Dr. Smt. Rama Mishra v. State Of U.P And Others

S.K Dhaon, J.:— The promulgation of the U.P Urban Local Self Government Laws (Amendment) Ordinance of 1990 (Ordinance No. 2 of 1990 followed, by the U.P Ordinance No. 8 of 1990 which has been replaced by the U.P Urban Local Self Government Laws (Amendment) Act, 1990 (U.P Act No. 19 of 1990) hereinafter referred to as the Amending Act) resulted in the filing of a spate of writ petitions in this court. Some of the writ petitions have been disposed of and the remaining constitute this bunch. The controvery being similar, these petitions were heard together for being disposed of together. However, for the sake of convenience, we are disposing of this petition by this order. We shall pass separate orders on the individual writ petitions in accordance with the opinion expressed by us in this judgment. We have heard Sarvasri Gur Dayal Srivastava, Ravi Kiran Jain, Dhruv Narain, S.C Budhwar, Ravi Kant, T.N Porwal and others in support of the petition and the Advocate General (Sri Umesh Chandra) in opposition.

2. The material facts are these. The State Government nominated the petitioner as a member of the Nagar Palika, Faripur to represent women as a class. She took oath of office of 22nd February, 1989 and on 26th February, 1989, she was elected as a Junior Vice President of the Nagar Palika. On 15th February, 1990, U.P Ordinance No. 2 of 1990 was promulgated. On 19th February, 1990, the State Government by a general notification annulled the nominations of all women and members of Safai Mazdoor Class as members of all the Nagar Palikas (Municipalities) in the State. The validity of the relevant provisions as introduced by the U.P Ordinance No. 2 of 1990, a reference to which will be made hereinafter, and the legality of the said notification dated 19th February 1990, is being impugned in the present petition. The impugned provisions, as contained in the Amending Act, are a reproduction of the provisions contained in the U.P Ordinances Nos. 2 and 8 of 1990 aforementioned. We shall, therefore, refer to the provisions of the Amending Act.

3. Section 9 of the U.P Municipalities Act, 19-J 6 (hereinafter referred to as the Municipalities Act), Section 6 of the U.P Nagar Mahapalika A dhiniyam 1959 (hereinafter referred to as the Adhiniyam) and Section 5 of the U.P, Town Areas Act, 1914 (hereinafter referred to as the Town Areas Act) respectively deal with the normal composition of a Municipal Board, a Mahapalika and a Town Committee. By the U.P Urban Local Self Government Laws (Amendment) Act, 1976 (U.P Act No. 41 of 1976) changes were introduced in Sections 9, 6 and 5 of the Municipalities Act, Adhiniyam and the Town Areas Act respectively. The relevant changes were: Section 9 of the Municipalities Act was substituted to the effect that the Board was to consist of a President, the elected members and the ex officio members. A proviso was added to sub-section (c) to the effect that if none of the members elected under clause (b) (elected members), is a woman, the State Government may, by notification nominate one woman as a member of the Board and thereupon, the normal composition of the Board shall stand varied to that extent. In Section 6 of the Adhiniyam a provision was made for the nomination of one woman as a Sabhasad if none of the Sabhasads or Vishishta Sadasya was a woman. It was also provided that with the nomination of a woman the strength of the Mahapalika shall vary to that extent. To Section 5 of the Town Areas Act a proviso was added on lines Similar to one added to Section 9 of the Municipalities Act. By the U.P Urban Local Self Government Laws (Amendment) Act, 1977 (U.P Act No. 9 of 1977) provisions were introduced for the nomination of a person belonging to the Safai. Mazdoor class as a member of the Board and the nomination of a person of Safai Mazdoor class as a Sabhasad in the case of a Nagar Mahapalika. A provision was also made in the Town Areas Act for the nomination of a person belong to Safai Mazdoor class. In all the three cases the condition precedent to the exercise of the power of nomination was that no person belonging to the Safai Mazdoor class had been elected either as a member or as a Sabhasad or Vishishta Sadasya as the case may be — Again, it was provided that the normal composition of the local body concerned will stand varied after nomination.

4. By the Amending Act the relevant change brought about in the aforesaid 3 enactments is, if none or only one of the members elected is a woman, the State Government may, by notification, nominate, two women members or one more woman member as the case may be, so that the number of women members in the local body concerned is not less than two and thereupon the normal composition of the body con cerned shall stand varied to that extent. An important amendment introduced by the Amending Act is that that any member nominated or Sabhasad nominated, as the case may be, shall hold office during the pleasure of the State Government. For the sake of brevity the said amendment shall be hereafter called the offending provision.

5. Hithertofore, no notice of any motion of non-confidence could be received within two years of the assumption of office by the President of a Municipal Board, or the Pramukh or Up Pramukh of the Nagar Mahapalika, as the case may be. The Amending Act has reduced the said period to one year. The validity of the offending provision and the reduction of the period to one year are being questioned in these petitions.

