# PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE OF GUJARAT & ORS

- **Citation:** [2021] 13 S.C.R. 89
- **Court:** Supreme Court of India
- **Decided:** 2021-02-24
- **Case number:** Civil Appeal No. 706 of 2021
- **Bench:** Ashok Bhushan, R. Subhash Reddy, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/parmar-samantsinh-umedsinh-and-others-v-state-of-gujarat-ors-35300
- **Pages:** 47

## Headnote

Gujarat Provincial Municipal Corporation Act, 1949 - s.5(3)
(iii)(a) and s.29A - Bombay Provincial Municipal Corporations
(the Delimitation of Wards in the City and Allocation of Reserved
Seats) Rules, 1994 - rr. 4 and 5 - Present two appeals arise out of
the judgments of the High Court in two separate Writ Petitions -
The first appeal was filed against the judgment of Gujarat High
Court in the writ petition filed challenging the vires of s.5(3) (iii)(a)
and s.29A of the Gujarat Provincial Municipal Corporation Act,
1949 as well as Rule 4 and 5 of the Bombay Provincial Municipal
Corporations (the Delimitation of Wards in the City and Allocation
of Reserved Seats) Rules, 1994 - High Court dismissed the said
petition noticing that earlier the vires of said sections and Rule 4
were upheld by the earlier Division Bench judgment of the High
Court - The second appeal was filed by State Election Commission
against the judgment of High Court in the writ petition challenging
the Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated
by the Governor of Gujarat by which s.7A of the Gujarat Provincial
Municipal Corporations Act, 1949, s.8A of Gujarat Municipalities
Act, 1963 and s.257 of the Gujarat Panchayats Act, 1993 have
been substituted - The High Court held that the s.7A of the GPMC
Act, s.8A Gujarat Municipalities Act and s.257 of the Gujarat
Panchayats Act brought by Ordinance No.3 of 2015 was
unconstitutional and the action of the State Election Commission
for postponement of the election of all local bodies in the State was
illegal - Besides above mentioned two civil appeals, a writ petition
was also filed challenging the notifications issued by the Governor
of Gujarat in exercise of power u/s. 5(3)(iii)(a) of the Act, 1949
determining the number of Wards, seats including the seats reserved
for Scheduled Castes, Scheduled Tribes, Backward Classes and
women in several Provincial Corporations - The two civil appeals
[2021] 13 S.C.R.89
89
A
B
C
D
E
F
G
H
90
SUPREME COURT REPORTS
[2021] 13 S.C.R.
and writ petition are tagged and heard together - Held: The
provisions of s.5(3) (iii)(a) and s.29A of Act, 1949 and Rule 4 and
5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra vires to
Part IXA of the Constitution, the Division Bench of the High Court
did not commit any error in dismissing the writ petition filed by the
appellants - Hence, the first civil appeal and Writ Petition are
dismissed - The civil appeal filed by the State Election Commission
is dismissed as having become infructuous as the directions of the
Division Bench to initiate process of holding the election of the
local bodies was carried out and nothing remains to be decided in
this appeal.
Constitution of India - Art 243R and 243S - Whether Arts.
243R and Art. 243S of the Constitution of India contains any
limitation to the effect that there shall be only one member from one
ward - Held: The constitutional provisions of Art. 243R, which
provides for composition of Municipalities and that of Art. 243ZA
does not give any indication as to whether from territorial
constituency, i.e., the Wards, whether only one member has to be
elected in the Municipality or it can be multiple member constituency
- There is no limitation in provision of Art. 243S, which limits the
State Legislature for requiring multi-member seats in a Ward - The
only requirement is that a member of the Municipality representing
a Ward shall be a member of the Ward Committee - Thus,
constitutional requirement or limitation engrafted in sub-Article(3)
of Art. 243S is that a member of the Municipality representing a
Ward shall be a member of the Ward Committee, it cannot be read
to mean that it mandates that from one Ward more than one members
cannot be made representatives.
Gujarat Provincial Municipal Corporation Act, 1949 - ss.
5(3)(iii)(a), 29A - Bombay Provincial Municipal Corporations (the
delimitation of wards and allocation of reserved seats) Rules, 1994
- rr. 4 and 5 -

## Text

_Characters 0–39,824 of 104,530. This is a partial read: ask again with offset=39824 for what follows._

A
B
C
D
E
F
G
H
89
PARMAR SAMANTSINH UMEDSINH AND OTHERS
v.
STATE OF GUJARAT & ORS.
