Municipal Councillors who fall under the Backward Class category submit appeals resulting from SLP 7556, 7557, and 7558 of 2021, whereas the State of Maharashtra files appeals emerging from SLP 8870 of ...
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5060 OF 2021
[Arising out of SLP(C) No. 7556 of 2021]
SANJAY RAMDAS PATIL ...APPELLANT(S)
VERSUS
SANJAY AND OTHERS ...RESPONDENT(S)
WITH
CIVIL APPEAL NO. 5061 OF 2021
[Arising out of SLP(C) No. 7557 of 2021]
CIVIL APPEAL NO. 5062 OF 2021
[Arising out of SLP(C) No. 7558 of 2021]
CIVIL APPEAL NO. 5063 OF 2021
[Arising out of SLP(C) No. 8870 of 2021]
J U D G M E N T
B.R. GAVAI, J.
1.Leave granted.
2.All these appeals take exception to the judgment and
order passed by the Division Bench of the High Court of
Judicature at Bombay, Bench at Aurangabad dated 7
th
May
1
2021, thereby allowing the writ petition being Writ Petition
No.14440 of 2019, filed by respondent No.1Sanjay Sudhakar
Jadhav and setting aside the Notification dated 27
th
November
2019 in respect of Dhule Municipal Corporation, vide which the
Office of Mayor in Dhule Municipal Corporation for the term
commencing from June, 2021 was reserved for Backward Class
category. The High Court further directed the State of
Maharashtra to reconsider the reservation process for the office
of Mayor in Dhule Municipal Corporation in accordance with
the observations made by it in the judgment.
3.Appeals arising out of SLP(C) Nos. 7556 of 2021, 7557 of
2021 and 7558 of 2021 are filed by the Municipal Councillors
who belong to the Backward Class category whereas the appeal
arising out of SLP(C) No. 8870 of 2021 is filed by the State of
Maharashtra.
4.Facts in brief giving rise to filing of these appeals are as
under:
We will refer to the facts in appeal arising out of SLP(C)
No.7556 of 2021. The respondent No.1 though belongs to the
Scheduled Caste category, was elected as a Councillor to the
2
Dhule Municipal Corporation (hereinafter referred to as the
“said Corporation”) from the General category. By the
Notification dated 27
th
November 2019, the Office of Mayor in
the said Corporation was earmarked for Backward Class of
Citizens for the next term of two and half years commencing
from June, 2021. Contending that from the year 2003 onwards,
the Office of Mayor in the said Corporation was reserved for
Backward Class category on various occasions, but was not
reserved for Scheduled Caste category, a petition came to be
filed by the respondent No.1, challenging the said reservation
with a prayer for direction to reserve the post of Mayor of the
said Corporation for the next term of two and a half years for
Scheduled Caste category. The said petition came to be allowed
as aforesaid. Being aggrieved thereby, the present appeals.
5.The Division Bench of the High Court while construing
subrule (2) of Rule 3 of the Maharashtra Municipal
Corporations (Reservation of Offices of Mayors) Rules, 2006
(hereinafter referred to as the “said Rules”) and relying on the
judgment of the Single Judge of the Karnataka High Court held
that since already on two earlier occasions, the Office of Mayor
3
of the said Corporation was reserved for Backward Class,
reserving the same again for Backward Class coupled with the
fact that there has been no reservation for the Scheduled Caste
category, amounted to violation of rotation policy. As such, it
remanded the matter to respondent No.2State for
consideration afresh in accordance with these observations.
6.We have heard Ms. Meenakshi Arora, learned Senior
Counsel and Mr. Braj Kishore Mishra, learned counsel
appearing on behalf of the private appellants and Mr. Sachin
Patil, learned counsel appearing on behalf of the State of
Maharashtra. We have heard Mr. Nishant Ramakantrao
Katneshwarkar, learned counsel appearing on behalf of the
respondentoriginal writ petitioner.
7.It is the contention of the appellants that the judgment of
the High Court is rendered without considering the import of
Clauses (d) and (e) of subrule (2) of Rule 3 of the said Rules. It
is submitted that out of the 27 total seats of Mayors available in
the State, 1 is reserved for Scheduled Tribes, 3 are reserved for
Scheduled Castes and 7 are reserved for Backward Class of
4
Citizens. Learned counsel for the appellant further submitted
that out of 27 seats, only 9 seats are eligible for reservation of
Scheduled Tribes category. It is stated that taking into
consideration the fact that the seats reserved for Backward
Class of Citizens are 7 as against 3 for Scheduled Castes, which
is more than twice, it is quite possible that while applying the
said Rules, the reservation may be provided for Backward Class
category on more than one occasion and no reservation be
provided for Scheduled Castes even on a single occasion.
8.It is stated on behalf of the State that while earmarking
the seats of Mayor, the State of Maharashtra had followed an
appropriate procedure so as to give effect to the said Rules. It
is submitted that, however, the same has not been taken into
consideration by the High Court.
9.As against this, Mr. Katneshwarkar, learned counsel
appearing on behalf of the original writ petitioner would submit
that the High Court has correctly applied the principle of
rotation and held that unless all the categories got
5
representation in a particular Municipal Corporation, the
reservation for a particular category cannot be repeated.
10.It is not in dispute that from 2003 to 2017, the Office of
Mayor of the said Corporation was reserved for Backward Class
category for two terms, out of the total 7 terms. It is also not in
dispute that there was no reservation provided for the
Scheduled Castes category even once. We will have to consider
the rival submissions in the backdrop of this factual scenario.
11.It will be relevant to refer to Article 243T of the
Constitution of India which reads thus:
“243T. Reservation of seats
(1) Seats shall be reserved for the Scheduled Castes
and the Scheduled Tribes in every Municipality and
the number of seats so reserved shall bear, as
nearly as may be, the same proportion to the total
number of seats to be filled by direct election in that
Municipality as the population of the Scheduled
Castes in the Municipal area or of the Scheduled
Tribes in the Municipal area bears to the total
population of that area and such seats may be
allotted by rotation to different constituencies in a
Municipality.