6. The learned Advocate-General Contends that even before the enforcement of the Amending Act the power of the State Government to remove a member nominated, without taking recourse to the specific provisions contained in the aforementioned three enactments, was implicit. He urges that the right to curtail the term was implicit in the act of nomination. For examining this contention, we may refer to the relevant provisions in the three statutes as they stood prior to the Amending Act. We may note that no changes have been made in the said provisions by the Amending Act. The relevant provisions of the Minicipalities Act are these. Section 10-A provides, inter alia, that the term of every board shall be five years. Section 38 provides, inter alia, that the term of office of a member nominated to fill a casual vacancy shall begin upon the declaration of his nomination under the Act and shall be the remainder of the term of the Board. Sub-section (1) of Section 40 lays down that the State Government in the case of a city or the Prescribed Authority in other cases, may remove a member of the Board on grounds enumerated from (a) to (h). Sub-section (2) provides that a member removed by an order of the Prescribed Authority in certain situations may appeal therefrom to the State Government and the State Government may if it thinks fit, cancel the order and reinstate the member or substitute an order under Sub-section (6). Subsection (3) confers additional power on the State Government alone to remove from the Board a member. However, sub-section (4) provides that any action taken either under sub-section (1) or sub-section (3) shall be preceded by an opportunity of explanation given to the member concerned. It also enjoins that when an action is taken the reasons therefor shall be placed on record. Sub-section (5) empowers the State Government to place under suspension a member; who is called upon to show cause in respect of ˜any matter referred to in sub-section (3) or against whom prosecution for an offence, which in the opinion of the State Government involves moral turpitude, is commenced, notwithstanding the conclusion of the enquiry or the prosecution as the case may be. Sub-section (6) empowers the State Government or the Prescribed Authority, as the case may be, to either warn a member or place him under suspension for a specified period not exceeding three months at a time, if the case falls in any of the conditions enumerated in sub-section (1).

7. The relevant provisions of the Adhi niyam are these: Section 8 provides, inter alia, that the Mahapalika shall continue for five years from the date of notification issued under the provisions of Section 9 that the Mahapalika has been duly constituted. Section 26 provides, inter alia, that the term of a Sabhasad other than the Sabhasad chosen to fill a casual vacancy shall be conterminous with the term of the Mahapalika. It also provides that the term of a Sabhasad chosen to fill up a casual vacancy shall be the remainder of his predecessor's term. Section 83 empowers the State Government to remove a member of the Maha palika or of any Committee thereof on any of the grounds enumerated therein. Section 23 provides, inter alia, that the provisions of Sections 26 and 83, as they apply to Sabhasads shall mutatis mutandis apply to members nominated

8. The relevant provisions in the Town Areas Act are these. Section 67 provides, inter alia, that the term of a Committee shall be five years and the term of office of a member to fill a casual vacancy shall be the remainder term of the Committee. It is presumed that a similar provision must have been made in relation to a member nominated by extending the provisions of the Municipalities Act under Section 38. Section 7-A of the Town Areas Act provides for the removal of a member of a committee. The important rider is that no order of removal shall take effect unless it is confirmed by the State Government. Power has also been given to the State Government to suspend, inter alia, a member.

9. From a conspectus of the aforementioned provisions of the three statutes it is clear that the term of a member nominated is conterminous with the term of the local body concerned. Hence such a member has an assured term.

10. Section 16 of the U.P General Clauses Act provides that where, by any U.P Act, a power to make any appointment is conferred, then, unless a different intention appears, the authority having for the time being, power to make the appointment shall also have the power to suspend, dismiss, remove or otherwise terminate the tenure of office of any person appointed, whether by itself of any other authority, in exercise of that power assuming that a member nominated was appointed by the State Government, then too it could not exercise the power to remove such a person in view of the aforementioned provisions which not only fixed the tenure of a member nominated, but also contained specific statutory provision under which the power of removal could be exercised. Therefore, a different intention appeared in the relevant statutes. In Heera Devi v. District Board (AIR 1952 SC 362) it was held that since in Sections 77 and 90 of the U.P District Boards Act a different intention was to be found the power to suspend or dismiss any person under that Act could not be exercised under section 16 of the General Clauses Act. In Kanta Devi v. State of Rajasthan (AIR 1957 Rajasthan 134) section 16 of the General Clauses Act, 1897, which is pari materia with Section 16 of the U.P General Clauses Act, was considered in the light of Section 14 of the Rajasthan Town Municipalities Act, which empowered the Government to remove any member elected or nominated under that Act, after giving him an opportunity of being heard and after such enquiry as the State Government may deem necessary, if any nominated member had been guilty of misconduct etc. it was held that section 14 provides a different intention and, therefore, it was not open to the Government to exercise the power of removal implied in the power of appointment under section 16 of the General Clauses Act without recourse to the procedure under section 14 of the Rajasthan Act. It was held that recourse could not be taken by the State Government to Section 21 of the General Clauses Act.

