JUDGMENT
Ravani, J.
1. The petitioner, who is a voter and resident of Kadi town, has challenged the legality and validity of notification dated December 10, 1991 by which the term of the councillors of the Kadi Municipality has been extended for a period of six months from December 12, 1991 to June 11, 1992 and of the notification dated June 10, 1992 by which the terra is further extended for a period of six months from June 12, 1992 to December 11, 1992 or up to the date of holding the first general meeting of the elected councillors whichever event occurs earlier. The petitioner has prayed for a declaration that the term of the councillors of the Municipality has expired on December 11, 1991 and also prayed that the respondents be directed to act in accordance with the provisions of S. 263A of the Gujarat Municipalities Act, 1963 (hereinafter referred to as ‘the Act’).
2. It is an undisputed position that the general election of Kadi Municipality took place on November 16, 1986 and the first meeting of the councillors was held on December 12, 1986. Thus as per the provisions of Section 8(1) of ‘the Act’, the term of the councillors elected at the general election was for a period of five years, meaning thereby, the term was to expire on December 11, 1991. The Urban Development and Urban Housing Department, Government of Gujarat issued a notification dated December 4, 1991 inviting objections against the proposed extension of term of the councillors of the Municipality. The notification inter alia stated that the State Government was of the opinion that the formation of wards and determining the number of councillors to be elected from each ward should be made in accordance with the population figures of 1991 census and since it was not possible to hold elections of the councillors of the Municipality before December 11, 1991, the Government considered it necessary to extend the term of the councillors of the Municipality for six months or up to the date of, holding the first general
meeting of the elected councillors whichever event occurs earlier. The said notification is issued under the first proviso to Sub-section(1) of Section 8 of ‘the Act’. As required under second proviso to Sub-section (1) of Section 8 of the Act, the Government invited objections from the voters and stated that the voters may file objections on or before December 9, 1991. It appears that several voters filed their objections before the stipulated date. The objections were considered by the Government and thereafter on December 10, 1991, the Government issued notification extending the term of the councillors of the Municipality for a period of six months from December 12, 1991 to June 11, 1992 or up to the date of holding the first general meeting of the elected councillors whichever event occurs earlier.
3. The petitioner challenged the legality and validity of the action of the Government by filing this petition on December 12, 1991. The petition was entertain able by a single Judge of the High Court. At the time of admission a decision rendered by a single Judge of this Court in the case of Kumbar Yakub v. Bhuj Municipality reported in 1991 (2) 32 Guj LR 755, was pointed out. It was considered necessary that the said decision be reconsidered by a Division Bench and hence the matter was referred to Division Bench. This is how the matter is placed before Division Bench.
4. During the pendency of the petition, by another notification dated June 10, 1992, the term of the councillors of the Municipality has been extended for a further period of six months from June 12, 1992 to December 11, 1992 or up to the date of holding the first general meeting of the elected councillors whichever event occurs earlier. As stated in the notification, the Government was of the opinion that the formation of wards and determining the number of councillors to be elected from each ward should be made in accordance with the population figures of the 1991 census and for this reason it was not possible to hold elections of the councillors of the Municipality before June 11, 1992 and hence the Government considered it necessary to extend the term of the councillors of the Municipality for a further period of six months. As stated earlier, the Government by notification dated June 10, 1992, extended the term of the councillors of the Municipality for a further period of six months. The petitioner has sought necessary amendment in the prayer clause and has carried out the amendment in the petition.
5. The petitioner contends that mid-census election or the general election to the Municipality is to be held on the basis of the population figures “as ascertained at the last preceding census”. It is submitted that at the mid-census election, the number of councillors should be determined and the seats should be allotted to different wards on the basis of the population figures as ascertained at the last preceding census. It is urged that if the population Figures of the census which may be in progress or which might have taken place are not available, the general election of the Municipality cannot be postponed and on this ground if general election of the Municipality is to be postponed, the provisions of Section 263A of the Act is required to be followed. It is also contended that the statutory requirements of inviting objection and considering the same as required under second proviso to Section 8(1) has not been complied with.
