deal with the exact interpretation and scope of the expression "any lease including any leave or licence". During the course of arguments three alternate interpretations have been suggested:

(1) Mr. Singhvi suggested that "lease including any leave or licence" should be given a narrow interpretation and applied only to those leases which are coupled with any leave or licence. For example if the Municipal Corporation grants the lease of a flat to a person and along with it grants him leave or licence to use along with other tenants the compound or the terrace or any private road over which the tenant, members of his family, and invitees may pass and repass for the purpose of ingress to or egress from the flat. He contended that the expression does not apply to a lease which is not coupled with any leave or licence. I am afraid I am unable to accept this interpretation, as this is not in consonance with the intention of the Legislature and the object sought to be achieved by it. It will exclude from the disqualifying leases such as have no leave or licence coupled with them. There is no reasonable basis for excluding leases of immovable property which are not coupled with any leave or licence. I think if I were to put the interpretation suggested by Mr. Singhvi, the clause would be discriminatory between holders of other leases and holders of leases coupled with leave and licence. Such discrimination will have no reasonable basis or nexus with the object sought to be achieved. I cannot put the interpretation which will render the clause void. Such an interpretation will also not cover the entire mischief sought to be remedied. This interpretation must, therefore, be rejected.

(2) The second interpretation suggested by Mr. Singhvi is that the expression "lease including any leave or licence" covers all leases of immovable property as well as other permissions and licences granted by the Municipal Corporation to persons which would include leave to use a municipal guest house for a few days, parking of cars in municipal parking lots whether on payment of a meter fee or otherwise, having a swim in a municipal swimming pool on payment of a fee or otherwise and doing of several things and carrying on of several trades which require permission or licence of the Municipal Corporation u/s 394 or section 411 of the Municipal Act. I am afraid, I am unable to accept this interpretation also. The first interpretation suggested by Mr. Singhvi was too narrow and the second one is too wide. I have indicated hereinabove the intention of the Legislature and the object sought to be achieved by the Amendment Act. It arises from the scarcity of accommodation in the City and the object sought to be achieved is that having an interest in a lease etc. should disqualify a Councillor so that he should not take undue advantage of his position in getting undue benefits and advantages and further that he should not use his office for securing leases and contracts pertaining to land and tenements. Under sections 61 and 63 of the Municipal Act, there are certain obligatory and discretionary duties cast on the Municipal Corporation. The obligatory duties are construction and maintenance of drains, water works, sanitary works, cremation grounds, streets, bridges, causeways etc. The discretionary duties are to open schools, libraries, museums, art galleries, botanical and zoological gardens, parks, recreation grounds etc. The intention of the Legislature in enacting section 2 of the Amendment Act is not to deprive the Councillors of those amenities which are provided by the Municipal Corporation in discharge of its obligatory and discretionary duties. The wide interpretation suggested by Mr. Singhvi is, therefore, not justified. There is one more circumstance against such a wide interpretation. If the Legislature wanted all leases, permissions, and licences to be covered, the words "including any" in clause (fa) would be redundant and the clause would read "any lease, leave or licence." The purpose of adding the words "including any" appears to me to be to expand the definition of the word "lease" beyond its normal scope to other demises or contracts of similar nature. There is an other objection to the interpretation suggested by Mr. Singhvi and that is that the leave or licence has to be in respect of land which qualifies the words lease, leave, licence, sale, purchase or agreement. The use of the qualifying word "land", would exclude trade licenses and other permissions. The putting of the wide interpretation suggested by Mr. Singhvi would again bring in the vice of making the clause discriminatory inasmuch as it would go beyond the purpose intended to be achieved by the Legislature and would bring in a class of persons who fall outside the scope of the purpose sought to be achieved. Such an interpretation would also make the clause discriminatory and invalid and must be rejected for that reason also.

(3) The interpretation suggested on behalf of the respondents is that leave or licence must firstly be in respect of land built or unbuilt. Secondly, the ordinary connotation of lease is sought to be expanded by including the words "leave or licence" in respect of land or immovable property. And thirdly that leave or licence to use municipal land or municipal property like guest houses or parking lots cannot be included because that would deprive a Councillor of availing for himself and members of his family all the amenities provided by the Municipal Corporation under sections 61 and 63 of the Municipal Act, The leave or licence pertaining to land or immovable property must, therefore, be of the nature of a possessory licence where exclusive possession of the land or property is given to the permissive user or licensee and must not be of a casual nature like the use of a guest house or a parking lot.

