JUDGMENT
Rama Jois, J.
1. In these two Writ Appeals presented by the Corporation of the City of Bangalore and the State of Karnataka, the following question of law arises for consideration.
Whether the election of Taxation Appeals Committee held on 24-11-1983 as per Annexure-A of the Corporation of the City of Bangalore required to be elected under Rule -18 of the Taxation Rule by majority of votes is without authority of law and invalid?
2. Briefly stated the facts of the case are as follow :
(1) The Corporation of the City of Bangalore had been constituted and functioning under the City of Bangalore Municipal Corporation Act, 1949. That Act was repealed by the Karnataka Municipal Corporation Act, 1976 (the ‘Act’ for short). The Corporation of the City of Bangalore is now functioning under the provisions of the Act. Section 6 of Act reads :
“The following shall be the Municipal Authorities of Corporation charged with carrying out the provisions of this Act, namely :–
a) the Corporation ;
b) the Standing Committees ; and
c) the Commissioner.
(2) Section 7 provides that the Government may, from time to time by notification determine the total number of Councillors for a Corporation. The proviso provides the number shall not be less than 50 and not more than 100. As far as the Bangalore Corporation is concerned, the number fixed is 87. Section 11 relates to the constitution of Standing Committee which reads :
“There shall be three Standing Committees of the Corporation, namely :
1. (a) the standing committee for taxation and finance,
(b) the standing committee for public health ; and
(c) the standing committee for works.
2. Each standing committee shall consist of seven councillors of the Corporation elected at its first meeting after the general elections and at the first meeting in the same month in each succeeding year according to the principle of proportionate representation by means of the single transferable vote.
3. No councillor shall be a member of more than one standing committee at the same time.
4. The Mayor and the Deputy Mayor shall ex-officio be members of all the standing committees but they shall not have the right of voting.
5. The term of office of the members of the standing committee shall be one year from the date of their election. A person shall cease to be a member of the standing committee if he ceases to be a councillor or if he. absents himself without the permission of the standing committee for three consecutive meetings of the standing committee.
6. Where a casual vacancy occurs in the membership of a standing committee it shall be filled by the corporation by the election of another councillor. The person so elected shall hold office only so long as the person in whose place be is elected would, but for the occurrence of the vacancy, have held.
7. A member of the standing committee may resign his office at any time by notice in writing addressed to the Chairman of the standing committee and delivered to him and such resignation shall take effect from the date on which it is delivered.
(3) In Schedule-Ill to the Act, Rules called Taxation Rules have been incorporated. Rule-4 requires the maintenance of property tax register and the rest of the rules upto 14 regulates the procedure for assessment of tax. Rules 15 to 25 regulate the revision of assessment. Rule-18 which is relevant for the purpose of this case reads :
“When an objector is dissatisfied with the order passed by the Commissioner under Sub-rule (3) of Rule-17, he may within fifteen days from the date on which such order was sent by post appeal against it to a committee called the Taxation Appeals Committee consisting of three members of the corporation elected by it, the Chairman of which committee, will also be elected.
The Taxation Appeals Committee shall have all the powers of a standing committee under Sub-sections (1) and (2) of Section 74 shall apply to requisitions made by the Taxation Appeals Committee as if it were a standing committee.”
(Underling by us)
(4). Under the first paragraph of the Rule, an appeal is provided against the assessment by a person aggrieved by the assessment, to the Taxation Appeals Committee. The said paragraph also provides that the said Committee shall consist of 3 members elected by the Corporation and one among the three members shall be the Chairman who shall also be elected.
(5). There is no separate provision in the Act for the constitution of Taxation Appeals Committee or prescribing the method of election of its members. In other words Rule 18 not only provides for the constitution of Taxation Appeals Committee consisting of 3 members, one of whom is required to be Chairman by method of election by the Corporation but also provides that a person dissatisfied with the assessment has a right of appeal to the said Committee.