11. Learned Advocate-General has placed reliance on section 14 of the U.P General Clauses Act which provides that where, by any Uttar Pradesh Act, any power is conferred then that power may be exercised from time to time as occasion requires. He has laid emphasis on Section 10 of the Municipalities Act which empowers the State Government to declare by notification the composition of a Board to which Section 9 is not applicable. Under this provision the State Government fixed the number of the members of the Board to be nominated by the State Government, fixed the number of members to be elected in such manner or by such persons or class of persons as may be specified and also laid down the qualifications of the President and the manner of his election, which may be prescribed. He contends that reading Sections 9 and 10 together it is implicit that the Stats Government can exercise the power to nominate members to the Board from time to time. We are not impressed by this submission. Section 14 deals with the exercise of power successively. Such a power in the case of a member nominated under section 9 can be exercised if an occasion for being so arises. Such an occasion will arise if a casual vacancy occurs on account of the removal, death or resignation of a member nominated. The State of Uttar Pradesh cannot create an occasion for exercising power under section 14 by withdrawing a nomination. Under the garb of exercise of power under section 14, the State Government cannot do something indirectly which it cannot do directly in view of the scheme of the relevant provisions referred to above, namely, the fixed tenure of a member nominated and specific provision in the statute providing the manner in which sucha member can be removed. The conclusion therefore, is inevitable that prior to the introduction of the offending provisiona member nominated could not be removed by the State Government by taking resort to an implied power.

12. In the despatch dated 27th November, 1908 Lord Morley emphasised that for the development of the local-self Government in India it was necessary that control should be exercised from without rather than from within the Government should revise and check the acts of local bodies but not dictate them. He did not doubt: “The Government of India would form and actively share their policy upon the principle authoritatively set forth by their predecessors in 1982.

13. Mr. Montague's announcement on India's policy in the House of Commons on 20th August, 1917 was “… increasing ass ociation of Indians in every branch of the administration and the gradual development of self governing institution with a view to the progressive realisation of responsibility in Government of India is an integral part of the British Empire.”

14. The broadcasts of Sir John Simon on 25th June, 1930, revealed that a system of local-self Government was introduced with a view to enabling Indians to take a large part in administering their local affairs.

15. By the Devolution Rules under the Government of India Act, 1919 the provincial Legislature was authorised to make a law with respect to “Local-self Government”. The Municipalities Act was enacted in the year 1916. In Section 9, as originally enacted, there was no provision of a member nominated. However, Section 10 did provide for such members. Section 40 found its place where under a member elected or nominated could be removed. However, in the Act there was no provision stating that a member nominated would hold office at the pleasure of the authority nominating him or her in entry 13 of List II of the Vllth Schedule to the Government of India Act, 1935, we find the expression “Local Government” instead of the expression “Local-self Government”. The same is the case with the Constitution where we have entry 5 of List II of the Seventh Schedule.

16. In 1924, the Cantonments Act was enacted Section II thereof talked of the constitution of a Cantonment Board. Section 14 dealt with the variation in the constitution of the Cantonment Boards. Therein also there was a provision of members nominated by the Commanding Officer of the Cantonment. There was also provision for the election of the members of the Board. Section 34 empowered the local Government to remove from the Board any member on the fulfilment of any of the conditions enumerated therein. Even there, there was no provision of a member nominated holding office at the pleasure of any authority. That position obtains even now in the Cantonments Act. We may incidentally refer to entry 3 of List of the Seventh Schedule to the Constitution, which reads:

“Delimitation of cantonment areas, local self-government in such areas, the constitution and powers within such areas of cantonment authorities and the regulation of house accommodation (including the control of rents) in such areas.”

17. It is evident that in spite of the rigid control of the President of the cantonment area, who was invariably an Army Officer, the doctrine of pleasure had, at no stage, been introduced in relation to the members nominated to a cantonment board.

18. The pre-amble of our Constitution declares, inter alia, this country a democratic republic and to secure to all its citizens amongst others justice social, economic and political. Article 14 ensures equality before the law to all persons. Articles 15(3) and (4) empower the State to make any special provision for women and children and for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes in violation of the fundamental directions not to discriminate on any ground (Article 14). Articles 38 and 46, which form parts of the Directive Principles of State Policy, mandate, inter alia, that the State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life and further the State shall promote with special care the educational and economic interests of the weaker sections of the people, and shall protect them from social injustice and all sorts of exploitations.

19. Under the heading “Right to Equality” are groupped Articles 14 to 18. It is imperative to correlate Articles 14, 15 and 16 if the concept of equalities embodied in these Articles is to be fully understood.

20. The Constitution aims at equality of status and opportunity for all citizens including women and those who are socially, economically and educationally backwards. The women as well as the members of the backward class require adequate representation in Legislatures, local bodies and executive bodies. Article 15(3) brings out the position of women, whereas Article 15(4) brings out the position of backward classes to merit equality. Special provisions are made for the advancement of women and backward classes to secure adequate representation. These provisions will bring out the content of equality guaranteed by Articles 14 and 15(1). Therefore, preferential treatment to women and members of backward classes alone can mean equality of opportunity for all citizens. It follows that Articles 15(3) and (4) are complementary measures to ensure the equality of opportunity.

21. Articles 15(3) and (4) authorise the State to take adequate steps to achieve the object of promoting social, economic and political equality as mandated by the Directive Principles which are fundamental in the governance of the country. It is obvious that Articles 15(3) and (4) arc enabling provisions; they do not impose an obligation but merely leave it to the discretion of the appropriate Government to take suitable action, if necessary.

