JUDGMENT
Hakeem, J.
1. These Writ Petitions are before us on a Reference made by a Division Bench involving a short question of construction of the expression ‘total number of members’ of the Mandal Panchayat found in Section 47 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Act).
2. All the relevant provisions of the Act and the facts of the case have been stated in extenso in the Judgments of my learned Brothers. Hence, it is unnecessary to repeat the same except to refer to the same in brief wherever necessary.
3. I had the privilege of perusing the separate Judgments written by my learned Brothers taking conflicting views on the second question referred to the Full Bench for consideration i.e., regarding the effective strength of the Mandal Panchayat to be considered for the purpose of Section 47 of the Act. On a consideration of the relevant provisions of the Act two views appear to be equally possible viz., the one taken by my learned Brother Bhat, J., to the effect that the meaning of the expression ‘total number of members of the Mandaf Panchayat’ found in Section 47 of the Act should include the entire strength of the Mandal Panchayat including the nominated members constituted under Section 5(3) of the Act. Accordingly, the proportion of membership of the Mandal Panchayat required for the written notice of intention to make the motion of no-confidence against the Pradhana or Upapradhana of the Mandal Panchayat under Sub-section (2) of Section 47 of the Act and for the purpose of determination of two-thirds of the total number of members under Section 47(9) for the motion to be carried have reference to the total membership required for the constitution of the Mandal Panchayat under Section 5 of the Act and does not refer to the existing number or members, excluding the casual vacancies. On the contrary the view taken by my learned brother Babu, J., with which I am inclined to agree is that the said expression ‘total number of members of the Mandal Panchayat’ under Section 47 of the Act, either for the purpose of notice calling for a special meeting or for passing a resolution against the Pradhana or Upapradhana would only mean the number of members fixed under Section 5(1) and nominated member, if any, under Section 5(3) of the Act minus the existing vacancies arising on account of death, resignation, disqualification or non-filling of the vacancies.
4. The difficulty in the interpretation of the said expression has arisen mainly on account of the fact that the expression has been used in different provisions dealing with the constitution and functions of the Manda! Panchayat. The said expression has not been specifically defined under the Act.
5. In BHARAMAPPA NEELAPPA HANDIMANI v. TOWN PANCHAYAT COMMITTEE, SOUNSHI AND ORS 1977(2) KLJ 58. a Division Bench of this Court had occasion to consider the expression found in an earlier enactment viz., the Karnataka ViIlage Panchayats and Local Boards Act, 1959, and preferred to adopt the first view. The same view has been consistently followed by this Court in similar matters under the Karnataka Municipalities Act, 1964 as also the instant Act.
6. Section 42 of the Act dealing with the election of Pradhana and Upapradhana provides that every Mandal Panchayat shall, as soon as may be, choose two members of the Mandal Panchayat to be respectively Pradhana and Upapradhana thereof and so often as there is a casual vacancy by reason of death, resignation, removal or otherwise in the office of Pradhana or Upapradhana, the Mandal Panchayat shall choose another member to be the Pradhana or the Upapradhana as the case may be. It is, therefore, clear that the election to the said office itself is by a simple majority of the total number of existing members excluding any vacancies at that time. Section 47 governs the procedure for the motion of no-confidence against Pradhana or Upapradhana for which purpose a written notice of intention to make such motion signed by not less than one half of the total number of members of the Mandal Panchayat to be delivered to the prescribed authority. Section 47(9) of the Act provides that the motion can be carried only with the support of not less than two-thirds of total number of members of Mandal Panchayat in a Special Meeting called in this behalf by the prescribed authority. Under the proviso to Section 47(9) election to the office of the Pradhana or Upapradhana can be held only after such notification removing the Pradhana or Upapradhana, as the case may be, is published. Section 50 of the Act deals with the general and special meeting of the Mandal Panchayat. Normally the Manda! Panchayat shall meet for the transaction of the business at least once in every month at the office of the Mandal Panchayat and it also provides that the Pradhana may, whenever he thinks fit, and shall, upon the written request of not less than one third of the total number of members call a Special Meeting. Seven clear days for Ordinary Meeting and three clear days for Special Meeting is provided. Section 51 of the Act provides for the quorum for meeting of the Mandal Panchayat which is one-third of the total number of members. Section 52 pertains to modification or cancellation of resolutions which should be done by a resolution passed by not less than one half of the total number of members at an Ordinary or Special Meeting. It is thus seen that for the purpose of deciding the quorum and majority requi red for the relevant purposes under the various provisions, the expression ‘total number of members’ has been used.
7. As can be seen from the constitution of the Mandal Panchayat and the contingencies provided the thereunder for the election and nomination of members from time to time, it is a body with a fluctuating number of membership. Even before the election it would be difficult to say what the tota number of members of the Mandal Pachayat or its total membership would be, since, if the elected members do not include among them the persons belonging to backward classes, they have to be nominated by the Zilla Parishad. Likewise, changes may take place on the death, resignation, disqualification or removal of members. Therefore, it is clear that at no point of time can it be said that it is composed of the same total number in the sense of its full strength prescribec under Section 5 of the Act. Having regard to this state of affairs regarding the constitution of the Mandal Panchayat, to ensure its continuity and functioning, Sub-section (8) of Section 5 provides that notwithstanding anything contained in Sub-sections (1) and (7) and subject to general or special orders of the Government, where two-thirds of the total number of members of any Manda! Panchayat have been elected, the Mandal Panchayat shall be deemed to have been duly constituted under the Act. If any anamolies are found in the working of the statute and if different interpretations are possible the remedy appears to be to adopt that view which is in consonance with its object and smooth functioning of the system. Such a deeming provision is significantly absent in the other Acts referred to above. Hence, the apparent intention of the Legislature in introducing the deeming provision in regard to the constitution of the Mandal Panchayat is to deal with the situation as in this case. As illustrated and pointed out in the concurring Judgment, if the expression ‘total number of members’ found in Section 47 of the Act is to be equated with the total number theoretically possible to constitute the Mandal Panchayat under Section 5(1) of the Act, then if on account of death, resignation, disqualification or removal of members, the actual number goes below the full strength at no stage in future till the number remains below the maximum, could a no confidence resolution ever be passed and the provisions of Section 47 would be rendered nugatory. It seems to me that a construction of the expression in question which results in so anamolous a position should not be accepted, apart from the fact that upon the provisions of Section 5(8) itself suoh a construction can never be given to these words:
“It is well settled that where the language of a statutory provision is susceptible of two interpretations, the one which promotes the object of the provision comports best with its purpose and preserves its smooth working should be chosen in preference to the other which introduces inconvenience and uncertainty in the working of the system. This rule will apply in full force where the provisions confer ample discretion on the government for a specific purpose to enable it to bring out an effective result.
(STATE OF GUJARAT v. CHATURBHUJ)
Accepting any other view would lead to a very anamolous position.