6. Some of the basic postulates of democratic form of Government or for that matter of any democratic institutions can be stated as follows:
1. One whosoever sits in the position of power must have the mandate of the people;
2. No one can sit in the position of power beyond the term for which the mandate has been given. In case he or she wishes to sit in the position of power beyond the specified term for which the mandate has been given by the people, he or she must seek fresh mandate;
3. One whosoever sits in the position of power will be accountable to the people. Accountability may be sought by different modes as may be devised under the relevant statute;
4. The person sitting in the position of power is required to exercise the power reasonably and for the purpose for which the power is conferred upon him.
The aforesaid propositions are the basic principles which are interwoven in the Constitution of India. Again these principles are reflected in the relevant statutes governing the different democratic institutions. There may be some changes or modifications in details, but the basic principles remain the same.
7. In the instant case we are concerned with the municipalities governed under the provisions of ‘the Act’. The Act has been enacted with a view to consolidate and amend the law relating to municipalities in the State of Gujarat so as to give them wider powers in the management of municipal affairs. “Councillors means (Section 2(4)) a member of the municipality in a municipal borough. The term “population” in relation to a municipal borough means (Section 2(20)) the population thereof as ascertained at the last preceding census. Section 6 of ‘the Act’ inter alia provides that the Municipality shall consist of elected councillors and the number of councillors shall be determined as follows:
(a) 25, if the population of the municipal borough does not exceed 50,000.
(b) 35, if the population of the municipal borough exceeds 50,000 but does not exceed 100,000.
(c) 40, if the population of the municipal borough exceeds 100,000 but does not exceed 200,000, and
(d) 51, if the population of the municipal borough exceeds 200,000.
Section 6 also provides for reservation of seats for women, Scheduled Castes and Scheduled Tribes. As provided under Section 7, the State Government is enjoined with the duty to divide each municipal borough into wards and the number of members to be elected from each ward. Section 7(1A) has been inserted by Gujarat Act No. 2 of 1979, relevant part of which reads as follows:
“(1A)(a) In the case where such election is held immediately after —
(i) the census is taken under the Census Act, 1948 and the relevant figures of which are notified by the State Government in the Official Gazette; or
(ii) the limits of the municipal borough of a municipality are altered, the State Government shall, and
(b) in any other case where on account of a natural calamity or such other reason the State Government thinks it fit to do so, it may —
in consultation with the municipality by order alter the limits of wards and the number of councillors to be elected from each of such ward;”
There is a proviso to this Sub-section which prescribes the point of time and the manner in which necessary action is required to be taken by the Government. The aforesaid provision of Section 7(1A) indicates that in case where the census is taken or in case where the limits of the municipality are altered, it is the obligatory duty of the Government ‘in consultation with the municipality’ to alter the limits of the wards and the number of councillors to be elected from each of such ward. As stated earlier, Section 8 of the Act provides for the term of office of the councillors of the municipality. Section 8 and Section 263A are reproduced hereinbelow:
“8(1) Save as otherwise provided in this Act, councillors elected or nominated at a general election under this Act, shall hold office for a term of five years.
Provided that the State Government may from time to time by an order notified in the Official Gazette and containing the reasons for so doing extend the said term to a term not exceeding seven years in the aggregate in a case where the term is proposed to be extended on account of conditions or circumstances created as a result of famine, flood, fire, earthquake or other natural calamity and in any other case, six years in the aggregate.
Provided further that before any such order is made the State Government shall invite and consider objections hereto, from the voters entitled to vote at the municipal election in the municipal borough concerned.
(2)(a) The term of office of such councillors shall be deemed to commence on the date of the first general meeting of the municipality which shall be held after such election and after the expiry of the term, of the outgoing councillors hereinbefore provided at which a quorum shall be present; and
(b) the term of office of the outgoing councillors shall be deemed to extend to and expire with the day before the date of such meeting.
