{"id":119087,"date":"1981-03-13T00:00:00","date_gmt":"1981-03-12T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jiwanlal-agrawal-vs-state-of-madhya-pradesh-and-ors-on-13-march-1981"},"modified":"2015-08-04T01:52:47","modified_gmt":"2015-08-03T20:22:47","slug":"jiwanlal-agrawal-vs-state-of-madhya-pradesh-and-ors-on-13-march-1981","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jiwanlal-agrawal-vs-state-of-madhya-pradesh-and-ors-on-13-march-1981","title":{"rendered":"Jiwanlal Agrawal vs State Of Madhya Pradesh And Ors. on 13 March, 1981"},"content":{"rendered":"<div class=\"docsource_main\">Madhya Pradesh High Court<\/div>\n<div class=\"doc_title\">Jiwanlal Agrawal vs State Of Madhya Pradesh And Ors. on 13 March, 1981<\/div>\n<div class=\"doc_citations\">Equivalent citations: AIR 1981 MP 186<\/div>\n<div class=\"doc_author\">Author: G Singh<\/div>\n<div class=\"doc_bench\">Bench: G Singh, U Bhachawat<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>  G.P. Singh, C.J.  <\/p>\n<p> 1. Birsinghpur and Sabhapur of tahsil Raghurainagar, district Satna, were previously, head-quarter of Gram Panrhayats constituted under the provisions of the Madhya Pradesh Panchayats Act. 1962. The State Government de-established the Gram Panchayats and by notification dated 5th January, 1979 declared the local area comprised in Birsinghpur, Sabhapur and other villages to be a municipality from 26th January, 1979. This notification was issued under Section 5 of the Madhya Pradesh Municipalities Act, 1961. By another notification issued on the same date, the State Government constituted a committee under Section 16 consisting of 15 persons to function as a council for the purposes of the Act. This notification was issued under Section 16 read with Section 7 (b) of the Act. In the committee so constituted the petitioner was nominated as Junior Vice-President, In April, 1980 there was some proposal to supersede the committee and to constitute another committee of 15 other persons. That move was not pursued. On 16th January, 1981. the Government issued a notification, which is Document No. 5, by which the Block Development Officer, Maihgawan, was appointed Administrator of the Municipality as the period of two years of the council expired on 25th January, 1981. It is this notification which has been challenged in this petition under Article 226 of the Constitution.\n<\/p>\n<p> 2. The argument of the learned counsel for the petitioner is that there is no provision in the Act enabling the Government to appoint an Administrator when the term of a committee constituted under Section 16 expires. Learned counsel submits that the Government should have extended the terms of the council by one year under the proviso to Section 16 (2). The learned Government Advocate in reply submits that the Government has power to appoint an Administrator after the expiry of the period of the committee under Sections 16, 36 and 328 read together He also submits that it is not obligatory on the Government to extend the term of the committee appointed under Section 16.\n<\/p>\n<p> 3. To appreciate the rival contentions it is first necessary to have a look at the relevant provisions of the Act. A notification declaring a local area to be a municipality is issued under Section 5. If the local area declared to be a Municipality was previously a town area or a Panchayat, the government is required to constitute a committee in accordance with the provisions of Section 16 to exercise the power of the council pending its constitution. This is provided in Section 7 (b) of the Act. Section 16 reads as follows:\n<\/p>\n<p>  &#8220;16. Exercise of powers of Council pending its constitution.&#8211; (1) When an area is declared to be a Municipality for the first time under this Act, the State Government shall, by notification, constitute a Committee consisting of a President, two Vice-Presidents and such number of members as it may deem fit and such a Committee shall be deemed to be a Council for the purposes of this Act: <\/p>\n<pre>\n \n\n Provided that no person shall be ap\npointed as President or Vice-President\nor Member of such a Committee who is ineligible     to   hold   such   office     in  the council  under this Act. \n \n\n (2) A Committee constituted under Sub-section (1) shall continue to function until a Council is constituted under this Act or until the expiration of two years from the date on which notification under Sub-section (1) is published in the Gazette, whichever is earlier; \n \n\n (3) The State Government may, by notification, at any time remove the President, Vice-President or a member of the Committee and appoint any other person eligible to be so appointed in his place. \n \n\n (4) Notwithstanding anything contained in Sub-section (1), the provisions of Sections 41, 47 and 48 shall apply to the Committee.\"  \n \n\n<\/pre>\n<p> 4. A Council is continued by election and selection of councillors as provided in Section 19 and other allied provisions. The term of an elected Council is four years from the date of its first meeting. These terms can be extended from time to time for a total period not exceeding one year in the aggregate. If within the period of four years or within the extended period a Council is not newly constituted, the Council is deemed to have been dissolved and the provisions of Section 328 begin to apply. Section 36 which is relevant on this point reads as follows :&#8211;\n<\/p>\n<pre> \"36.   Term   of  Council   and     Office    of Councillors.