8. In the circumstances it seems to me that the expression ‘total number of members’ can only mean the actual number of members who are entitled to sit and vote at any given point of time. This construction also appears to be in consonance with the object and purpose of the Act. Any other construction of the expression ‘total number of members’ as pointed out above, would be doing violence not merely to the object and purpose of the Act but also to some of its provisions. AS stated earlier, the number of members of the Mandal Panchayat not being constant throughout, tfie deeming provision under Sub-section (8) of Section 5 is provided to ensure continuity in the working of the Mandal Panchayat taking into consideration the changes in the total number of members which takes place on account of the death, resignation, disqualification or removal, yet the Panchayat with lesser number of members than the full strength would continue to function as if no vacancy had occurred. In that view of the matter I am inclined to agree with the view that the effective strength of the Mandal Panchayat for the purpose of Section 47 shall be the total number of members as fixed in Section 5(1) of the Act including nominated members but ignoring the vacant seats.
9. In so far as the first question referred to by the Division Bench, I agree with the view taken by my learned brothers.
Shivashankar Bhat, J.
The questions referred to the Full Bench are:
“Whether a possibility of two members being nominated under Section 5(3) should” be considered and added on to arrive at the total number of members of Mandal Panchayat? and
What is the effective strength of the Mandal Panchayat to be considered for the purpose of Section47 of the Act?”
2. The questions arise under the provisions of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as ‘the Act’).
3. To appreciate the problem posed, some of the provisions of the Act require to be noted:
Mandal Panchayat is constituted under Section 5 of the Act. It reads:
“5. Constitution of Mandal Panchayat –
(1) The Mandal Panchayat shall consist of such number of elected members as may be notified from time to time by the Government, at the rate of one member for every four hundred population or part thereof of the Mandal as ascertained at the last preceding census of which the relevant figures are published:
Provided that the determination of the number as aforesaid shall not affect the then composition of the Mandal Panchayat until the expiry of the term of office of the elected members then in office:
Provided further that, until the relevant figures for the first census taken after the year 2000 have been published, it shall not be necessary to redetermine the total number of seats in the Mandal.
(2) Such number of seats, which shall as nearly as may be twenty-five per cent of the total number of the members of the Mandal Panchayats shall be reserved for women in every Mandal Panchayat:
Provided that out of the seats so reserved one seat shall be reserved for a woman belonging to the Scheduled Castes or the Scheduled Tribes.
(3) Where no person belonging to Backward Classes is elected to a Mandal Panchayat, the Zilla Parishad shall nominate two persons belonging to the said classes to the Mandal Panchayat.
(4) Seats shall be reserved in a Mandal Panchayat for Scheduled Castes and Scheduled Tribes the number of such seats bearing as nearly as may be the same proportion to the total number of seats in the Mandal Panchayat as the population of Scheduled Castes and Scheduled Tribes in the mandal bears to the total population of the mandal:
Provided that such reservation shall not be less than eighteen per cent of the total number of seats in the Mandal Panchayat:
Provided further that nothing contained in this Section shall be deemed to prevent a woman or a member of the Scheduled Castes and Scheduled Tribes for whom seats have been reserved in a Mandal Panchayat from standing for election to any non-reserved seat in such Mandal Panchayat.
(5) Subject to the provisions of Sub-sections (2), (3), (4) and (6), the Deputy Commissioner shall, by notification determine, –
(a) the constituencies into which the area within the jurisdiction of every Mandal Panchayat shall be divided for the purposes of elections to such Mandal Panchayat;
(b) the extent of each constituency;
(c) the number of seats allotted to each constituency which shall be one or more; and
(d) the number of seats, if any, reserved for the Scheduled Castes and Scheduled Tribes or women in each constituency.
(6) The ratio between the number of members to be elected from each territorial constituency in a Mandal Panchayat and the population of that constituency, as ascertained at the last preceding census shall, so far as practicable, be the same throughout the area within the jurisdiction of a Mandal Panchayat.
(7) If for any reason the election to any Mandal Panchayat does not result in the election of the required number of members as specified in Sub-section (1), the Deputy Commissioner shall, within one month from the date on which the names of the elected members are published by him under Sub-section (9) arrange another election for the election of such number of members as will make up the required number.
(8) Notwithstanding anything contained in Sub-sections (1) and (7), but subject to any general or special orders of the Government, where two-third of the total number of members of any Mandal Panchayat have been elected, the Mandal Panchayat shall be deemed to have been duly constituted under this Act.
(9) The Deputy Commissioner shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected or nominated.”
Section 40 provides for the commencement of term of office of the members. As per Section 40(1), inter alia, the term commences on the expiry of the term of office of the outgoing members, etc., or on the date of publication of their names under Section 5(a), whichever is later.
Explanation thereto reads:
“When the names of members elected at a general election or at a second election held under Sub-section (7) of Section 5 or nominated are published on more than one date, the date by which the names of not less than 2/3rd of the total number of members has been published shall be deemed to be the date of publication for purposes of this Section.”
Sections 42 and 43 provide for the election of Pradhana and Upapradhana; for this purpose, a meeting of the Mandal Panchayat shall be called within four weeks from the date of commencement of the terms of office of the members.
Section 47 governs the motion of no-confidence against Pradhana or Upapradhana. Section 47(2) reads:
“A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one half of the total number of members of the Mandal Panchayat, together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Assistant Commissioner of the revenue sub-division concerned (hereinafter in this Section referred to as the Assistant Commissioner).”
Section 47(9) reads:
“If the motion is carried with the support of not less than two-third of the total number of members of the Mandal Panchayat, the Pradhana or Upapradhana, as the case may be, shall forthwith cease to function as such and the Assistant Commissioner shall, as soon as may be, notify such cessation in the prescribed manner and arrange in the manner prescribed for the handing over of any documents, moneys or other properties of the Mandal Panchayat by the person removed:
Provided that no election to the office of Pradhana or Upa-pradhana shall he held until after such notification removing the Pradhana or Upapradhana, as the case may be, is published.”
Section 51(1) regarding quorum for all meetings reads:-
“51(1) Quorum and procedure: (1) The quorum for a meeting of the Mandal Panchayat shall be one-third of the total number of members. If at the time appointed for the meeting a quorum is not present, the presiding authority shall wait for thirty minutes, and if within such period there is a quorum, proceed with the meeting but if within such period there is no quorum, the presiding authority shall adjourn the meeting to such time on the following day or such future day as he may fix. He shall similarly after waiting for thirty minutes adjourn the meeting if at any time after it has begun, attention is drawn to the want of quorum. A notice of the meeting so fixed shall be pasted in the office of Mandal Panchayat. The business which could not be considered at the meeting so postponed for want of quorum, shall be brought before and disposed of at the meeting so fixed or at any subsequent adjourned meeting at which there is a quorum.”
Section 52 also requires to be noted, here, which reads:
“52. Modification or cancellation of resolutions – No resolution of a Mandal Panchayat shall be modified or cancelled within six months after the passing thereof, except by a resolution passed by not less than one-half of the total number of members at an ordinary or special meeting, notice whereof shall have been given fulfilling the requirements of Sub-section (3) of Section 50 setting forth fully the resolution which it is proposed to modify or cancel at such meeting and the motion or proposition for the modification or cancellation of such resolutions.”
4. The question arose in these Writ Petitions in the context of a no confidence motion being moved against the Pradhana. The members belonging to Backward classes, earlier nominated by the Adhyaksha of Zilla Parishad, as members of the Mandal Panchayat, purporting to act under Section 5(3) ceased to function, in view of this Court’s decision that Adhyaksha was incompetent to make the nomination. It is stated that, whether this panchayat requires two members to be nominated at all, under Section 5(3), itself has not been decided by Zilla Parishad yet.