It would of course have been better if the Legislature itself had indicated the minimum duration of the leave and licence so as to exclude casual permissive uses or licenses for short durations. The Legislature could have provided that such lease including any leave or licence should be from month to month or for a period of not less than a month. But in absence of any such indication I must find out the true interpretation of the expression from the intention of the Legislature as far as I can gather it and to give effect to the purpose the Legislature had in mind. It therefore appears to me that the expression "any lease including any leave or licence" would mean a lease, permissive use or licence of a possessory type for a reasonable duration and not such as to be a casual leave or licence. Permissive uses or licenses of a possessory type have been known to law (vide Ramjibhai Virpal Shah Vs. Gordhandas Maganlal Bhagat, ).

In my opinion, the interpretation accepted by me would provide for the mischief sought to be remedied by the Legislature and achieve the object of the enactment. The narrower interpretation suggested by Mr. Singhvi would fail to achieve the manifest purpose of the legislation and the wider interpretation suggested by him would reduce the legislation to futility. I must assume that the Legislature would legislate only for the purposes of bringing about an effective result. The expression used by Legislature must, therefore, be subjected to limitations and qualifications indicated by me hereinabove. It is a canon of interpretation that all words if they be general and not precise are to be restricted to the fitness of the matter. A too literal construction would carry the operation of the Act far beyond the object with which it was enacted. An intention to produce an unreasonable result is not to be imputed to a statute if there is some other construction available. To apply words literally would defeat the obvious intention of the legislation and produce a wholly unreasonable result which must be avoided and more reasonable interpretation should be chosen.

In the case of Seaford Court Estates Ltd. v. Asher (1949) 2 K B 481, Lord Denning observes (pp. 498 499):

Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give ''force and life'' to the intention of the legislature� Put into homely metaphor it is this: A judge should ask himself the question. If the makers of the Act had themselves come across this texture , how would they have straightened it out? He must then do as they would have done. A judge must not alter the material of which it is woven, but he can and should iron out the creases.

I may also refer with advantage to the case of Dattatraya v. S.V. Bhave (1957) 60 Bom. L R 210, where in Interpreting section 10 (1) (f) of Bombay Provincial Municipal Corporations Act, 1949, a Division Bench of this Court held that the interest contemplated by that provision for disqualifying a Councillor should be such as is likely to come into conflict with one''s duly as a Councillor. In other words, there must be a conflict between interest and duty in order to make the section applicable. In my opinion the interpretation accepted by me will exactly meet this purpose.

Mr. Joshi has also suggested that the word "or" in the expression "leave or licence" should be read as "and". In suggesting this, perhaps, he had in mind an expression of common use in Bombay "leave and licence". I do not think it is necessary to change this word because the word "leave" by itself means permissive use which in this case must be of land or immovable property. The intention of Legislature would be equally carried out if the disjunctive word "or" is used.

Principles to be born in mind by Court in determining validity of a statute on the ground of violation of Article 14 are well established and have been enumerated in the case of Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar and Others, :

.It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of Permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. (p. 202)

In determining whether the impugned provision is discriminatory between Councillors of Bombay Municipal Corporation on the one hand and Councillors of other local bodies in Maharashtra on the other hand or between voters who are entitled to contest a municipal election in Greater Bombay on the one hand and voters who are entitled to contest for Councillorship in other local bodies in the State of Maharashtra on the other hand, one has to see whether the classification for the purpose of legislation is reasonable. I have stated hereinabove that the problems of accommodation in Greater Bombay bear no resemblance to the problems of accommodation not only in the rest of the State but also in the rest of India. Similarly, the cost of acquiring such accommodation in Bombay bears no resemblance with the rest of Maharashtra or even with other places in India. The temptation in the way of Councillors of taking advantage of their position would be commensurately greater in Bombay if at all the temptation exists elsewhere. The classification is, therefore, founded on an intelligible differentia which distinguish Councillors and voters in Greater Bombay from those in the remaining parts of Maharashtra. The differentia have also a rational relation to the object sought to be achieved by the statute in question, viz. to put the temptation out of the way of the Councillors by creating a disqualification and by bringing in and maintaining purity in the municipal administration. The classification appears to me to be reasonable. The above case also lays down that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles and that it must be presumed that the Legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experiences and that its discriminations are based on adequate grounds and that the Legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest and that in order to sustain the presumption of constitutionality, the Court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every set of facts which can be conceived existing at the time of legislation. Applying these principles I am of the view that there is a presumption of constitutionality of the impugned provision. The petitioner has not shown that the mischief sought to be remedied exists elsewhere to such an appreciable extent that it must be remedied. It is not in dispute that in Greater Bombay out of 140 Councillors, eight are tenants of the Municipal Corporation, twenty are licensees in respect of tenements, and some more have taken land on lease or license for building purposes which is ultimately intended to be transferred to Co-operative Housing Societies of which these Councillors propose to become members. There is nothing to show that similar problem exists outside Bombay. The petitioner has, therefore, not discharged the burden of showing that there is a clear transgression of the constitutional principles. I have undoubtedly introduced in this judgment some glaring facts with regard to the position of accommodation in the City of Bombay. But these are matters of common knowledge and common report. I must also attribute to the Legislature an appreciation of the needs of the people and the degrees of harm that exist in different places in the State.

