# [1966] 1 S.C.R. 695

- **Citation:** [1966] 1 S.C.R. 695
- **Court:** Supreme Court of India
- **Decided:** 1965-09-02
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1966-1-s-c-r-695-3588
- **Pages:** 7

## Headnote

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SANTOKCHAND KANAIY ALAL JAIN
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BHUSAVAL BOROUGH MUNICIPALITY AND OTIIERS
September 2, 1965
B
[K. SUBBA RAo, J. R. MUDHOLKAR AND R. S. BACHAWAT, J1.]
Municipalities-PresidenJ elected by Municipality /or residue o/ its
term-Normal term of municipality as provided in •· 25 of Bombay M111ucipal Borough Act four years-Term of municipality extended beyond four
years by s. 3 of Maharashtra Municipality (Postponment of General ElecC
tions Unification of Municipal laws) Aot, 1964-Eff'°t of such extension
on term of President-Second proviso to s. 19 of Municipal Boroughs Act
whether attracted.
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The appellant was elected President of the Bhusaval Borough Municipality in Bombay State in July 1964. On the same day the Municipality
passed a resolution to the effect that the term of office of the President
would be "the residue of the term of office of the municipality". The four
years' term of the municipality as provided in s. 25 of the Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was due to expire on
February 17, 1965. However in the meanwhile the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Law•) Act, 1964 was passed, and under s. 3 thereof the term of the
councillors of the municipality was by fiction extended to December 31,
1965. The Collector of the area on the assumption that the term of the
President ending on February 17, 1965, issued notice for a fresh election
in March 1965. The appellant filed an application under Arts. 226 and
227 of the Constitution and contended that as the term of office of $e
municipality had been extended up to December 31, 1965 be was entitled
to be President till that date under the resolution passed by the Municipality. The High Court rejected the contention. The appellant,
with
a
certificate of fitness granted by the High Court, came to this Court.
The short question in the appeal was whether the expression "the residue
of the municipality" in the resolution of the municipality meant the residue
of the municipality that would have been if the Maharashtra Act had not
been passed or whether it should be interpreted in the context of the extended
term provided by the Maharashtra Act.
On behalf of the appellant it was
argued that the appellant would get the extended term provided by the
Maharashtra Act, because in effect it was an extension under the
Act
within the meaning of the second proviso to s. 19 of the Act or in any
event he got the benefit because the Maharashtra Act in effect amended
s. 25 of the Act with the result that 'residue' of the 'tenn' was extended to
December 31, 1965.
HELD : (i) The impact of s. 3 of the Maharashtra Act on the pro~i1ions of the Municipal Boroughs Act is that it not only extends the term
prescribed under s. 25 of the Act but also the term extended under s. 2S
or under any other section of the Act. If that was the legal effect of the
Maharashtra Act, the second proviso to s. 19 was not a!tracted to the
instant case as there was no order or notification issued under s~ 25 or any
Qther relevant section of the Act extending the term of the Councillors fixed
nndcr s. 25 of ·the Act. Therefore for the present purpose the second
proviso to s. 19 had te> be left out of consideration and the problem bad
696
SUP.IBMB COUKT REPOR.TS
(1966] I S.C.R.
to be approached on the ba9is of the fiction that the term of the Councillors
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prescribed under s. 25 of the Act was extended up to December 31 1965.
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(699 G-700 Al
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(ii) The intention of the municipality could be gathered only from the
circumstances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
The second proviso to s. 19 contemplates the extension of the term of
office of the Municipality under the Act.
It was therefore not possible to
predicate that at the time the resolution was passed the municipahty could
not have contcmpla!cd a situa1ion when the te

## Text

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SANTOKCHAND KANAIY ALAL JAIN
\I,
BHUSAVAL BOROUGH MUNICIPALITY AND OTIIERS
September 2, 1965
B
[K. SUBBA RAo, J. R. MUDHOLKAR AND R. S. BACHAWAT, J1.]
Municipalities-PresidenJ elected by Municipality /or residue o/ its
term-Normal term of municipality as provided in •· 25 of Bombay M111ucipal Borough Act four years-Term of municipality extended beyond four
years by s. 3 of Maharashtra Municipality (Postponment of General ElecC
tions Unification of Municipal laws) Aot, 1964-Eff'°t of such extension
on term of President-Second proviso to s. 19 of Municipal Boroughs Act
whether attracted.
