1996(2) ALL MR 436
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

G.D. KAMAT, J.

Kamlakar K. Taware & Others Vs. State Of Maharashtra & Others

Writ Petition No. 5167 of 1994

10th March, 1995

Petitioner Counsel: Mr. M.M.VASHI
Respondent Counsel: Mr. C.J.SAWANT, Special Counsel with Mr. R.D.SONI

Maharashtra Municipal Corporations and Municipal Councils (Amendment) Act (1994), S.163 - Maharashtra Ordinance 7 of 1994 and Maharashtra Ordinance 10 of 1994 - Maharashtra Municipal Councils Act (1965), Ss. 9, 40 and 313 - Constitution of India Part IXA (Introduced by Constitution (74th Amendment) Act, 1992, Arts.243, 243K, 243Q, 243U, 243ZA and 243ZF - Constitution and reconstitution of Municipalities in conformity with Part IXA of Constitution of India - Elections sought to be held after 6th December 1994 - Whether they ought to be held in accordance with Amendment Act 41 of 1994 or whether they should be held in terms of Ordinance 7 of 1994 r.w. Ordinance 10 of 1994 and whether said elections should be for remainder term or for full-fledged 5 years term as contemplated by Amendment Act 41 of 1994.

The scheme of Maharashtra Municipal Councils Act 1965 is the same as the scheme of Bombay Provincial Municipal Corporations Act, 1949 and, therefore, discussion in the context of the provisions of Maharashtra Municipal Councils Act 1965 will apply equally to the provisions of Bombay Provincial Municipal Corporations Act, 1949. [Para 12]

In the light of the scheme of Part IX-A of the Constitution read with provisions of the two Ordinances, it is clear that Part IX-A of the Constitution lays down basic framework for constitution/reconstitution of the Municipalities in the State of Maharashtra. It provides for uniformity in the matter of elections, preparation of Wards, constitution of Municipal areas, constitution and reconstitution of Municipalities as well as duration. Municipal Council is for the smaller urban area whereas Municipal Corporation is constituted for larger urban area. Art. 243 U does not deal only with duration of Municipalities, it also deals with the period for which elections should be held. It takes into account two types of dissolutions viz. dissolutions under the proviso to Art 243 ZF as well as dissolutions which take place on account of specific contingencies as provided under S.313 of the Municipal Councils Act, 1965 like financial irregularities, failure to carry out statutory duties etc. Art. 243 U also lays down the duration of the Municipality where elections are contemplated for the first time. On in cases where elections are being held after expiry of five years in which cases elections are to constitute Municipality for five years. It also provides for elections for the remainder term in cases where dissolution has taken place under the proviso to Art. 243 ZF. Art. 243 U also provides that elections must be held within six months from the date of dissolution in cases falling under the proviso to Art. 243 ZF whereas in other cases, elections are required to be held before expiry of duration of five years. Art. 243 U(4) expressly provides that in cases falling under the proviso to Art. 243 ZF, the reconstituted Municipality will be for the remainder term. Similarly, Art. 243 ZA provides that superintendence, direction and control in the matter of preparation of Electoral Rolls as well as conduct of all elections to the Municipalities shall vest in the State Election Commission referred to in Art. 243 K. Similarly, Art. 243 ZF provides that for a period of one year from 1st June 1993, existing Municipalities will continue, notwithstanding the fact that the law governing such Municipalities is inconsistent with Part IX-A of the Constitution, but within one year, the State is duty bound to enact the law and upgrade the existing Municipalities so as to bring the same in conformity with part IX A of the Constitution. Similarly, under the proviso to Art. 243 ZF, it is laid down that all Municipalities existing immediately before commencement of the new law shall continue till the expiry of their duration unless sooner dissolved by a Resolution passed to that effect by the Assembly of that State or, in the case of a State having Legislative Council, by each House of the Legislature of that State. In the light of Part IX-A, some Sections were amended by Maharashtra Ordinance No. 7 of 1994. Under Maharashtra Ordinance No. 7 of 1994, on the basis of the amendments, the existing law was upgraded and brought in conformity with Part IX-A. By way of the said Maharashtra Ordinance No. 7 of 1994, it was provided that for smaller urban areas, as provided under Art. 243 Q(2), Municipal Councils in various categories A, B and C shall be constituted. Under the said Ordinance, minimum number of Councillors was fixed at 28 for A Class and for every 7500 of the population above One lac, one additional Councillor was provided for, subject to outer limit viz. 55. The entire election process culminating in the election programme dated 16th December 1994 proceeded on the basis of criteria contemplated in S.9 of the Municipal Councils Act as amended by maharashtra Ordinance No.7 of 1994. Right from the appointment of the State Election Commission, the composition of Municipal Councils/Corporations, the work of delimitation of the Wards which is based on the population as reflected in the 1991 Census divided by the number of Councillors as well as the preparation of draft Voters' List and final Voters' List was done under the procedure prescribed by the two Ordinances. It is true that the election programme is published after Maharashtra Amendment Act No. 41 of 1994 came into force, but in the present case, the beginning of the election has to be seen in the context of the introduction of part IX-A into the Constitution and if so read, the process of election started under the Ordinances and the entire process right upto publication of election programme has been done under the Ordinances. In the circumstances, S.163(2) squarely applies. It saves the entire action taken under the said two Ordinances notwithstanding the repeal of the Ordinances on 6th December 1994 when Maharashtra Amendment Act No. 41 of 1994 came to be published after receiving the assent of the Governor. In the circumstances, the respondents are right in contending that in the present case, the word 'election' must be read in a larger context, after taking into account the provisions of part IX-A of the Constitution and not only on the basis of conduct and management of election. The concept of beginning of election is different from the concept of conduct and management of elections. In the present case, the word 'election' is required to be interpreted in a wide sense so as to cover the entire process culminating in constitution/reconstitution of the Municipalities. AIR 1952 SC 54 and AIR 1978 SC 851 Relied on.

In the context of Part IX-A of the Constitution, Ordinance No. 7 of 1994 was enacted on May 31, 1994 because the State Legislature had not enacted the law by that time and under the said Ordinance, the relevant provisions were amended. The said Ordinance is required to be read with the Order Removing Difficulties dated 25th July 1994 by which it is expressly provided that one of the consequences of dissolution under the proviso to Art 243 ZF was that the general elections shall be held within six months from the date of the dissolution. This Order is required to be read alongwith Maharashtra Ordinance No.7 and Maharashtra Ordinance No. 10 of 1994, which makes it very clear that consequences of dissolution under S.313(1) as well as consequences of dissolution under the proviso to Art. 243 ZF were that elections must be held within six months and the duration of the reconstituted Municipality shall be for the remainder period. Similarly, with regard to elections being held for the first time, as in the case of Navi Mumbai Municipal Corporation, the duration will be of five years. In the circumstances it is clear that the Ordinance and the procedure mentioned therein is required to be followed in the present case. It is true that by Maharashtra Amendment Act No. 41 of 1994, the number of Councillors (maximum) is increased to 65 whereas it is 55 under the Ordinances for A Class Municipal Councils. Similarly, the number of Councillors under the Ordinances is less for other categories of Municipal Councils as compared to the number mentioned in the Maharashtra Amendment Act No. 41 of 1994. However, since the entire action has been taken under the Ordinances on the basis of the ratio of the population contemplated by the Ordinances and on the basis of the criteria laid down under the Ordinances amending S. 9, the election programme was rightly issued by the State Election Commission for election of 55 Councillors and not 65. Similar is the case with the other Class of Municipal Councils/Corporations. The entire argument of the petitioners proceeded on the basis that because the Amending Act provides for larger number of Councillors and because the election programme has come into force after enactment of Maharashtra Amending Act No. 41 of 1994, the election should be held, not in terms of the Ordinances, but in terms of the Amending Act No. 41 of 1994. It is also argued that the Amending Act comes into force retrospectively from 31st May 1994. But S. 163 of the Maharashtra Amendment Act No. 41 of 1994 expressly saves steps taken in pursuance of the Ordinances. Even S.40 has been amended by Ordinances No. 7 and No. 10 of 1994 so as to provide for duration of the term of the Concillors which is also in consonance with the provisions of Art. 243 U and Art.243 ZF. The respondents have rightly proceeded under the Ordinances. They have rightly decided to hold the elections as per the procedure laid down under the said two ordinances. As regards Municipal Councils/Corporations dissolved under proviso to Art. 243 ZF, the respondents have rightly decided to hold the elections to the reconstituted Municipality for the remainder term and in cases where Municipal elections are being held for the first time or on expiry of the original term, the duration is rightly fixed at five years, as in the case of Navi Mumbai Municipal Corporation. In other words, only in cases of Municipalities being dissolved in conformity with the proviso to Art. 243 ZF, that the term of the reconstituted Municipality shall be the remainder term, whereas in all other cases like Navi Mumbai Municipal Corporation where elections are being held for the first time and in the case of Aurangabad Municipal Corporation where the original term of five years expired on 5th May 1993, the Municipalities constituted will be for five years. [Para 13]