(6). Under the second paragraph of Rule 18, it is provided that as regards requisition of records and documents etc., the powers of Taxation Appeals Committee would be the same as those of the Standing Committee.
(7). General election to the Corporation was held in the year 1983. After the election of Mayor and the Deputy Mayor in accordance with the rules, the agenda for the meeting of the Corporation on 24-11-1983 was the election of members and Chairman of the Taxation Appeals Committee. On the said day the election of Members of Taxation Appeals Committee was held by adopting the ordinary method of voting, and those who secured highest votes were declared elected. The three persons so declared elected were the respondents 4, 5 and 6. Further, respondent No. 4 was also elected by the same method as Chairman of the said Committee.
(8). Before the election was held some of the Corporators raised an objection to the effect that the election of the members and Chairman of the Taxation Appeals Committee must be held according to the principle of proportionate representation by means of single transferable vote as prescribed in Sub-section(2) of Section 11 of the Act for election of the 3 Standing Committees specified in that Section, This objection was over ruled by the Mayor on the ground that the procedure prescribed for the election for the Standing Committee was inapplicable and that all along the Taxation Appeals Committee was being elected by direct voting by the Council and by majority of votes and therefore there was no illegality in adopting that method.
(9). After over ruling the objection, the Mayor called upon the nomination of Councillors desirous of being elected as members of the Committee. After receiving the nominations voting was taken in the open meeting. Respondents 4, 5 and 6 were declared elected by majority of votes after counting of votes by the tellers who had been nominated by the Corporation, for counting the votes and declaring the result. Thereafter by following the same procedure, the Corporation elected the 4th respondent as the Chairman of the Taxation Appeals Committee.
(10). Questioning the legality of the said election one of the Councillors presented a Writ Petition. Before the learned Single Judge, the contention urged by the petitioner was that the procedure prescribed for election of Standing Committees under Section 11(2) of the Act had to be followed and as the said procedure was not followed, the election was without authority of law. The learned Judge repelled the said contention and held that in the absence of any specific provision that election to the Taxation and Appeals Committee should be held in the same manner as prescribed for the election of the three Standing Committees there was no justification to hold that the same procedure should have been followed.
(11). The Learned Judge, however, proceeded to hold that as no method for holding election of members of Taxation Appeals Committee was prescribed under the Act or Rules, the Corporation could not have selected its own method for election and therefore, the election of Respondents 4, 5 and 6 to constitute Taxation Appeals Committee was invalid. Aggrieved by the said order these two appeals have been presented.
3. The relevant portion of the Judgment of the Learned Judge the correctness of which is questioned in these appeals are paragraphs 12 and 13. They read :
“12 From language of second half of Rule 18 it is impossible to discern what the rule making authority intended to convey. If it was mere conferment of power to secure records of the order under appeal, this provision may be redundant since power to secure records of the order under appeal is incidental to exercise of appellate power. On the other hand, if the rule intends to confer all powers exercisable by a standing committee on Taxation Appeals Committee then first half of this sub-rule itself would have been sufficient and there was no necessity to state further in the later half that it will have all the powers of a standing committee to secure records of the order under appeal as if it is standing committee exercising powers conferred under Sub-sections (1) and (2) of Section 74. Incidentally it may be stated that Sub-sections (1) and (2) of Section 74 enables Corporation or standing committees to secure any record, correspondence, plan etc., from Commissioner.
13 The rule making authority though aware of different system of elections recognised by the Act for conduct of election of Councillors, Mayor, Deputy Mayor and Members of the standing committee omitted to specify the system of election to be adopted for conduct of election to Taxation Appeals Committee. As has already stated, election must be under authority of law and substantially as required by Statute providing thereafter. Form of election cannot be left to be decided by Corporation or Mayor since the authority which has constituted must necessarily indicate the form. The Mayor could have either followed the principle of proportional representation or direct election or any other mode of his choice. It is in this view, the criticism is that Mayor cannot be a law unto himself and adopt procedure of his choice.”