D
E
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H
The appellant was elected President of the Bhusaval Borough Municipality in Bombay State in July 1964. On the same day the Municipality
passed a resolution to the effect that the term of office of the President
would be "the residue of the term of office of the municipality". The four
years' term of the municipality as provided in s. 25 of the Bombay Municipal Boroughs Act 1925 (Bombay Act 18 of 1925) was due to expire on
February 17, 1965. However in the meanwhile the Maharashtra Municipalities (Postponement of General Elections Pending Unification of Municipal Law•) Act, 1964 was passed, and under s. 3 thereof the term of the
councillors of the municipality was by fiction extended to December 31,
1965. The Collector of the area on the assumption that the term of the
President ending on February 17, 1965, issued notice for a fresh election
in March 1965. The appellant filed an application under Arts. 226 and
227 of the Constitution and contended that as the term of office of $e
municipality had been extended up to December 31, 1965 be was entitled
to be President till that date under the resolution passed by the Municipality. The High Court rejected the contention. The appellant,
with
a
certificate of fitness granted by the High Court, came to this Court.
The short question in the appeal was whether the expression "the residue
of the municipality" in the resolution of the municipality meant the residue
of the municipality that would have been if the Maharashtra Act had not
been passed or whether it should be interpreted in the context of the extended
term provided by the Maharashtra Act.
On behalf of the appellant it was
argued that the appellant would get the extended term provided by the
Maharashtra Act, because in effect it was an extension under the
Act
within the meaning of the second proviso to s. 19 of the Act or in any
event he got the benefit because the Maharashtra Act in effect amended
s. 25 of the Act with the result that 'residue' of the 'tenn' was extended to
December 31, 1965.
HELD : (i) The impact of s. 3 of the Maharashtra Act on the pro~i1ions of the Municipal Boroughs Act is that it not only extends the term
prescribed under s. 25 of the Act but also the term extended under s. 2S
or under any other section of the Act. If that was the legal effect of the
Maharashtra Act, the second proviso to s. 19 was not a!tracted to the
instant case as there was no order or notification issued under s~ 25 or any
Qther relevant section of the Act extending the term of the Councillors fixed
nndcr s. 25 of ·the Act. Therefore for the present purpose the second
proviso to s. 19 had te> be left out of consideration and the problem bad
696
SUP.IBMB COUKT REPOR.TS
(1966] I S.C.R.
to be approached on the ba9is of the fiction that the term of the Councillors
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prescribed under s. 25 of the Act was extended up to December 31 1965.
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(699 G-700 Al
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(ii) The intention of the municipality could be gathered only from the
circumstances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution.
The second proviso to s. 19 contemplates the extension of the term of
office of the Municipality under the Act.
It was therefore not possible to
predicate that at the time the resolution was passed the municipahty could
not have contcmpla!cd a situa1ion when the term of the Municipality woukJ
be extended under the provisions of the Act.
Moreover from the Statement
of objects underlying the issuance of the Ordinance which culminated in
the Maharashtra Act it appeared that the question of extension of the term
of the municipalities in the State was under serious consideration even in
July 1963.
Indeed on or about July 18, 1964 when the term of the Prcsideot was extended, the municipality passed a resolution recommending
that the term of the Municipahty be extended beyond 4 years. It wa•
therefore clear that on the basis of the statutory and other circumstance!
obtaining at the time the
exten~ion was made, the councillors clearly
cotpected that the term of ti>, municipality would be or could be ex!ended
and with that knowledge tb.y passed the resolu1ion fixing the term of tho
President for the residue of the term of the Municipality; the intention
appeared to be that the term of the President should synchronise with the
life of the municipality exi•ting or ex'.ended as the case may be. [700 B701 DJ
The order of the High Court was therefore not correct and h~d to be
set aside.
C!vn. ArPllLLATE JURISDICTION : Civil Appeal No. 481 of
1965.
Appeal from the judgment and order, dated April 30, 1965,
of the Bombay High Court in Special Civil Application No. 447
of 1965.
C. 8. Agarwa/a, S. N. Prasad, I. B. Dadachanji, 0. C. Mathur
and Ravinder Narain, for the appellant.
S. V. Gupte, So/icitor-Gentt.ral, and B. R. G. K. Achar, for
respondent Nos. 2 to 4.
The Judgment of the Court was delivered by
Sllbba Rao J. This appeal by certificate raises the question
of the true construction of the provisions of ss. 19 and 25 of
the Bombay Municipal Borough Act, 1925 (Born. Act 18
of 1925), hereinafter called the Act, read with s. 3 of the
Maharashtra Municipalities (Postponement of General Elections
Pending Unification of Municipal Laws) Act, 1964, hereinafter
called the Maharashtra Act.
The fact~ lie in a small compass.
The last general election
of the members of the Bhusaval Borough Municipality was held
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s. K. JAIN v. MUNICIPALITY (Subba Rao, !.)