Under Part IX-A of the Constitution read with the said two Ordinances and the Amending Act No. 41 of 1994, in case of dissolution of Municipalities under proviso to Art. 243 ZF, elections are required to be held within six months from the date of dissolution. some of the Municipalities have been dissolved pursuant to the Ordinances on 26th July 1994. The period of six months ended on 25th January 1995. The Petitions were heard together on various dates commencing from 22nd February 1995. The election programme in all these cases was declared on 16th December 1994. The elections came to be stayed pursuant to the various Orders passed by the Bombay High Court at Aurangabad as well as at Bombay. In the circumstances, it is directed that the State Election Commission shall proceed with the holding of the elections by issuing a fresh programme and hold the elections to the above Municipalities within six months from 26th July 1994 as provided under Art. 243 U(3)(b) read with the Maharashtra Ordinance No.7 and No.10 of 1994. The Municipalities which were dissolved under the proviso to Art. 243 ZF were dissolved on 26th July 1994. The period of six months expired on 25th January 1995. The election programme was declared on 16th December 1994. However, the said programme was stayed. In the process, the period from 16th December 1994 upto 25th January 1995 (both days inclusive) is lost. The said period consists of 41 days. The said number of 41 days shall be added back in order to enable the State Election Commission to hold the elections within six months, as stipulated in Part IX-A of the Constitution. The said period of 41 days shall be calculated from the date of this judgment. [Para 18]

Cases Cited:
AIR 1952 SC 54 [Para 8,13]
AIR 1978 SC 851 [Para 13]


JUDGMENT

KAPADIA, J.- Two points arise for determination in the above Writ Petitions. Firstly, whether elections to local bodies in the State sought to be held after 6th December 1994 ought to be held in accordance with Maharashtra Act No.XLI of 1994 or whether they should be held in terms of Maharashtra Ordinance No.VIII of 1994 read with Maharashtra Ordinance No.X of 1994. Secondly, whether the said elections constituting/reconstituting the local bodies should be for the remainder term or whether it should be for the full fledged five years term, as contemplated by Maharashtra Act No. XLI of 1994. The above two points require interpretation of the provisions of The Constitution (74th Amendment) Act, 1992 published on April 20, 1993 and which came into force on 1st June 1993 as also Maharashtra Ordinance No. VII of 1994, Maharashtra Ordinance No. X of 1994 as also the provisions of Maharashtra Act No. XLI of 1994 which replaced the two Ordinances with effect from May 31, 1994.

2. At the outset, it may be mentioned that when the election programme to the local bodies in Maharashtra came to be published, the above Writ Petitions were filed. They relate to various Municipal Councils as well as Municipal Corporations. Writ Petition No. 418 of 1994 relates to Jalgaon Municipal Council which came to be admitted by the Bombay High Court (Aurangabad Bench) on 16th December 1994. The election programme came to be stayed. Similar Writ Petitions came to be admitted by the Bombay High Court at Bombay. Ultimately, all the above Writ Petitions were directed to be placed before this Bench by the Chief Justice and since the matter was of utmost urgency, they have been heard and decided together.

3. The facts in Writ Petition No. 5167 of 1994 are hereinafter mentioned for the sake of convenience. Indeed, the facts in all the above Writ Petitions are common and they are as follows:

(a) On April 20, 1993, The Constitution (74th Amendment) Act, 1992 was published. The said 74th Amendment Act 1992 came into force on 1st June 1993. The said 74th Amendment Act of 1992 laid down a basic framework to ensure that the Municipalities are in a position to function effectively as democratic units of Self Government. By the said 74th Amendment Act of 1992, Part IX-A came to be introduced into the Constitution. Under Article 243 ZF of the Constitution, it is provided that the existing law governing the Municipalities shall continue for one year from 1st June 1993 notwithstanding anything inconsistent with Part IX-A of the Constitution. In other words, notwithstanding any inconsistency between the existing law and Part IX-A of the Constitution, the existing law will prevail for one year by which time the existing law should be amended and the Municipalities be reconstituted in accordance with part IX-A of the Constitution. This is particularly because after 1st June 1994, the Municipalities cannot function under the law which is repugnant to part IX-A of the Constitution, but the existing law must be amended in conformity with Part IX-A of the Constitution so that the reconstituted Municipalities are established in accordance with Part-IX-A of the Constitution.

(b) On 23rd April 1994, the State Government established State Election Commission as contemplated by Article 243 ZA read with Article 243 K of the Constitution.

(c) On May 30, 1994, Larger Urban Areas came to be demarcated under Article 243 Q(2) read with Article 243 P of the Constitution. Under Article 243-Q of the Constitution the Municipal Council was to be for a Smaller Urban Area and Municipal Corporation was to be established for Larger Urban Area. Accordingly, on May 30 1994, Larger Urban Area came to be constituted.

(d) On May 31, 1994, the one year period from 1st June 1993 came to an end. On that day, Maharashtra Ordinance No. VII of 1994 came to be promulgated by the Governor under Article 213 of the Constitution. As stated hereinabove, the object of the said Maharashtra Ordinance No. VII of 1994 was to amend Bombay Municipal Corporation Act 1888, Bombay Provincial Municipal Corporations Act 1949, The City of Nagpur Corporation Act, 1943 and Maharashtra Municipal Councils Act, 1965 in order to bring the said enactments in line with The Constitution (74th Amendment) Act 1992 and to give effect to the said 74th Amendment Act, 1992. The Ordinance was issued because the Legislature had not enacted the law by 31st May 1994. The Ordinance was issued to amend the existing law, particularly in view of the fact that under Article 243 ZF of the Constitution, the existing law was required to be brought in conformity with the Constitution (74th Amendment) Act, 1992 and consequently, the Municipalities were required to be reconstituted under the amended law.

(e) On 31st May 1994, similarly, demarcation of Smaller Urban Areas took place.

(f) On 26th July 1994 (i.e. after one year had elapsed from 1st June 1993 when 74th Amendment Act came into force) certain Municipalities came to be dissolved by the Legislature under Article 243 ZF of the Constitution as amended. For example Bhiwandi Municipal Council, Jalgaon Municipal Council and Ulhasnagar Municipal Council came to be dissolved under the said Article 243 ZF.

(g) In the meantime, L.A. Bill No. XXV of 1994 Maharashtra Municipal Corporations and Municipal Councils Amendment Bill 1994 was introduced in the Legislative Assembly on July 12, 1994. On July 30, 1994, the said Bill No. XXV of 1994 was referred to a Joint Committee of both Houses after obtaining the concurrence of the Legislative Council. All Members of the Assembly and the Council were requested to send their suggestions, if any, to the Joint Committee on or before September 2, 1994. The first sitting of the Committee took place on August 18, 1994 followed by eight other sittings. On November 17, 1994, the Joint Committee finalised the amendments to be incorporated in the Bill. The Joint Committee adopted its report in the meeting held on November 23, 1994. Accordingly, on 6th December 1994, Maharashtra Act No. XLI of 1994 amending Bombay Municipal Corporation Act, 1888, Bombay Provincial Municipal Corporations Act 1949, City of Nagpur Corporation Act, 1943 and Maharashtra Municipal Councils Act, 1965 came to be published after receiving the assent of the governor on December 6, 1994. At this stage it may be mentioned that during the pendency of the Reference to the Joint Committee, the period for which Ordinance No. VII of 1994 was promulgated, stood expired. In the circumstances on August 20, 1994, Maharashtra Ordinance No. X of 1994 replaced Maharashtra Ordinance No. VII of 1994. Ultimately, on December 6, 1994, Maharashtra Act No. XLI of 1994 received the assent of the governor and in the circumstances, Maharashtra Ordinance No.X of 1994 stood repealed. Under the said Act, which is called as Maharashtra Amendment Act, 1994 (hereinafter referred to, for the sake of brevity, as Maharashtra Act No. XLI of 1994) the deemed date from which the Act is given effect to, is 31st May 1994.