(3) Where in view of the term of office of councillors of any municipality expiring on any day within a period of one month after the commencement of the Gujarat Municipalities (Amendment) Ordinance, 1969, a general election had been held and the names of the councillors elected to such municipality at such general election had been notified under Sub-section (6) of Section 6 at any time before such commencement, the councillors of such municipality holding office on the date of such commencement, shall, notwithstanding anything contained in Sub-section (1) be deemed to have held office for a term of four years,”
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“263A.(1) Notwithstanding anything contained in this Act or the rules or bye-laws made there under, if in respect of any municipality the State Government is satisfied, at any time before or after the date on which it is or has become liable to be reconstituted on account of expiry of the term of its councillors or otherwise, notwithstanding that the Central Government has taken census under the Census Act, 1948 it is not possible to hold elections within reasonable period for the reconstitution of that municipality in accordance with the relevant figures of the census so taken by reason of the fact that —
(a) the relevant figures are not available to the State Government for being notified
by the State Government in the Official Gazette, or
(b) that reconstitution of wards, determination of number of councillors to be elected there from and preparation of list of voters, on the basis of the relevant figures of the census when made available is not likely to be completed within a reasonable period.
The State Government may, by notification in the Official Gazette make a declaration to that effect.
(2) A notification issued under Sub-section (1) in relation to any municipality shall remain in force for such period not exceeding six months, as may be specified therein:
Provided that if the State Government is of the opinion that it is necessary so to do, it may be order and for reasons to be mentioned therein, extend, from time to time, the period so specified; so, however, that the notification shall not in any case remain in force for more than two years in the aggregate.
(3) On the issue of a notification under Subsection (1) in relation to any municipality with effect from such date (not being earlier) than the date on which the municipality is or has become liable to be reconstituted as the State Government may, by order, specify and so long as that notification remains in force, all the powers and duties of the municipality shall be exercised and performed by such officer of the State Government, as may be specified in the said Order.
(4) The State Government shall, before the expiry of the period specified in the notification issued under Sub-section (1) or extended under the proviso to Sub-section (2), as the case may be, take steps for the purpose of reconstituting the municipality in the manner provided in this Act.”
8. As provided under Section 8 of the Act, the councillors are to hold office for a term of five years. This term may be extended by the Government for a term not exceeding seven years in aggregate in a case where the term is proposed to be extended on account of conditions or circumstances created as a
result of famine, flood, fire, earthquake or other natural calamity and in any other case, six years in the aggregate. Thus the councillors elected for a specified term and who have obtained mandate from the people to sit in the position of power for a specified term may continue to sit beyond the term of the mandate provided the Government extends the term in accordance with the provisions of Section 8(1), This is the general provision with regard to the extension of the term of the councillors. As the opening words of the section indicates this provision regarding term of the municipal councillors is “save as Otherwise provided in the Act”. As indicated hereinabove in a situation created on account of famine, flood, fire, earthquake or other natural calamity, this term can be extended up to seven years. In any other case, the term may be extended up to the period of six years in the aggregate. The phrase “save as otherwise provided in the Act” and the phrase “in any other case” indicate that the provision of Sections of the Act empowering the Government to extend the term of the councillors beyond the specified term of five years is general power and the specific situations are left out of the purview on the section. While exercising this power, the Government is required to mention the reasons for extending the term and invite objections from the voters and consider the same. However, a specific provision is made by inserting Section 263A of the Act which deals with the situation where the relevant population figures are not available.
9. Section 263A has been inserted in the Act by Gujarat Act 2 of 1983. Initially by Gujarat Ordinance No. 2 of 1982 the provisions of Section 263A were brought into force. The said ordinance remained in operation up to December 27, 1982. Since the said ordinance could not be placed before the Legislative Assembly and the Act could not be passed, another ordinance, namely, the Gujarat Municipalities (Amendment) Ordinance, 1983 was promulgated. Thereafter, Gujarat Municipalities (Amendment) Bill, 1983 was placed before the Legislative Assembly which passed the same and it has become part of the Act.
10. In the statement of objects and reasons for introducing the bill, it is stated as follows:
“The term of office of councillors of certain municipalities in the State had expired and that of certain other municipalities was to expire immediately thereafter with the result that it became necessary to hold elections of councillors of such municipalities. Since census was taken in the year 1981, it was considered advisable to hold the elections on the basis of the figures of population as ascertained at the census. Although the census had been taken, the final figures of population according to such census being not available could not be notified by the State Government in accordance with the provisions of Sub-section (1A) of Section 7 of the Gujarat Municipalities Act, 1963. Since the figures were not notified the determination of number of councillors to be elected in respect of each municipality and the constitution of wards therefore could not be undertaken. Even when the figures were made available the determination of number of councillors and constitution of wards were not likely to be completed within a reasonable period. It was, therefore, considered necessary to take power to the State Government to appoint an officer to exercise the power and perform the duties of such municipalities till such municipalities are reconstituted.