5. 24 members are the elected members. Therefore, the immediate question was how to compute the “total number of members of Mandal Panchayat”; does the figure represents the actual number of members now existing or does it include the total strength of all the members of the panchayat contemplated by Section 5 of the Act, i.e., whether the possibility of two members being nominated under Section 5(3) should be considered and the said two membership ought to be included in the concept of “total number of members of Mandal Panchayat.”
6. Two views have been placed for consideration:-(i) The effective strength of the Mandal Panchayat in the sense the totality of the existing number of members functioning as such is the ‘total number of members’; and (ii) the total number of members who would fill up all the seats under Section 5 constitute the ‘total number of members’ and for this computation, existence of the vacancies for whatever reason should be ignored.
7. Similar phrase existed in the predecessor legislation, (now repealed under Section 317 of the Act) -Karnataka Village Panchayats and Local Boards Act, 1959. Even though a few provisions regarding nomination of members belonging to Backward Classes were not there, broadly, the purposes of the predecessor and the present Act are the same, i.e., induction of democratic form of local Government at the village level. The phrase ‘total number of members of Panchayat’ was interpreted by this Court, as the totality of members who would fill up all the seats and therefore, for purposes such as quorum or bringing no-confidence motion, the requisite percentage has to be calculated with reference to all the available seats for membership.
8. This view is seriously questioned now. It is contended that to make the Act more meaningful and democratic the phrase ‘total number of members’ means, ‘total number of existing members’, as otherwise, a lawfully elected Pradhana, even though loses confidence of the existing members, cannot be removed under certain circumstances; similarly, it will be Impracticable to satisfy the requirements of quorum on some occasions when there is a large number of vacancies. Therefore, concept of total number of members should be a fluctuating figure, depending upon the number of members who function as members at a given point of time.
9. If the phrase ‘total number of the members’ is a fluctuating figure, depending upon the number of members actually functioning as such, how to construe Section 5(2)? Does it mean, the reservation for women will have to vary, as and when the total number gets varied; it cannot be so, because, reservation under Section 5(2) is done before the elections are held. In other words, for the purposes of Section 5(2), the concept of ‘total number of members’ of the Mandal Panchayat is to be understood with reference to 1the total number of seats fixed for the Mandal Panchayat under Section 5(1). It is at that time alone, 25% of the said total number of members of Mandal Panchayat has to be included in the total number. Atieast, here, to understand and effectuate the provisions of Section 5(2); there cannot be any doubt about the concept of ‘total number of the members’ of the Mandal Panchayat.
10. The starting point for consideration ought to be Section 5(1), because, it is under this Section the legislature has declared as to how many members should be consisted in a Mandal Panchayat. Section 5(3) comes into picture after the elections and nomination under Section 5(3) depends upon the contingency referred therein; only if no elected member of the Mandal Panchayat belongs to Backward Classes, the Zilla Parishad has to nominate two members belonging to the Backward Class. Till the Zilla Parishad decides that a particular Mandal Panchayat has no elected members belonging to Backward Class, the elected members only constitute the panchayat and therefore a possibility of a finding by the Zilla Parishad that nominations may have to be made under Section 5(3), cannot result in increasing the totality, in the concept of ‘total number of members’ by two.
11. If the Zilla Parishad, however, decides the issue and acts under Section 5(3) to nominate the members, there is no reason to ignore the said two nominated members being included in the concept of ‘total number of members’ of the Mandal Panchayat.
12. It is said that by virtue of Section 5(8), the panchayat could be constituted even when only 2/3rd of the total number of members of any Panchayat has been elected; however, Section 5(8) does not declare that, a Mandal Panchayat is deemed to have been constituted on 2/3rd of its members are elected; that is subject to any general or special orders of the Government. Depending upon the circumstances of the case. the Government may order that in spite of its 2/3rd members being elected, the Panchayat is not constituted. Further, the mandate of Section 5(7) cannot be ignored here. This sub-section mandates that, if the elections are not held to all the seats specified in Section 5(1) (i.e., “the total number of members” to be elected to a Panchayat as stated in Section 5(1), the Deputy Commissioner shall hold elections to have the balance filled up and this should be done within a month of the publication of the names of those earlier elected members. Therefore, there cannot be much delay to have alI the elected seats to be fiIled up under Section 5(1).
13. Section 42 contemplates election of Pradhana and Upapradhana ‘as soon as may be’. Suppose a Panchayat is constituted under Section 5(8) with only 2/3rd number of its members only and they choose the Pradhana and Upapradhana under Section 42, it is said, why should, to remove such a Pradhana/Upa-pradhana, a bigger number of 2/3rd is necessary, by computing 2/3rd as the ‘total number of seats’ of memberships in the Panchayat? The question asked was, suppose, a Mandal Panchayat should consist of 24 members under Section 5(1), and it is constituted on the election of 16 only by virtue of Section 5(8) and these 16 choose a Pradhana, is it necessary, thereafter, to remove him, all the 16 members should vote against him? Why not he be removed by the 2/3rd of the sixteen which constitute the Panchayat? This is an extreme example. Law has to be read reasonably and extreme examples cannot be the basis to Interpret the statute. There is no reason to assume that the election under Section 42 will be held so soon, even before the Deputy Commissioner arranges to hold elections to the remaining seats under Section 5(7); by the time the members of Panchayat meet under Section 42 to choose the Pradhana (after due notification and calendar of events etc.) other seats also are likely to be filled up and those members elected under Section 5(7) will participate in the choice of the Pradhana. This is a reasonable way of looking at the possibilities under the Act.
14. The phrase ‘total number of members’ is found agains in Section 5(8). Is it to be understood in a different manner, from the meaning attributable to it elsewhere? If the phrase conveys the meaning as the members who function for the time being, then, Section 5(8) becomes unworkable. Atleast here, in Section 5(8) – it has to be read as meaning, total number of seats in a Mandal Panchayat, so that it can be worked by stating – “Notwithstanding anything contained in Sub-sections (1) and (2), but subject to any general or special order of the Government, where two thirds of the total seats of any Mandal Panchayat has been filled by election, the Mandal Panchayat shall be deemed to have been constituted under this Act.”
15. Section 5(3) thus, is another key-provision, which indicates the meaning attributed to this phrase, “total number of members of Mandal Panchayat”, by the Legislature.
16. There is one principle of statutory construction, which has to be noted here. The presumption is that the Legislature attributes the same meaning to a word or a phrase, in a statute, throughout; the exception is the requirement of the context in which the word or phrase occurs, may demand a different meaning.
17. It was contended that, if the meaning of this phrase attributes a fixed, rigid, theoretical figure, the democratic process and its principle will be affected; when there is a large number of vacancies, still, to pass a no-confidence motion against a Pradhana will be impractical. A person elected say, when the Panchayat had only 16 members by a simple majority i.e., on the votes of 9, will continue almost permanently, unless 16 members join to oust him. The answer lies in knowing as to why the legislature thought of this requirement of two-thirds of total number of members of the Panchayat.