(2) Not less than one third of the total number of
seats reserved under clause (1) shall be reserved for
women belonging to the Scheduled Castes or, as the
case may be, the Scheduled Tribes.
6
(3) Not less than one third (including the number of
seats reserved for women belonging to the
Scheduled Castes and the Scheduled Tribes) of the
total number of seats to be filled by direct election
in every Municipality shall be reserved for women
and such seats may be allotted by rotation to
different constituencies in a Municipality.
(4) The offices of Chairpersons in the Municipalities
shall be reserved for the Scheduled Castes, the
Scheduled Tribes and women in such manner as
the Legislature of a State may, by law, provide.
(5) The reservation of seats under clauses (1) and (2)
and the reservation of offices of Chairpersons (other
than the reservation for women) under clause (4)
shall cease to have effect on the expiration of the
period specified in Article 334.
(6) Nothing in this Part shall prevent the Legislature
of a State from making any provision for reservation
of seats in any Municipality or offices of
Chairpersons in the Municipalities in favour of
backward class of citizens.”
12.Perusal of Clause (1) of Article 243T would reveal that it
mandates the State to reserve seats for Scheduled Castes and
Scheduled Tribes in every Municipality. It further mandates
that the number of seats so reserved shall bear, as nearly as
may be, the same proportion to the total number of seats to be
filled by direct election in the Municipality as the population of
the Scheduled Castes in the Municipal area or of the Scheduled
Tribes in the Municipal area bears to the total population of
7
that area. It further mandates that such seats may be allotted
by rotation to different constituencies in a Municipality. Clause
(2) thereof provides that not less than 1/3
rd
of the total number
of seats reserved under Clause (1) shall be reserved for women
belonging to the Scheduled Castes or, as the case may be, the
Scheduled Tribes. Clause (3) provides that not less than 1/3
rd
(including the number of seats reserved for women belonging to
the Scheduled Castes and the Scheduled Tribes) of the total
number of seats to be filled by direct election shall be reserved
for women and such seats may be allotted by rotation to
different constituencies in a Municipality. Clause (4) thereof
provides that the offices of the Chairpersons in the
Municipalities shall be reserved for the Scheduled Castes, the
Scheduled Tribes and women in such manner as the
Legislature of a State may, by law, provide. Clause (6) thereof
enables the Legislature of the State to make provision for
reservation of seats in any Municipality or offices of
Chairpersons in the Municipalities in favour of Backward Class
of Citizens.
8
13.Section 19 of the Maharashtra Municipal Corporations
Act, 1949 (hereinafter referred to as the “said Act”) provides for
election of Mayor and Deputy Mayor from amongst the
Councillors in the Corporation. It will be relevant to refer to
Section 19 (1A) of the said Act:
“19.Mayor and Deputy Mayor
(1)…
(1A)There shall be reservation for the office of the
Mayor in the Corporation, by rotation, for the
Scheduled Castes, the Scheduled Tribes, women
and the Backward Class of citizens, in the
prescribed manner.”
14.It could thus be seen that subsection (1A) of Section 19 of
the said Act provides that there shall be reservation for the
office of the Mayor in the Corporation, by rotation, for the
Scheduled Castes, the Scheduled Tribes, Women and the
Backward Class of Citizens, in the prescribed manner.
15.The manner of reservation has been provided under Rule
3 of the said Rules which reads thus:
“3. Reservation of offices for the election of Mayor (1)
The State Government shall, by notification in the
Official Gazette, specify the number of offices of
Mayors in the Municipal Corporations in the State
to be reserved for the Scheduled Castes, Scheduled
Tribes, the category of Backward Class of Citizens
9
and Women (including the women belonging to the
category of Backward Class of Citizens) on the
following principles:
(a) The number of offices of Mayors to be so
reserved for the Scheduled Castes and Scheduled
Tribes shall bear, as nearly as may be, the same
proportion to the number of such offices in the
Corporations in the State as the population of the
Scheduled Castes and the Scheduled Tribes in the
Municipal Corporation areas bears to the total
population of all Municipal Corporation areas:
Provided that, such office of Mayor may not be
so reserved, if the number of Councillors to be
elected at ward elections from the category of the
Scheduled Castes or Scheduled Tribes is less than
three:
Provided further that, while specifying such
reservation onethird of the total number of seats so
reserved shall be reserved for the women belonging
to the Scheduled Castes or, as the case may be, the
Scheduled Tribes:
Provided also that, in a Municipal Corporation,
where only one office of the Councillor is reserved
for the Scheduled Caste or, as the case may be, the
Scheduled Tribes, then it shall not be necessary to
reserve the office for women belonging to the
Scheduled Castes or, as the case may be, the
Scheduled Tribes;
(b) As nearly as may be, twentyseven per cent
of the total number of offices of Mayors in the State
shall be reserved for the category of Backward Class
of Citizens:
Provided that, onethird of the offices so
reserved shall be reserved for Women belonging to
the category of Backward Class of Citizens;
10
(c) Onethird of the total number of offices of
Mayors in the State (including the number of offices
reserved for the Scheduled Castes, the Scheduled
Tribes and the category of Backward Class of
Citizens) shall be reserved for women.
(2) The State Government shall,
(a) By notification in the Official Gazette, allot
by draw of lots, the offices of the Mayors to be
reserved for the Scheduled Castes, the Scheduled
Tribes, the category of Backward Class of Citizens
and Women, on the principles specified in subrule
(1).
(b) Ensure that, at any given point of time, the
number of offices of Mayors, reserved for the
Scheduled Castes, the Scheduled Tribes, the
category of Backward Class of Citizens and Women
shall not be less than the number determined in
accordance with the provisions of subrule (1).