2. For the same reason, it was considered necessary to take power to the State Government to extend the period of one year specified in Sub-section (1) of Section 266D of the period extended under the proviso to the said Sub-section (1) by a further period of one year in the aggregate.”
The aforesaid objects and reasons clearly point out that the State legislature thought it fit to see that in a situation where the census has been undertaken and figures thereof are not available it would be proper to confer power on the Government to issue notification and on issuance of notification, the Government was required to appoint an officer to exercise the powers and perform the duties of the municipality. Thus, a specific provision is made in the Act to deal with the situation wherein
the relevant population figures are not available.
11. On behalf of the respondents it is contended that the phrase ‘in any other case’ occurring in Section 8(1) of the Act would cover the cases of non-availability of census figures of the census which is undertaken in recent past. The contention cannot be accepted. The provisions of Section 8(1) was on the statute book when Section 263A was inserted by way of amendment of Gujarat Act 2 of 1983. The legislature was aware of the provisions of Section 8(1) which empowered the Government to extend the term of the councillors of the Municipality beyond the period of five years for which they would have sought mandate from the people. Despite this provision being on the statute book, the legislature thought it fit to make provision for a situation created on account of non-availability of relevant population figures. In view of the opening words of Section 8(1) “save as otherwise provided in the Act”, it is evident that the legislature did not intend to cover the cases or situation by the provisions of Section 8(1) for which provision is made elsewhere in the Act. This particular situation has been dealt with by making a specific provision. In such a situation, it is not open to the Government to say that the circumstances of non-availability of census figures is covered by the phrase ‘in any other case’ occurring in Section 8(1) of the Act.
12. If the argument advanced by the learned counsel for the respondent were to be accepted, it would amount to saying that the Legislature was not aware of the provisions of Section 8(1) of ‘the Act’. Such ignorance cannot be imputed to the Legislature. On the contrary, it is to be presumed that the Legislature was aware of the provisions of Section 8(1) of the Act and yet the Legislature thought it fit to carve out the cases created on account of the non-availability of relevant census figures. To deal with such situation the legislature thought that the power be conferred upon the Government to deal with the situation which may arise on account of non availability of relevant population figures. In cases where the relevant population figures
are not available specific provision under Section 263A of the Act is made. This means that the legislature intended to take out the cases of non-availability of relevant census figures out of the purview of the omnibus phrase ‘in any other case occurring in Section 8(1) of the Act. Therefore in such a situation, it is not open to the Government to resort to the extension of the term of the councillors of the municipality by resorting to general provision in Section 8(1) of ‘the Act’.
13. In this connection, reference may be made to a decision of the Supreme Court in the case of J.K.C.S. and W. Mills v. State of U.P., reported in AIR 1961 SC 1170. In para 9 of the judgment, the Supreme Court held that specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by special provision. The Supreme Court has observed as follows:
“The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.”
14. Similar view is taken by the Supreme Court in the case of State of Gujarat v. Patel Ramjibhai Danabhaj reported in (1979) 3 SCC 347: (AIR 1979 SC 1098). In that case the legality and validity of provisions of Section 33(6) of the Bombay Sales Tax Act, 1959 (corresponding to Section 14(6) of Bombay Sales Tax Act, 1953) came up for consideration before the Supreme Court. It was contended that no time limit was provided in this specific provision, while for taking actions in other cases, Section 35 provided time limit and therefore the provisions should be held to be ultra vires. The Supreme Court applied the maxim Generalia Specialibus non Derogant and negatived the contention. The Supreme Court held that the provisions of Section 33(6) of the Bombay Sales Tax Act, 1959 was confined to
a particular class of tax evaders while Section 35 of the Bombay Sales Tax Act, 1959 was a general provision dealing with escaped assessment or under assessment. Thus whenever the legislature makes general provision and in the same sphere makes a special provision which would be applicable to specific cases, the provision relating to specific cases would be applicable to specific cases and not the provisions relating to general cases. The aforesaid principle of interpretation of states has been followed by a Division Bench of this Court consisting of one of us (A.P. Ravani, J.) in the case of Torrent Laboratories Pvt. Ltd. v. Union of India reported in (1990) (2) 31 Guj LR 1017. Therein it is held that whenever a general provision is in operation and thereafter knowing fully well the legislature enacts a special provision, it has got to be presumed that the legislature did not intend the general provision to apply to the special cases culled out by it. The general provision made in the sphere has got to yield to the special provision. This is one of the basic principles of interpretation of statutes.