(Civil Appeal No. 706 of 2021)
FEBRUARY 24, 2021
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Gujarat Provincial Municipal Corporation Act, 1949 - s.5(3)
(iii)(a) and s.29A - Bombay Provincial Municipal Corporations
(the Delimitation of Wards in the City and Allocation of Reserved
Seats) Rules, 1994 - rr. 4 and 5 - Present two appeals arise out of
the judgments of the High Court in two separate Writ Petitions -
The first appeal was filed against the judgment of Gujarat High
Court in the writ petition filed challenging the vires of s.5(3) (iii)(a)
and s.29A of the Gujarat Provincial Municipal Corporation Act,
1949 as well as Rule 4 and 5 of the Bombay Provincial Municipal
Corporations (the Delimitation of Wards in the City and Allocation
of Reserved Seats) Rules, 1994 - High Court dismissed the said
petition noticing that earlier the vires of said sections and Rule 4
were upheld by the earlier Division Bench judgment of the High
Court - The second appeal was filed by State Election Commission
against the judgment of High Court in the writ petition challenging
the Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated
by the Governor of Gujarat by which s.7A of the Gujarat Provincial
Municipal Corporations Act, 1949, s.8A of Gujarat Municipalities
Act, 1963 and s.257 of the Gujarat Panchayats Act, 1993 have
been substituted - The High Court held that the s.7A of the GPMC
Act, s.8A Gujarat Municipalities Act and s.257 of the Gujarat
Panchayats Act brought by Ordinance No.3 of 2015 was
unconstitutional and the action of the State Election Commission
for postponement of the election of all local bodies in the State was
illegal - Besides above mentioned two civil appeals, a writ petition
was also filed challenging the notifications issued by the Governor
of Gujarat in exercise of power u/s. 5(3)(iii)(a) of the Act, 1949
determining the number of Wards, seats including the seats reserved
for Scheduled Castes, Scheduled Tribes, Backward Classes and
women in several Provincial Corporations - The two civil appeals
[2021] 13 S.C.R.89
89
A
B
C
D
E
F
G
H
90
SUPREME COURT REPORTS
[2021] 13 S.C.R.
and writ petition are tagged and heard together - Held: The
provisions of s.5(3) (iii)(a) and s.29A of Act, 1949 and Rule 4 and
5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not ultra vires to
Part IXA of the Constitution, the Division Bench of the High Court
did not commit any error in dismissing the writ petition filed by the
appellants - Hence, the first civil appeal and Writ Petition are
dismissed - The civil appeal filed by the State Election Commission
is dismissed as having become infructuous as the directions of the
Division Bench to initiate process of holding the election of the
local bodies was carried out and nothing remains to be decided in
this appeal.
Constitution of India - Art 243R and 243S - Whether Arts.
243R and Art. 243S of the Constitution of India contains any
limitation to the effect that there shall be only one member from one
ward - Held: The constitutional provisions of Art. 243R, which
provides for composition of Municipalities and that of Art. 243ZA
does not give any indication as to whether from territorial
constituency, i.e., the Wards, whether only one member has to be
elected in the Municipality or it can be multiple member constituency
- There is no limitation in provision of Art. 243S, which limits the
State Legislature for requiring multi-member seats in a Ward - The
only requirement is that a member of the Municipality representing
a Ward shall be a member of the Ward Committee - Thus,
constitutional requirement or limitation engrafted in sub-Article(3)
of Art. 243S is that a member of the Municipality representing a
Ward shall be a member of the Ward Committee, it cannot be read
to mean that it mandates that from one Ward more than one members
cannot be made representatives.
Gujarat Provincial Municipal Corporation Act, 1949 - ss.
5(3)(iii)(a), 29A - Bombay Provincial Municipal Corporations (the
delimitation of wards and allocation of reserved seats) Rules, 1994
- rr. 4 and 5 - Gujarat Municipal Corporation's Ward Committees
Functions, Duties, Territorial Areas and Procedure for Transaction
of Business Rules, 2007 - r. 2(b) - Whether the provisions of
ss. 5(3)(iii)(a), 29A of the Gujarat Provincial Municipal Corporation
Act, 1949 and Rules 4 and 5 of Bombay Provincial Municipal
Corporations (the delimitation of wards and allocation of reserved
seats) Rules, 1994 and Rule 2(b) of Gujarat Municipal Corporation's
A
B
C
D
E
F
G
H
91
Ward Committees Functions, Duties, Territorial Areas and Procedure
for Transaction of Business Rules, 2007 are ultra vires to the
provisions of Articles 243R and 243S of the Constitution? - Held:
The composition of Municipality has been dealt separately by Art.
243R and for composition of Municipality, the provisions of Art.
243S cannot be said to be applicable or intended to provide any
limitation or prohibition with regard to composition of the
Municipalities - The Rule 2(b) of Rules, 2007 which provides for
election of Chairperson, by following which rule, in case of multimember Ward, Chairperson can be elected, which may apply both
to Art. 243S(4) as well as Rule 2(b) of the Rules, 2007 - Thus,
Rules 4 and 5 of Rules, 1994 as well as Rule 2(b) of Rules, 2007
does in no manner disobey the mandate of Art. 243S(4), both
can be complied with without any conflict between the two different
provisions - Thus, the provisions of s. 5(3)(iii)(a) as well as Rules
4 and 5 of Rules, 1994 and Rule 2(b) of Rules, 2007 are not
inconsistent with provisions of Art. 243R and Art.243S.