On behalf of the respondents my attention was invited to the case of Bishnu Charan Mukherjee and Another Vs. State of Orissa, . In his judgment Jagannadhadas J. sets out a passage from a judgment of the U. S. Supreme Court which is instructive and reads As:-

.....This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature ''is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be the clearest''. If ''the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.'' There is no ''doctrinaire requirement'' that the legislation should be couched in all embracing terms West Coast Hotel Company v. Perrish, (1936) 300 U S 379, 400.

The same principles have been laid down by the Supreme Court in the case of Sakhawat Ali Vs. The State of Orissa, and in The Board of Trustees, Ayurvedic and Unani Tibia College, Delhi Vs. The State of Delhi and Another, .

Mr. Singhvi contended that the impugned provision is in excess of the requirement of the mischief sought to be remedied. He pointed out that section 36 of the Municipal Act provides that a Councillor shall not vote in matters in which he is interested and this would sufficiently meet the mischief. This contention does not appear to be correct because u/s 92 (a) the Municipal Commissioner has power to grant certain tenancies without the sanction of the Corporation. The question of the Councillor participating in proceedings where his interest is affected may not arise at all. Apart from this, the remedy provided by section 36 does not appear to me to be adequate and it is not for the Court to decide the measures to be taken to remedy the mischief.

Mr. Singhvi also contended that the Municipal Corporation is a big landlord in Bombay and no harm would be done if a few tenements are given on lease or permissive use or licence to Municipal Councillors who are at the same time citizens of Bombay. He pointed out that the Central and the State Governments make living accommodation available not only to Government servants but also to legislators to enable them to discharge the duties of their office more efficiently. In my opinion there is no analogy between making accommodation available to Government servants and Municipal Councillors. No facts have been placed before me to show that the Central Government or the Government of Maharashtra has constructed or let any premises to legislators at all or beyond the term of their holding public offices. If there are instances, where accommodation has been made available to legislators during the time they hold their public offices, it would stand on a different footing from granting ordinary leases or licences to Councillors which are not restricted to their term of office. Further, legislators whether of Central or of State Legislatures have to perform their duties mostly outside their home towns at the seat of the Legislature whereas Municipal Councillors have to function in the city of their residence. In fact their residence within one of the wards of the city is a necessary qualification for being voters and for being elected as Councillors. There is, therefore, no comparison between the situation of a legislator and of a Municipal Councillor.

Mr. Singhvi cited two cases, viz., The State of Rajasthan Vs. Rao Manohar Singhji, and Saghir Ahmad Vs. The State of U.P. and Others, in support of the argument that when an enactment on the face of it is found to violate a fundamental right, it must be held to be invalid unless those who support the legislation can bring it within the purview of exception laid down and for the proposition that the burden of proof for a valid classification is on those who allege it to be valid. These are however cases where on the face of it legislation was found to violate fundamental rights in which case undoubtedly the burden shifts to the person who alleges it to be valid. The case before me is not of that class.

Mr. Singhvi tried to take me through the provisions of the Maharashtra Municipalities Act, 1965, the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 and the Bombay Provincial Municipal Corporations Act to show that there were no provisions in these Acts similar to clause (fa), the impugned provision in the Bombay Municipal Corporation Act. There is undoubtedly no provision equivalent to clause (fa) introduced by the Amendment Act, but the existence of separate legislation for separate areas by itself establishes the difference between the several areas within Maharashtra in respect of which legislation has been enacted to meet the situation existing there. Instead of pointing to discrimination, separate legislation points to the fact that the conditions in different areas are different.