4. Submission made by the Learned Counsel for the Corporation was that in the absence of any rule specifying the method of electing the Taxation Appeals Committee it was competent for the Corporation either to select the method prescribed under Sub-section(2) of Section 11 namely election of members according to principle of proportionate representation by means of the single transferable vote or the ordinary method of electing by open voting at the meeting of the Corporation by majority of votes and in the present case as there were no such rules the Corporation had chosen to follow the latter method. Therefore the view taken by the Learned Single Judge that the election was without authority of law was erroneous. In support of the above submission, Learned Counsel relied on the decision of the. Supreme Court in the case of The Mysore State Transport Corporation -v.- Gopinath Gundachar, . The Learned Counsel submitted that though the said case arose in the context of the power of the Road Transport Corporation constituted under Road Transport Corporation Act regarding, the appointment of persons to the services of the Corporation the principle laid down in the said case was apposite and applicable to the exercise of the power by the Corporation under Rule 18 of the Taxation Rules.
5. As far as the power to constitute the Taxation Appeals Committee is concerned, it is in Rule 18 of the Taxation Rules. It not only provides that a person who is dissatisfied with the assessment of the property Tax has a right to appeal to the Taxation Appeals Committee but also provides that the members of the Committee as also the Chairman should be elected by the Corporation.
6. It is common ground that there is no provision in the Act regulating the procedure for election of Taxation Appeals Committee and that the State Government could have, under Section 421 of the Act framed rules regulating the method by which the Corporation should elect the members and Chairman of the Taxation Appeals Committee. But the question for consideration is whether until such rules are made the power to constitute the Committee conferred on the Corporation under Rule 18 remains ineffective. We are not persuaded to take the view that Rule 18 in the Schedule to the Act which confers power on the Corporation to constitute the Taxation Appeals Committee by electing 3 members including the Chairman, remains ineffective just because the Government had not chosen to frame the rules prescribing the method of election. The principle laid down by the Supreme Court in the case of Gopinath Gundachar, also supports the stand of the Corporation that until rules are framed it can adopt any one of the methods of election.
7. We are of the view that when power is conferred on the Corporation to elect taxation Appeals Committee, just because the rules were not framed by the Government regulating the election, the power conferred on the Corporation under Rule 18 of the Taxation Rules cannot remain ineffective. Further the nature of the power conferred under Rule 18 is not such as could not be exercised in the absence of rules.
8. Further it may be seen that whereas Rule 71 of the Rules for the election of Mayor and Deputy Mayor incorporated in the schedule to the Act, provides for electing Mayor and Deputy Mayor by direct voting by Corporators and by majority votes, Rules 74 and 75 which regulate the election of Chairman and the members of the Standing Committee, provide that election to these Committees shall be held in the manner prescribed in Section 11, i.e. proportional, representation by single transferable vote.
9. In the present case, there is no dispute that the Corporation proceeded to elect the members of the Taxation Appeals Committee by majority of votes, which is the method prescribed for election of Mayor and Deputy Mayor. Unless the procedure followed by the Corporation can be said to be discriminatory or arbitrary and therefore violative of of Article 14, the election of the members of the Taxation Committee by the Corporation in exercise of its power under Rule 18 of the Taxation Rules by majority of votes cannot be held to be without authority of law.
10. Sri Padmaraj, learned Counsel for the Writ Petitioner appellant however strenuously contended that when under paragraph 2 of Rule 18 of the Taxation Rules, the Taxation Appeal Committee was invested with the same powers as that of the Standing Committee in the matter of requisition of documents as prescribed under Section 74(2) of the Act, it follows that even the election of members of the Taxation Appeals Committee must be conducted in the same manner in which the election to the Standing Committee is required to be conducted under Section 11(2) of the Act read with Rule 74 of the Election Rules. He submitted that the Bangalore Corporation was following the method of election of Taxation Appeals Committee by direct voting since its inception for the reason that under the City of Bangalore Municipal Corporation Act, 1949 the election of members of Standing Committee was also required to be made by direct voting and not by proportionate representation by single transferable vote and since the procedure for election to the Standing Committee was changed to that of election by proportionate representation under Section 11(2) of the 1976 Act the same method ought to have been adopted in electing the Taxation Appeals Committee.