(h) On 16th September 1994, the State Election Commissioner requested the Collectors/Municipal Commissioners, as the case may be, to take appropriate steps to divide the Municipal area into Wards.

(i) On 6th October, 1994, the State Election Commissioner forwarded tentative election programme to the Collectors/Municipal Commissioner, as the case may be. At this stage, it may be mentioned that as regards Municipal Council, the Designated Officer is the Collector whereas in cases of Municipal Corporation, the Designated Officer is the Municipal Commissioner.

(j) On 10th October, 1994, the Director of Municipal Administrations issued an order fixing number of Councillors and also number of seats to be reserved for the purpose of elections both under the provisions of Maharashtra Municipal Councils Act, 1965 as amended by the Ordinance as well as under Bombay Provincial Municipal Corporations Act, 1949 as also amended by the said Ordinance.

(k) On 21st November 1994, the Collectors/Municipal Commissioners finalised the work of delimitation of Wards. At this stage it may be mentioned that on October 28, 1994 objections were invited to the draft order indicating delimitation of Wards.

(l) On November 16, 1994, Notification was issued by which electoral rolls as on 1st November, 1994 prepared under the provisions of the Representation of Peoples' Act, 1950 came to be adopted by the State Election Commissioner.

(m) On December 6, 1994 as stated hereinabove, Maharashtra Act No.XLI of 1994 came to be published for the first time after receiving the assent of the Governor on 6th December 1994 and accordingly, Maharashtra Municipal Amendment Act came to be enacted and which came into force on and from May 31, 1994.

(n) On December 6, 1994, the tentative election programme issued by the State Election Commissioner to the Collectors/Municipal Commissioners on October 6, 1994, was made final and accordingly, the final election programme came to be published on December 16, 1994. Accordingly, acceptance of nominations commenced also on December 16, 1994. Under the final election programme, elections were due to be held on 15th January, 1995. It is not necessary to give all the various dates indicated in the final election programme except to state that the draft Voters' List was issued on November 28, 1994 and the final Voters' List was issued on December 15. 1994.

4. Two main arguments were advanced by the learned Advocates appearing in the above Writ Petitions. These two arguments are common to all the Writ Petitions. It may be clarified at this stage that in order to understand the controversy we have discussed in this Judgment dissolution of the Municipal Councils under the provisions of Maharashtra Municipal Councils Act, 1965, as amended by Maharashtra Ordinance No.VII of 1994 and Maharashtra Ordinance No.X of 1994. It may also be mentioned that the scheme of the Maharashtra Municipal Councils Act, 1965 is similar to the scheme of Bombay Provincial Municipal Corporations Act, 1949 and, therefore, the discussion in this Judgment as confined to the provisions of Maharashtra Municipal Councils Act, 1965 would equally apply to the dissolution of Municipal Corporations under the provisions of Bombay Provincial Municipal Corporations Act, 1949.

5. It has been firstly contended that the number of seats, based on number of Wards as mentioned in the amended Maharashtra Act NO.XLI of 1994 which came into force with effect from 31st May 1994, is 65 whereas under Maharashtra Ordinance No.VII and Maharashtra Ordinance No.X of 1994, the number of seats earmarked for elections to Municipal Council (Class A) was 55. It is contended that the amending Maharashtra Act No.XLI of 1994 was published on 6th December 1994 but by a deeming fiction, the Act is made applicable with effect from May 31, 1994. In the circumstances, it is argued that elections to the Municipal Councils (Class A) should proceed on the basis of amending Act No. XLI of 1994 and 65 Councillors ought to be elected as provided under Maharashtra Act No. XLI of 1994 and not 55 as provided under Maharashtra Ordinance No.VII and Maharashtra Ordinance No.X of 1994. In other words, it is argued that the number of seats for each of the classes of Councils have been increased under Maharashtra Amending Act No. XLI of 1994 vis-a-vis the number of seats under the said Maharashtra Ordinance No.VII and Maharashtra Ordinance No.X of 1994. It is not in dispute that this argument applies to each of the categories/classes of Municipal Councils. The number of seats under the Ordinance is lesser than the number of seats under Maharashtra Amending Act No.XLI of 1994 by which the Municipal Councils Act, 1965 as well as the Bombay Provincial Municipal Corporations Act, 1949 have been amended. There is also difference in the number of seats between the Ordinance and the Amending Act No.XLI of 1994 to the extent of the Municipal Corporations governed by the provisions of Bombay Provincial Municipal Corporations Act, 1949. It is contended as a limb of the same argument that when the Amending Act No.XLI of 1994 is made effective from 31st May 1994 (vide Section 1(2) ) and when the election programme is issued on 16th December 1994 (by which time Maharashtra Act No.XLI of 1994 has come into force) the number of seats for which elections ought to be held or, in other words, the number of Councillors to be elected should be as per the provisions of Maharashtra Amending Act No.XLI of 1994 and not as per the Maharashtra Ordinance No.VII of 1994 and Maharashtra Ordinance No.X of 1994. It is contended that under the scheme of Maharashtra Municipal Councils Act, 1965 as well as Bombay Provincial Municipal Corporations Act, 1949, even before the amendment, election process starts from the date when the election programme is published. It is contended that since in the present case, election programme has been published on 16th December 1994, the provisions of Maharashtra Amending Act No.XLI of 1994 alone will apply, particularly because under Section 163(1) of the said Maharashtra Amending Act No.XLI of 1994, the provisions of the erstwhile Maharashtra Ordinance No.X of 1994 are expressly repealed. It is contended that the effect of the said repeal of the Ordinance means that every action taken after December 6, 1994 when Maharashtra Amending Act No.XLI of 1994 came to be published, would be governed by the provisions of Maharashtra Act No.XLI of 1994 and not by Maharashtra Ordinance No.X of 1994. It was contended by Mr. Vashi that in the present case, Municipal Councils have been dissolved before expiry of five years under proviso to Article 243 ZF. Placing reliance on Article 243 U(1) it was contended that Article 243 U applies to dissolutions under existing law for the time being in force i.e. in the given case, Maharashtra Municipal Councils Act, 1965. Article 243 U(1) has a proviso which states that the Municipality shall be given a reasonable opportunity of being heard before its dissolution. Reliance is also placed on Article 243 U(2) to show that under the Constitutional amendment, no amendment of any law could have effect of dissolution of the Municipality functioning before the said amendment till expiry of its duration under Article 243 U(1). In the circumstances, it is contended that even in cases of dissolution under proviso to Article 243 ZF, Article 243 U is attracted and since Article 243 U(1) warrants a hearing to be given, which is not given in the present case, the dissolution is bad in law. On the other hand, Mr. K.K. Singhavi appearing on behalf of respondent No.5 in Writ Petition No.418 of 1995 submits that since the process culminating into elections started during the pendency of the Ordinance and since the said proceedings have been saved under S.163(2) of Maharashtra Amending Act No.XLI of 1994, the respondents are right in proceeding on the basis of the number of Councillors/seats contemplated by the said Ordinances. Mr. Singhavi submits that the action taken under the Ordinances is saved and, therefore, elections ought to be held as per the Ordinances despite the repeal. To this extent, Mr. Singhavi agrees with the contention advanced on behalf of the respondents. However, according to the learned counsel Mr.Singhavi appearing on behalf of respondent No.5 in the said Writ Petition No.418 of 1995 concerning Jalgaon Municipal Council, it is contended that in the present case, elections should be held for five years and not one year because the dissolution of the Council took place under the proviso to Article 243 ZF. In this connection, he submitted that Article 243 U is not a complete Code. It does not cover all types of dissolutions. He contends that in cases where dissolution is warranted, for the circumstances indicated under Section 313 (1) (a) to (e), the dissolution is not under proviso to Article 243 ZF but it is a dissolution under existing law. For example in cases where the Council makes default in performance of its duties or abuses its power or commits financial irregularities, then a hearing is required to be given by the State Government and it is this category of dissolution alone which is contemplated by Article 243 U which is distinct category vis-a-vis dissolution under proviso to Article 243 ZF. On the other hand, in the alternative, it is contended that assuming that Article 243 U(1) applies, hearing was required to be given before dissolution of the Council. Mr. Singhavi also contended that in matters of dissolutions under proviso to Article 243 ZF, Article 243 U(4) is not applicable. It is contended that dissolution under Article 243 U(4) must be read in the context of Article 243 U(1) and if so read, it is clear that Article 243 U talks about dissolution under Municipal Councils Act, 1965 and it does not refer to dissolution under the proviso to Article 243 ZF.