15. In the instant case, we may have a look at the relevant provisions of the Act. Section 8 of the Act provides for the term of the councillors of the municipality and it also provides for the extension of the term of the councillors of the municipality. Section 263A of the Act provides for a particular situation in which the term of the councillors of the municipality expires. This provision also provided for the consequences to be followed in such a situation. Be it noted that the provisions of Section 8 are general provision and the provisions of Section 263A is a special provision dealing with a specific situation contemplated under the provisions of Section 263A, Applying the aforesaid principles of interpretation of statutes the cases in which the relevant census figures are not available and when on this ground the action is to be taken, the legislative mandate is that the Government shall follow the specific provision of Section 263A of the Act, which is enacted for the purpose of dealing with such situation.
16. The Government cannot resort to the provisions of Section 8(1) of the Act in part and may also take steps as provided under Section 263A of the Act. If such actions are taken it would mean that the Government can take into consideration the circumstances of non-availability of the relevant census figures which has been provided under Section 263A and say that the consequences to be followed would not be as per the provisions of Section 263A of the Act but it would be as provided under Section 8(1) of the Act. If such course is permitted to be adopted, it would frustrate the very purpose of amending the Act. Assuming for a moment that the provisions of Section 263A were not on the statute book at all, in such a situation, the Government could always resort to the phrase ‘in any other case’ occurring in Section 8(1) and extend the term of the councillors of the municipality up to a period of 6 years. Precisely with a view to avoid such a situation, in cases where the relevant population figures are not available, the Legislature has inserted the provisions of Section 263A in the Act, The opening words of the Section 8(1) of the Act “save as otherwise provided in the Act” would become meaningless if the Government takes into consideration the situation and circumstances as envisaged under Section 263A of the Act and pass orders under Section 8(1) of the Act and not under Section 263A of the Act.
17. The learned counsel for the respondents submitted that the term ‘population’ as defined in Section 2(20) of the Act means the population of the municipal borough “as ascertained at the last preceding census”. Therefore it is submitted that the census which has already been undertaken but the figures of which have not been published (i.e. census of 1991) should be taken into consideration. The submission is not in accordance with the ordinary meaning of the language of the statute. The phrase “as ascertained at the last preceding census” is capable of only one meaning i.e. determined or already discovered by investigation known (see Oxford Dictionary, Vol. I, page 483). In the context the phrase ‘ascertained figures” would mean the final population figures as declared after the census and that can happen only on due
publication of the figures by the appropriate authority and not before such publication. So long as the population figures of 1991 census are not ascertained, the figures which are yet to be published cannot be taken into consideration for mid census election. Same view is taken by another Division Bench of this court (Coram: S.B. Majmudar, Actg. C.J. and N.J. Pandya, J.) in the case of A. A. Kureshi v. State of Gujarat reported in 1992 (1) 33 Guj LR 503. We are in respectful agreement with the view taken by the Division Bench.
18. The learned counsel for the respondents relied upon a decision of this court rendered by learned single Judge of this court in the case of Kumbhar Yakub v. Bhuj Municipality reported in 1991 (2) 32 Guj LR 755. He has particularly placed reliance on the observations made by the learned single Judge in para 25 of the judgment. The learned Judge after referring to certain observations made by a Division Bench of this court in the case of Rameshchandra v. Collector, Kheda, reported in (1979) 20 Guj LR 191, on which reliance was placed by the Additional Advocate General who appeared for and on behalf of the State Government, held that it will not be realistic and rational to permit the Bhuj Municipality to hold election based on the census figures of 1981 and gave direction as follows:
“I do not think that it is necessary to refer to Section 263(A) at this stage because I am of the opinion that when the census of 1991 has already commenced and when it is likely to be over by 31st March, 1991 it will not be realistic and rational to permit the Bhuj Municipality to hold election based on the census of 1981. In fact, it would violate the principle one-man-one vote. Thus, on the second submission of Mr. Udhwani also this petition requires to be allowed.”