22. The Statement of Objects and Reasons appended to the Bill relating to the U.P: Act No. 9 of 1977 provides, inter alia:

“Scavenging and cleaning of public drains is one of the most important duties of the local bodies but the class of Safai Mazdoor, who more than any other section of the people discharge these onerous duties, have general no say in the administration of such bodies. They are normally not in a position of being elected as members of such local bodies. It was therefore, considered necessary, to empower the State Government nominate one person of the said class as a member of each urban local body in case a one of the elected members belong to the said class”.

23. In the aforequoted Statement there is an echo that a local body should be run by the local people for themselves. The mover of the Bill also feels that the Safai Mazdoor as a class should be given a fillip so that such a class too may have some taste of social and political justice.

24. Anterior to the Amending Act, two features were significant. The first was that a woman and a person of the Safai Mazdoor Class were to be nominated to represent the two distinct classes as the Legislature felt that the composition of the local body concerned would not be just and equitable if persons belonging to the said two classes were not members of the body. This was so, because the condition precedent to the exercise of power of nomination was that none of the members elected to the body was either a woman or a person of the Safai Mazdoor class, as the case may be. The other feature was that as a result of the nomination the normal composition of the body stood varied automatically.

25. Thus, the members nominated joined the stream of the membership of the body concerned and, therefore, all the substantial provisions of the relevant statute relating to abilities and disabilities of the elected mem bers became applicable, to members nominated, including Section 40 of the Municipalities Act and the analogous provisions in the other two statutes.

26. When the Legislature conferred po wer upon the State Government to nominate the representatives of the two classes afore mentioned, it was aware that the three local bodies were exercising certain statutory powers (compulsory and option), delegated legislative powers, namely, the power to make-bye-laws, the power of taxation and, also a limited amount of political power. Political power in the sense that within the exclusive sphere of the power of the State Government is the local Government. In this State, there is a system of local Government, both in urban and rural areas functioning under the State Government. Indeed, U.P Act No. 41 of 1976 and U.P Act No. 9 of 1977 are styled as “…. Urban Local Self-Government.” The Legislature was aware that while exercising any of the aforesaid powers the members of the Local body concerned were at liberty to freely participate in the debates and were not subject to any external control while taking decisions. The members nominated were given a status equal to elected members. They were given every freedom to express their opinion without any inhibition. They were entitled to a complete freedom to act and speak keeping in view the interests and aspirations of the electorate, including the class they represented. But for Articles 15(3) and (4) the Legislature could not have made provisions for the nomination of the representatives of the aforementioned two classes. Therefore, the Legislature made a provision for providing political and social justice to the women as a class and persons of Safai Mazdoor class in accordance with Part III of the Constitution.

27. We may now consider the relevant provisions of the Amending Act, which have been referred to above. We may note that in the three statutes the provision to nominate a person of Safai Mazdoor class has been kept intact. Furthermore, the Legislature still feels that women as a class and Safai Mazdoor as a Class require representation in the local body concerned as social and political justice is not being meted to them. In fact, the Legislature has now felt that in the local bodies there should be at least two representatives of the women as a class. It clearifies that if one woman has already been elected another should be nominated and if no woman has been elected then two women should be nominated. We may take judicial notice of the fact that immediately after the promulgation of Ordinance No. 2 of 1990, two women were nominated by the State Government to the respective local bodies.

28. The content of social and political justice given by the Legislature to the women as a class and Safai Mazdoor as a class has been diluted by enacting that a member nominated shall hold office during the pleasure of the State Government. It is implicit in the concept of “Local Government” that local bodies will be the nurseries of democracy”. The goal is “let the people govern”. Prior to the Amending Act, there could be no two opinions that the members nominated were accountable to the electorate. At any rate, they were accountable to the class which they represented. Like other elected members they had perfect freedom to express their opinion. Like the elected members they did not suffer from any handicap. Like the elected members, they had a fixed tenure. “Like the elected members, they could not be removed except, on ground of misconduct. Like the elected members, they were motivated by the consideration of the good governance of the body of which they were the members. Now a sword of Damocles is constantly hanging on their heads. Therefore, the Amending Act has robbed them of the political and social justice which had been ensured to them by the Legislature itself on account of the contents of Part III, namely, Article 15.

29. Where an office is held at pleasure, the holder thereof is subject to dismissal or removal at any time without any cause being assigned. No notice of framing of any charge is necessary; and the holder is removeable at the sole discretion of the appointing authority where, however, an office is held during good behaviour, the holder thereof is appointed to it for all intends and purposes for life or for the tenure fixed. He can be removed from office only for want of good behaviour. In that case, notice of dismissal should be given and a charge framed and proved. It follows that where a person is removeable at the discretion, of the person or body appointing him that justifies an appointment “during the pleasure” of the appointer. Therefore, at discretion and during pleasure connote the same thing. The result is that a removal or dismissal at pleasure is a dismissal without a cause assigned.