(c) The lots in respect of women belonging to a
particular category shall be drawn only among the
offices of Mayors reserved for such category.
(d) While drawing lots, the office of Mayor
reserved for such category in the earlier years shall
be excluded from the draw of lots for those
categories;
(e) The offices of Mayors to be reserved shall be
rotated in the subsequent terms of office of Mayor to
such Corporation, in which no reservation has been
made in the previous terms until such reservations
are given by rotation to each category.”
16.It is clear that subrule (1) of Rule 3 of the said Rules
provides that the Government shall, by notification in the
11
Official Gazette, specify the number of offices of Mayors in the
Municipal Corporations in the State to be reserved for the
Scheduled Castes, Scheduled Tribes, Backward Class of
Citizens and Women (including the women belonging to the
category of Backward Class of Citizens). Clause (a) of subrule
(1) of Rule 3 of the said Rules provides that the number of
offices of Mayors to be so reserved for the Scheduled Castes
and Scheduled Tribes shall bear, as nearly as may be, the same
proportion to the number of such offices in the Corporations in
the State as the population of the Scheduled Castes and the
Scheduled Tribes in the Municipal Corporation areas bears to
the total population of all Municipal Corporation areas.
Obviously, the said provision is in tune with Clause (1) of
Article 243T of the Constitution of India. The first proviso
thereof provides that such office of Mayor may not be so
reserved, if the number of Councillors to be elected at ward
elections from the category of the Scheduled Castes or
Scheduled Tribes is less than 3. The second proviso provides
that while specifying such reservation, 1/3
rd
of the total
number of seats so reserved shall be reserved for the women
12
belonging to the Scheduled Castes or, as the case may be, the
Scheduled Tribes. It further provides that in a Municipal
Corporation, where only one office of the Councillor is reserved
for the Scheduled Castes or, as the case may be, the Scheduled
Tribes, then it shall not be necessary to reserve the office for
women belonging to the Scheduled Castes or, as the case may
be, the Scheduled Tribes.
17.Clause (b) of subrule (1) of Rule 3 of the said Rules
provides that as nearly as may be, 27% of the total number of
offices of Mayors in the State shall be reserved for the category
of Backward Class of Citizens. The proviso thereof provides
that 1/3
rd
of the offices so reserved shall be reserved for Women
belonging to the category of Backward Class of Citizens. Clause
(c) of subrule (1) of Rule 3 of the said Rules provides that 1/3
rd
of the total number of offices of Mayors in the State (including
the number of offices reserved for the Scheduled Castes, the
Scheduled Tribes and the category of Backward Class of
Citizens) shall be reserved for women.
13
18.Subrule (2) of Rule 3 of the said Rules would be the most
relevant one inasmuch as it is that provision which falls for
consideration in the present matter. Clause (a) thereof provides
that by notification in the Official Gazette, the State
Government shall allot by draw of lots, the offices of the Mayors
to be reserved for the Scheduled Castes, the Scheduled Tribes,
the Backward Class of Citizens and Women, on the principles
specified in subrule(1). Clause (b) thereof provides that the
State Government shall ensure that, at any given point of time,
the number of offices of Mayors, reserved for the Scheduled
Castes, the Scheduled Tribes, the Backward Class of Citizens
and Women shall not be less than the number determined in
accordance with the provisions of subrule (1). Clause (c)
provides that the lots in respect of women belonging to a
particular category shall be drawn only among the offices of
Mayors reserved for such category. Clause (d) provides that
while drawing lots, the office of Mayors reserved for such
category in the earlier years shall be excluded from the draw of
lots for those categories. Clause (e) provides that the offices of
Mayors to be reserved shall be rotated in the subsequent terms
14
of office of Mayor to such Corporation in which no reservation
has been made in the previous terms until such reservations
are given by rotation to each category.
19.It is thus clear that the scheme of Rules which is in tune
with Section 19(1A) of the said Act and in turn with the
constitutional provision under Article 243T, is to provide
reservation to the Scheduled Castes and Scheduled Tribes in
proportion to the total population of the Scheduled Castes and
Scheduled Tribes in the Municipal Corporation areas. Insofar
as the Backward Class is concerned, the reservation provided is
fixed at 27% of the total number of offices of Mayors. 1/3
rd
of
the total number of posts shall be reserved for women category
including the one belonging to Scheduled Castes, Scheduled
Tribes and Backward Class of Citizens. Clause (a) of sub
rule(2) of Rule 3 of the said Rules mandates the State
Government to allot by draw of lots, the offices of Mayors for
the Scheduled Castes, Scheduled Tribes, Backward Class of
Citizens and Women, on the principles specified in subrule (1).
Clause (b) of subrule (2) of Rule 3 of the said Rules mandates
the State Government to ensure that, at any given point of time,
15
the number of offices of Mayors, reserved for the said
categories, shall not be less than the number determined in
accordance with the provisions of subrule(1). Clause (c) of
subrule (2) of Rule 3 of the said Rules provides that the lots in
respect of women belonging to a particular category shall be
drawn only among the offices of Mayors reserved for such
category. Clause (d) of subrule (2) of Rule 3 of the said Rules
provides that while drawing lots, the offices of Mayors reserved
for such category in the earlier years shall be excluded from the
draw of lots for those categories. Clause (e) of subrule (2) of
Rule 3 of the said Rules requires that the offices of Mayors to be
reserved, shall be rotated in the subsequent terms of office of
Mayor to such Corporation, in which no reservation has been
made in the previous terms until such reservations are given by
rotation to each category.
20.The High Court, while interpreting clause (e) of subrule (2)
of Rule 3 of the said Rules, has held that until the reservations
are given by rotation to each category, the reservation cannot be
provided to a category for which reservation was already
provided. While doing so, the High Court has relied on the
16
judgment of the Karnataka High Court in M. Abdul Azeez v.