19. As indicated in para 3 hereinabove, this matter has been referred to Division Bench since at the time of admission it was observed that the decision in the case of Kumbhar Yakub (1991 (2) 32 Guj LR 755) (supra) rendered by the learned single Judge was required to be reconsidered. Thereafter the decision rendered by the learned single
Judge in the case of Kumbhar Yakub (supra) came up for consideration before a Division Bench consisting of S. B. Majmudar, Actg. C.J. and NJ. Pandya, J. in the case of A. A. Kureshi (1992(1) 33 Guj LR 503) (supra). The Division Bench considered the case of Kumbhar Yakub (supra) decided by the learned single Judge and in that connection in para 11 of the judgment it is observed as follows:
“The learned Judge in that case has taken the view that when Census operations are over and collection of figures is completed, then election process has to be in the light of figures of the last Census and figures of last preceding census would be totally unrealistic and stale. It becomes clear that the aforesaid decision was rendered by the learned single Judge in the light of the provisions of Gujarat Municipalities Act and there also the short question before him was whether the Collector was justified in rotating seats of females ward-wise. Consequently, the aforesaid view on the population figures of last preceding census is clearly obiter as para 29A of the judgment shows. Even that apart, in the fight of clear language of the definition of the word ‘population’ as contained in the Gujarat Municipalities Act and which is pari materia with Section 2(45A) of the present Act, the obiter observations of the learned single Judge on this aspect cannot be accepted and it must be held, with respect, that the learned Judge was in error when he took that view.”
Thus in view of the subsequent decision of the Division Bench of this Court in the case of A. A. Kureshi (supra), the finding arrived at and the observations made by the learned single Judge in the case of Kumbhar Yakub (supra) as regards the requirement of holding election on the basis of 1991 census figures no longer holds the field.
20. In our opinion, the attention of the learned single Judge was not drawn to the correct principles of law laid down by the Division Bench of this Court in the case of Rameshchandra (1979 (20) Guj LR 191) (supra) (Coram: B. J. Divan, CJ and P. D. Desai, J.). In that case the court held that ‘one man one vote’ rule was attracted to the process of election and it has its play in
election of local Government bodies also. After examining the scheme of the Act the court observed that Section 6 provides for statutory number of councillors for each borough on the basis of its population as ascertained at the last preceding census. The entire scheme indicated that the guideline adopted for fixing the total number of seats was population figure ascertained at the last preceding census. The Division Bench held that this was the guideline adopted for fixing the total number of seats and it would be unreasonable to depart there from at the stage of allocation of seats amongst different wards. Thereafter re-emphasising the aforesaid proposition, it is observed as follows:
“All the same, however, we wish to re-emphasise the need to stick to the statutory guideline which has to be read into Subsection (1) [of Section 6 of the Act] for the purpose of determination of the question of population, the said guideline being that it is the population ascertained at the last preceding census which must be held to be determinative.”
Thus it is evident that the Division Bench while adopting the principle of ‘one man one vote’ held that the election was to be held on the basis of the population figures ascertained at the last preceding census and that such population figures must be held to be determinative for holding the mid-census election.