6 The second main argument advanced by the learned Advocates appearing for the petitioners in the above Writ Petitions is to the effect that in any event, the duration of the reconstituted Municipal Councils/Corporations under the above two Acts should not be for the remainder period/term, but it should be for five years as contemplated by Maharashtra Amending Act No. XLI of 1994. In this connection it may be mentioned that Writ Petition No. 5167 of 1994 is one of those cases where Municipal Council viz. Bhiwandi Nizampur Municipal Council had its first meeting on December 17, 1991 after election results came to be declared on November 25, 1991. The last elections were held on November 24, 1991. The term of the Municipal Council was for five years. The said period of five years was supposed to end on December 17, 1996. However, the said Municipal Council came to be dissolved on July 26, 1994 under proviso to Article 243 ZA. In other words, Council has been dissolved prior to its due date, particularly in view of The Constitution (74th Amendment) Act, 1992. It is, therefore, contended that the duration of the reconstituted Municipal Council should be under the provisions of the Maharashtra Amending Act No. XLI of 1994 which provides for a term of five years and it should not be for the remainder term as is sought to be done by the respondents. The same applies to some of the Municipal Councils/Corporations under the above Writ Petitions. It is contended that the reconstitution of the Municipal Council would be an act after coming into force of Maharashtra Amending Act No. XLI of 1994 and, therefore, the provisions of Maharashtra Ordinance No.X of 1994, which purports to hold elections for the remainder term has no application as the said Ordinance has been repealed by Section 163(1). It is contended that whenever an Ordinance is repealed and substituted by the Act, the action should be judged in the light of the provisions of the subsequent Act viz. Maharashtra Amending Act No.XLI of 1994.

7. In answer to the first argument of the petitioners referred to above, the respondents have contended that Maharashtra Ordinance No. VII of 1994 was promulgated on 31st May 1994 in order to remove the inconsistency between the existing laws (viz. Maharashtra Municipal Councils Act, 1965 and Bombay Provincial Municipal Corporations Act, 1949) and The Constitution (74th Amendment) Act 1992 by which Part IX-A was introduced. That under Article 243 ZF of Part IX-A of the Constitution, inconsistency was permitted for one year commencing from 1st June 1993 and since the said period of one year was to expire on 30th May 1994 and since the amending Act No. XLI of 1994 was not enacted, the said Maharashtra Ordinance No. VII of 1994 was issued on May 31, 1994. As stated hereinabove, the L.A.Bill No. XXV of 1994 was also prepared in terms of the said Ordinance No. VII of 1994, but the same was referred to Joint Committee and in the circumstances, Maharashtra Ordinance No. X of 1994 was promulgated under Article 243 of the Constitution. Ordinance No. X of 1994 was promulgated on 20th August 1994 by which provisions of Bombay Municipal Corporation Act, 1888, Bombay Provincial Municipal Corporations Act, 1949, Maharashtra Municipal Councils Act, 1965 etc. came to be amended. It is contended that after June 1, 1994, the existing Municipal Councils/Corporations were therefore, also required to be reconstituted in the light of the existing law being amended by Maharashtra Ordinance No. VII of 1994. In the circumstances, on 26th July 1994, Municipal Councils/Corporations came to be dissolved under Article 243 ZF of the Constitution. It is further pointed out that the above various steps taken by the respondents indicate that on April 23, 1994, Government exercised its power to establish State Election Commission under Article 243 ZA which provides for superintendence, control over preparation of Electoral Rolls and conduct of elections to be vested in the State Election Commission referred to in Article 243 K. This way by Notification issued by the Government, dated April 23, 1994. Further on May 30, 1994 demarcation of Larger Urban Areas and Smaller Urban Areas were made under Article 243 Q read with Article 243 P. Similarly, on May 31, 1994 demarcation of Smaller Urban Areas was made. This was followed by dissolution of Municipal Councils by the Legislature under the proviso to Article 243 ZF. On September 16, 1994, the State Election Commission requested the Designated Officers viz. Collector and Municipal Commissioner to take steps to divide Municipal area into Wards for election purposes. Similarly on October 6, 1994 i.e. after promulgation of Ordinance No. X of 1994, tentative election programme was circulated by the State Election Commissioner to the Collectors/Municipal Commissioners. On October 10, 1994 the Director of Municipal Administration passed an Order under the existing law, fixing the number of Councillors and reservation of seats.

8. On October 28, 1994 steps were taken regarding delimitation of Wards under the existing law by inviting objections. The said objections were considered. The delimitation of the Wards took place by order dated November 21, 1994. At this stage, it may be mentioned that for the purpose of delimitation of the Wards, the population as per 1991 Census was taken into account as provided under the existing law. Similarly, Notifications were issued in the matter of publication of Electoral Rolls by which for the purposes of preparation of Voters' List (Ward-wise), the latest segment of Assembly Rolls as on November 1, 1994 was taken into consideration. The draft Voters' List was issued on November 28, 1994 followed by final Voters' List issued on December 15, 1994 and the final election programme was published on December 16, 1994 by which elections were purported to be held on January 15, 1995. It is argued that in the above circumstances, particularly in view of the fact that the existing law was required to be upgraded and brought in conformity with the Constitution (74th Amendment) Act, 1992, the election process did not start only with the publication of the election programme on December 16, 1994, but it started with the various steps/stages taken pursuant to The Constitution (74th Amendment) Act, 1992 pursuant to which Maharashtra Ordinance No. VII of 1994 came to be promulgated on May 31, 1994. It is contended that in the above circumstances, the word 'election' must be read in the context of the 74th Amendment Act, 1992 so as to cover the entire process culminating in the election of candidates. In this connection, reliance is placed on the judgment of the Supreme Court in the case of N.P.Ponnu Swami Vs. Returning Officer, Namakkal Constituency (reported in A.I.R. 1952 SC Pg. 54). In the above circumstances, it is contended that since the process has started under the above Ordinances, it is not possible to proceed on the basis that because final election programme is published on December 16, 1994, the provisions of the Ordinance will not apply. It is also contended that under Section 163(2), it is expressly provided that notwithstanding repeal of Maharashtra Ordinance No. X of 1994, anything done or any action taken (including any election programme declared by the State Election Commissioner) under or in pursuance of the said Ordinance, shall continue to have effect and Section 7 of the Bombay General Clauses Act, 1904 shall apply with regard to effect of the repeal of the said Ordinance. In the circumstances, it is contended that the process which started pursuant to the 74th Amendment Act, 1992 and in pursuance of which Maharashtra Ordinance No. VII of 1994 came to be issued, was a continuous process culminating in elections and it is not possible, therefore, to bifurcate the above two stages viz. the stage covering the period commencing from appointment of the State Election Commission on April 23, 1993 upto December 6, 1994 when Maharashtra Act No. XLI of 1994 was enacted and the second stage of the final election programme being issued on December 16, 1994 after amending Act No. XLI of 1994 came to be enacted. As regards the second argument also, it is contended that since the word 'election' in the present context of The Constitution (74th Amendment) Act, 1992 is required to be read in a wide context so as to include the process culminating in the election of the candidate and also so as to include reconstruction of Municipal Councils/Corporations pursuant to the existing law being amended so as to bring the same in conformity with the 74th amendment Act, 1992 the reconstituted Municipal Council/Corporation should have a term only for the remainder period as contemplated by Article 243 U(4) of Part IX-A of the Constitution. This is also indicated by the proviso to Article 243 ZF. This is also provided by the amendment to the existing laws viz. Municipal Councils Act, 1965 and the Bombay Provincial Municipal Corporations Act, 1949 with which we are concerned in the above Writ Petitions. It is contended, therefore, that in most of these cases, Councils/Corporations have been dissolved prior to expiry of the period of five years under the original existing law and, therefore, the tenure of the reconstituted Municipality has to be for the remainder period and not for five years as is sought to be contended by the petitioners. Mr. C.J.Sawant, appearing for the respondents, further contended that the dissolution contemplated under the proviso to Article 243 is pursuant to the existing law being amended in order to reconstitute the existing Municipality in conformity with the Constitution (74th Amendment) Act, 1992. It is contended that every clause of Part IX-A and particularly Article 243 U and 243 ZF deal with distinct and separate topics under the general heading like Duration, Dissolution, Control and Management of Elections etc. It is contended further that Article 243 ZF only lays down that the law must be amended and brought in conformity with the Constitution (74th Amendment) Act, 1992 within one year and till the expiry of one year notwithstanding the inconsistency between the existing law and the 74th Amendment Act 1992, the existing law would continue, but after one year, the existing law should be amended and the Municipality must be reconstituted in the light of the Constitution (74th Amendment) Act, 1992. It is for this reason that the period of one year is prescribed and not for dissolution as contended by the petitioners. In the present case, the law has been amended within one year and thereafter the Councils have been dissolved and elections are sought to be held for a remainder period. Mr Sawant further contended that Article 243 U(3)(b) read with Article 243 U(4) clearly indicates that the duration of the Municipalities referred to in Article 243 U takes care of both the types of dissolutions viz. dissolution under the Constitutional amendment as well as dissolution under the existing law for financial irregularities or in cases of such eventualities. In other words, according to Mr. Sawant, Article 243 U covers both the types of dissolutions as stated above and it is a complete Code dealing with duration of the Municipalities. Mr. Sawant submits that Article 243 read in the manner suggested by him would be in consonance with the interpretation of the Constitution. Mr. Sawant further submits that in cases where Municipalities are required to be reconstituted after amending the existing law within one year, they can continue only for the remainder period as contemplated by Article 243 U(4), whereas those Municipalities in which elections are being held for the first time or after expiry of original term will have a duration of five years, as in the case of Navi Mumbai Municipal Corporation. Mr. Sawant further contends that it is in the light of the said provisions of Part IX-A of the Constitution that the existing law has been amended both by the Ordinances as well as by the Maharashtra Amending Act No. XLI of 1994.