State of Karnataka and Others
1
. We will have to examine
the correctness of the said view.
21.The procedure adopted for draw of lots followed by the
State was explained by filing an affidavit before the High Court
by Smt. Alice Sufi Pore, Regional Deputy Director, Municipal
Administration, Aurangabad. It will be relevant to refer to
paragraphs (5) to (8) of the said affidavit:
“5.The principles and manner for the reservation
is mentioned in the Rule 3 (1) and procedure to be
followed by the State Government is mentioned in
Rule 3 (2) of Maharashtra Municipal Corporations
(Reservation of Offices of Mayor) Rules 2006. As per
the provisions broadly the office of the Mayor of
Corporations are reserved in the proportion
mentioned as follows:
(a) The number of offices of the Mayor to be
so reserved for the Scheduled Castes and Scheduled
Tribes shall bear, as nearly as maybe the same
proportion to the total number of such offices in the
Corporations in the State as the population of the
Scheduled Castes and Scheduled tribes in the
Municipal Corporation areas bears to the total
population of all the Municipal Corporation Areas.
(b) As nearly as may be, 27% of the total
number of offices of the Mayors in the State shall be
reserved for the Backward class of Citizen.
1 Writ Petition No. 38256 of 2013 decided on 06.01.2014
17
c) One third of the total number of offices of
Mayors (including the number of offices reserved for
women belonging to the category of backward Class
of Citizen) in the Corporations in the State shall be
reserved for women.
6. While drawing the lots for the reservation of
the office of the Mayors of all 27 Corporations in the
state on 13.11.2019 the above proportion
mentioned in the concern Rules is followed in
totality and the offices of Mayors reserved for
different classes is as follows:
Sr.
No.
Social
Class
The posts needs to allot as
per rule
Remarks
General Women Total
1.Scheduled
Tribes
1 0 1 As per the rules
in proportion to
the total
population. As
per third proviso
of rule 3(1)(a).
2.Scheduled
Castes
1 2 3 As per the rules
in proportion to
the total
population.
3.Backward
class of
Citizens
3 4 7 As per the rules
27% of total
posts.
4.General
women
0 8 8 One Half of the
unreserved
posts as per
rules.
5.Open 8 0 8
Total 13 14 27
7. As per Rule 3 (2) (d) while allotting the offices
of the Mayor for persons belonging to the Scheduled
Castes, Scheduled Tribes and the Backward Class
of Citizens (including women belonging to the said
18
categories) the offices of the Mayor reserved for any
of the said categories in the earlier years shall be
excluded Rule 3 (2) (e) indicates the policy of
rotation has to be followed while allotting the offices
of Mayor.
8. It is humbly submitted that the provisions and
the essence of the rules of reservation is followed
totally considering the total number of Corporations
and the reservations in earlier years in 27
Corporations in the State. The approved procedure
to follow the above rules is adopted in the draw of
lots dated 13.11.2019. The approved minutes of the
draw of lots dated 13.11.2019 is annexed herewith
and marked as Exhibit ‘A’. A copy of the factual
position of earlier Reservation in Annexed here with
and marked as Exhibit ‘B’. As per the factual
position of earlier reservation and the number of
posts mandatorily needs to be reserved for various
class the following approved principle is followed:
a) For Schedule Tribes 1 posts of Mayor
needs to be mandatorily reserved and out of 27
Corporations there are 9 Corporations where the
number of Concillors to be elected at ward election
from the said category is not less than 3. Out of
those 9 corporation 4 Corporations were reserved
for schedule tribes in earlier years. And those 4
corporations are excluded as their are 5
corporations available for draw of lots, which were
not previously reserved for scheduled tribes. And in
the draw of lots dated 163.11.2019 by following the
laid procedure out of those 5 Corporations 1
corporation is reserved for schedule Tribe [sic].
b) For Schedule Castes 3 posts of Mayor
needs to be mandatorily reserved and out of 27
Corporation 12 corporations were reserved for
schedule Castes in earlier years. Those 12
19
Corporations and 1 corporation (vasiVirar
Corporation) which was reserved for schedule tribes
in the first draw of this draw of lots dated
13.11.2019 are excluded, So there are 14
Corporations available, which were not previously
reserved for schedule caste. In para no.4 of this
minutes the details of draw of lots for scheduled
caste is mentioned. And it is clear that Dhule
Corporation was also considered among those 14
corporations in the draw for schedule caste. Though
it is a draw of lots out of those 14 corporations 3
corporations (Mira Bhayender, Ahmednagar and
Parbhani Corporation) got reserved for Schedule
caste [sic].
c) For backward Class of Citizens 7 posts of
Mayor needs to be mandatorily reserved and it is
clearly mentioned that out of 27 Corporations 26
Corporations excluding newly created Panvel
Corporation were reserved for Backward Class of
Citizens in earlier years. As 26 Corporations were
reserved for backward Class of Citizens in earlier
years, for the draw of lots dated 13.11.2019 even
the minimum required 7 Corporations were not
available. Which were not previously reserved for
backward Class of Citizens. And considering this
fact and the provisions in the Act and Rules the 7
Corporations which were reserved for backward
Class of Citizens in the earlier years, i.e.
immediately preceding term were excluded in the
draw of lots dated 13.11.2019.
By following the laid procedure the 4
Corporations which are reserved in the 1
st
and 2
nd
draws for Scheduled Tribes (1 Corporation) and
scheduled castes (3 Corporations) in the current
draw of lots and 7 corporations which were reserved
for backward Class of Citizens in the immediately
preceding term are excluded and the remaining
corporations including Dhule Corporation are
20
considered for this draw and in the draw the 7
Corporations are reserved for backward class of
Citizens.”