-- (1) Every Council shall continue for four years from the date appointed under Sub-section (2) of Section 55 for its first meeting. Provided that the State Government may, by a notification, for reasons to be stated therein extend the term of the Council, from time to time, for a total period not exceeding one year in the aggregate. \n \n\n (2) If within the period of four years mentioned in Sub-section (1) or if the said period is extended under the proviso thereto, within the period as extended, the Council is not newly constituted, the Council shall, on the expiry of the said period of four years or the extended period, as the case may be, deemed to have been dissolved and the provisions of Section 328 shall apply in respect thereof. \n \n\n (3) If within the period mentioned in Sub-section (2) the Council is not newly constituted, the Council shall on the expiry of such period be deemed to have been dissolved and the provisions of Section 328 shall apply in respect thereof. \n \n\n (4) The term of office of every Councillor shall be conterminous with the term of the Council of which he is a Councillor.\"  \n \n\n<\/pre>\n<p> 5. Section 328 in so far as material confers power to dissolve or supersede a Council. Section 328 (6) (b) makes provision that if the Council is dissolved or superseded, all powers and duties of the Council until the Council is reconstituted will be exercised and performed by such person or a Committee of persons as the State Government may appoint in that behalf. The persons or Committee of persons appointed under Section 328 (6) (b) for exercising and performing the powers and duties of a dissolved Council is popularly called Administrator.\n<\/p>\n<p> 6. It will be seen that the power under Section 328 (6) (b) to appoint a person or Committee as Administrator to exercise and perform the powers and duties of a Council can be exercised only when the Council is dissolved or superseded under the provisions of section 328 (1) or (2). The power to appoint an Administrator under Section 328 (6) (b) is not available to the State Government in a case where the term of a Council expires. Normally, a Council has to be reconstituted by election before the expiry of the term of the existing Council. But it is quite possible that elections may not be held before the expiry of the term for one reason or the other. It is in this background that Section 36 (2) enacts that when the term of a Council expires the Council shall be deemed to have been dissolved and the provisions of Section 328 shall apply. Section 36 (2) which was introduced by Amendment Act No. 39 of 1973 enables the Government to appoint an Administrator under Section 328 (6) (b) when the term of a Council expires before reconstitution of the Council by election. Section 36 on its own terms has application to the case of an elected Council the term of which is four years from the date of the first meeting. It does not in terms apply to a committee constituted under Section 16. The argument of the learned Government Advocate, however, is that a committee appointed under Section 16 is deemed to be a Council and, therefore, if the term of such a committee expires before constitution of the committee by election, the power of appointing an administrator will become available under Section   36 (2)  read with    Section  16     (1).    In    our opinion, this argument must be accepted. Section   16   (1)   in     clear    terms     enacts that  the  committee  constituted   &#8220;shall be deemed  to be a Council  for the purpose of this Act.&#8221;    The legal fiction    created by  these words is wide enough to make a committee constituted  under  Section 16 also  a Council  for  purposes  of  Section     36 subject   to  the  special   provisions     made in  Section  16.    The term of a committee under  Section  16 is  two years as  provided in  Sub-section  (2).    It can    also    be extended  by  one  year more  under     the proviso.     The  provision  in     Section     36 that the term of the council will be four years will  thus   have    no  application for a  committee    deemed    to    be  a    council under Section 16.    Even    so,    we are   of opinion  that  the  provision  made  in  Section 36  (2)  that  after the    expiry of the term the council is deemed to have been dissolved     and     the   provisions    of    Section 328 become applicable must    also be applied      to     a     committee      constituted under  Section   16.  In  case of an    elected council  Section  36     (2)  in  terms    applies and if within the period of four years or within  the extended     period  a  council  is not,   newly     constituted,     the    council   is deemed   to  have   been   dissolved    making applicable  the  provisions   of Section 328. As  already  seen,   the  period  of  a    committee which is deemed to be  a    council under Section  16 is  two years which can be extended    from    time to time    for an aggregate  period  of  one year.   Section  36 (2)   has,     therefore,  to  be    applied  for  a committee     under    Section   16    with  the modifications   that   the  deeming   provision that a council shall be    deemed to    have been dissolved    after the    expiry    of the term  will   become  operative  after  expiry of two years or the extended    period, in case the  period  is  extended  by the Government  under the proviso to Section  16 (2).  We    are conscious    that    the    better course for    the    legislature would    have been to    make a    similar    provision      as made in Section 36 (2) in Section 16 also. But the    omission  of    the  Legislature in this matter does    not  preclude  us in  reaching  a  reasonable    result  in  the    construction  of  the  deeming  provisions  contained in Section  16  (1)    and    Section 36 (2)  and  by applying the latter with such modification as the context of Section 16 requires.\n<\/p>\n<p> 7.    In   Seaford    Court     Estates  Ltd    v. Asher,   (1949) 2 All  ER  155,    Lord Denning  observed;   &#8220;when   a  defect     appears a    Judge      cannot     simply      fold      his hands    and    blame    the    draftsman.    