The Gujarat Delimitation of Wards and Allocation of Reserved
Seats in Municipal Borough Rules, 1994 - Whether having more
than one representative from a Ward negates the empowerment of
weaker sections, i.e. women, Schedule Castes and Schedule Tribes
- Held: The Gujarat Delimitation of Wards and Allocation of
Reserved Seats in Municipal Borough Rules, 1994 has been
amended by Amendment Rules, 2015 - As per clauses 2 and 3, now
it is 4 member Ward, 2 seats are to be reserved for women including
seats reserved for women belonging to Scheduled Castes, Scheduled
Tribes and Back Ward Classes - The entire purpose and object of
reserving seats for weaker sections is to empower the weaker
sections, i.e., women, Scheduled Castes and Scheduled Tribes, when
there are more numbers are reserved for weaker sections their
participation in municipality is bound to increase giving strength
to their voice and effective participation which is nothing but
empowerment of weaker sections - By the Rules, 1994 as amended
in 2015 now the voice of weaker sections can be felt from every
Ward which clearly enhances of presence and participation of
weaker sections does not in any manner, negate the empowerment
of weaker sections.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
92
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Disposing of the appeals, this Court
HELD: 1. Both these questions being interrelated are being
taken together:
i. Whether Article 243R and Article 243S of the Constitution
of India contains any limitation to the effect that there shall be
only one member from one Ward?
ii. Whether the provisions of Sections 5(3)(iii)(a), 29A of
the Gujarat Provincial Municipal Corporations Act, 1949 and
Rules 4 and 5 of Bombay Provincial Mu- nicipal Corporations
(the delimitation of wards and allocation of reserved seats) Rules,
1994 and Rule 2(b) of Gujarat Municipal Corporation's Ward
Committees Functions, Duties, Territorial Areas and Procedure
for Transaction of Business Rules, 2007 are ultra virus to the
provisions of Articles 243R and 243S of the Constitution?
Article 245, which deals with distribution of legislative
powers, begins with the words "subject to the provisions of this
Constitution". Thus, laws made by the Parliament and by the
Legislature of the State, have to be subject to the provisions of
the Constitution. Article 246 deals with subject-matter of the
laws made by the Parliament and by the Legislature of the State.
Reading Articles 245 and 246 together, it is abundantly clear that
the legislative power to be exercised by the Parliament and the
State Legislatures as enumerated in List I, List II and List III
of Seventh Schedule are subject to the provisions of the
Constitution. Thus, when the Constitution expressly or impliedly
contains a limitation in exercise of legislative power, the legislative
power is subject to such Constitution limitations. For example,
Article 13(2) contains a limitation that State shall not make any
law which takes away or abridges the rights conferred by Part III
and any law made in contravention of this clause shall, to the
extent of the contravention, be void. [Paras 22, 32, 33][108-A-C;
111-G-H; 112-B-D]
2. Article 243ZF provides that any law relating to
municipalities in force in a State immediately before the
commencement of the Constitution (Seventy-fourth Amendment)
Act, 1992, which is inconsistent with the provisions of Part IXA,
shall not continue beyond expiration of one year from
A
B
C
D
E
F
G
H
93
commencement of the constitutional amendment. Thus, Part IXA
of the Constitution categorically contemplated that any law made
by State Legislature, which is inconsistent with the provisions of
Part IXA shall cease to operate on the expiration of one year or
till amended or repealed by a competent Legislature, whichever
is earlier. The Constitution provisions, thus, mandates that any
law of the State, which is inconsistent, cannot continue. Thus,
this limitation shall also govern any law made after enforcement
of Constitution (Seventy-fourth Amendment) Act. Thus, a law,
which is inconsistent with Part IXA cannot be framed by the State
Legislature. [Para 36][113-H; 114-A-C]
3. One of the meanings of expression "inconsistent" as
approved by this Court is mutually repugnant or contradictory.
Article 254 of the Constitution contains a heading "inconsistency
between laws made by the Parliament and the laws made by the
Legislature of the State" whereas under Article 254(1) and Article
254(2) the words used are repugnant. The Constitution itself,
thus, has used the words inconsistency and repugnancy
interchangeably. To find out as to whether a law made by State
Legislature is inconsistent with provisions of Part IXA of the
Constitution, the principles which have been laid down by this
Court to determine the repugnancy between the law made by
the Legislature of a State and law made by Parliament can be
profitably relied on. This Court, thus, need to notice the principles
on which the repugnancy of law made by State and law made by
the Parliament is found out. [Para 38][114-E-G]
4. The Constitution of India is a paramount law to which all
other laws are subject. One of the important tests to find out as
to whether or not there is repugnancy is to ascertain the intention
of the Legislature regarding the fact that the dominant Legislature
allowed the subordinate Legislature to operate in the same field
paripasu the State Act and there will be no inconsistency when
the State Act and Central Act are supplemental to each other.
Things are inconsistent when they cannot stand together at the
same time and one law is inconsistent with another law, when the
command or power or provision in the law conflicts directly with
the command or power or provision in the other law. While
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
94
SUPREME COURT REPORTS
[2021] 13 S.C.R.
legislating on a particular subject matter, the paramount
Legislature may evince the intention to cover only certain specific
matters leaving it to the State Legislature to deal with the rest.