22.It could thus be seen from paragraph (8) of the said
affidavit that insofar as Scheduled Castes are concerned, 3
posts of Mayor need to be mandatorily reserved. It could further
be seen that out of 27 Corporations, 12 Corporations were
reserved for Scheduled Castes in earlier years. It further states
that those 12 Corporations and 1 Corporation (VasaiVirar
Corporation) which was reserved for Scheduled Tribes in the
first draw of lots dated 13
th
November 2019 were excluded. As
such, there are 14 Corporations available, which were not
previously reserved for Scheduled Castes. It is further clear
that when draw of lots was done for the Scheduled Castes
category, amongst the other eligible Corporations, Dhule
Municipal Corporation was also considered. However, in the
said draw of lots, 3 Corporations i.e. MiraBhayandar,
Ahmednagar and Parbhani Municipal Corporation got reserved
for Scheduled Castes.
23.Insofar as Backward Class is concerned, it is stated that 7
posts of Mayor need to be mandatorily reserved. Out of 27
21
Corporations, 26 Corporations excluding the newly created
Panvel Corporation were reserved for Backward Class of
Citizens in the earlier years. It is stated that since 26
Corporations were reserved for Backward Class of Citizens,
even the minimum required 7 Corporations were not available
in the draw in question. As such, 7 Corporations which were
reserved for Backward Class of Citizens in the earlier years i.e.
immediately preceding term, were excluded in the draw of lots.
So also, 4 Corporations which got reserved for Scheduled
Castes and Scheduled Tribes in the first and second draw, were
excluded. As such, the draw of lots was done from the pool of
16 Corporations after excluding the 7 Corporations which were
reserved for Backward Class of Citizens in the immediately
preceding term and the 4 Corporations which were reserved for
Scheduled Castes and Scheduled Tribes.
24.We have no hesitation in observing that subrule (2) of
Rule 3 of the said Rules has not been happily worded. On a
plain reading, various clauses in the subrule are capable of
being interpreted in a manner that there are inconsistencies
and at times, conflict amongst them. We will have to therefore
22
examine the legal position with the aid of principles of
interpretation as laid down by this Court in such situations.
25.In Philips India Limited v. Labour Court, Madras and
Others
2
, this Court observed thus:
“15. No canon of statutory construction is more
firmly established than that the statute must be
read as a whole. This is a general rule of
construction applicable to all statutes alike which is
spoken of as construction ex visceribus actus. This
rule of statutory construction is so firmly
established that it is variously styled as “elementary
rule” (see Attorney General v. Bastow [(1957) 1 All
ER 497] ) and as a “settled rule” (see Poppatlal
Shah v. State of Madras [AIR 1953 SC 274 : 1953
SCR 667] ). The only recognised exception to this
welllaid principle is that it cannot be called in aid
to alter the meaning of what is of itself clear and
explicit. Lord Coke laid down that: “it is the most
natural and genuine exposition of a statute, to
construe one part of a statute by another part of the
same statute, for that best expresseth meaning of
the makers” (Quoted with approval in Punjab
Beverages Pvt. Ltd. v. Suresh Chand [(1978) 2 SCC
144 : 1978 SCC (L&S) 165 : (1978) 3 SCR 370]).”
26.In Balasinor Nagrik Cooperative Bank Limited v.
Babubhai Shankerlal Pandya and Others
3
, this Court
observed thus:
“4. …..It is an elementary rule that construction of
a section is to be made of all parts together. It is not
2 (1985) 3 SCC 103
3 (1987) 1 SCC 606
23
permissible to omit any part of it. For, the principle
that the statute must be read as a whole is equally
applicable to different parts of the same section……”
27.Again in the case of Mohan Kumar Singhania and
Others v. Union of India and Others
4
, this Court observed
thus:
“67. We think, it is not necessary to proliferate this
judgment by citing all the judgments and extracting
the textual passages from the various textbooks on
the principles of Interpretation of Statutes. However,
it will suffice to say that while interpreting a statute
the consideration of inconvenience and hardships
should be avoided and that when the language is
clear and explicit and the words used are plain and
unambiguous, we are bound to construe them in
their ordinary sense with reference to other clauses
of the Act or Rules as the case may be, so far as
possible, to make a consistent enactment of the
whole statute or series of statutes/rules/regulations
relating to the subject matter, Added to this, in
construing a statute, the Court has to ascertain the
intention of the law making authority in the
backdrop of the dominant purpose and the
underlying intendment of the said statute and that
every statute is to be interpreted without any
violence to its language and applied as far as its
explicit language admits consistent with the
established rule of interpretation.”
28.In Sultana Begum v. Prem Chand Jain
5
, this Court
observed thus:
4 1992 Supp (1) SCC 594
5 (1997) 1 SCC 373
24
“15. On a conspectus of the caselaw indicated
above, the following principles are clearly
discernible:
(1) It is the duty of the courts to avoid a head
on clash between two sections of the Act and
to construe the provisions which appear to be
in conflict with each other in such a manner
as to harmonise them.
(2) The provisions of one section of a statute
cannot be used to defeat the other provisions
unless the court, in spite of its efforts, finds it
impossible to effect reconciliation between
them.
(3) It has to be borne in mind by all the courts
all the time that when there are two conflicting
provisions in an Act, which cannot be
reconciled with each other, they should be so
interpreted that, if possible, effect should be
given to both. This is the essence of the rule of
“harmonious construction”.
(4) The courts have also to keep in mind that
an interpretation which reduces one of the
provisions as a “dead letter” or “useless
lumber” is not harmonious construction.
(5) To harmonise is not to destroy any
statutory provision or to render it otiose.”