697
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general meeting thereafter was held on February 18, 1961.
Under the provisions of s. 25 of the Act, in the normal course
the life of the Municipality would have expired on February
17, 1965; but, under s. 3 of the Maharashtra Act the term of
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the Councillors of the Municipality was, by fiction, extended to
and inclusive of December 31, 1965. On July 18, 1964, the
appellant was elected the President of the Municipality; and on
the same day the Municipality passed a resolution to the effect
that the term of the office of the President shall be "the residue
of the term of office of the Municipality".
On the assumption
that the term of the President expired on February 17, 1965,
the Collector of Jalgaon issued a notice on March 2, 1965, calling
for a meeting of the Municipality on March 15, 1965, for electing
a new President. Thereafter, the appellant filed an application
under Arts. 226 and 227 of the Constitution in the High Court
of Maharashtra for the issue of an appropriate order setting
aside the notice issued by the Collector.
The[e the appellant
contended that, as the term of office of the Municipality had been
extended by the Maharashtra Act up to December 31, 1965,
he was entit,Jed to continue in office as President till that date.
A
Division Bench of the said High Court rejected that contention
and dismissed the petition.
Hence the appeal.
The short question in the appeal is whether the expression
"the residue of the Municipality" in the resolution of the Municipality, dated July 18, 1964, means ther residue of the Municipality
that would have been if the Maharashtra Act had not been passed
or whether it should be interpreted in the context of the extended
term provided by the Maharashtra Act.
Mr. Agarwala, learned counsel for the appellant, contended
that the appellant would get the extended term provided in the
Maharashtra Act, because in effect it was an "extension" under
the Act withln the meaning of the second proviso to s. 19 of the
Act or in any event he got the benefit because the Maharashtra
Act in effect amended s. 25 of the Act, with the result the
"residue" of the "term" was extended to December 31, 1965.
The learned Solicitor-General, on the other hand, argued that
the second proviso to s. 19 of the Act had no application, for
it dealt only with an extension by notification or otherwise under
the provisions of the Act and the statutory extension given by
the Maharashtra Act could not possibly be an extension under
the Act; that even if the Maharashtra Act had the effect of
amending s. 25 of the Act with the result that the life of the
-698
SUPREME COURT REPORTS
[1966] I S.C.R.
members of the Municipality was extended by the amendment
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of the Act. itself, it would not help the appellant as the scope of
the resoluuon passed by the Municipality should he construed on
the basis of the circumstances existing at the time the resolution
was passed, i.e., previous to the election of the President and at
that time the co~ncillo~s of the Municipality could ha,ve only
pa~sed the resolut10n fixing the term of the President during the
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:es!duc of the life the Municipality had at that time : to put
1t m other. words, the intention of the Councillors, who passed
the resolut10n, could he gathered only from the circumstances,
statutory or otherwise, existing at the time the resolution was
passed.
The problem presented from different angles by the learned
counsel can only be solved on a true interpretation of the said
provisions.
It will, therefore, be convenient at this stage
to
read the relevant provisions.
Section 19 of the Act :
( I ) Save as otherwise provided in this Act a
president or vice-president, shall hold his office for such
term, not less than one year or not l~s than the residue
of the term of office of the municipality, whichever is
less and not exceeding four years, as the municipality
shall, previous to the election of the president or vicepresident determine, or until the expiry within the said
term of his term of office, as councillor, but shall be
eligible for re-election :
Provided that ............. .
Provided further that where the term of office of a
municipality is excendcd under this Act to a term not
exceeding in the a~gregate five years the president and
vice-president holding offices immediately before the
date with effect from which such term is extended shall
continue to hold their respective offices until the date on
which the term so extended expires.
Section 25 of the Act :
( I ) Councillors nominated or elected at a general
election under this Act, shall, save as otherwise provided in this Act, hold office for a term of four years,
extensible by order of the State Government to a term
not exceeding in the aggregate five years, if on any
occasion the State Government shall think fit, for
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s. K. JAIN v. MUNICIPALITY (Subba Rao, J.)
699
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reasons which shall be notified together with the order
in the Official Gazette so to extend the same :
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Section 3 of the Maharashtra Act :
Postponement of municipal elections.-Notwithstanding anything in any Act by or under which any
municipality is constituted or established,-
( a)
(b) the term or extended term of office, of the
Councillors or members of a municipality, who were in
office on the date of the commencement of the Ordinance (and whose -term or extended term will expire
before the 31st day of December 1965),. shall be
deemed to be extended to and inclusive of the 3 lst day
of December 1965.
SCHEDULE
(See section 2)
2. The Bombay Municipal Boroughs Act, 1925
(Born. XVIII of 1925).