One more preposition need to be noticed is that there is always
a presumption that Legislature does not exceed its jurisdiction
and Court should make every attempt to reconcile the provisions
of apparently conflicting enactment. [Para 39] [114-H; 115-A-C]
5. Sub-article(1) of Article 243R contains two constitutional
requirements:- (i) all the seats in a Municipality shall be filled by
persons chosen by direct election and (ii) from the territorial
constituencies in the Municipal area and for this purpose each
Municipal area shall be divided into territorial constituencies to
be known as wards. Sub-article (2) of Article 243R provided for
the representation in a municipality of four categories of persons
which is a constitutional requirement required to be adopted by
State Legislature. It may be noted that sub-article (2) of Article
243R does not deal with seats in the Municipalities, which shall
be filed up by persons chosen by direct election. Article 243ZA
deals with elections to the Municipalities, thus, direct election,
as contemplated under Article 243R has to be as per Article
243ZA. [Para 49][119-F-H]
6. Thus, the Legislature of a State may by lay has to provide
all matters relating to or in connection with election to the
Municipalities, which includes filling of the seats in the
Municipality by person chosen by direct election. Articles 243R
and 243ZA does not give any indication as to whether from
territorial constituency, i.e., the Wards, whether only one member
has to be elected in the Municipality or it can be multiple member
constituency. The constitutional provisions of Article 243R, which
provides for composition of Municipalities and that of Article
243ZA does not give any indication to the above. The provisions
of Article 243ZG, which deals with bar to interference by courts
in electoral matters throws some light. Article 243ZG(a) used
two expressions: "any law relating to the delimitation of
constituencies or the allotment of seats to such constituencies"
may be read as allotment of more than one seat to one
constituency but it can be said that the above provision also do
A
B
C
D
E
F
G
H
95
not provide that in one constituency, there may be more than
one seats. Article 243S deals with Constitution and Composition
of Wards Committees. [Paras 50, 51, 52][120-B-D, F-G]
7. When carefully analysed the extent and purpose of Article
243S, this court does not find any such limitation in provision of
Article 243S, which limits the State Legislature for requiring
multi-member seats in a Ward. Reverting to sub-article (3) of
Article 243S, the requirement is that a member of the Municipality
representing a Ward shall be a member of the Ward Committee.
Thus, constitutional requirement or limitation engrafted in subarticle(3) is that a member of the Municipality representing a
Ward shall be a member of the Ward Committee. The provision
of Article 243S(3) is not a provision regarding composition of
Municipality rather the provision is for constitution and
composition of Wards Committee. In Wards Committee, a
member representing a Ward in Municipality has to be the
member. Sub-article(3) of Article 243S cannot be read to mean
that it mandates that from one Ward more than one members
cannot be made representatives. In cases, where there are more
than one member from one Ward all will become the member of
the Committee. When all the members of the Municipality
representing a Ward are members of the Committee, there is no
breach of Article 243S(3). [Para 53][121-G-H; 122-A-C]
8. This court may now examine, if there are multi-members
in one ward, whether Constitutional provisions of Article 243S(4)
are breached when Chairperson is to be elected. The requirement
is that member representing the Ward shall be the Chairperson
of the Committee and if there are more than one members and
one member out of multi-member Ward is elected as Chairperson,
the provision of Article 243S(4) shall be applied. When the
constitutional provisions under Article 243S(4)(a) does not
provide for election for electing Chairperson in case of a multimember Ward, the same is supplemented by the State legislation.
In the present case, this court noticed that Rule 2(b) of Rules,
2007, which provides that Chairperson of a Ward Committee is
the person elected by the members of the Wards Committee.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
96
SUPREME COURT REPORTS
[2021] 13 S.C.R.
The Rule, thus, contemplate an election of Chairperson amongst
the members of the Wards Committee, which shall also be
applicable in a case where there are more than one members
from one Ward. When out of multiple members in a Ward, one
member is elected as Chairperson, the mandate of Article
243S(4)(a) is complied with. The requirement is that member
representing the ward in the Municipality shall be the
Chairperson. The above provision cannot be read in providing
any prohibition or limitation that in one Ward, there cannot be
more than one member. The composition of Municipality has been
dealt separately by Article 243R and for composition of
Municipality, the provisions of Article 243S cannot be said to be
applicable or intended to provide any limitation or prohibition
with regard to composition of the Municipalities. The Rule 2(b)
of Rules, 2007 which provides for election of Chairperson, by
following which rule, in case of multi-member Ward, Chairperson
can be elected, which may apply both to Article 243S(4) as well
as Rule 2(b) of the Rules, 2007. Thus, Rules 4 and 5 of Rules,
1994 as well as Rule 2(b) of Rules, 2007 does in no manner
disobey the mandate of Article 243S(4), both can be complied
with without any conflict between the two different provisions.
This Court, thus, come to the conclusion that provisions of
Section 5(3)(iii)(a) as well as Rules 4 and 5 of Rules, 1994 and
Rule 2(b) of Rules, 2007 are not inconsistent with provisions of
Article 243S. [Para 55][122-F-G; 123-A-D]
9. This Court has analyzed the provisions of Article 243R,
243S and have come to the definite conclusion that no limitation
in Article 243S can be found of which contains any prohibition of
having more than one member for a Ward. When the State
Legislature has been given preliminary power of legislation with
regard to composition of the Municipalities, there has to be
express or implied limitation, which may prohibit the State
Legislature to make a law providing for multi-member Ward.
[Paras 59, 61][125-E-F; 126-F-G]
10. This Court, in the present case, after analysing the
relevant provisions of Part IXA of the Constitution has come to
the conclusion that there is no prohibition or limitation in Part
IXA of the Constitution prohibiting the State Legislature from
A
B
C
D
E
F
G
H
97
making a law providing for election of more than one member
from one territorial constituency, i.e., Ward. This Court, thus,
answer Question Nos. i and ii in following manner:-
(1) Article 243R and 243S of the Constitution of In dia does
not contain any limitation to the effect that there shall be only
one member from one Ward.