18. The functions of the Pradhana and to a certain extent Upa-pradhana, are not just confined to presiding over the deliberations of the Mandal Panchayat. He has, as seen from Section 51(1)(c) certain executive powers also. The Legislature expected stability in the functioning of the Pradhana and continuity in the policies. Fluctuating loyalities, which occur so frequently should not result in any instability in the Mandal Panchayat. There is nothing undemocratic in the system which provides greater security to the elected office holders as is evident in the guarantee involved in electing members of Legislature and Parliament, without a right of recall; the difficulty involved in removing the President of India under Article 61 of the Constitution though he is elected with a bare majority. The powers of the Zilla Parishad over the Mandal Panchayats under Section 269 shows that many of the actions of the Mandal Panchayats are always subject to correction by the Zilla Parishad. Section 269(1)(e) safeguards against the failure of the Mandal Panchayat to hold meetings etc.
19. The quorum for a meeting of the Mandal Panchayat shall be one-third of the ‘total number of members’ (vide Section 51). The phraseology regarding the number of members to be present, is thus identical. If ‘total number of existing members’, in a Mandal Panchayat in which the existing number of members is only 16 as against 24 which is the number of members specified under Section 5(1), even five members of the Panchayat can constitute quorum, and a decision arrived at therein even by a simple majority in respect of several functions of the Mandal Panchayat will be the decision of the Mandal Panchayat. In other words, in such a case, three members can decide the questions pertaining to any particular function of the Mandal Panchayat. Can it be said that such a thin number of members are to be entrusted with the power to decide as the decision of the Mandal Panchayat? However, if the phraseology is understood as requiring 2/3rd of the membership of the Panchayat under Section 5, then, the quorum for the meetings will be atleast 8 and the majority decision will be of 5 – a safer rule, than permitting only 3 to govern the Panchayat’s decision.
20. Another principle of statutory construction, also is relevant here. The phrase “the total number of members” was found in similar earlier enactments; these enactments may not be identical in respect of every aspect of the legislation; but broadly, the object sought to be achieved and manner of achieving them were same, as in the case of the present Act. This Court had consistently taken the view that, the concept of total number of members was not the same as total number of existing members, but, it is a totality of the number of members of the Panchayat who are to comprise in the constitution of the Panchayat; in other words, the sanctioned or permitted maximum strength of the membership was the concept of the phrase. There is a presumption that Legislature was aware of the meaning given by the Court in respect of a phrase used in an earlier, similar legislation and repeated the same phrase in the subsequent similar Legislation, accepting the meaning given by the highest Court in the State.
21. If the meaning of the phrase depends upon “the number of members existing at a given point of time”, there will be uncertainty in the working of the Act. Disputes may arise as to the number of valid and qualified members and till such a dispute is resolved, the men in power would have the upperhand.
22. A construction placed by the Courts on similar enactments or phraseology is a relevant principle in construing the subsequent legislation. It is now well known that, it is not necessary that the entire subject matter in the two statutes should be identical before any provision in one may be held to be in pari material with some provisions in the other. For example, in STATE OF MADRAS v. A. VAIDHYANATHA IYER mode of proof as to and the statutory presumption regarding acceptance of illegal gratification under the Prevention of Corruption Act was construed as in Evidence Act, though, subject matter of the two enactments are different. The Supreme Court observed, at page 65:
“It may here be mentioned that the legislature has chosen to use the words ‘shall presume’ and not ‘may presume’ the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that act but Section 4 of the prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of (Law of evidence e.g., presumptions, and therefore should have the same meaning.”
23. Though the provisions of the Indian Income-Tax Act, 1922 were vastly different from the provisions of Assam Agricultural Income-Tax Act, 1939, decisions construing the Income-Tax Act were applied to construe the aforesaid Assam Act in STATE OF ASSAM v. DEVAPRASAD BARUA. The phrase ‘at any time’ in Section 29 of the Assam Act was held to be in pari materia with the similar phrase in Section 22 of the Indian Income-Tax Act, 1922.
24. Use of the same words under similar circumstances in a later statute gives rise to a presumption that they are intended to convey the same meaning as in the earlier statute. The learned author G.P. Singh (in Principles of Statutory Interpretation, 2nd Edition) states at page 164:
“On the same logic when words in an earlier statute have received an authoritative exposition by a superior Court, use of same words in similar context in a later Act will give rise to a presumption that Parliament intends that the same interpretation should also be followed for construction of those words in the later statute. The Rule as stated by Griffith, C.J. and approved by the Privy Council (Lord Halsbury) is: ‘When a particular form of legislative enactmeut, which has received authoritative interpretation whether by judicial decision or by a long course of practice, is adopted in the framing of a later statute, it is a sound rule of construction to hold that the words so adopted were intended by the legislature to hear the meaning which has been so put upon them. The Rule in the form stated by James, L.J., and approved by the House of Lords is as follows: ‘When once certain words in an Act of Parliament’ have received a judicial construction in one of the superior Courts, and the legislature has repeated them without alteration in a subsequent statute, I conceive that the legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.”
25. The above Rule is not applicable when the earlier decisions are in fact shown to be erroneous. Just because, it is possible to take another view, cannot be a basis to hold the earlier view as erroneous:
At page 167, the learned author states:
“…..in case of an ill-penned enactment if judicial decisions have consistently adopted one construction inaction of the legislature in not amending the enactment may lend support to the view that the construction so adopted is in accord with the intention of the legislature.”
26. In Bharamappa Neelappa Handimani v. Town Panchayat Committee, Sounshi and others the phrase in question found in a similar law was construed by this Court. Broadly, the scheme of Karnataka Village Panchayats and Local Boards Act, 1959, was similar to the present Zilla Parishad Act and the language of relevant provisions were also similar. It was held therein at page 62:
‘The expression ‘ one-half of the total number of members’ has obviously reference to the strength of the panchayat sanctioned by the Deputy Commissioner under Section 5(1) of the Act. Sub-section (1) of Section 5 of the Act provides that subject to the provisions of the Act, a panchayat shall consist of such number of members, not being less than eleven nor more than nineteen in numbers, as the Deputy Commissioner may determine, all of whom shall be elected. Tt is not disputed that the strength of the panchayat has been fixed by the Deputy Commissioner at 17. The word ‘total’ has been used in the first sentence of Sub-section (1) of Section 37 to emphasise that the number of members referred to in the said provision is not the existing number of members. The expression ‘total number of members’ in the context can only have reference to the sanctioned strength of the panchayat. If the legislature intended that the quorum of one-half of the members has to be determined with reference to the existing number of members and not total sanctioned strength of the members, instead of the word ‘total’ the word ‘existing’ would have been used.”
The Court accepted the view expressed by Assam High Court in SAMIRUDDIN AHMED v. SDO, MANGALDOI AIR 1971 Assam 163.
27. This was followed, while construing the provisions of the present enactment by a Bench of this Court in SAHEBAGOWDA v. DEPUTY COMMISSIONER . Earlier in B. VARADARAJEGOWDA AND ANR. v. ASST. COMMISSIONER, PANDAVAPURA SUB DIVISION AND ANR W.Ps.Nos.13297 & 13298 of 1988 DD 2-11-1988. also a similar view was taken.