11. In support of the submission that the Corporation was not free to adopt any method it pleases, the learned Counsel relied on the Judgment of the Supreme Court in A.C.Jose -v.- Sivan Pillai, . In the said case, the question for consideration was, whether the order issued by the Election Commission of India directing the casting of votes by means of mechanical process was without jurisdiction or not? The Supreme Court held that the Election Commission had no jurisdiction to issue such order by directing a new method of voting. From the Judgment of the Supreme Court it is clear that the said view was taken for the reason that the method of voting was a matter covered by statutory provision. This is clear from the relevant portion of the Judgment found at paragraph 25, which reads–
To sum up, therefore the legal and constitutional position is as follows :
(a) when there is no parliamentary legislation or rule made under the said legislation the Commission is free to pass any orders in respect of the conduct of elections.
(b) where there is an Act and express Rules made thereunder, it is not open to the Commission to override the Act or the Rules and pass orders in direct disobedience to the mandate contained in the Act or the Rules. In other words, the powers of the Commission are meant to supplement rather than supplant the law (both statute and Rules) in the matters of superintendence direction and control as provided by Article 424.
(c) where the Act or the Rules are silent the Commission has no doubt plenary powers under Article 424 to give any direction in respect of the conduct of election, and
(d) where a particular direction by the Commission is submitted to the Government for approval, as required by the rules, it is not open to the Commission to go ahead with implementation of it at its own sweet will even if the approval of the Government is not given.
12. The above pargraph on which the Writ Petitioner relies is itself a complete answer to the contention urged by the Writ Petitioner. According to the ratio therein the Corporation could not have chosen to adopt any of the methods of election if only any specific method was prescribed under the Rules; but in its absence it could adopt any of the well known methods of election. For these reasons we respectfully disagree with the view taken by the Learned Single Judge, and answer the question set out first in the affirmative.
13. One other point to be considered is that the Corporation should have in the first instance passed a resolution to the effect that it prefers to adopt the method of direct election for electing the members and Chairman of the Taxation Appeals Committee and thereafter proceeded to hold the election by adopting the said method. It is true that it was better for the Corporation to have done so. However the very fact that the Corporation had elected the three members of the Taxation Appeals Committee by adopting direct election method itself proves that the Corporation had decided to adopt that method and therefore there is no substance in the point.
14. The learned Counsel next contended that it was obligatory on the part of the rule making authority viz., the State Government to have framed the rules prescribing the method of election of the members of the Taxation Appeals Committee in exercise of its powers under Section 421 of the Act. All that can be said in this behalf is that it is competent for the Government to frame the rules under Section 421, prescribing any particular method which the Corporation should follow for electing the members and Chairman of the Taxation Committee and if such rules are framed it is binding on the Corporation and thereafter it cannot depart from the method prescribed under the Rules. If the State Government however takes its own time to frame the rules, or does not choose to frame the rules the power conferred on the Corporation to elect a Taxation Appeal Committee cannot remain inoperative. Till ruch rules are framed, it is competent for the Corporation to adopt any one of the methods and to elect the members and Chairman of the Taxation Appeal Committee.
15. It is however open for the respondent to make a representation to the State Government requesting it to frame the rules for regulating the election to the Taxation Appeals Committee, as it has got the power to frame the Rules under Section 421 of the Act.
In the result, we make the following order:
(i) The Writ Appeals are allowed.
(ii) In reversal of the order made by the learned Single Judge, Writ Petition No. 12048 of 1984 is dismissed.
(iii) No Costs.