(2) Provisions of Section 5(3)(iii)(a) and Section 29A of the
Act, 1949 and Rules 4 and 5 of the Rules, 1994 and Rule 2(b) of
Rules, 2007 are not ultra vires to the provisions of Articles 243R
and 243S of the Constitution.[Para 63][127-D-F]
iii) Whether having more than one representative from a
Ward negates the empowerment of weaker sections, i.e., women,
Scheduled Castes and Scheduled Tribes?
11. The entire purpose and object of reserving seats for
weaker sections is to empower the weaker sections, i.e., women,
Scheduled Castes and Scheduled Tribes, when there are more
numbers are reserved for weaker sections their participation in
municipality is bound to increase giving strength to their voice
and effective participation which is nothing but empowerment of
weaker sections. This court is not able to subscribe to the
submission that when there are only one representation from
one Ward only then empowerment of weaker sections can be made.
By the Rules, 1994 as amended in 2015 now the voice of weaker
sections can be felt from every Ward which clearly enhances of
presence and participation of weaker sections and does not, in
any manner, negate the empowerment of weaker sections. This
Court, thus, do not find any substance in the above submission.
This Court answer Question No.iii) in the following manner:
Having more than one representation from a Ward in no manner
negates the empowerment of weaker sections rather it increases
the empowerment of weaker sections. [Paras 69, 70][129-G-H;
130-A-C]
iv) Whether when the draft rules for amendment of Bombay
Provincial Municipal Corporations (the delimitation of wards and
allocation of reserved seats) Rules, 1994 were issued on
27.11.2014 which were to be published after noting of objections
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
98
SUPREME COURT REPORTS
[2021] 13 S.C.R.
on or expiry of thirty days, the State Government could have
issued notification dated 04.12.2014 before expiry of thirty days?
12. A perusal of the above notification indicates that the
said notification was a draft notification to amend the Delimitation
of Wards and Allocation of Reserved Seats (Amendment) Rules,
2014 wherein Rule 4, for the word "three", the word "four" was
sought to be substituted. The notification dated 04.12.2014 has
been issued in exercise of powers conferred by sub-clause (a) of
clause (iii) of sub-section (3) of Section 5 of Act, 1949. A bare
perusal of the notification dated 04.12.2014 indicates that the
said notification is not in reference to the notification dated
27.11.2014 rather the said notification was issued regarding
determination of number of Wards and Councillors' seats
reserved for Scheduled Castes and Scheduled Tribes and women.
Thus, the argument that notification dated 04.12.2014 issued
before expiry of 30 days is wholly misconceived. The appellants
themselves have brought on record a notification dated 15.01.2015
as Annexured to the paper book which is the notification issued
in reference to the notification dated 27.11.2014. [Paras 72, 73
and 74][132-C-D; 134-B-C]
13. Thus, in reference to notification dated 27.11.2014, the
notification was issued on 15.01.2015, Rules, namely, Bombay
Provincial Municipal Corporation (Delimitation of Wards in the
City and Allocation of Reserved Seats) (Amendment) Rules, 2015
were issued which specifically mentioned that objections and
suggestions in pursuance of draft have been considered by the
Government. Thus, this court does not find any infirmity in the
above notification.[Para 75][134-G-H]
Civil Appeal (arising out of SLP(C)No.30635 of 2015-State
Election Commission vs. Virendrasinh Mafaji Vaghela & Ors.)
15. The appeal has been filed against the Division Bench
judgment of the Gujarat High Court dated 21.10.2015 by which
writ petition filed by the respondents was allowed. The High Court
found the Ordinance No.3 of 2015 as unconstitutional and void.
The action of the State Election Commission for postponement
of the election of all local bodies in the State was held to be illegal
and set aside. The State Election Commission was directed to
A
B
C
D
E
F
G
H
99
initiate process of holding the election of the local bodies
forthwith. In pursuance of the Division Bench judgment of the
High Court dated 21.10.2015 Elections for the local bodies were
held in November/December, 2015. The direction of the Division
Bench dated 21.10.2015 having been carried out nothing remains
to be decided in this appeal. The tenure of the Local Body
constituted in pursuance of the impugned direction of the High
Court dated 21.10.2015 having come to end, this Court see no
necessity to enter into issue raised in this appeal. Thus, the
appeal is dismissed as having become infructuous. [Para 78][135D-F]
Ch. Tika Ramji and Others, etc. v. The State of Uttar
Pradesh and Others, AIR 1956 SC 676 : [1956] SCR
393; Maharaj Umeg Singh and Ors. v. State of Bombay
and Ors., AIR 1955 SC 540 : [1955] SCR 164; Jindal
Stainless Limited and Anr. v. State of Haryana and Ors.,
(2017) 12 SCC 1 : [2016] 10 SCR 1; Deep Chand and
Ors. v. The State of Uttar Pradesh and Ors., AIR 1959
SC 648 : [1959] Suppl. SCR 8; M. Karunanidhi
Vs.Union of India and Anr., (1979) 3 SCC 431 : [1979]
3 SCR 254; K.T. Plantation Private Limited and Anr.
Vs. State of Karanataka, (2011) 9 SCC 1 : [2011] 13
SCR 636 - followed.