28. A similar phraseology is found in Section 11 of the Karnataka Municipalities Act 1964 and while construing the provision, again, it was held that, the ‘total number of members of the Council’, means, the sanctioned strength of the Council and not merely the existing number of members de hors the vacancies. Vide – SHIVASHANKARAPPA AND ORS. v. DAVANGERE CITY MUNICIPALITY AND ORS 1978(1) KLJ 448. At 451, Rama Jois, J. held:
“….the words ‘the total number of Councillors’ can be understood only with reference to Section 11 of the Act which prescribes the total number of Councillors for Municipal Councils and when so understood, it becomes clear that calculation must be made with reference to the total number of Councillors prescribed for any Municipal Council under the said Section, and not with reference to the actual number of Councillors in office on the day when resolution expressing want of confidence in a President or Vice-President is moved.”
Bharamappa’s case was followed, though the two cases arose out of two different enactments.
29. Law has to be made by the Legislature, and the Courts are to interpret the same. If stabi I ity and clarity in law is essential, the meaning attributed to the law also should be definite and unfluctuating. Those who are to understand the law and act upon it – i.e., people in general should not be encouraged to venture into speculations while interpreting the law, with a hope that the consistent view expressed by the Highest Court in the State may be changed by it subsequently and in this hope, those entrusted with the enforcement of the law should not be made to ignore the existing interpretation. If law requires to be changed, the legislature should step in. While interpreting the law, no doubt, Court is guided by the intention of the law maker. Unless there was a clear and patent error committed by the Court in identifying this intention earlier, I am of the view, that the Court should not change its view as to the Legislature’s intention in enacting a particular provision by altering its interpretation.
30. There are no fixed rules, of democracy. In fact, democratic structure and its functioning is basically statutory at this level of local Governments. If right to vote is a matter of franchise, why not the principles governing the office of Pradhana of a Mandal Panchayat, be not statutory? They ought to be and there cannot be any particular public interest that can be achieved by declaring that the Pradhana or Upapradhana should not continue in office if he does not command confidence of 2/3rd members of its existing members.
31. It is possible, in fact, to question the wisdom underlying the requirement of the support of 2/3rd members to oust a Pradhana; it may be asked, why should a Pradhana continue in office when he does not command the support of a bare majority, when, he was elected only by such a simple majority. These questions are posed hers to highlight that any of the different principles could have been accepted by the Legislature while enacting the statute and therefore, in these matters, the will of the Legislature as expressed should prevail and that ‘will’ or the ‘intention’ behind the ‘will’ of the legislature can be gathered by the factum of repetition of the words used, which were subject of interpretation on earlier occasions.
32. A similar phrase came up for consideration before the Full Bench of Allahabad High Court in MANGALA PRASAD JAISWAL v. DISTRICT MAGISTRATE AND ORS . The matter arose out of U.P. Municipalities Act, 1916; under its Town Area Committee was constituted with nine members and a Chairman; therefore the total number of members of the committee was ten. One of the members died and the vacancy continued. A motion of no-confidence against the Chairman was to be carried by only “when it has been passed by a majority of more than half of the total number of members of the committee…”. Five members of the committee who attended the concerned meeting unani-mously voted in favour of the motion of non-confidence. It was contended before the High Court that no-confidence motion would be effective, only if it was carried and was passed by a majority of more than five (the total number of members being ten, ignoring the vacancy), and in the case before the Court, the motion was votpd only by five. This contention was accepted by the Full Bench. One of the reasons stated by the Court is at page 81:
“The meaning of the words ‘total number of members’ is quite plain. It can hardly be disputed that the words ‘total and ‘whole’ are synonymous. The dictionary meaning of the word ‘whole’ is ‘total’ and vice versa. In fact, the whole members of a Board or a body is a well known expression and is used to convey the totality of the members provided for a complete constitution of the body. In English statutes also the word ‘whole’ has been used in the sense of total membership constituting the Board. Sri S.C. Khare, the learned Counsel for the petitioner, referred us to the English Local Government Act of 1933 and submitted that it correlated the quorum of the local authorities (by Section 75 read with Parts I to V of the third schedule of the Act providing for the quorum of the meeting of the different local bodies) with the whole number of members of the Board. He also relied upon an English decision in Newhaven Local Board v. Newhaven School Board (1885) 30 Ch D 350. The facts of that case were that there was a local Board established under the Public Health Act 1875. The constitution of the Board provided that no action could be taken by the Board unless one-third of the full number of the members of the Board were present at the meeting. The Board consisted of nine members, seven members had resigned. It was held that the two remaining members of the Board were incompetent to transact the business of the local Board. In other words, it was ruled that the quorum for carrying on business was not there, so the members were incompetent to transact the business of the Board.”
33. In SHYAMAPADA GANGULY v. ABANI MOHAN MUKHERJEE , a learned single Judge of the Calcutta High Court interpreted the words “whole number of the Commissioners” in Bengal Municipal Act, 1932 in the same manner and held that these words refer to the total number of elected seats in a municipality and the fact that a seat is declared vacant by the Government does not matter. In fact, Section 61(2) of the said Act also required not less than two-thirds of the whole number of commissioners to vote before a Chairman or a Vice-Chairman can be removed and this requirement of such a high proportion of the total strength of the municipality did not deter the Court from giving the Section its due meaning.
34. A Division Bench of Patna High Court in SUKHDEO NARAYAN AND ORS. v. MUNICIPAL CORPORATION , also took a similar view, while interpreting the provisions of Bihar and Orissa Municipal Act, 1922. The relevant provisions required the support of two-thirds of the whole number of commissioners of the Municipality to pass a non-confidence motion against the Chairman. The Bench held that, “it is only natural for the legislature to apply a very strict test in an important matter which concerned the two highest executives of a Municipal Board” and therefore, the “whole number of commissioners” mean the entire number of commissioners who would constitute the Board. Even though, question of any vacancy did not arise before the Patna High Court and the contention was with reference to the number of members present at the meeting, the ratio of the decision would support the view expressed above already. The Bench has referred to the principle underlying the need to have a stricter rule to govern the removal of the Chairman or the Vice-Chairman and secondly the words ‘whole members’ were equated to the totality of the members of the Board. The decision of Calcutta High 1Court referred earlier by us shows that there is no difference between “total number of members” and “whole members”.
35. Full Bench of Bombay High Court has no doubt taken a different view. But the said view, obviously, is the result of the language of the statute involved therein. Having regard to the general pattern of similar statutes (as disclosed from Assam, Calcutta and Patna decisions) and the interpretation given by this Court on earlier occasions with respect to similar legislations, it is not possible to depart from the earlier view.
36. In the view as expressed above, answer to the questions referred are:
1. The total number of members of a Mandal Panchayat, is the total number of members constituting the panchayat under Section 5(1) of the Act. Until the Zilla Parishad decides under Section 5(3) that, the Panchayat requires nomination of two members belonging to Backward Classes, the ‘total number of members’ is to be understood by referring to the notified strength of the panchayat under Section 5(1).
However, if the Zilla Parishad holds under Section 5(3) that the Panchayat requires nomination of members belonging to Backward Classes, then, the total number of members should be increased by two. The meaning of the words “total number of members of Mandal Panchayat” does not change and the figure will be the same, in spite of any vacancy or vacancies.