30. Constant fear of removal at the will of the State Government is bound to demoralise not only the member nominated but also the class such a member represents such a psychological impact will necessarily kill the urge of the class, which according to the Legislature itself, suffers from political and social handicaps, to come up to the level of those who are free from such drawbacks. If that be the ultimate effect, the very purpose of legislating a special provision for the nomination of the representatives of the classes under the protective umbrella of Articles 15(3) and 15(4) will be defeated. The effect and consequence of the offending provision upon a member nominated is that the State Government is controlling the activities of such a person of the local body concerned. The direct effect is the restriction upon the right of a member to effectively espouse the cause of not only the class he or she is nominated to represent but also the electorate of the local body concerned. The direct effect further is that the members nominated are deprived of the status conferred upon them as the representatives of the two classes. The direct effect also is that there is an infraction of the fundamental right of the two classes to get political and social justice as ensured to them by Articles 15(3) and (4). The direct effect also is that women as a class and the Safai Mazdoors as a class are deprived of the fundamental right of equality as enshrined in Article 14 coupled with Article 16 in so far as they have been unequal.

31. The preamble to the Constitution is a part of the Constitution (Keshvanand's case). The Directive principles, though not enforce ables in a Court of law, are fundamental in the governance of the country. The pre-amble, the directive principles and the provisions as contained in part III of the Costitution (fundamental rights) are not to be read in isolation. They are not to be treated as enemies of each Other. On the contrary, it will always be the endeavouer of the courts to harmonise them. Therefore, in the event of any apparent conflict, unless there is an impossibility, the provisions should be harmoniously construed.

32. The concept of equality will be unworkable without applying the theory of reasonable classification. So far as our country is concerned, the stage has not yet arrived where all the citizens would be equal in all respects. Equality of opportunity can only mean where a fair opportunity is given to all sections by removing the hindrance, if any from which a particular section suffers. For achiving this, a reasonable classification is imperative. It follows, therefore, there can be no equality of opportunity to all citizens unless and until every class of citizens have a sense of equal participation. The two classes in the instant case have been given representation in the local bodies concerned on the footing that they have not been able to come to the fixed standards. Reimposition of any handicap would lead to denial of an opportunity to the two classes thereby destroying the concept of equality contained in Articles 14 and 15. Further, re-imposition of a handicap will also retard the march towards the goal of political and social justice. For attaining the objective as enshrined in Articles 14 and 15 the architects of our Constitution have envisaged the boosting of the women and the backward classes by giving them concessions, relaxations and facilities. They also contemplated the removal of handicaps. Therefore, they made provision for suitable reservations so as to enable women and socially and educationally backwards to compete with the more advanced so that with the passage of time they may come to the level of other classes.

33. The Legislature in Uttar Pradesh (State within the meaning of Article 12) while making a provision for the nomination of the representatives of women as a class and Safai Mazdoor as a class to the local body concerned took step forward towards the goal of equality and social and political justice by putting them at par, without any handicaps, without other members who are elected or are ex officio.

34. In the Amending Act, we may repeat, the State has recognised that there is still the necessity of making special provision for the women as a class and the Safai Mazdoor as a class. In fact, a provision has now been made for having at least two women members in a particular local body. Therefore, we are not concerned with a case where the State has repeald the special provision. We are only concerned with the limited question as to whether the State could, while retaining the special provision, re-impose any handicap on either or the two classes or dilute or reduce the contents of the political and social justice given to them through an earlier legislation. After giving a thoughtful consideration, our view is that the Legislature was impliedly prohibited from doing so.

35. In Keshvananda v. State of Kerala, ((1973) 4 SCC 225 : AIR 1973 SC 1461), a Bench of 13 Hon'ble judges, the majority has opined that in a written constitution limitations are implied. Hon'ble Sikri, C.J has observed that in a written constitution it is rarely that everything is said expressly. Powers and limitations are implied from necessity of the scheme of the Constitution (para 215) Hon. Shelat and, Grover, JJ, have observed that the correct approach to the question of limitations which may be implied in any legislative provision including a constitutional document has to be made from the point of view of interpretation. The argument that there are no implied limitations because there are no express limitations is a contradiction in terms. Implied limitations can only arise where there are no express limitations. Hon'ble Hegde and Mukheiji, JJ. have observed that implied limitations on the powers conferred under a statute constitute a general feature of all statutes. The position cannot be different in the case of powers conferred under a Constitution. A grant of power in general terms or even in absolute terms may be qualified by other express provisions in the same enactment or may be qualified by the implications of the context or even by considerations arising out of what appears to be the general scheme of the statute (para 671). Several of the powers conferred under or Constitution have been held to be subject to implied limitations though those powers are expressed in general terms or even in absolute terms. These limitations were spelled out from the nature of the power conferred and from the scheme of the Constitution, (para 573). Hon'ble Palekar, J. has opined that nobody can dispute the proposition that constitutional laws permit implications to be drawn where necessary. Courts may have to do so where the implication is necessary to be drawn. (Para 1317). Hon'ble Khanna, J. has taken the view that the concept of implied limitations has two facets under the first facet, there are limitations which flow by necessary implication from express provisions of the Constitution. (Para 1455). So far as the first fact is concerned regarding a limitation which flows by necessary implication from an express provision of the Constitution, the concept derives its force and is founded upon a principle of interpretation of statutes. In the absence of any compelling reason it may be said that a constitutional provision is not exempt from the operation of such a principle (para 1457).