Basti Sugar Mills Co. Ltd. v. State of Uttar Pradesh and
Anr., (1979) 2 SCC 88 : [1979] 1 SCR 590; M/s. Ram
Chandra Mawa Lal, Varanasi and Ors. v. State of Uttar
Pradesh and Ors., (1984) Suppl. SCC 28 : [1984] SCR
348 - relied on.
Manoj Narula v. Union of India, (2014) 9 SCC 1 :
[2014] 9 SCR 965; Chief Justice of Andhra Pradesh
and Others v. L.V.A. Dixitulu and Ors., (1979) 2 SCC
34 : [1979] 1 SCR 26; M.T. Khan and Ors. v. Govt. of
A.P. and Ors., (2004) 2 SCC 267 : [2004] 1 SCR 117;
Karnataka Bank Ltd. v. State of Andhra Pradesh and
Ors., (2008) 2 SCC 254 : [2008] 1 SCR 986;
Kasambhai F. Ghanchi v. Chandubhai D. Rajput and
Others, (1998) 1 SCC 285 : [1997] 5 Suppl. SCR 401
- referred to.
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
100
SUPREME COURT REPORTS
[2021] 13 S.C.R.
Pankajsinh Waghela v. State Election Commission
through Election Commissioner & Others (Special Civil
Application No.12084 of 2015) - referred to.
Case Law Reference
[1956] SCR 393
followed
Para 31
[1955] SCR 164
followed
Para 33
[2016] 10 SCR 1
followed
Para 34
[1979] 1 SCR 590
relied on
Para 37
[1959] Suppl. SCR 8
followed
Para 41
[1979] 3 SCR 254
followed
Para 42
[1984] SCR 348
relied on
Para 43
[2011] 13 SCR 636
followed
Para 44
[2014] 9 SCR 965
referred to
Para 56
[1979] 1 SCR 26
referred to
Para 60
[2004] 1 SCR 117
referred to
Para 62
[2008] 1 SCR 986
referred to
Para 62
[1997] 5 Suppl. SCR 401
referred to
Para 67
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 706
of 2021.
From the Judgment and Order dated 29.07.2015 of the High Court
of Gujarat at Ahmedabad in Special Civil Application No. 12084 of 2015.
With
Civil Appeal No. 707 of 2021
With
Writ Petition (Civil) No. 786 of 2020
Tushar Mehta, SG Kapil Sibal, Harin P. Raval, Maninder Singh,
Ms. Manisha Lavkumar, Sr. Advs. Anirudh Sharma, Abhaid Parikh,
Sameer Sawarn, Kartikeya Kanojiya, Ms. Sukanya Singh, Alio Joseph,
Anando Mukherjee, Shwetank Singh, Koshy John, Ms. Ranjeeta Rohatgi,
Prabhas Bajaj, Ms. Samten Doma, Aniruddha P. Mayee, Ms. Aastha
A
B
C
D
E
F
G
H
101
Mehta, Kanu Agarwal, Maulik Nanavati, Ms. Deepanwita Priyanka,
M/S. A P & J Chambers, Ms. Jesal Wahi, Ms. Hemantika Wahi, Advs.
for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. Leave granted.
2. The civil appeals and writ petition, being tagged, all three matters
have been heard together.
3. We need to notice the facts and pleadings in the first matter,
i.e., Civil Appeal (arising out of SLP(C)No. 24950 of 2015-Parmar
Samantsinh Umedsinh vs. State of Gujarat & Ors.). The abovesaid
appeal has been filed against the judgment of Gujarat High Court dated
29.07.2015 in Special Civil Application No.12084 of 2015 dismissing the
writ petition following an earlier Division Bench judgment dated 13.08.2010
in Pankajsinh Waghela v. State Election Commission through
Election Commissioner & others. The writ petition was filed by the
appellant herein challenging the vires of Section 5(3)(iii)(a) and Section
29A of the Gujarat Provincial Municipal Corporation Act, 1949 (hereinafter
referred to as "Act, 1949") and other statutory provisions including Rules
framed thereunder and the notifications. In the writ petition following
reliefs were claimed:
"(A) Issue a writ of declaration, declaring that:
a) Section 5(3)(iii)(a) and 29A of the Gujarat Provincial Municipal
Corporation Act, 1949 and
b) Sections 2 and 3 of the Gujarat Local Authorities Laws
(Amendment) Act, 2009 as being ultra vires the Constitution of
India as it violates one member one ward mandate.
(B) Issue a writ of declaration, declaring that Rule 4 and Rule 5
of the Bombay Provincial Municipal Corporation (Delimittaion of
Wards in the City and Allocations of Reserved Seats) Rules, 1994
(including amendment of 2015) as being ultra vires the Constitution
of India.
(C) Issue a writ of declaration, declaring Notification No.KV-194
of 2014-ELE-102014-17010P dated 04.12.2014 as well as other
Notification dated 15.01.2015 issued by State of Gujarat as ultra
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS.
A
B
C
D
E
F
G
H
102
SUPREME COURT REPORTS
[2021] 13 S.C.R.
vires the Constitution of India and/or Gujarat Local Authorities
Laws (Amendment)Act, 2009 and/or Gujarat Provincial Municipal
Corporation Act, 1949.