21. The decision in the case of Rameshchandra (1979 (20) Guj LR 191) (supra) came up for consideration before another Division Bench which decided the case of Vishnubhai Natwarlal Patel v. State of Gujarat reported in 1980 (2) 21 Guj LR 189 (Coram : S. H. Sheth and S. B. Majmudar, JJ.). Even while pointing out the difference between the provisions of Bombay Pronvicial Municipal Corporation Act, 1949 and the provisions of Gujarat Municipalities Act, 1963, the Division Bench which decided the case of Vishnubhai (supra) did not disagree with the principles laid down in the case of Rameshchandra (supra). It was on account of the difference in the statutory provisions and absence of definition of the term ‘population’
in the provisions of Bombay Municipal Corporations Act, 1949, the Division Bench held the impugned notification null and void and struck down the same. But while doing so, the Court did not lay down any principle contrary to the principles laid down in the case of Rameshchandra (supra) nor did it depart from the same. The court observed that if the law requires that 1971 census figures (i.e. the population figures ascertained at the last preceding census) ought to be taken into account, they must be taken into account, the court has no jurisdiction to improve upon the statutory provision in that behalf. Thereafter the court has considered the scheme of the Act and has observed as follows:
“A conjoint reading of Ss. 6 and 2(20) makes abundantly clear the propositions which emerge there from. Firstly, the statute itself specifies the number of councillors to be elected. The State Government has no discretion to vary that figure in case of any particular municipality. Secondly it links the number of councillors to be elected with the population of the municipal borough as determined by the last preceding census.”
Thus it is evident that while deciding the case of Vishnubhai (supra), the Division Bench has reaffirmed the principle of law laid down in the case of Rameshchandra (supra).
22. It appears that the attention of the learned single Judge was not brought to the changed position of law. By Gujarat Act No. 1 of 1981, the Bombay Provincial Municipal Corporation Act, 1949 has been amended and the defition of term ‘population’ as it occured in the Gujarat Municipalities Act, 1963 has been introduced. Unfortunately, the counsels appearing for the parties did not bring this fact to the notice of the learned single Judge.
23. For the aforesaid reasons, we are of the opinion that the observations made and the directions given by the learned single Judge in the case of Kumbhar Yakub (1992 (2) 32 Guj LR 755) (supra) to the effect that the election of Bhuj Municipality could not be held on the basis of 1981 census and the Municipality should be directed to hold
election on the basis of 1991 census figures, are net in conformity with the principles laid down by this court in the case of Rameshchandra (1979(20) Guj LR 191) (supra) and in the case of Vishnubhai (1980 (2) 21 Guj LR 189) (supra). With utmost respect, as the counsel appearing for the parties did not bring to the notice of the learned single Judge the correct position of law the aforesaid error appears to have crept in and as held by the Division Bench consisting of S. B. Majumdar, Actg. C.J. and N. J. Pandya, J. in the case of A.A. Kureshi (1992 (1) 33 Guj LR 503) (supra), this part of the judgment rendered by the learned single Judge in the case of Kumbhar Yakub (supra) is erroneous and cannot be said to be laying down the correct principle of law.
24. It was contended by the learned counsel for the respondents that we may adopt the same course in the case of municipalities also as it has been done by the Division Bench while deciding the case of A, A Kureshi (supra) in relation to Corporation. Therein the term of the councillors is deemed to have been extended and within stipulated time the Government is directed to hold the elections of Corporations. It is difficult to agree with this submission. In the Bombay Provincial Municipal Corporation Act, 1949, there is no provision like Section 263A of the Gujarat Municipalities Act 1963 which empowers the Government to take care of the situation when the census has taken place and the relevant figures are not available. Faced with this difficulty, it is submitted that Section 7A of the Bombay Provincial Municipal Corporation Act, 1949 is the provision analogous to the provisions of Section 263A of the Act. This argument cannot be accepted inasmuch as Section 7 of the Corporation Act makes provision for appointment of Administrator after expiry of normal term of office of councillors. Section 7A of the Corporation Act reads as follows:
“Provision for appointment of Administrator after expiry of normal term of office of councillors:
(1) Where the term of office of the councillors has expired, the State Government shall by order published in the Official Gazette direct that:
(a) Such person as may be appointed by the State Government from time to time shall be the administrator to manage the affairs of the corporations, during the period from the date specified in the order up to the day immediately preceding the date of the meeting referred to in Sub-section (2) (referred to as ‘the said period’) in which the mayor is elected.
(b) General election for reconstitution of the Corporation shall be held within such period not exceeding two and half years in the aggregate as may be specified in the order.
(2) During the said period, all the powers and duties of the Municipal Authorities (except the Municipal Commissioner and the Transport Manager) charged with carrying out the provisions of this Act and of the Corporation under any other law for the time being in force shall be exercised and performed by the Administrator.
(3) The Administrator may by an order in writing delegate any of the powers and duties to be exercised or performed by him under Sub-section (2) to any officer for the time being serving under the Corporation.