29.In Jagdish Singh v. Lt. Governor, Delhi and Others
6
,
this Court observed thus:
“7. ….It is a cardinal principle of construction of a
statute or the statutory rule that efforts should be
made in construing the different provisions, so that,
each provision will have its play and in the event of
any conflict a harmonious construction should be
given. Further a statute or a rule made thereunder
should be read as a whole and one provision should
6 (1997) 4 SCC 435
25
be construed with reference to the other provision
so as to make the rule consistent and any
construction which would bring any inconsistency
or repugnancy between one provision and the other
should be avoided. One rule cannot be used to
defeat another rule in the same rules unless it is
impossible to effect harmonisation between them.
The wellknown principle of harmonious
construction is that effect should be given to all the
provisions, and therefore, this Court has held in
several cases that a construction that reduces one
of the provisions to a “dead letter” is not a
harmonious construction as one part is being
destroyed and consequently court should avoid
such a construction…..”
30.In Commissioner of Income Tax v. Hindustan Bulk
Carriers
7
, this Court observed thus:
“16. The courts will have to reject that construction
which will defeat the plain intention of the
legislature even though there may be some
inexactitude in the language used.
(See Salmon v. Duncombe [(1886) 11 AC 627 : 55
LJPC 69 : 55 LT 446 (PC)] AC at p.
634, Curtis v. Stovin [(1889) 22 QBD 513 : 58 LJQB
174 : 60 LT 772 (CA)] referred to in S. Teja Singh
case [AIR 1959 SC 352 : (1959) 35 ITR 408] .)
17. If the choice is between two interpretations, the
narrower of which would fail to achieve the manifest
purpose of the legislation, we should avoid a
construction which would reduce the legislation to
futility, and should rather accept the bolder
construction, based on the view that Parliament
would legislate only for the purpose of bringing
7 (2003) 3 SCC 57
26
about an effective result. (See Nokes v. Doncaster
Amalgamated Collieries [(1940) 3 All ER 549 : 1940
AC 1014 : 109 LJKB 865 : 163 LT 343 (HL)] referred
to in Pye v. Minister for Lands for NSW [(1954) 3 All
ER 514 : (1954) 1 WLR 1410 (PC)] .) The principles
indicated in the said cases were reiterated by this
Court in Mohan Kumar Singhania v. Union of
India [1992 Supp (1) SCC 594 : 1992 SCC (L&S)
455 : (1992) 19 ATC 881 : AIR 1992 SC 1] .
18. The statute must be read as a whole and one
provision of the Act should be construed with
reference to other provisions in the same Act so as
to make a consistent enactment of the whole
statute.
19. The court must ascertain the intention of the
legislature by directing its attention not merely to
the clauses to be construed but to the entire
statute; it must compare the clause with other parts
of the law and the setting in which the clause to be
interpreted occurs. (See R.S. Raghunath v. State of
Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S) 286
: (1992) 19 ATC 507 : AIR 1992 SC 81] .) Such a
construction has the merit of avoiding any
inconsistency or repugnancy either within a section
or between two different sections or provisions of
the same statute. It is the duty of the court to avoid
a headon clash between two sections of the same
Act. (See Sultana Begum v. Prem Chand Jain [(1997)
1 SCC 373 : AIR 1997 SC 1006] .)
20. Whenever it is possible to do so, it must be done
to construe the provisions which appear to conflict
so that they harmonise. It should not be lightly
assumed that Parliament had given with one hand
what it took away with the other.
21. The provisions of one section of the statute
cannot be used to defeat those of another unless it
is impossible to effect reconciliation between them.
27
Thus a construction that reduces one of the
provisions to a “useless lumber” or “dead letter” is
not a harmonised construction. To harmonise is not
to destroy.”
31.It could thus be seen that it is more than well settled that
it is the duty of the Court to construe the Statute as a whole
and that one provision of the Act has to be construed with
reference to other provisions so as to make a consistent
enactment of the whole Statute. It is the duty of the Court to
avoid a headon clash between two sections and construe the
provisions which appear to be in conflict with each other in
such a manner so as to harmonise them. It is further equally
settled that while interpreting a particular statutory provision,
it should not result into making the other provision a “useless
lumber” or a “dead letter”. While construing the provisions, the
Court will have to ascertain the intention of the lawmaking
authority in the backdrop of dominant purpose and the
underlying intendment of the Statute.
32.In the light of these guiding principles, we will have to
construe the provisions that fall for consideration.
28
Undisputedly, the said Rules are mechanism for giving effect to
the constitutional mandate under Article 243T of the
Constitution of providing reservation for Scheduled Castes and
Scheduled Tribes and the enabling provision for providing
reservation for Backward Class of Citizens in proportion to their
population. As already discussed hereinabove, the said Rules
have been prescribed so as to provide a procedure for the
reservation of the office of Mayor in the Corporation by rotation
for the Scheduled Castes, the Scheduled Tribes, Women and
the Backward Class of Citizens as mandated under Section 19
(1A) of the said Act. It could thus be seen that the intent and
the dominant purpose of Rule 3 of the said Rules is to provide
reservation to Scheduled Castes, Scheduled Tribes, Backward
Class of Citizens and Women and further to ensure that there
is no repetition of reservation of a particular category in a
particular Corporation. It could thus be seen that the dominant
purpose and the legislative intent of the said Rules is to provide
reservation in proportion of the population of such categories in
the Municipal areas and also to ensure that while all the
eligible Corporations get reservation at some point of time for
29
the different categories, at the same time there would be no
repetition of reservation until the rotation is complete.
However, while doing so, the number of seats reserved for a
particular category also cannot be ignored. As already pointed
out hereinabove, the total number of seats reserved for
Scheduled Castes are 3 whereas for Backward Class of citizens,
they are 7. Subrule (2) of Rule 3 of the said Rules prescribes
the manner in which the seats are to be allotted to be reserved
for various categories including women. Clause (a) thereof
provides that it shall be done by notification in the Official
Gazette by allotment of draw of lots. Clause (d) thereof provides
that while drawing lots, the offices of Mayors reserved for such
category in the earlier years shall be excluded from the draw of
lots for those categories. Clause (e) thereof provides that the
offices of Mayors to be reserved shall be rotated in the
subsequent terms of office of Mayor to such Corporation, in
which no reservation has been made in the previous terms until
such reservations are given by rotation to each category.