(D) Quash and set aside the order dated 11.12.2014 passed by
the State Election Commission under Section 5(3)(iii)(b) of the
Gujarat Provincial Municipal Corporation Act, 1949.
(E) Pending admission, hearing and final hearing, be pleased to
stay Notification No.KV-194 of 2014-ELE-102014-1701-P dated
04.12.2014 issued by the State of Gujarat as well as order dated
11.12.2014 passed by the State Election Commission under Section
5(3)(iii)(b) of the Gujarat Provincial Municipal Corporation Act,
1949.
(F) Pending admission, hearing and final hearing, be pleased to
stay the election process for the election due in October 2015 for
Municipality in the State of Gujarat.
(G) Costs.
(H) Such other and further relief or relieves as may be deem fit,
just and proper, in the facts and circumstances of the case."
4. The Division Bench of the High Court dismissed the writ petition
noticing that earlier the vires of Section 5(3)(iii)(a) and Sections 29A(2)(a)
and 29A(3)(a) of the Act, 1949 as well as Rule 4 of the Bombay Provincial
Municipal Corporations (the Delimitation of Wards in the City and
Allocation of Reserved Seats) Rules, 1994 were challenged and were
upheld and the issues in the writ petition being covered by the earlier
Division Bench judgment of the High Court in the case of Pankajsinh
Waghela v. State Election Commission and others, the writ petition
is to be dismissed.
5. Aggrieved against the judgment of the Division Bench dated
29.07.2015 Civil Appeal (arising out of SLP(C)No.24950 of 2015) has
been filed.
6. The Civil Appeal (arising out of SLP(C)No.30635 of 2015) has
been filed against the Division Bench judgment of the High Court dated
21.10.2015 by which judgment Special Civil Application No.16313 of
2015 filed by the respondents has been allowed. In the writ petition
Clauses (3), (4) and (5) of Ordinance No.3 of 2015 promulgated by the
A
B
C
D
E
F
G
H
103
Governor of Gujarat were under challenge. A mandamus was also sought
seeking a direction to the State Election Commission to declare the dates
of holding Elections of Panchayats in the State of Gujarat forthwith. On
03.10.2015 on the same date when Ordinance No.3 of 2015 was issued
by which Section 7A of the Gujarat Provincial Municipal Corporations
Act, 1949, Section 8A of Gujarat Municipalities Act, 1963 and Section
257 of the Gujarat Panchayats Act, 1993 have been substituted an order
was issued by the State Election Commission that the Elections of 6
Municipal Corporations, 53 Municipalities, 3 newly constituted
Munipalities, 23 Taluka Panchayats and 31 District Panchayats which
were to be held in October/November, 2015 were decided not to be held
at present. The Division Bench had disposed of the writ petition by
recording its conclusion in paragraph 72 which was to the following
effect:
"72.In view of the above observations and discussions, the following
conclusions:-
(a) Section 15(1) of the Gujarat Panchayats Act inserted by
Ordinance No.2 of 2015 is read down in a manner that the Election
Commissioner must initiate the process of election at least 45
days prior to the expiry of the term of the respective Panchayats
so as to enable the newly elected body to hold the first meeting
and assume the power by replacing the outgoing elected body. If
Section 15(1) is not interpreted and read accordingly, Section 15(1)
would unconstitutional and void.
If there is failure on the part of the State Election Commission to
initiate the process for elections 45 days in advance, any citizen
affected thereby would be at liberty to approach this Court under
Article 226 of the Constitution for seeking appropriate direction
against the State Election Commission.
(b) Section 7A of the GPMC Act, Section 8A of Page 86 of 89
Downloaded on : Sat Feb 20 15:44:28 IST 2021 C/SCA/16313/
2015 CAV JUDGMENT Municipalities Act and Section 257 of
the Act brought about by Ordinance No.3 of 2015 are held to be
unconstitutional and void.
(c) The action of the State Election Commission for postponement
of the election of all local bodies in the State is held to be illegal
and is set aside. Respondent No.2 Election Commission is directed
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
104
SUPREME COURT REPORTS
[2021] 13 S.C.R.
to initiate process of holding the election of the local bodies
forthwith.
Respondent No.1 State Government is directed to render all
cooperation and assistance, including providing necessary police
force and reserved force or any other force as may be requisitioned
by the Election Commission for ensuring the election at the earliest
in a free and fair atmosphere."
7. The State Election Commission aggrieved by the judgment of
the High Court has come up in this appeal.
8. Writ Petition(C)No.786 of 2020 has been filed challenging the
notifications dated 08.07.2020 issued by the Governor of Gujarat in
exercise of power under Section 5(3)(iii)(a) of the Act, 1949 determining
the number of Wards, seats including the seats reserved for Scheduled
Castes, Scheduled Tribes, Backward Classes and women of Vadodara
Provincial Corporation, Ahmedabad Provincial Corporation, Bhavnagar
Provincial Corporation, Ghandhinagar Provincial Corporation, Jamnagar
Provincial Corporation, Rajkot Provincial Corporation and Surat Provincial
Corporation. Writ order or declaration declaring Section 5(3)(iii)(a) and
29A of Act, 1949 as unconstitutional was also prayed for. Section
5(3)(iii)(a) and 29A, Rule 4 and Rule 5 of Rules, 1994 as amended in
2015 has also been challenged. Notification dated 04.12.2015 as well as
15.01.2015 was also sought to be challenged including challenge to
Sections 2 and 3 of the Gujarat Local Authorities Laws (Amendment)
Act, 2009. By order of this Court dated 25.08.2020 the writ petition has
been tagged with Civil Appeal arising out of SLP(C) No.24950/2015.