9. Now in order to appreciate the above two arguments, it would be necessary to examine the scheme of Maharashtra Amending Act No.XLI of 1994 which has amended, as stated hereinabove, the provisions of Maharashtra Municipal Councils Act, 1965, Bombay Provincial Municipal Corporations Act 1949 as also Bombay Municipal Corporation Act 1888 etc. In order to facilitate our discussion, to begin with, the provisions of Maharashtra Municipal Councils Act 1965, both before and after the amendment, is required to be examined. It may be mentioned that in the present Writ Petitions, we are only concerned with Maharashtra Municipal Councils Act and Bombay Provincial Municipal Corporations Act, 1949. It may further be mentioned that in the present case, elections are sought to be held in ten Municipal Councils and in the circumstances, we propose to start with the discussion under the provisions of Maharashtra Municipal Councils Act, 1965 read in the light of the amendment as well as Part IX-A of the Constitution. Further, the provisions of Maharashtra Municipal Councils Act, 1965 are similar to the provisions of Bombay Provincial Municipal Corporations Act, 1949 and our discussion will apply equally to both the enactments.

10. At the outset, it may be mentioned that The Constitution (74th Amendment) Act, 1992 was published on April 20, 1993. It came into force on and from June 1, 1993. By the said amendment, Part IX-A has been introduced into the Constitution of India. In the entire Part IX-A there is no provision for extension of the term or duration of the existing Municipalities. Part IX-A introduces a new scheme. It provides for constitution, which includes reconstitution, of Municipalities. It also lays down basic framework regarding fixing of the term of Municipalities. The basic scheme of Part IX A is that the duration of the Municipality shall be five years and no longer. It provides for reconstitution of the Municipality after amending the existing law. It provides for existing law to continue for one year after 1st June 1993 notwithstanding anything inconsistent between the existing law and the Constitution (74th Amendment) Act, 1992. On the expiry of one year as provided under Article 243 ZF, the existing law becomes inconsistent with the Constitution (74th Amendment) Act, 1992 and in such cases, the amendment should be carried out by the Legislature in order to update the existing law and bring it in conformity with the Constitution (74th Amendment) Act, 1992. Article 243 ZF also proceeds on the basis that after the new law comes into force, the Municipalities are required to be reconstituted and the reconstituted Municipalities will work for the remainder term if dissolution had taken place under the proviso to Article 243 ZF. However, the mandate of the Constitution (74th Amendment) Act, 1992 underlying in Part IX-A is very clear that in no case the duration of the Municipality shall stand extended beyond 5 years. It is for this reason that where dissolution is effected under the proviso to Article 243 ZF, it is provided that the reconstituted Municipality will have a duration only for the remainder term. This is clearly mentioned in Article 243 U(4). It is also clear from the provisions of Article 243 U(1) which clearly states that in no circumstances, the duration will go beyond five years. In fact, the Constitution (74th Amendment) Act, 1992 has introduced a new basic framework of constituting local bodies, without extension of the original term, with a view to introduce uniformity. It is in this light that the real object of Maharashtra Ordinance No. VII of 1994, promulgated on May 31, 1994 (i.e. before the expiry of one year contemplated by Article 243 ZF), is to be seen. In fact, both the Maharashtra ordinances No. VII and X of 1994 prescribe the same procedure regarding formation of Wards and basis of ratio of the population to be taken into account in respect of delimitation of Wards and there is no difference between the two Ordinances. The objects of the two Ordinances is to reconstitute the Municipalities in accordance with part IX-A because the said Municipalities cannot be reconstituted under the existing laws which became repugnant due to the 74th Amendment Act, 1992 on and after 1st June 1993. Keeping the above scheme of the Constitution (74th Amendment) Act, 1992 before us, we have to examine the provisions of the Ordinances as well as Maharashtra Amendment Act No. XLI of 1994.