36. In the Judge's case (1981 Supp SCC 87 : AIR 1982 SC 149) in paragraph 786 the aforementioned views on implied limitations on the powers conferred expressed b Hon'ble Sikri, C.J, Hon'ble Shelat, J. and Hon'ble Hegde, J. have been approved. In paragraph 748 it is observed that implications may arise from the context in which a provision is placed or the age of the language in the provision or from the nature of the power claimed vis-a-vis, the whole constitutional scheme.

37. In substance, the Supreme Court in Keshavanand's case has taken the view that even where the Constitution is a detailed one, in other provisions of the Constitution both the existence of powers and limitations on power may have to be necessarily implied. We have alrady noted that apart from the preamble, the Directive Principles, even the provisions of Part III emphasise on political and social justice to all the sections of the citizen of the country.

38. The Constitution has declared us a Republic with a democratic form of Government. It envisages Parliamentary form of Government of West Minister type. It guarantees adult sufferage of human-kind with no distinction between male and female. It has set the goal of a classless and castless society. Aforesaid factors, while supplementing each other, conjointly act as constrains on the exercise of legislative power. From them flow the implied limitations to enact under Entry 5 of List II.

39. We reiterate that the impugned legislation has impaired the content of social and political justice sought to be given to the classes for whom the framers of the Constitution contemplated certain safeguards, concessions and advantages. We repeat that the right given to the women as a class and the Safai Mazdoors as a class to express their views through their representatives without fear or favour has to a large extent been taken away. It necessarily follows from the Scheme of the Constituton that the State (the Legislature) is impliedly prohibited to introduce the doctrine of pleasure while maintaining that it is necessary to make special statutory provisions for the two classes.

40. The Founding Fathers of our Constitution were aware that the policy enunciated by Lord Morley and the policy of gradual development of Local Self Government advocated by Mr. Montague and Sir John Simon had been accepted by the foreign rulers in so far as under the Cantonments Act, enacted way back in the year 1924, when the alien rule in this country was at its peak, no provision had been made that even the members nominated would hold office at the pleasure of the nominating authority. They were also aware that even in the Municipalities Act, which saw the light of the day in the year 1916, such a provision was made only in relation to members nominated under Section 10, a special provision deviating from Section 9, which provided for the normal composition of a Board. We have already noted that Entry 5 of List II is a reproduction of Entry 13 of List II of the Seventh Schedule of the Government of India Act, 1935. Therefore, the architects of our Constitution could not and did not intend that in future the State under the garb of “Local Government” will embark upon a legislation which will not only undo what has been done by it after taking the aid of Article 15(3) and (4), but will also put the clock back in the sense that instead of marching towards the goal of social and political justice it (the State) will walk away from that target. By necessary implication they prohibited the Legislature from taking a retrograde step. They impliedly reminded the Legislature that the genie, once released could not be put back in the bottle.

41. In Croft v. Dunphy, 1933 AC 156 at page 165, Lord Macmillan observed:—

“When a power is conferred to legislate on a particular topic it is important, in determining the scope of the power, to have regard to what is ordinarily treated as embraced within that topic in legislative practice and particularly in the legislative practice of the State which has conferred the power.”

42. In State of Bombay v. F.N Balsara (AIR 1951 SC 318) legislative practice was referred to for throwing light on the true scope of Entry 31 of List II of Seventh Schedule to the Government of India Act, 1935 in the “intoxicating liquor”.

43. We are not dealing with just an ordinary piece of legislation. We are construing a constitutional provision which is part of the organic law of the country. A Constitution has to be expounded in a wider perspective keeping in view that larger and higher interest is involved. Also, social and political setting cannot be ignored. The enquiry should be whether the constitutional scheme negatives a particular result. Applying these principles, we again come to_the conclusion that an implied limitation in Entry 5, List II should be imported to the limited extent referred to above.

44. We are not oblivious of the settled principle that widest construction must be put on the words used in construing legislative entries. This, however, is not an inflexible rule. The exception is that the context or parts of the Constitution or legislative practice may require a different construction. At the risk of repetition, we emphasise that different provisions of the Constitution and the Legislative practice definitely suggest that there is an implied limitation in the scope of the aforesaid entry. The liniited Legislative constrained placed by us is not an “arbitrary introduction of far-fetched and impertinent limitation”.

45. In writ petition No. 18679 of 1986 — Anugrah Narain Singh v. State of U.P, (decided on 20th Sept. 1991) a Division Bench of this Court has interpreted Entry 5 of List II of the Seventh Schedule to the Constitution which reads:

“Local Government, that is to say, the constitution and powers of municipal corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.”

46. to mean that a legislation under the said entry is limited to the purpose of local self-government, i.e, it should be in furtherance of the object of allowing the local people to administer their own affairs. The offending provision, if examined in this light, may be held to be not for the purpose of local self-government. However, we note that in Sarju Prasad Pandey v. State of U.P (AIR 1970 All 571), a Division Bench of this Court presided over by Hon'ble Mr. Justice S.N Dwivedi (as he then was), while interpreting the expression “Local Government”, has taken the view that the natural and ordinary meaning of this expression is very comprehensive and should receive its fullest construction. The words which follow this expression do not cut down its scope; they are words of illustration or enlargement. It appears that the attention of the learned Judges deciding Anugrah Narain Singh's case was not drawn to the earlier decision of this Court. Since we are striking down the offending provision on other ground, we do not consider it appropriate to refer the matter to a larger Bench for the resolution of the apparent conflict between the two decisions. We leave, the matter there.