E The combined effect of these two Acts may be stated thus :
Under s. 25 of the Act the term of the Councillors of the Municipality is 4 years. It may be extended by the State Government
to a term not exceeding in the aggregate five years. If the term
is so extended by the Government in the manner prescribed by
s. 25 of the Act, under the second proviso to s. 19 of the Act
F the term of the President also is automatically extended to the
date on which the term so extended expires.
The expression
"under this Act" in the second proviso to s. 19 of the Act certainly
attracts the extension of the term of the councillors under s. 25,
as it is an extension under the Act.
The impact of s. 3 of the
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Maharashtra Act on the provisions of the Act is that it not only
extends the term prescribed under s. 25 of the Act but also the
term extended under s. 25 or under any other section of the Act
If that be the legal effect of s. 3 of the Maharashtra Act, the
second proviso is not attracted to the instant case, as there was
no order or notification issued under s. 25 or any other relevant
section of the Act extending the term of the councillors fixed under
s. 25 of the Act.
Therefore, for the present purpose we leave
out of consideration the second proviso to s. 19 and approach
the problem on the basis of the fiction that the term of the
700
SUPREME COURT REPORTS
( 1966] I S.C.R.
councillors prescribed under s. 25 of the Act was extended up to A
December 31, 1965. If that be so, the next question is whether
on July 18, 1964, when the Municipal councillors passed a res<>-
lution to the effect that the term of office of the appellant shall
be the residue of the Municipality, their intention was that his
term should extend only up to February 17, 1965, i.e., the date
when the term of the Municipal councillors would have expired B
but for the statutory extension given by the Maharashtra Act.
The intention of the Municipality can be gathered only from the
circumstances, statutory or otherwise>, existing at the time when
the resolution was passed and on the express terms of the said
resolution.
Under s. 19 of the Act, the Municipality can fh the C
term of office of the President between one and four years, except
when the residue of the term of the Municipality is less than one
year.
But the second proviso to s. 19 also contemplates the
extension of the term of office of the Municipality under the pr<>-
visions of the Act.
It is, therefore, not possible to predicate that
at the time the resolution was passed the Municipality could not D
have contemplated a situation when the term of the Municipality
would be extended under the provisions of the Act.
With the
knowledge of such a possible extension, when the members used
the elastic expression "residue'', it is not reasonable to attribute
to them the intention that they meant only tho residue of the
term available to them at that time. If that was their intention
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they would have prescribed a definite date on which the term of
the President would expire.
That apart, there is sufficient material on the record which indicates that the councillors designedly
used the word "residue" instead of fixing a precise date.
It
appears that it was in the contemplation of the councillors at
the time of the election of the President that there was a possibility F
of the term of the Municipality being extended. In the Statement
of Objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act, it was observed as follows :
"In July, 1963, Government appointed a Committee
for the purpose of considering the question of unification of the four Municipal Acts which are at present
in force in the State.
As substantial changes are envisaged in the unified municipal law, it is considered
expedient that the advantages of the new and uniform
pattern of administration should be available to all
those municipalities concerned simultaneously with the
holding of general election in accordance with the pr<>-
visions of the unified law.
Consequently, the MuniciG
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s. K. JAIN v. MUNICIPALITY (Subba Rao, J.)
palities that are elected or may be elected under the
existing Acts may be short-lived, and the time, energy
and expenditure incurred on holding any more general
elections would be wasteful.
It has, therefore, been
decided to postpone the general elections to such municipalities from the promulgation of the Ordinance until
the 31st of December, 1965, by which time the new
unified municipal law is expected to be enacted."
701
This indicates that the question of extension of the term of the
municipalities was under serious consideration even in July 1963.
Indeed, on or about July 18, 1964, when the term of the PresiC dent of the Municipality was extended, the Municipality passed
a resolution recommending that the term of the Municipality be
extended beyond 4 years. It is, therefore, clear that on the basis
of statutory and other circumstances obtaining at the time the
extension was made, the councillors clearly exPf1Cted that the
term of the Municipality would be or could be extended and with
D that knowledge they passed the resolution fixing the term of th11
President for the residue of the term of the Municipality; the
intention appears to be that the term of the President should
synchronize with the life of the Municipality existing or extended,
as the case may be.
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In our view, therefore, the order of the High Court is not
correct and the same is set aside.
A writ will issue prohibiting
the Collector from holding the election of the President of the
Municipality of the Bhusaval Borough till December 31, 1965.
The controversy arose because the relevant provisions are
not free from ambiguity.
We, therefore, think that this is a fit
F case where the parties may be directed to bear their own cost•
throughout.
Appeal allowed .