Rajendra Babu, J.
1. The first and the second petitioners are the Pradhan and Upapradhan respectively of the Mandal Panchayat constituted under the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (hereinafter referred to as the Act) having been elected as such on 3-9-1988. According to the averments in the petitions, 24 members constituted the Mandal Panchayat out of whom 17 were present in the meeting when a resolution expressing no confidence in the petitioners was moved. The Assistant Commissioner, who presided over the meeting to consider a motion made under Section 47 of the Act, found that 17 members having been present “two-thirds of the total number of members” were present at the meeting which constituted the quorum of the meeting to express no confidence in the Pradhan or the Upa-pradhan and therefore 16 members having supported the resolution he declared that the motion was carried. Challenging this resolution the petitioners preferred these Writ Petitions on various grounds including the contention that in order to constitute two-third majority as contemplated under Section 47 of the Act, 18 members should be present inasmuch as two seats were vacant. If those two seats are also taken into consideration out of the 26 members 16 members cannot constitute two-third majority and atleast 18 members should have been present. When these matters came up for consideration before one of us (Rajendra Babu, J) the matters were referred to the Division Bench after considering the view expressed in the decisions in Bharamappa Neelappa Handimani v. Town Municipal Committee And Ors. and Shivashankarappa and others v. Davangere City Municipality And Ors. as to the meaning of the expression “two-third of the total number of members” for the purpose of expressing no confidence in the Pradhan and Upapradhan may need reconsideration particularly in view of the special scheme of the Act such as under Section 5(8) two-third of the members then existing could act as if the whole panchayat had been constituted and the Division Bench after considering the matters referred two questions for consideration of the Full Bench:
(1) Whether a possibility of two members being nominated under Section 5(3) of the Act should be considered and added on to arrive at the total number of members of the Mandal Panchayat? and
(2) What is the effective strength of the Mandal Panchayat to be considered for the purpose of Section 47 of the Act?
2. The first question referred for our opinion does not present much difficulty. The Act does not maintain any difference between the nominated members under Section 5(3) and the members elected pursuant to election held under Section 5(1). They have all and complete rights in regard to participation and election thereof. For that matter even a nominated member can get elected as Pradhan or Upapradhan. In the circumstances, so far as the first question that has been referred for our opinion is concerned, must be answered that in computing the total number of members for purpose of Section 47 of the Act nominated members under Section 5(3) of the Act are also included.
3. The remaining question raised in these petitions is: what is the meaning of the expression “total number of members” in Section 47 of the Act? Does it mean that the expression “total number of members” is what is fixed according to Section 5(1) read with Section 5(3) of the Act after the whole procedure is gone through thereunder or does it mean the total number of members existing or entitled to sit in the meeting at the time of the consideration of the motion of no-confidence irrespective of whether they are present or not. The Division Bench decision in Saheb Gowda v. Deputy Commissioner has preferred the first of the views following the decisions of this Court referred to earlier.
4. The learned Counsel for the petitioners contended that the decision in Saheb Gowda’s case having been rendered keeping in view the scheme of various provisions of the enactment, having found the language thereof identical and having explained the concept of “total membership” for the purpose of expressing no-confidence in the Pradhan or Upapradhan does not require any reconsideration.
5. After I prepared the draft of my view my learned brother Shivashankar Bhat, J. expressed disagree-ment with the same. I have the greatest respect for his views and so I reflected over the matter again, but I regret my inability to agree with him.
6. The scheme of the Act with reference to the matter in issue is as follows:
Sub-section (1) of Section 5 provides that Mandal Panchayat shall consist of such number of elected members as may be notified from time to time by the Government. Under Sub-section (2) thereof there shall be reservation in favour of women to the extent of 25 per cent of the total number of members of the Mandal Panchayat. Sub-section (3) thereof provides that where no person belonging to backward classes is elected as a Mandal Panchayat, the Zilla Parishad shall nominate two persons belonging to the said classes to the Mandal Panchayat. It is provided under Sub-section (8) thereof that notwithstanding anything contained in Sub-sections (1) to (7) but subject to any general oR special orders of the Government, where two-thirds of the total number of members of any Mandal Panchayat have been elected, the Mandal Panchayat shall be deemed to have been duly constituted. Under Sub-section (7) it is provided that if the elections to the Mandal Panchayat cannot be completed for any reason the same shall be held within one month from the date on which the names of the elected members are published by the Deputy Commissioner and arrange another election for the election of such number of members as may be required. The explanation to Section 40 of the Act also provides that the date of commencement of the office to determine the membership of a panchayat is the date by which the names of not less than two-third of the total number of members has been published. Section 42 of the Act provides for the election of the Pradhan and the Upapradhan. Section 43 provides that on the establishment of a Mandal Panchayat for the first time or on its reconstitution or establishment under Section 132 or on its reconstitution on the expiry of the term of the members of Mandal Panchayat, a meeting of the Mandal Panchayat shall be called within four weeks from the date of commencement of the term of office as aforesaid under Section 40 and the prescribed Officer shall preside over the meeting and proceed to hold the election of the Pradhan. Neither Section 40 nor Section 42 makes it explicit by what majority they shall be elected. Section 47 provides for a motion expressing no-confidence against the Pradhan or Upapradhan of a Mandal Panchayat and Sub-section (4) thereof provides that the quorum for such a meeting shall be “two-thirds of the total number of members of the Mandal Panchayat”. It is provided under sub-section (9) thereof that if the motion is carried with the support of not less than two-thirds of the total number of members of the Mandal Panchayat, the Pradhan or Upapradhan shall forthwith cease to function as such. The quorum and procedure is prescribed under Section 51 of the Act for ordinary meeting other than the one called for moving resolution expressing no-confidence in Pradhan or Upapradhan, which is one-third of the total number of members. A close reading of Section 5 of the Act would disclose that Sub-section (1) provides for notifying that the panchayat shall consist of such number of elected members in a particular proportion of the population figures. Sub-section (2) thereof makes it clear that out of such number of seats 25 per cent shall be reserved for women. Proviso to Sub-section (2) thereof also refers to such seats and reservation to scheduled castes and tribes. Sub-section (4) and proviso thereof also uses the expression that seats shall be reserved in a panchayat based on population of scheduled castes and tribes and women. Sub-section (5) provides for delimitation of constituencies and refers to seats in respect of each constituency and reservation therefor. Sub-section (7) thereof provides for another election of members in the event of insufficient number of members being elected to the seats fixed. Sub-section (8) thereof says where two-thirds of the “total number of members” of any panchayat have been elected, panchayat is deemed to have been duly constituted under the Act. I have reverted to the study of Section 5 of the Act again, to point out that Section 5(1) to (7) refer only to fixation of seats and delimitation of constituencies with reference to population figures, reservation for women, scheduled castes and tribes and nomination in case backward class members are not elected. This clearly shows what is determined in Sections 5(1) to (7) is only number of seats fixed to which election has to be held from general and reserved constituencies as well as requirement of nomination. Therefore the Section clearly notices the distinction between the seats and members representing the same. In Section 47 of the Act the expression total number of members would not become total number of seats by which panchayat is constituted. No such distinction was maintained in the Municipalities Act or in the Village Panchayat and Local Boards Act. Moreover, in those enactments the local body was not deemed to have been constituted on election to two-third of seats constituting the same while in the present Act such a provision is specifically made under Section 5(8) of the Act. Therefore the decisions rendered earlier with reference to provisions of the Municipalities Act and Village Panchayats and Local Boards Act are distinguishable and cannot govern the present case. Hence the view expressed in Saheb Gowda’s case that those decisions have application in construing provisions of the Act will have to be held, with great respect to the learned Judges who decided it, as not correctly reflecting the true position.