33.No doubt, that at the first blush, an isolated reading of
clause (e) is capable of being interpreted in a manner that until
30
reservation is provided for each category by rotation, the said
office cannot be reserved for a category for which it was already
reserved. However, if the Rules along with Article 243T of the
Constitution and Section 19(1A) of the said Act are read as a
whole, then the dominant purpose behind the said Rules
appears to be that the reservation as mandated in the
Constitution, should be provided for offices of Mayors in the
Corporations. While doing so, the reservation has to be
provided by a draw of lots. It has to be ensured that at any
given point of time, the number of offices of Mayors reserved for
such categories should not be less than the number determined
in accordance with the provisions of subrule (1) of Rule 3 of
the said Rules. Clause (d) of subrule (2) of Rule 3 of the said
Rules also provides that while drawing lots, the offices of
Mayors reserved for such category in the earlier years, shall be
excluded from the draw of lots for those categories. The
purpose appears to ensure that the reservation is not thrust
upon a particular Corporation again and again and all the
Corporations, at some point of time, will have the office of
Mayor reserved for particular category in accordance with the
31
said Rules. The office of Mayor can be reserved for Scheduled
Tribes in only 9 Corporations whereas all the Corporations are
eligible for reservation for Scheduled Castes and Backward
Class of Citizens. However, taking into consideration the fact
that the number of seats reserved for Scheduled Castes are 3
whereas for Backward Class of Citizens, they are 7 i.e. more
than twice, it is quite probable that the post of Mayor could be
reserved for two earlier terms for Backward Class of Citizens
and whereas no reservation is provided for Scheduled Castes.
We find that a harmonious construction of the said Rules
would not lead to a conclusion that the procedure as followed
by the State Government in allotting the reservation by draw of
lots, would be said to be inconsistent with the scheme of the
said Rules. As has been explained in the affidavit filed before
the High Court by Smt. Alice Sufi Pore, after excluding 12
Corporations which are already reserved for Scheduled Castes
in the earlier years and the one which was reserved for
Scheduled Tribes in the first draw of lots, there were 14
Corporations available including the Dhule Municipal
Corporation. The said Corporation was also included in the
32
draw of lots for Scheduled Castes. However, in the draw of lots,
it could not be reserved for Scheduled Castes. However, insofar
as Backward Class is concerned, out of 27 Corporations, 26
Corporations excluding newly created Panvel Corporation were
already reserved for Backward Class in the earlier years. As
such, the State excluded the 7 Corporations which were
immediately reserved for the Backward Class and also excluded
the 4 Corporations which were reserved for Scheduled Castes
and Scheduled Tribes in the present draw of lots.
Coincidentally, in the draw of lots, Dhule Municipal
Corporation was one of the 7 Corporations which got to be
reserved for the Backward Class.
34.We find that such a situation is bound to occur in view of
the difference in number of seats, reserved for Scheduled
Castes and Backward Class of Citizens. If the interpretation as
placed is to be accepted then unless the post of Mayor is
reserved for Scheduled Tribes in all the Corporations to
complete the rotation, it will not be possible to provide
reservation for the categories which were already reserved
earlier. However, it could be seen that as per the Rules, only 9
33
Corporations could be reserved for Scheduled Tribes. We
therefore find that the combined reading of the said Rules along
with the constitutional mandate under Article 243T of the
Constitution and Section 19(1A) of the said Act would not
permit the interpretation as placed by the High Court.
35.Apart from that, we find that another rule of interpretation
will also come into play. It will be relevant to refer to the
observations of this Court in State of Tamil Nadu v. M.K.
Kandaswami and Others
8
:
“26. ….If more than one construction is possible,
that which preserves its workability, and efficacy is
to be preferred to the one which would render it
otiose or sterile…..”
36.This Court in Commissioner of Income Tax v.
Hindustan Bulk Carriers (supra) has observed thus:
“15. A statute is designed to be workable and the
interpretation thereof by a court should be to secure
that object unless crucial omission or clear direction
makes that end unattainable.
(See Whitney v. IRC [1926 AC 37 : 10 Tax Cas 88 :
95 LJKB 165 : 134 LT 98 (HL)] , AC at p. 52 referred
to in CIT v. S. Teja Singh [AIR 1959 SC 352 : (1959)
8 (1975) 4 SCC 745
34
35 ITR 408] and Gursahai Saigal v. CIT [AIR 1963
SC 1062 : (1963) 48 ITR 1] .)”
37.In Balram Kumawat v. Union of India and Others
9
,
this Court observed thus:
“25. A statute must be construed as a workable
instrument. Ut res magis valeat quam pereat is a
wellknown principle of law. In Tinsukhia Electric
Supply Co. Ltd. v. State of Assam [(1989) 3 SCC
709 : AIR 1990 SC 123] this Court stated the law
thus: (SCC p. 754, paras 118120)
“118. The courts strongly lean against any
construction which tends to reduce a statute
to futility. The provision of a statute must be
so construed as to make it effective and
operative, on the principle ‘ut res magis valeat
quam pereat’. It is, no doubt, true that if a
statute is absolutely vague and its language
wholly intractable and absolutely meaningless,
the statute could be declared void for
vagueness. This is not in judicial review by
testing the law for arbitrariness or
unreasonableness under Article 14; but what a
court of construction, dealing with the
language of a statute, does in order to
ascertain from, and accord to, the statute the
meaning and purpose which the legislature
intended for it. In Manchester Ship Canal
Co. v. Manchester Racecourse Co. [(1900) 2 Ch
352 : 69 LJCh 850 : 83 LT 274 (CA)] Farwell,
J. said: (pp. 36061)
9 (2003) 7 SCC 628
35
‘Unless the words were so absolutely
senseless that I could do nothing at all with
them, I should be bound to find some
meaning and not to declare them void for
uncertainty.’