11. Before coming to the amendments to the existing law, we have also to look at the provisions of Part IX-A of the Constitution dealing with Municipalities. At this stage it may be mentioned that we are basically concerned with three concepts viz. duration, dissolution and reconstitution of the Municipalities. Article 243 P(d) defines Municipal area to mean territorial area of a Municipality as is notified by the Governor. Article 243 P(e) defines Municipality as an Institution of Self government, constituted under Article 243 Q. Article 243 Q(1) deals with constitution of Municipalities. It lays down that there shall be constituted in every State, a Nagar Panchayat for a transitional area (i.e. area in transition from rural to urban area), a Municipal Council for a smaller urban area and a Municipal Corporation for a larger urban area. Under Article 243 R, composition of Municipalities is laid down. Article 243 R(1) provides that all seats in a Municipality shall be filled by persons chosen by direct election from the territorial constituencies in the Municipal area and for this purpose, each Municipal area shall be divided into territorial constituencies to be known as Wards. Article 243 U deals with duration of Municipalities etc. The word 'etcetera' has got some importance. It indicates that Article 243 U does not only deal with duration, but it also deals with other subjects including elections to constitute a Municipality. Article 243 U(1) lays down that every Municipality, unless sooner dissolved under the existing law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer (emphasis supplied by us). By way of proviso under Article 243 U(1), it is laid down that a Municipality shall be given a reasonable opportunity of being heard before dissolution. Under Article 243 U(2), it is provided that no amendment of any law for the time being in force shall have effect of causing dissolution of a Municipality which is functioning before the amendment of the existing law and till expiration of its duration as contemplated under Article 243 U(1). The expression 'law for the time being in force' both in Article 243 U(1) and in Article 243 U(2), is very important. It refers to the Municipality under the existing law before its amendment. It also lays down that there shall be no amendment of the existing law causing dissolution of a Municipality which is functioning before such amendment. Reading Article 243 U(1) and (2), it is clear that it refers to duration of the Municipality under the existing law for the time being in force and it refers to the Municipality before the amendment of existing law. The said Article 243 U(1) and U(2) also refer to dissolution of the Municipality under the existing law. Article 243 U(4), however, indicates that a Municipality which is constituted upon the dissolution and before the expiry of its duration, shall continue only for the remainder period for which the dissolved Municipality would have continued under Clause (1) of Article 243 U. As indicated hereinabove, the word 'et cetera' also plays a very important role. It indicates that Article 243 U does not only deal with duration of Municipality under the existing law but it refers to all other types of dissolutions. Similarly, Article 243 U is the only Article in Part IX-A which expressly deals with duration of Municipalities etc. The proviso to Article 243 ZF does not refer to duration of the Municipality. The said proviso does not refer to duration of the reconstituted Municipality on dissolution. On the other hand, Article 243 U does not only deal with duration of the Municipalities, but also the period within which elections to constitute a Municipality shall be completed. It also deals with elections to the Municipalities for the first time. It also talks about elections of the reconstituted Municipality and it also refers to the duration of the reconstituted Municipality for the remainder term. Article 243 U(3)(a) clearly provides that election to constitute a Municipality shall be completed before expiry of its duration specified in Clause (1). Article 243 U(1), when read with Article 243 U(3)(a) indicates that wherever an election is required to constitute a Municipality, the said election should be held before expiry of its duration of five years as contemplated under Article 243 U(1). Article 243 U(3)(b) provides that before expiry of six months from the date of its dissolution, elections must be held. In other words, Article 243 U(3)(b) deals with elections to constitute a Municipality which is dissolved prior to its original duration of five years as in the case of proviso to Article 243 ZF. In other words, in cases where dissolution has taken place under proviso to Article 243 ZF of the Municipalities, election to reconstituted Municipality shall be completed before six months from the date of its dissolution. Similarly Article 243 U(4) provides that a Municipality constituted upon the dissolution of the Municipality before expiry of its duration shall continue for the remainder period for which it was dissolved. therefore, Article 243 U is a complete Code. It covers all types of dissolutions and elections to the Municipality which includes reconstituted Municipality and it also prescribes the duration in cases where a Municipality is dissolved. It refers to dissolutions under the existing law for specific eventualities like financial irregulatiry etc. It also covers dissolution under Article 243 ZF. This is the only Article which deals with the entire subject and, therefore, there is no merit in the contention of the petitioners that Article 243 U only refers to dissolutions in cases of specific eventualities and it does not cover cases of dissolution under proviso to Article 243 ZF. Now coming to Article 243 ZF and as stated hereinabove, the object of Article 243 ZF was that since the existing law was inconsistent with the new scheme introduced by Part IX-A of the Constitution, the existing law will continue for one year upto 1st June 1994 notwithstanding the inconsistency. Similarly, for one year the existing Municipality will continue notwithstanding the fact that its constitution is not in accordance with the basic framework of Part IX-A of the Constitution. However, on expiry of one year, the existing law which is inconsistent has got to be replaced by the amending Act/enactment so as to update the existing law and so as to update the constitution of Municipalities in conformity with Part IX-A of the Constitution and it is for this reason that under proviso to Article 243 ZF it is laid down that the Municipalities existing before expiry of one year shall be reconstituted by dissolving the existing Municipalities vide Resolution passed to that effect by the Legislative Assembly of a State or in the case of a State having Legislative Council, by each House of the Legislature of that State. The whole object of the Article 243 ZF including the proviso is therefore, to have a reconstituted Municipality in conformity with Part IX-A of the constitution. However, Article 243 ZF does not talk about the duration of the reconstituted Municipality. Such a duration is referred to only under Article 243 U(4). Article 243 U expressly deals with the duration of Municipalities. It expressly states that where elections are being held for the first time, as in the case of Navi Mumbai, the duration shall be for five years. In cases where dissolution has taken place under proviso to Article 243 ZF, the duration of the reconstituted Municipality shall be for the remainder term. In the circumstances, we find considerable merit in the contentions raised by Mr. C.J.Sawant, the learned Counsel appearing on behalf of the respondents that in all cases of dissolution of the Municipal Councils, they were required to be dissolved under proviso to Article 243 ZF in order to update the existing law and bring the same in conformity with the basic framework of Part IX A of the Constitution. It is in this light that the Ordinances were issued because the law could not be amended by the Legislature prior to expiry of one year from 1st June 1993. The facts enumerated also indicate that because the matter was referred to Joint Committee in the context of L.A. Bill No. XXV of 1994, the Governor had to promulgate Ordinance No. X of 1994 which lays down the same procedure regarding formation of Wards as Maharashtra Ordinance No. VII of 1994. In the circumstances, the word 'election' is required to be interpreted in the context of Part IX-A of the Constitution. If so read, in the present controversy, we are of the view that the word 'election' means beginning of the election and not merely conduct and management of election and in the circumstances, we have to read the two Ordinances and Maharashtra Amending Act No. XLI of 1994 to mean the process of election, culminating not only in the election, but also reconstitution of the Municipalities (see Ponnu Swami Vs. Returning Officer, Namakkal Constituency, A.I.R. 1952 SC Pg. 54).