In the result, I hold that the impugned provision is not discriminatory between the Councillors of Bombay Municipal Corporation and Councillors of other local bodies in Maharashtra or between citizens and voters of Greater Bombay and the citizens and voters of remaining local bodies in Maharashtra. I am also unable to accept the contention that there is no proper or valid classification or that the impugned provision is discriminatory or violative of Article 14 of the Constitution.

The last contention taken on behalf of the petitioner is that the impugned provision violates Article 19 (1) clauses (f) and (g) of the Constitution. Clause (f) provides that all citizen shall have right to acquire, hold and dispose of property while clause (g) provides that all citizens shall have the right to practise any profession or to carry on any occupation, trade or business. Mr. Singhvi contented that the impugned provision took away the petitioner''s right to acquire and hold leasehold or other property from the Municipal Corporation, It also affected his business because the premises so acquired may be used for business purposes.

I may straightaway say that there is no question of the petitioner''s right to practise any profession being affected. He is free to carry on whatever trade, business or occupation he likes notwithstanding the disqualification. The impugned provision also does not take away his right to acquire or hold property from the Municipal Corporation. It merely disqualifies him from being a Councillor. The right to stand as a candidate and contest an election is not a common law right. It has been held in the case of Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, , that the right to stand as a candidate and contest an election is not a common law right. It is a special right created by the statute and can only be exercised on the conditions laid down by the statute. The fundamental rights'' Chapter has no bearing on a right like this created by statute. Persons have no fundamental right to be elected members of Parliament. If they want that, they must observe the rules. Similarly, the right to contest a municipal election and to be elected a Municipal Councillor is also a statutory right and must be exercised subject to the rules of the game. The above case was followed by the Supreme Court in the case of Sakhawant Ali v. State of Orissa, which also further holds that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for the Legislature to determine what categories it would embrace within the scope of the legislation. In that case a Municipal Councillor was disqualified if he appeared as a lawyer for or against the Municipality and it was held that the right of a person to practise the profession of law guaranteed by Article 19 (1) (g) cannot be said to have been violated, because in laying down the disqualification the Legislature did not prevent him from practising his profession of law but it only laid down that if he wants to stand as a candidate for being elected as Councillor, he shall not either appear on behalf of the Municipality or act as a legal practitioner against the Municipality.

These observations of the Supreme Court apply with equal force to a Councillor of the Municipal Corporation. He is not deprived of the right of acquiring immovable property from the Corporation. But he would be disqualified from being a Councillor if he does so. There is no fundamental right in any person to stand as a candidate for election to the Municipal Corporation. The only fundamental right which is guaranteed to him is the right to acquire, and hold property and to practise a profession. There is no violation of that right in prescribing a disqualification for being a Councillor.

The restriction, if any, also appears to be reasonable in order to achieve the purpose of purity of Municipal Administration and to prevent taking advantage of an office. A Councillor is a public servant u/s 521 of the Municipal Act and is a trustee for the citizens in respect of municipal property. A trustee is not allowed to buy the property of the trust nor a guardian the property of his minor ward. A Judge or an officer of a Court is not allowed to buy property at a Court auction. These are all healthy and reasonable restrictions on the right to acquire property.

Mr. Singhvi contended that even according to the interpretation that I have put on section 474 of the Municipal Act that it punishes acquisitions of property during the time a person is a Councillor u/s 168, Indian Penal Code after January 12, 1973, he contended that u/s 23 of the Contract Act such acquisition would be void and, therefore, this is a restriction on acquisition of property and violates Article 19 (1) (f), I need not decide whether on conviction or without the conviction such an acquisition of property will violate section 23 of the Contract Act and be void as being against public policy. I shall be content with saying that even if it is void, it is a reasonable restriction on the right to acquire property.

I, therefore, hold that the impugned provision does not impose any restriction on acquisition of property or on carrying on any trade, business or occupation and is, therefore, not violative of Article 19 (1) clauses (f) and (g). I must also add that if it amounts to a restriction, it is a reasonable restriction and once again is not violative of these provisions of the Constitution.

In the result the petition fails and is dismissed. In the circumstances of the case, there will be no order as to costs.