47. Learned Advocate General has cited cases to Show that the right to seek an election or to be elected or nominated to a statutory body is neither a common law right nor a fundamental right and the same flows from a particular statute. There can be no two opinions on this proposition. However, this proposition will not permit the State, which includes the legislature, to introduce any legislation or perform any act which may be violative of the mandate given in Article 14.

48. It has been strenuously urged on behalf of the petitioners that a person once nominated to a local body as its member becomes a member of that body, therefore, he joins the hand of the members, the majority of which are elected. No distinction, therefore, remains between a member nominated and a member elected. This fact has been demonstrated to us by taking us through a number of provisions which do not draw a distinction between the members nominated and the members elected. Substantially the provisions indicate that the members nominated and the Members elected are subject to like abilities and like disabilities. In particular, S. 40 of the Municipalities Act, the corresponding provisions to which are to be found in the other statutes were brought to our notice. Under these provisions, the members nominated and members elected alike are liable to be removed on grounds of certain misconduct etc. It is, therefore, urged that the offending provisions have now given a choice to the State Government or the Prescribed Authority, as the case may be, to remove a member nominated either by taking recourse to the proceedings under S. 40 or the corresponding provisions in other statutes or under the doctrine of pleasure. In sum, it is submitted that the offending provision is hit by Art, 14 of the Constitution, In their support learned counsel have cited a number of cases such as Ram Dial v. State Of Punjab., (AIR 1965 SC 1518); Maganlal Chhagganlal's case ((1974) 2 SCC 402 : AIR 1974 SC 2009); Hari Singh's case ((1972) 2 SCC 239 : AIR 1972 SC 2205) and Osmaniya University v. Chancellor, (AIR 1967 SC 1305). These cases are really not apposite. In these cases the Legislature had not provided for two different provisions one onerous and the other less onerous with respect to two different classes. Two procedures had been provided for with respect to the same class, here the offending provision has changed to complexion.

49. In Dr. D.C Saxena v. State of Haryana, ((1987) 3 SCC 251 : AIR 1987 SC 1463) the appellant therein had been removed from the office of Chairman in the purported exercise of power under S. 4-A, which provided, inter alia, that the Chairman, the Vice-Chairman and the members of the Board shall hold office during the pleasure of the State Government. Section 9, inter alia, provided that the State Government could, if in its opinion the continuance in office of any person as a member was not in the interest of the Board, in consultation with the Board, pass an order removing such person from such membership. However, no order could be passed without considering the explanation of the member concerned after giving him an opportunity for doing so.

50. Repelling the argument, that since the Chairman of the Board is also a member and his removal without complying with the procedure laid down in Section 9 is against law it is held;

“It is appearant, on a comparison of the terms of S. 4-A and S. 9, that while the former deals with the general power of the State Government to terminate the tenure of the Chairman, Vice-Chairman and member, the latter carves out a special field dealing with a category of cases where the State Government may remove a member whose continuance in office is not in the interest of the Board. A case falling within S. 9 is a case where removal must be for reasons personal to the Member and flow from his conduct or such other factor which requires that, in the interest of justice and fair play he should be given an opportunity to tender an explanation. In the view thai S. 9 carves out a special field, S. 4-A is left with an abridged scope. So arbidged, it deals with cases other than those where the continuance of a member calls for termination in the interest of the Board and requires that such member be given an opportunity of tendering an explanation before such removal. S. 4-A can be said to include cases where the tenure of a Chairman Vice-Chairman, or a member is liable to be terminated on grounds of general policy………”

“…………if S. 4-A is valid the order of removal of the appellant has to be upheld”.

51. It is to be noted that in this case the validity of S. 4-A was not challenged. This decision thus supports the contention of the learned Advocate General that there is no overlapping between the offending provision and S. 40 of the Municipalities Act and other analogous provisions of the two other statutes. The situations contemplated in the offfending provision are entirely different and distinct from those to be found in S. 40 and the analogous provisions. The further argument advanced is that, if this be the situation, the question of one provision being more onerous than the other does not arise. Therefore, the impugned provision can not be struck down as hit by Art. 14 on the aforesaid grounds. We find considerable force in the contention of the Advocate General.

52. Under the Scheme of the Indian Constitution the Governor is required to act on the advice of the council of Ministers with the Chief Minister as the head except when he is, by or under the Constitution, required to exercise his functions or any one of them in his discretion. Articles where the expression “acts in his discretion” is used in relation to the powers and functions of the Governor are to be found in the Constitution. Those articles deal with special responsibilities of the Governor. The rest of the powers and functions of the Governor are to be exercised in accordance with Arts. 154, 163 and 166.