7. A further analysis of the matter would further strengthen this view. The provisions relating to quorum and majority required for motion of no-confidence is with reference to the membership of the panchayat which is not static but varies from time to time depending upon whether there are any backward class members or not or whether any member was elected from two constituencies or not and on death, resignation and disqualification may lead to a member ceasing to be so thereof. The constitution of the panchayat is peculiar in this regard and that at no given moment of time can it be said that it is composed of a definite number of members. A member who belongs to a backward class if he has been elected from a general constituency represents two interests and in which event there will be no necessity to nominate a member as required under Section 5(3) of the Act. A member may have been elected from two constituencies and for a period may hold both seats. Can in that event the member representing different interests and another member representing two different constituencies be taken as representing two seats each?
8. In the present case, according to the material placed on record, 24 members are elected plus two members nominated under Section 5(3) making a total of 26 members and therefore that should be the total number of members. But what is contended is that the ‘total number of members’ in Section 47 is as indicated in Section 5 and the actual number of members for the present case is 24 and hence falls short of quorum. However this contention ignores the difference between the number of members and the number of seats fixed; while the former reflects the actual, the latter is a theoretical figure and proceeds on the basis that there is no difference between the seats and the members representing them and such an interpretation if accepted would create difficulty in the implementation of the Act. If the total number of members is equated with the total number of seats theoretically possible irrespective of the vacancies arising by death, resignation, disqualification or removal or non-filling of vacancies, then at no stage in future till the number remains below 26 there could be any resolution expressing no-confidence be moved thus rendering the provisions of Section 47 of the Act completely nugatory. If the argument is accepted the result would be that the total number fixed being 26 and the majority required under Section 47 of the Act to pass a resolution of no-confidence will be at least a minimum of 18 members and since the membership itself has fallen below that number, moving of no-confidence motion is never possible until all the vacancies are filled up. I do not think that such an interpretation is possible which leads to an anamolous position apart from the fact that under the scheme of provisions of law itself such a meaning cannot be given to those words. This position becomes crystal clear when examined in the light of Section 5(8) of the Act which provides for the constitution of the panchayat when two-thirds of the total number of members have been elected. If for any reason the election is not held under Section 5(7) of the Act and the panchayat is not completely constituted, by reason of Section 5(8) the panchayat can carry on its functions and for all purposes the panchayat stands constituted including the purpose of election of a Pradhan and Upapradhan. In such an eyent there can be no question of no-confidence motion being moved at all because the panchayat itself does not consist of two-third of the number of members fixed under Section 5 of the Act. Section 59 provides for filling up of vacancies but does not say by what time the same shall be done. If upon the construction suggested it is to be held that a vacant seat must be counted along with the actual number of members in arriving at the total number of members, it does not take note of the contingency that if the vacancy is not filled as to what should happen to the same if at a given time there are two-thirds of the total number of members fixed under Section 5(1) of the Act, the panchayat can carry on its functions. Therefore, the scheme of the Act does not fit in with the meaning given to the expression total number of members in Section 47 of the Act In the decision aforesaid and even where two views are possible the one that can give effect to all the provisions of the Act should be preferred.
9. When the panchayat stands constituted under Section 5(8) of the Act when two-thirds of the seats are filled up, and carry on all functions of the panchayat and Section 55(4) of the Act provides for carrying on the functions of the panchayat ignoring the vacancies occurring, and for purposes of election of a Chairman no particular restriction is placed as to the number of members who should elect him, can we ignore the reality and insist upon a theoretical number to be present and available? Is not the removal of the Chairman a function of the panchayat? If that is a function of the panchayat to accept that the expression ‘total number of members’ used in Section 47 of the Act would mean total number of seats even though vacant or not filled up would seriously cripple the functioning of the panchayat. Courts have always distinguished the real from the apparent and if the number set for the team is not available but rules require the game should go on, should the game go on with the available number or insist upon waiting till all the vacancies are filled up and till then allow a walk-over. If two-thirds of the existing members have no confidence in the Pradhan who does not merely preside but has other statutory functions, what kind of work can that panchayat carry on? Is it in the interests of the panchayat itself to have a Chairman who has forfeited the confidence of two-thirds of its existing members. These realities create practical difficulty in accpeting the view expressed by this Court in Saheb Gowda’s case and other High Courts and therefore taking a pragmatic view of the matter I beg to disagree with those views.
10. This Court was influenced by the fact that it is possible for the members to change their loyalty as often as they could and thereby render the position of Pradhan and Upapradhan unstable. Now, particularly when elections are fought on party lines and after the introduction of anti-defection laws the fear expressed by this Court is no longer in existence. Hence that cannot be a reason to say that holding of the meeting to express no-confidence in a Pradhan or a Upapradhan must only be with reference to the number of members fixed under Section 5(1) of the Act irrespective of the vacancies arising.
11. The other factor that weighed with this Court was that removal from an office leads to very serious consequences and therefore the no-confidence motion could be moved and carried only by such total number as already fixed under Section 5(1) of the Act also cannot stand to any good reason because when a person can come to an office elected by a lesser number can it be said that that number cannot remove him from office? Is not requirement of two-third majority of existing members irrespective of whether they are present or not, and not simple majority of those present and voting, not sufficient to safeguard the interests of Pradhan and Upapradhan? With great respect therefore I cannot persuade myself to accept the view expressed by this Court in the decision in Saheb Gowda’s case as correct and hence the same needs to be reviewed.
12. I will not refer to a few decisions: In Samiruddin Ahmed v. S.D.O. Mangaldoi And Ors. what fell for consideration was the scope of Section 27(1)(b) of the Assam Panchayat Act, 1959, by which the President of a Gaon Panchayat could be removed by three-fifth majority of members. A motion of no-confidence is passed in a meeting of the panchayat where at least two-thirds of total number of members are present. While dealing with this provision the Assam High Court observed that there is no warrant for adding a word “existing” in Section 27(1)(b) to qualify the words “number of members” inasmuch as a no confidence motion will affect an office of a person and therefore the provisions have to be read strictly. Hence, the total number of members has to be read as the strength fixed under law.
In Bharamappa Handimani’s case adopting an identical reasoning this Court interpreting Section 37 of the Karnataka Village Panchayats and Local Boards Act, 1959, held that the expression ‘one-half of the total number of members’ in Section 37(1) has reference to the strength of the panchayat fixed by the Deputy Commissioner under Section 5(1) of the Act.
Similarly, this Court in Shivashankarappa’s case while interpreting Section 42(9) of the Karnataka Municipalities Act, 1964, observed that the President should be allowed to complete the full term irrespective of the loyalty of the members and the fiction in law that a council functioned without casual vacancies being filled up was not extended to provision which fixed the quorum for the purpose of passing the resolution of no-confidence against the President.