(4) The Administrator shall receive such remuneration from the Municipal Fund as the State Government may from time to time by general or special order determine.”
Mere reading of the section shows that it has nothing to do with the non-availability of the census figures. It does not provide for holding of mid census election at or about the time of expiry of the term of councillors of the Municipal Corporation. On the other hand Section 263A of the Act enjoins a duty upon the Government to take action as provided therein if the Government wishes to take into consideration the circumstance of non-availability of relevant census figure. In view of this position, the submission is not accepted.
25. It may be noted that as per the scheme of the Act the Government is enjoined with a duty to hold election on the basis of the population figures as ascertained at the last preceding census. The Government cannot countermand this legislative mandate nor the court has jurisdiction to give direction contrary to the provisions of law. Therefore, the notification extending the term of the councillors of the municipality on the ground that in the opinion of the Government the election is required to be held on the basis of the figures of 1991 census and therefore the Government considers it necessary to extend the term of the Municipality is required to be held to be illegal and void. Such notification is contrary to the provisions of the Act. If elections are to be held, they are to be held on the basis of the population figures as ascertained at the last preceding census. The only enabling provision is Section 263A of the Act which takes care of the situation when the census is undertaken under the provisions of the Census Act, 1948 and the relevant census figures are not available. In such a situation, the Government is empowered to postpone the election. But elections so postponed would be held after the figures are available. Thereafter, when the election is held, it will be on the basis of the population figures as ascertained at the last preceding census. Thus even while applying the provisions of Section 263A of the Act, the Government would not be holding the elections on the basis of the figures which are yet to be made available or which are yet to be ascertained.
26. It is contended that the statutory requirement of inviting objections and considering the same as provided under second proviso to Section 8(1) of the Act has not been complied with. In the submission of the learned counsel for the petitioner, the objections were invited from voters by notification dated December 4, 1991 and the last date for submitting the objections was December 9, 1991. It is submitted that the notification was not given due publicity and the entire procedure inviting objections and considering the same was merely an eye wash. Prima facie, one gets an impression that undue haste is made in inviting the objections and in considering the same. But this contention pales into insignificance in view of the fact that when the subsequent notification was issued in June 1992 and objections were invited no one objected to the further extension of the term of the councillors of the municipality. However, in view of the finding arrived at by us as regards the legality and validity of both the notifications extending the term of the councillors of the municipality, we do not think it necessary to examine this question in further detail and give our finding on this question.
27. This brings us to the question as to what relief may be granted in this petition. In view of the aforesaid discussion, notification dated December 10, 1991 and the notification dated June 10, 1992 by which the term of the councillors of the Kadi Municipality is extended by the Government are required to be held illegal and void and are required to be quashed and set aside and a further declaration that the term of the councillors of Kadi municipality has come to an end on December 11, 1991 should be granted. However, we do not think it proper to give direction to the Government to take action as provided under Section 263A of the Act. It is quite possible that the Government may think it fit to adopt any other course which may be legally permissible under the appropriate provisions of the Act. However, we may make it clear that it would be open to the Government to take action under Section 263A of the Act. On this count, we would like to refrain from giving any specific direction.
28. In the result the petition is partly allowed. The notification dated December 10, 1991 and the notification dated June 10, 1992 extending the term of the councillors of the Kadi Municipality are held to be illegal and void and they are hereby quashed and set aside. It is further declared that the term of the councillors of the Kadi Municipality has come to an end on December 11, 1991. It would be open to the Government to take appropriate action as provide under Section 263A of the Act. Rule made absolute accordingly.
29. At this stage, the learned counsel appearing for the State Government requests that the operation and implementation of the order passed hereinabove be suspended for some time so as to enable the Government to decide as to whether it wishes to challenge the legality and validity of the same before the superior forum or not. In our opinion, we have followed the principles laid down by the Division Bench of this Court in various judgments. The councillors of the Municipality have been occupying the position of power even beyond the term of the mandate given by the people. In the facts of the case, we do not think it proper to grant the request much more so when the Government has not even decided as to whether it would prefer to challenge the legality and validity of this judgment and order before the superior forum. Hence the request refused.