12. Now coming to the scope of the provisions of Municipal Councils Act, 1965, which is in paramateria to provisions of Bombay Provincial Municipal Corporations Act, 1949, as stated above, for our discussion we have considered provisions of Municipal Councils Act, 1965 before and after the amendment by way of the above mentioned two Ordinances and Maharashtra Amending Act No. XLI of 1994. For the purposes of our discussion, the Maharashtra Councils Act, 1965, also known as Maharashtra Municipalities Act, 1965, extends to whole of the State of Maharashtra. It deals with constitution of Municipal Councils and Municipal areas. Under Section 2(33), the word 'population' means population as ascertained at the last Census of which the relevant figures, whether provisional or final, have been published. Under the unamended provisions, Chapter II deals with Municipal Councils. Chapter II(1) deals with Municipal areas and their classification. Section 4, prior to the amendment by Ordinances, deals with classification of Municipal areas by the State Government as A Class, B Class and C Class on the basis of the population as specified in Section 4. Chapter II(2) deals with Municipal Authorities and establishment of Councils. Section 9, prior to the amendment, lays down that every Council shall consist of Councillors elected at Ward elections and shall also include Councils co-opted by the elected Councillors in the prescribed manner, having special knowledge of practical experience in the specified field of public life. Section 9(2) also deals with reservation of seats. Section 9(2), therefore, deals with number of Councillors to be elected at the Ward elections. Under Section 9(2), the Director of Municipal administration was empowered to fix number of elected Councillors. Prior to the Maharashtra Ordinance No. VII of 1994, the number of elected Councillors was 75. This was on the basis of criteria provided under Section 9(2) prior to the amendment. Chapter II(3) deals with election and publication of names of elected, co-opted and nominated Councillors. Under Section 10 of the Municipal Councils Act, 1965, prior to the amendment, the Collector was empowered to carry out delimitation of Wards. Section 10(1) is required to be read with Section 9(2) as also Section 4 because it lays down that for the purposes of delimitation of Wards, the population figures derived from the last Census are required to be taken into account. At this stage it may be mentioned that delimitation is done on the basis of population of the whole Municipal area and not on the basis of number of voters in each Ward whereas for the purposes of preparation of Voters' List, Wardwise, the latest segment of Assembly Rolls is taken into consideration. In the present case, the latest segment of Assembly Rolls is of November 1, 1994 which is required to be taken into account as per the Notification dated November 16, 1994 issued under Section 11 of the Municipal Councils Act, 1965. Under Section 40 of the said Act, 1965, prior to the amendment, term of Office of the Councillors is stipulated. Section 40(1) lays down that save as otherwise provided by the said Act, Councils elected at general election shall hold Office for five years, which may be extended by the State Government in exceptional circumstances by Notification in the Official Gazzete to a term, not extending six years. Under Section 313 of the unamended Act, 1965, it is provided that if, in the opinion of the State Government, a Municipal Council is not competent to perform duties imposed upon it or under the Act or any law for the time being in force or it is a defaulter in the performance of such duties, the State Government may, by an Order published in the Official Gazette, appoint Administrator for a period not extending three years. This Section did not provide for dissolution prior to the above Ordinances. However, under Section 315(3) of the unamended Act 1965, if, in the opinion of the State Government, even after the expiry of three years or, as the case may be, six years of administration by Administrator on the ground on which the Administrator was appointed still subsisted, the State Government, by an Order published in the Official Gazette could dissolve the Council and the consequences of which were provided under Section 316 of the unamended Act, 1965. Under Section 317 of the unamended Act, it was provided that on the dissolution of the Municipal Council under Section 315(3), general election shall be held and the Council shall be reestablished on such date, as the State Government may specify in the Order of dissolution. As stated hereinabove, in view of Part IX-A of the Constitution and particularly before expiry of one year, the Government had to promulgate Maharashtra Ordinance No. VII of 1994 followed by Maharashtra Ordinance No. X of 1994. Under the said two Ordinances, amendments were made in order to reconstitute Municipal Councils/Municipal Corporations in conformity with Part IX-A of the Constitution. Maharashtra Ordinance No. VII of 1994 was promulgated on May 31, 1994. By virtue of the said Ordinance for the smaller areas, Municipal Councils were required to be reconstituted. Under Section 2(6) Council was defined to mean Municipal Council constituted or deemed to have been constituted for a smaller area specified in a Notification issued in that regard under Article 243 Q(2) of the Constitution or Section 3(2) of the Municipal Councils Act. Under Section 2(24), Municipal area was defined to mean territorial area of a Council. Under Section 2(33), for the purposes of delimitation of Ward, the word population was defined to mean population as ascertained at the last preceding Census, of which the relevant figures have been published. By the said amendment, the word 'provisional/final' have been deleted from the original Section 2(33). Under Section 4 of the Municipal Councils Act, as amended, every smaller urban area was required to be classified by the State Government as A Class, B Class and C Class. However, the ratio of the population was changed from 75000 to One lac with regard to A Class Municipal area and such other changes with regard to B and C Class. Similarly, by way of the two Ordinances in the matter of fixing the number of elected Councillors the population ratio to the number of elected Councillors came to be changed vis-a-vis the provisions of Section 9(2) prior to the amendment. The minimum number of elected Councillors was 28 and for every 7500 of the population above One lac, the requirement was of one additional elected Councillor, subject to maximum of 55. This is with regard to A Class Municipality. Similar changes were made with regard to B and C Classes of the Municipality. At this stage it may be mentioned that under the enactment, prior to Maharashtra Ordinance No. VII of 1994, A Class Municipal Council had 75 Wards. After the Ordinance, the number of Wards are reduced to 55 whereas under the Maharashtra Amending Act No. XLI of 1994, the number of Wards are increased from 55 to 65. This is once again on the basis of change in the criteria fixing the ratio of the population. However, it may be mentioned that under Ordinances as well as Maharashtra Amending Act XLI of 1994, population of 1991 Census is taken into account. Under Section 10 of the Municipal Councils Act, as amended by the Ordinances, the superintendence, direction and control regarding preparation of Electoral Rolls is given to State Election Commission. Similarly, the work of delimitation is given to State Election Commission who, in turn, has deposited the power to the Collector/Municipal Commissioner, as the case may be. Under Section 40, as amended by the Ordinances, it is provided by way of substitution of the Sections that every Council, unless sooner dissolved, shall be for five years from the date appointed for its first meeting and no longer. Under Section 40(2), as amended by Ordinances, it is provided that a Council constituted upon dissolution before expiry of its duration shall continue for the remainder period. Under Section 41, as amended by the Ordinances, Section 41 A is introduced. It states that an election to constitute a Council shall be completed before expiry of its duration as specified under Section 40(1) or before six months from the date of its dissolution. These amendments to Section 40 are in line with part IX-A of the Constitution. Similarly, Sections 313 of the said Act 1965 has been amended. It is provided in Section 313(1) that the State Government may, after giving the Council reasonable opportunity of being heard, by an Order published in the Official Gazette, state the reasons for dissolving the Council in cases governed by Section 313(1) viz. financial irregularities and other eventualities specified in Section 313 which eventualities have nothing to do with dissolution under the proviso to Article 243 ZF. Under Section 316 of the said Act, 1965, as amended, it is provided that when the Council is dissolved either under Section 313(1) or under the proviso to Article 243 ZF of the Constitution, certain consequences will ensue including vesting of the property in the Government. Section 317 of the said Act, 1965, as amended by the Maharashtra Ordinance No. VII of 1994, specifically stated that when a Council is dissolved under Section 313, general elections shall be held to constitute the Council on such date, as may be specified by the State Election Commissioner, provided that election to constitute the Council shall be completed before six months from the date of dissolution. Now when the said Maharashtra Ordinance No. VII of 1994 was promulgated on May 31 1994, it was found that Section 317, as amended by Ordinance No. VII of 1994, did not provide for reconstitution of Municipal Council as laid down by the amendment to the said Section. Maharashtra Ordinance No. VII of 1994 dealt with reconstitution of Municipal Councils dissolved under Section 313 as amended. In the circumstances, an Order removing difficulties came to be passed on July 25, 1994 which provided that if any difficulties arise in giving effect to Municipal Councils Act, 1965, as amended, such an Order could be passed by the Government. Accordingly, on July 26 1994, it was provided in the said Order that where a Council is dissolved under proviso to Article 243 ZF of the Constitution, general elections shall be held to constitute a Council on such date, as may be specified by the State Election Commissioner providing that an election to constitute the Council shall be completed before six months from the date of dissolution of the Council. Accordingly, election programme came to be issued on December 16, 1994. Now, when the Maharashtra Amending Act No. XLI of 1994 came to be passed on December 6 1994, it was provided under Section 1(2) that the Act shall be deemed to come into force from May 31, 1994. Under Section 163(1) it was provided that Maharashtra Ordinance No. X of 1994 shall stand repealed. Under Section 163(2) it was provided that notwithstanding the said repeal, anything done or any action taken (including any election programme declared by the State Election Commissioner) in pursuance of the Ordinance shall continue to have effect and Section 7 of the Bombay General Clauses Act, 1904 shall apply with regard to effect of repeal of the said Ordinance. However, it may be mentioned at this stage that by way of the said amendment, under Section 9(2) dealing with composition of Municipal Councils, the number of Councillors came to be increased vis-a-vis Maharashtra Ordinance No. X of 1994. In the Ordinance, as stated hereinabove the number of Councillors was 55. In the Act, it is now made 65. Similarly, the population ratio was changed. Under the Act it is kept at 8000 above One lac for each additional elected Council whereas under the Ordinance, it was kept at 7500. Similarly, the minimum number has been changed from 28 in the ordinance to 38 in the Amending Act No. XLI of 1994. On the basis of this change in the composition it has been alleged by the petitioners that in the present case the election should be held to 65 Wards and not 55 Wards because the Act repeals the Ordinances and also because the Act comes into force from May 31, 1994. This is the central and key contention raised on behalf of the petitioners. Similarly, it is contended that the election should be held not for the remainder term, but for five years even in cases where dissolution has taken place under proviso to Article 243 ZF. This is on the basis of amendment to Sections 313, 316 and 317 read with Section 40 as amended by Maharashtra Amending Act No. XLI of 1994 which is the second submission advanced on behalf of the petitioners. However, the second submission does not take into account the Order issued under Section 157 on July 25, 1994 which categorically refers to dissolution under proviso to Article 243 ZF of the Constitution. If Order Removing Difficulties dated 25th July 1994 is read with section 317 of Municipal Councils Act, 1965, it is clear that Municipalities dissolved under proviso to Article 243 ZF shall be reconstituted for the remainder period. It may be clarified that the scheme of Maharashtra Municipal Councils Act, 1965 is the same as the scheme of Bombay Provincial Municipal Corporations Act, 1949 and, therefore, our discussion in the context of the provisions of Maharashtra Municipal Councils Act, 1965 will apply equally to the provisions of Bombay Provincial Municipal Corporations Act, 1949.