He must  set  to   work    on  the    constructive task  of  finding  the   intention  of    Parliament&#8230;..and  then  he must     supplement the written    words so    as to give    force and life to the    intention of    the legislature.  A Judge    should    ask    himself the question how, if the    makers of   the Act had  themselves come across  this  ruck in the    texture    of    it, they      would    have straightened it out?  He must then do  as they   would  have  done.     A Judge    must not alter the material of which the    Act is woven, but he can and should iron out the   creases.&#8221;     These     observations   were criticised    by    the    House   of    Lords   in Magor    &amp;    St.   Mellons    Rural    District Council v.    Newport   Corporation     (1951) 2 All ER 839 (HL) but they    have    been generally    approved    by     the    Supreme Court:  <a href=\"\/doc\/483899\/\">(See M. Pentiah v. Veeramallappa AIR<\/a>  1961  SC  1107 at. p.   1115,    Union    of India   v.     Sankalchand    Himallal    Sheth AIR 1977 SC 2328 at p.  2337.    Bangalore Water Supply v.  A.  Raiappa    AIR    1978 SC   548),   Lord     Denning     reiterated    hia liberal views in the matter of    statutory construction     in    subseq uent     cases.     In Lucy v. W.  T. Henleys Telegraph Works Co. Ltd., (1969) 3 All ER 456 at p. 462 he said;  &#8220;I have said before and I repeat it now that we should so construe an Act of Parliament  as to  effectuate  the  intention of makers of it    and not to defeat it.    Tf they  have  by  mistake  overlooked something, we should do our best to    smooth it out.    We should    construe it so    as to avoid absurdities and    incongruities    and to  produce    consistent and   just    result.&#8221; (See further Nothman v.   Barnet  London Borough  Council,     (1978)   1  All ER  1243 at p.  1246 (C. A.)). (The Discipline of law pp. 11 to 16). It is also well settled    that deeming  provisions    creating    legal    fictions must be given their full effect   and the  court  must  assume  all    those    facts and consequences which    are    inevitable corollaries  to  the    giving  effect  of    the fiction   (See  East  End  Dwellings Co. Ltd. v.  Finsbury  Borough Council  (1951) 2 All ER 587 at 589  <a href=\"\/doc\/1090707\/\">(HL) and Gurupad Khan-dappa  Magdum    v.    Hirabai Khandappa, AIR<\/a>  1978 SC   1239 at p.  1243.\n<\/p>\n<p> 8. In our opinion, the aforesaid rules of construction must guide us in this case. Unless we construe the deeming provision contained in Section 16 (1) to include Section 36 (2) with a modification relating to the term of the committee deemed to be a council, an absurd result would follow. If within the term of two years or when the term is extended within the extended term of one year of a committee under Section 16 no elected council is constituted, there would be no one to look after the municipal administration and to exercise the powers of the council  unless Section 36    (2) is    by implication    brought  into    play    conferring power on the  State    Government to ap-point   an  Administrator.   It    is  true  that effort should generally be  in every case to  constitute an elected    council    within the  period of    two    years or within the extended period if the term is extended. But  there    may be situations    where  it may not be possible to hold an election within the said    period or it may not be even desirable to extend the term of the committee. In such cases unless the State Government is    able to draw upon   the power contained in    Section    328 of appointing an Administrator with the   help of Sections 16 (1) and 36 (2), a lacuna will result leaving   no   one to   exercise   the power of the council in a local area declared to be a municipality.    Such a result could not have been intended by the legislature.  It is also a well    recognised principle that effort should be made not to   create   a   casus   omissus by construction   <a href=\"\/doc\/184521\/\">(See   Karnataka  State  v.   Union  of India. AIR<\/a> 1978 SC 68 at p. 101 and Commissioner  of  Income-tax v.  National Taj Traders, AIR 1980 SC 485 at p. 489). Thus it is proper for us to adopt a liberal construction and to construe Sections 16 and 36 in the manner we have done above. In our opinion, it was open to the Government  to  appoint  an Administrator    even in  case of a committee under Section 16 after the expiry of its term in the same manner as it can do in case of an elected council under Section 36 (2).\n<\/p>\n<p> 9. The argument that the State Government should have directed extension of the term of the Committee by one year cannot be accepted. The power to extend the term under the proviso to Section 16 (2) is discretionary and the Government cannot be compelled to exercise it.\n<\/p>\n<p> 10.   The petition fails and is dismissed. There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Madhya Pradesh High Court Jiwanlal Agrawal vs State Of Madhya Pradesh And Ors. on 13 March, 1981 Equivalent citations: AIR 1981 MP 186 Author: G Singh Bench: G Singh, U Bhachawat JUDGMENT G.P. Singh, C.J. 1. Birsinghpur and Sabhapur of tahsil Raghurainagar, district Satna, were previously, head-quarter of Gram Panrhayats constituted under the provisions of [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,24],"tags":[],"class_list":["post-119087","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madhya-pradesh-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jiwanlal Agrawal vs State Of Madhya Pradesh And Ors. on 13 March, 1981 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jiwanlal-agrawal-vs-state-of-madhya-pradesh-and-ors-on-13-march-1981\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jiwanlal Agrawal vs State Of Madhya Pradesh And Ors. on 13 March, 1981 - Free Judgements of Supreme Court &amp; 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