119. In Fawcett Properties Ltd. v. Buckingham
County Council [(1960) 3 All ER 503 : (1960) 3
WLR 831 (HL)] Lord Denning approving the
dictum of Farwell, J. said: (All ER p. 516)
‘But when a statute has some meaning,
even though it is obscure, or several
meanings, even though there is little to
choose between them, the courts have to
say what meaning the statute is to bear,
rather than reject it as a nullity.’
120. It is, therefore, the court's duty to make
what it can of the statute, knowing that the
statutes are meant to be operative and not
inept and that nothing short of impossibility
should allow a court to declare a statute
unworkable. In Whitney v. IRC [1926 AC 37 :
95 LJKB 165 : 134 LT 98 (HL)] Lord Dunedin
said: (AC p. 52)
‘A statute is designed to be workable, and
the interpretation thereof by a court should
be to secure that object, unless crucial
omission or clear direction makes that end
unattainable.’ ”
26. The courts will therefore reject that construction
which will defeat the plain intention of the
legislature even though there may be some
inexactitude in the language used.
[See Salmon v. Duncombe [(1886) 11 AC 627 : 55
36
LJPC 69 : 55 LT 446 (PC)] (AC at p. 634).] Reducing
the legislation futility shall be avoided and in a case
where the intention of the legislature cannot be
given effect to, the courts would accept the bolder
construction for the purpose of bringing about an
effective result…….”
38.It could thus be seen that the Court will have to prefer an
interpretation which makes the Statute workable. The
interpretation which gives effect to the intention of the
legislature, will have to be preferred. The interpretation which
brings about the effect of result, will have to be preferred than
the one which defeats the purpose of the enactment. As
already discussed hereinabove, the dominant intent of the said
Rules is to give effect to the reservation policy while ensuring
that reservations are not repeated in particular Corporations
and at the same time in all the Corporations, there shall be
reservation, at some point of time, for all the eligible categories
by rotation. The legislative intent is to exclude the Corporations
which were earlier reserved for a particular category until all
the categories are provided reservation. However, while doing
so, the Court will have to interpret Rule 3 of the said Rules in
37
such a manner that this scheme is made workable and not
frustrated. At the cost of repetition and particularly taking into
consideration the difference in number of seats for Scheduled
Castes and Backward Class of Citizens, we find that the
interpretation as placed by the High Court, would not make the
said Rules workable and give effect to the legislative intent. It
would have been a different matter that even after completion of
the cycle, requisite reservation as per the Rules is not provided
to the Scheduled Castes and excessive reservation is provided
for Backward Class of Citizens. Such is not the case.
Unfortunately, for the writ petitioner, even for the present term,
Dhule Municipal Corporation was also in the pool of eligible
Corporations for draw of lots for Scheduled Castes category.
However, in the draw, it could not be reserved for Scheduled
Castes. Only thereafter, Dhule Municipal Corporation was
considered in the pool of draw of lots for Backward Class of
Citizens. This was so because in the immediate preceding
elections, the office of Mayor was not reserved for Backward
Class of Citizens.
38
39.The High Court has strongly relied on the following
observations of the Single Judge of the Karnataka High Court
in M. Abdul Azeez v. State of Karnataka and Others
(supra):
“27.1. An elementary test to find out as to whether
the principle of rotation is violated or not, is to
examine as to whether any allotment to a reserved
category is repeated in any Municipality before
commencement of a fresh cycle of rotation for that
category. If there is any allotment to any reserved
category for the second time in a Municipality before
completion of a cycle of rotation or before
commencement of a fresh cycle of rotation for that
category, it would be a clear violation of the
principle of rotation.”
40. However, it is to be noted that the Rules that fell for
consideration before the Karnataka High Court, provided that
the offices of the President and VicePresident shall be rotated
for the different categories from termtoterm. The Rules
provided that the cycle of the reservation will begin from the
Municipal Council which had the highest population of a
particular category. The rotation will go to the other Municipal
Councils in the descending manner on the basis of the
population of a particular category in the concerned Municipal
39
Council area. The scheme is that the Municipal Council which
has the highest number of population of a particular category,
will be the first to be reserved for that category and the Council
with the least population of that category, would be the last one
to be reserved for that category. Only after completion of the
said cycle, the reservation can come back for a particular
category which was reserved for it at the first instance. It could
thus be seen that the Rules that fell for consideration before the
Karnataka High Court, were totally different than the ones
which fell for consideration before the Bombay High Court.
41.Though the Division Bench of the High Court was not
bound by the judgment of the Single Judge and it had only a
persuasive value, we may gainfully refer to the observations of
this Court in The Regional Manager and Another v. Pawan
Kumar Dubey
10
:
“7. …..Even where there appears to be some
conflict, it would, we think, vanish when the ratio
decidendi of each case is correctly understood. It is
the rule deducible from the application of law to the
facts and circumstances of a case which constitutes
its ratio decidendi and not some conclusion based
upon facts which may appear to be similar. One
additional or different fact can make a world of
10 (1976) 3 SCC 334
40
difference between conclusions in two cases even
when the same principles are applied in each case
to similar facts…..”
42.We are therefore of the considered view that the view
taken by the Division Bench of the Bombay High Court needs to
be interfered. The appeals are therefore allowed and the
judgment and order passed by the Bombay High Court dated
7
th
May 2021, is quashed and set aside.
….…..….......................J.
[L. NAGESWARA RAO]
…….........................J.
[B.R. GAVAI]
NEW DELHI;
SEPTEMBER 01, 2021.
41
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