These decisions were rendered with reference to the scheme of the relevant enactment and the requirement of members entitled to have a resolution of no-confidence. I have demonstrated that the scheme under the Act is entirely different and therefore these decisions have no application in the interpretation of the Act.
The Bombay High Court in two Full Bench Judgments reported in ASHOK MANIKLAL HARKUT v. COLLECTOR, AMRAVATI AND ORS 1988 Maharashtra Law Journal 378. and NAMDEORAO MADHAVRAO THAKRE v. DULAJI SITARAM PATIL 1968 Bombay Law Reporter 843 has taken the view that the total number of members which occurred in Section 49(7) of the Maharashtra Zilla Parishads and Panchayat Samithls Act means that the actual number of Councillors (other than associate Councillors) who are for the time being entitled to sit and vote at the time of the motion of no-confidence. In fact, there was divergence of opinion in that High Court earlier and the same was resolved by the aforesaid two Full Bench decisions. The effect of the said decisions was further explained in SHIVADAS GOVIND v. M.C. BHANDARA 1986 Maharashtra Law Journal 216. These decisions fully support the view taken by me.
In Mangal Prasad v. District Magistrate what fell for consideration was Section 87A of Uttar Pradesh Municipalities Act which used expressions “total members of the Board” and “total members of the Board for the time being” in different sub-sections thereof. The use of two different expressions in the same context in the same Section suggested that they have different connotations. Further, the words “for the time being” were omitted by legislature in subsequent amendment. Hence the legislative history of the enactment and the context in which the decision was rendered makes it clear that it can have no application to the expression ‘total number of members’ occurring in Section 47 of the Act.
Similarly the decision in Sukhdeo v. Municipal Corporation also can have no bearing upon the issue on hand as in that case what was considered was only the question of total number present and voting as contrasted with the question whether the expression total number of members in Section 47 of the Act would include vacant seats or notf Similar is the position in regard to the decision of Calcutta High Court in Shyamapada Ganguly v. Abani Mohan Mukherjee as the scheme of enactment with which the present case is concerned is entirely different from the one arising for interpretation in that case.
13. It is contended that the Interpretation placed by this Court on the expression total number of members is used again in later enactment of similar nature and the legislature having chosen to retain the same phraseology and expressions the view expressed in Saheb Gowda’s case does not need any change. It is also argued that consistency in Interpretation of law should outweigh the necessity to change of views particularly when there has been divergent views expressed by different Courts in the Country. The argument that the expression ‘total number of members’ had been judicially interpreted and its meaning ascertained in some earlier decisions and when the legislature re-enacted these provisions in substantially the same terms the legislature must be held to have used that expression with the same implication attributed to it by earlier judicial exposition has its limitations. The limitations in such a matter have been explained by the Supreme Court in KESHAVJI RAVJI & CO. AND ORS v. CIT, (1990) 2 SCC 231. It is noticed therein that though such a canon of interpretation is well recognised, there are limitations to its application. Unless the meaning of any expression has been interpreted with reference to any technical connotation or in any special legal sense that principle has no application. The previous decisions of this Court merely proceeded on the constructions of relevant provisions of the enactment under consideration and nothing particular would stem out from such an interpretation and no resort can be had to a principle of this nature as the same would be out of place. For, the Rules of interpretation are not Rules of Law; they are mere aids to construction and constitute mere indicators. The criteria on which the interpretation had been made and what is apposite in a particular situation may, by themselves, be mutually irreconcilable. It is the duty of the Court to decide which one, in the light of all circumstances, ought to prevail. The Rules of interpretation are useful servants but quite often tend to become difficult masters. In the light of this enunciation of law when the expression ‘total number of members in a local body’ having merely been interpreted or construed with reference to other provisions of the enactments with which earlier decision dealt with the meaning ascribed to the said expression and not given any technical or special meaning in those decisions, and legislature in using same expressions or terminology on the scheme of the Act I do not think it could be said that this Court cannot take a different view of the matter. When the legislature enacted the new law, it is not clear whether it bestowed its thought to the matter in controversy before us or merely acquiesced in the views expressed by this Court regardless of change in the scheme of the Act as explained earlier and which is different from the enactments of this Court interpreted earlier. Hence, the contention that when the legislature has not chosen to give any other interpretation to those expressions should not deter me from taking a different view. When the scheme of the Act itself is different the question of maintaining consistency of views expressed with reference to different enactments cannot arise at all.
14. It is urged that wherever in the Act the expression “total number of members” is used it should be understood in the same sense as in Section 5 -of the Act. In Section 5 of the Act the total number of members has relation and reference to total number of seats and not to members representing the same and therefore if understood in that sense would create manifold problems in the working of the Act. In fixing the seats and delimitation, an expression has been used it cannot be said that it should be understood in the same sense while dealing with participation of members in a meeting is concerned for it Is trite to say that an expression used in an enactment takes its colour or meaning from the text or context and cannot be used in a rigid manner. Some of the decisions go on to explain the meaning of the expression ‘total’ as ‘whole’. But the question is what is “whole or total” in the relevant context. Hence, though there is cleavage of views pragmatic view must be taken and allow the working of the enactment in full force rather than bog-down its functioning. So, I should prefer the view that the number available for the game must settle the issue rather than what is fixed for the team.
On the question whether different meanings can be ascribed to the same words in different provisions of the same Act reference to decision of the Supreme Court in PUSHPA DEVI AND ORS. v. MILKHI RAM is useful. While referring to the decision of the King’s Bench in SEAFORD COURT ESTATE LTD. v. ASHER (1949) 2 KB 481 the Supreme Court stated that Acts of Parliament are not provided with any divine prescience and perfect clarity. It is not possible for the legislators to foresee the manifold sets of facts and controversies which may arise while giving effect to a particular provision. Legislators do not deal with specific controversies. When conflicting interests arise or defect appears from the language of the statute, the Court by consideration of the legislative intent must supplement the written word with open mind ‘force and life’. Law as creative response should be so interpreted to meet the di’fferent fact situations coming before the Court.
Even though the definition of a word is exhaustive and is defined it is possible for the word to have some different meaning in a different Section of the Act depending upon subject or context. The Court has not only to look at the word but also to examine the context and collocation in the light of the object of the provisions under interpretation and the purpose for which the same is made by the legislature.
Viewed thus the expression ‘total number of members’ used in Sections 5 and 47 of the Act can be interpreted differently particularly when the interpretation to be given to Section 5 being with reference to seats which is a theoretical number. What could be considered under Section 47 of the Act is only the number of members actually available irrespective of whether they are present or not for the purpose of giving effect to the provisions of the Act.
15. My answers to the questions referred are as follows:
(i) The nominated members shall also be taken note of for the purpose of calculating the total number of members under Section 47 of the Act.
(ii) In so far as the expression “total number of members” used in Section 47 of the Act is concerned, either for the purpose of calling for a meeting or for passing a resolution it will only mean the number of members fixed under Section 5(1) and nominated members, if any, unJer Section 5(3) of the Act minus the vacancies that may have arisen on account of death, resignation, disqualification or non-filling of vacancies.