53. The offending provision uses the expression “pleasure of the State Government”. It is implicit that the Governor under the said provision cannot act in his discretion. He is supposed to act on the aid and advice of council of Minister's. For doing so he may make rules under Art. 166(3) nor the more convenient transaction of business of the Government of the State. Under the said rules, functions are entrusted to a Minister and those are performed by an official employed in the pepartment. The Officer being a limb of the Government his decision is that of the Minister. Therefore the pleasure in the offending provision is not absolute but is subject to limitations. The discretion given to invoke the doctrine of “pleasure” cannot be either wide or uncanalized or unbridled. A fortiori, the relevant statute must contain guidelines for the exercise of discretion.

54. Learned Advocate General has contended that even though the offending provisions do not ex facie contain any guidelines the same may be discerned from the preamble and the contents of the three statutes. He has also contended that the observance of the principles of natural justice may, if necessary, be imported into the offending provision.

55. A recent decision of the Supreme Court in the case of Delhi Transport Corporation v. D.T.C Mazdoor Congress, (1991 Supp (1) SCC 600 : AIR 1991 SC 101), a decision of a constitution bench comprising 5 Hon'ble Judges is, in our opinion, a complete answer to the contentions of the learned Advocate General.

56. In Delhi Transport Corporation's case the majority of Hon'ble Judges (4:1) have held that a particular law should lay down detailed guidelines in an unambiguous and precise terms so as to avoid a danger of misinterpretation of the situation. An element of uncertainlty is likely to lead to grave and undesirable consequences. Clarity and precision are, therefore, essential for the guidelines. Rule of law posits that the power be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. A statute cannot be read down so as to save it from constitutional invalidity, if its plain and literal meaning, on a bare reading indicates that it confers arbitrary, uncanalised, unbridled and unrestrict ed power to pass an order without observing the principles of natural justice and adhering to the equality before law as envisaged in Art. 14 in the absence of guidelines, the confernment of power will not be valid merely because power is to be exercised by high officers.

57. We have examined the impugned offending provision in the light of the decision in Delhi Transport Corporation's supra and we have no hesitation in taking the view that no guidelines much less detailed guidelines with clarity and precision are to be found therein. This decision is also an answer to the submission of the learned Advocate General that an endeavour should be made to ascertain guidelines by looking to the preamble and object of the Municipalities Act and the other two statutes. It also gives a complete answer to the argument of the learned Advocate General that the observance of the principles of natural justice is implied while a power is to be exercised under the offending provision. We, therefore, conclude that the offending provision is liable to be struck down as violating Art. 14 as no guidelines are contained in it. On the contrary, wide discretionary powers and those too unrestricted, uncanalised and uncontrolled have been conferred upon the State Government to remove a member nominated.

58. We may now deal with the notification dated 19th February, 1990, by means of which by one stroke the State Government in the purported exercise of powers under the offending provision removed all the members nominated to various Municipal Boards. The contents of the notification do not disclose any reason whatsoever as to why such a drastic action was taken. However, we may note that immediately after the issue of the said notification, fresh notifications were issued nominating fresh members to the Municipal Boards. We specifically enquired from the learned Advocate General as to why this action was taken. He was candid enough to make a request to us to grant him some time so as to enable him to produce the relevant record. Time was granted on more than one occasion. However, for reasons best known to the respondent the record was not produced. We wonder if any reason was even recorded on the file. In these circumstances, we have no option but to come to the conclusion that the power to remove the members nominated was exercised arbitrarily. The notification, therefore, must be struck down.

59. We have also indicated that the Amending Act has reduced the period of two years to one year for the purpose of a motion of no-confidence against President of a Municipal Board or the Nagar Pramukh or Up Nagar Pramukh of a Nagar Mahapalika being received from the date of the assumption of office. This reduction is being assailed as ultra vires. No cogent argument has been advanced for saying so. The petitioners have neither any fundamental nor any common law right to be either the President or the pramukh or Up Pramukh. Such rights have flown from the relevant statutes. It is not the case of the petitioner, nor can it be, that the Legislature lacked the competence under Entry 5 of List II of the Seventh Schedule. We may also note that both under the Act and under the Adhiniyam the period was formerly prescribed as one year. The period of two years was introduced by the U.P Act No. 41 of 1976. The Amending Act has merely restored the original position. Furthermore, the reduction of the period appears to be in consonance with the democratic principle. We see no reason as to why either a President or pramukh or a Up Pramukh should have an immunity of not being subject to a motion of no-confidence for a long period of two years from the date of assumption of office by him or her. The challenge to the vires of the Amending provision in question is, therefore, repelled.

60. To sum up the Legislature is impliedly prohibited to enact that the members nominated to the three local bodies will hold the office during the pleasure of the State Government. The failure of the Legislature to (provide definite guidelines in the offending provision has resulted in the conferment of wide, uncanalised and unbridled power upon the State Government thereby violating Article 14 of the Constitution, and the impugned notification is typical example of the exercise of an arbitrary power.

61. The petition succeeds and is allowed. Sect ion 2(b), Section 7(b) and Section 11 of the U.P Act No. 19 of 1990 are declared ultra vires. The impugned notification dated 19th February, 1990 is also quashed. The respondents are directed not to interfere with the working of the petitioner as a nominated member of the Municipal Board, Faridpur. There shall be no order as to costs.

62. Petition allowed.