9. We have heard Shri Kapil Sibal, learned senior counsel and
Shri Harin P. Raval, learned senior counsel appearing in the first appeal
and writ petition for the appellants and petitioner.
10. We have heard Shri Maninder Singh, learned senior counsel
appearing for the appellant in the appeal filed by the State Election
Commission. Shri Tushar Mehta, learned Solicitor General and
Ms. Manisha Lavkumar, learned senior counsel have been heard for the
State of Gujarat.
11. Shri Kapil Sibal has led the arguments on behalf of the
appellants in the first matter. Referring to provisions of Article 243R and
243S of the Constitution of India, Shri Sibal submits that the constitutional
A
B
C
D
E
F
G
H
105
scheme does not permit multi member representation from a Ward in
the Municipal Corporation/Municipality. Shri Sibal submits that Article
243S sub-clause (3) and sub-clause (4) uses expression "a member and
the member", which indicates that from one Ward there can only be one
member in the Municipality. Similarly, Section 29A sub-clause 2 of the
Act, 1949 is inconsistent with Article 243S of the Constitution. He submits
that Article 243R does not contemplate/mandate a multi member Ward.
12. Shri Sibal submits that in the case of Lok Sabha it is rule of
election of one Member of Parliament is to be from one unit of
representation from one constituency. Similarly, is the case of Vidhan
Sabha only one member is to be elected from one constituency. It is
submitted that Article 243S of the Constitution mandates that only one
member be elected from one Ward and it does not allow for more than
one member to be elected from the same Ward and the impugned
provisions and notifications are in contravention of this cardinal
constitutional principle enshrined in Article 243S of the Constitution. It is
submitted that the election to a Municipal Corporation ought to be
conducted in the same manner as State Legislative Assembly, wherein
different constituencies are represented by one member and no more.
Further, Article 243R cannot be interpreted to give wide, unguided and
uncontrolled powers to the State Legislature ignoring other Constitutional
provisions enshrined in the Constitution of India. The State Legislature
is empowered to make laws with regard to representation in a
Municipality and also composition and territorial area of Wards
Committees and the manner in which the seats are to be filled. However,
in its exercise of legislative powers, the State Legislature cannot make
laws violative of the Constitutional principles and mandate.
13. Shri Sibal submits that there has to be thematic consistency
while interpreting the provisions of Part IXA of the Constitution. The
thematic flow of the Constitution is of election of only one member from
one Ward constituency/unit of representation. Multi member
representation from a Ward is against the principle of empowerment of
down-trodden and woman. One member Ward enables exclusive
representation of the women/other backward classes/Scheduled Castes/
Scheduled Tribes resulting therein empowerment which cannot be
achieved by a multi member Ward. Shri Sibal further submits that a
holistic schematic interpretation of the Constitution has to be advanced.
Shri Sibal submits that words occurring in the Constitution should be
PARMAR SAMANTSINH UMEDSINH AND OTHERS v. STATE
OF GUJARAT & ORS. [ASHOK BHUSHAN, J.]
A
B
C
D
E
F
G
H
106
SUPREME COURT REPORTS
[2021] 13 S.C.R.
read in their ordinary, natural and grammatical meaning. Wordings of
Article 243S(4) would mean adding words to the plain language and
intent to Article 243S(4) of the Constitution of India.
14. It is submitted that singular cannot be read plural in Article
243S. Applicability of the General Clauses Act is restricted to the
interpretation of the Constitution of India by Article 367 itself. One of
the submissions of Shri Sibal is that Draft Rules for Amendment of
Delimitation Rules, 1994 were issued on 27.11.2014 inviting objections
within 30 days of the publication of Draft Rules, 1994. However, before
expiry of 30 days notification was issued on 04.12.2014 which is not in
accordance with law.
15. Shri Sibal submits that the Municipal Laws which are prevalent
in 28 States provide for one representation from one Ward whereas
Municipal Laws in Gujarat provide for multi member Ward. It is submitted
that in the Municipal Laws of Bombay which provide for multi member
Ward now in 2019 it has reverted back to one member representation.
16. Shri Harin P. Raval adopting the arguments of Shri Kapil Sibal
submits that if the words are clear Rule of literal interpretation shall
apply. He submits that Section 29A of Act, 1949 is inconsistent with
Article 243S of the Constitution. Shri Raval further submits that without
reference to notification dated 27.11.2014, the notification dated
04.12.2014 was published which is a colourable exercise of power.
17. Shri Tushar Mehta, learned Solicitor General submits that in
Gujarat there were always multi member Wards. Shri Mehta submits
that an Act can be challenged on the grounds of (1) substantive ultra
vires, i.e, competence; (2) procedural ultra vires; (3) ultra vires and
arbitrariness and (4) runs contrary to the constitutional provisions.