13. In the light of the scheme of Part IX-A of the Constitution read with provisions of the two Ordinances, it is clear that Part IX-A of the Constitution lays down basic framework for constitution/reconstitution of the Municipalities in the State of Maharashtra. It provides for uniformity in the matter of elections, preparation of Wards, constitution of Municipal areas, constitution and reconstitution of Municipalities as well as duration. As indicated hereinabove, Municipal Council is for the smaller urban area whereas Municipal Corporation is constituted for larger urban area. As stated hereinabove, Article 243 U does not deal only with duration of Municipalities. It also deals with the period for which elections should be held. It takes into account two types of dissolutions viz. dissolutions under the proviso to Article 243 ZF as well as dissolutions which take place on account of specific contingencies as provided under Section 313 of the Municipal Councils Act, 1965 like financial irregularities, failure to carry out statutory duties etc. Article 243 U also lays down the duration of the Municipality where elections are contemplated for the first time or in cases where elections are being held after expiry of five years, in which cases elections are to constitute Municipality for five years. It also provides for elections for the remainder term in cases where dissolution has taken place under the proviso to Article 243 ZF. Article 243 U also provides that elections must be held within six months from the date of dissolution in cases falling under the proviso to Article 243 ZF whereas in other cases, elections are required to be held before expiry of duration of five years. Article 243 U(4) expressly provides that in cases falling under the proviso to Article 243 ZF, the reconstituted Municipality will be for the remainder term. Similarly, Article 243 ZA provides that superintendence, direction and control in the matter of preparation of Electoral Rolls as well as conduct of all elections to the Municipalities shall vest in the State Election Commission referred to in Article 243 K. Similarly, Article 243 ZF provides that for a period of one year from 1st June 1993, existing Municipalities will continue, notwithstanding the fact that the law governing such Municipalities is inconsistent with Part IX-A of the Constitution, but within one year, the State is duty bound to enact the law and upgrade the existing Municipalities so as to bring the same in conformity with Part IX-A of the Constitution. Similarly, under the proviso to Article 243 ZF, it is laid down that all Municipalities existing immediately before commencement of the new law shall continue till the expiry of their duration unless sooner dissolved by a Resolution passed to that effect by the Assembly of that State or, in the case of a State having Legislative Council, by each House of the Legislature of that State. As stated above, in the light of Part IX-A, the above sections were amended by Maharashtra Ordinance No. VII of 1994 read with Order Removing Difficulties dated 25th July 1994. As stated hereinabove, under Maharashtra Ordinance No. VII of 1994, on the basis of the amendments, the existing law was upgraded and brought in conformity with Part IX-A. By way of the said Maharashtra Ordinance No. VII of 1994, it was provided that for smaller urban areas, as provided under Article 243 Q(2), Municipal Councils in various categories A, B and C shall be constituted. As stated hereinabove, under the said Ordinance, minimum number of Councillors was fixed at 28 for A Class and for every 7500 of the population above one lac, one additional Councillor was provided for, subject to outer limit viz. 55. As stated hereinabove, the entire election process culminating in the election programme dated 16th December 1994 proceeded on the basis of criteria contemplated in Section 9 of the Municipal Councils Act as amended by Maharashtra Ordinance No. VII of 1994. It is not necessary once again to reproduce the entire programme. Right from the appointment of the State Election Commissioner, the composition of Municipal Councils/Corporations, the work of delimitation of the Wards which is based on the population reflected in the 1991 Census divided by the number of Councillors as well as the preparation of draft Voters' List and final Voters' List was done under the procedure prescribed by the two Ordinances. it is true that the election programme is published after Maharashtra Amendment Act No. XLI of 1994 came into force, but in the present case, the beginning of the election has to be seen in the context of the introduction of Part IX-A into the Constitution and if so read, the process of election started under the Ordinances and the entire process right upto publication of election programme has been done under the Ordinances. In the circumstances, Section 163(2) squarely applies. It saves the entire action taken under the said two Ordinances notwithstanding the repeal of the Ordinances on 6th December 1994 when Maharashtra Amendment Act No. XLI of 1994 came to be published after receiving the assent of the Governor. In the circumstances, the respondents are right in contending that in the present case, the word 'election' must be read in a larger context, after taking into account the provisions of Part IX-A of the Constitution and not only on the basis of conduct and management of election. The concept of beginning of election is different from the concept of conduct and management of elections. In the present case, the word 'election' is required to be interpreted in a wide sense so as to cover the entire process culminating in constitution/reconstitution of the Municipalities as laid down by the Apex Court in the judgment of N.P.Pannu Swami Vs. Returning Officer, Namakkal Constituency (A.I.R. 1952 Supreme Court Page 54). Similarly, in the case of Mohinder Singh Gill Vs. Chief Election Commissioner, New Delhi (A.I.R. 1978 SC Page 851), it has been laid down that the word 'election' consists of a rainbow of operations. It is a compendious expression which covers a very wide arena. In the context of Part IX-A of the Constitution, Ordinance No. VII of 1994 was enacted on May 31, 1994 because the State legislature had not enacted the law by that time and under the said Ordinance, the above provisions were amended. As stated hereinabove, the said Ordinance is required to be read with the Order Removing Difficulties dated 25th July 1994 by which it is expressly provided that one of the consequences of dissolution under the proviso to Article 243 ZF was that the general elections shall be held within six months from the date of the dissolution. This Order is required to be read alongwith Maharashtra ordinance No. VII and maharashtra Ordinance No. X of 1994, which makes it very clear that consequences of dissolution under Section 313(1) as well as consequences of dissolution under the proviso to Article 243 ZF was that elections must be held within six months and the duration of the reconstituted Municipality shall be for the remainder period. Similarly, with regard to elections being held for the first time, as in the case of Navi Mumbai Municipal Corporation, the duration will be of five years. In the circumstances it is clear that the Ordinance and the procedure mentioned there is required to be followed in the present case. It is true that by Maharashtra Amendment Act No. XLI of 1994, the number of Councillors (maximum) is increased to 65 whereas it is 55 under the Ordinances for A Class Municipal Councils. Similarly, the number of Councillors under the ordinances is less for other categories of Municipal Councils as compared to the number mentioned in the Maharashtra Amendment Act No. XLI of 1994. However, since the entire action has been taken under the Ordinances on the basis of the ratio of the population contemplated by the Ordinances and on the basis of the criteria laid down under the Ordinances amending Section 9, the election programme was rightly issued by the State Election Commissioner for election of 55 Councillors and not 65. Similar is the case with the other Class of Municipal Councils/Corporations. The entire argument of the petitioners proceeded on the basis that because the Amending Act provides for larger number of Councillors and because the election programme has come into force after enactment of Maharashtra Amending Act No. XLI of 1994, the election should be held, not in terms of the Ordinances, but in terms of the Amending Act No. XLI of 1994. It is also argued that the Amending Act comes into force retrospectively from 31st May 1994. Large number of authorities with regard to repeal and saving clauses were cited by both sides. It is not necessary to examine the case law because the principles enunciated with regard to repeal and saving clauses are well settled and also because in the present case, we are concerned with interpretation of Section163 of the Maharashtra Amendment Act No. XLI of 1994 which expressly saves steps taken in pursuance of the Ordinances and, particularly in view of the context of the introduction of Part IX-A of the Constitution, we have examined the scope of the Constitutional Amendment as well as the ordinances as well as the Amending Act No. XLI of 1994. Even Section 40 has been amended by Ordinances No. VII and No. X of 1994 so as to provide for duration of the term of the Councillors which is also in consonance with the provisions of Article 243 U and Article 243 ZF. Accordingly, we do not find any merit in the above Writ petitions. The respondents have rightly proceeded under the Ordinances. They have rightly decided to hold the elections as per the procedure laid down under the said two Ordinances. As regards Municipal Councils/Corporations dissolved under proviso to Article 243 ZF, the respondents have rightly decided to hold the elections to the reconstituted Municipality for the remainder term and in cases where Municipal elections are being held for the first time or on expiry of the original term, the duration is rightly fixed at five years, as in the case of Navi Mumbai Municipal Corporation. In other words, only in cases of Municipalities being dissolved in conformity with the proviso to Article 243 ZF. that the term of the reconstituted Municipality shall be the remainder term, whereas in all other cases like Navi Mumbai Municipal Corporation where elections are being held for the first time and in the case of Aurangabad Municipal Corporation where the original term of five years expired on 5th May 1993, the Municipalities constituted will be for five years. In the circumstances, there is no merit in both the above contentions raised on behalf of the petitioners.

14. It may be mentioned that incidental points were argued by the learned Advocates appearing for various petitioners.

15. In Writ Petition No.73 of 1995, Mr. Oka appearing for the petitioner submitted that on 16th December 1994, election programme was published. It was contended that the elections were being held for the first time after 1st January 1992 when Navi Mumbai Municipal Corporation came to be constituted. It is not in dispute even here that most of the steps taken, including composition of Municipal Councillors, number of seats, delimitation of the Wards have taken place under the Ordinances. It was, therefore, contended that since elections are being held for the first time to the Navi Mumbai Municipal Corporation, the respondents should proceed on the basis of Maharashtra Amendment Act No. XLI of 1994 and not on the basis of Ordinances and, therefore, they should proceed on the basis of 66 councillors and not 57 as contemplated by the Ordinances. Mr. Kore, the learned Counsel for the petitioner in Writ Petition No. 5269 of 1994 supports Mr. Oka for the petitioner in Writ Petition No. 73 of 1995. Mr. Kore further submitted that Ward No. 51 has not been properly constituted. It is not compact Ward as required under Section 5(3) of the Bombay Provincial Municipal Corporations Act, 1949. This was one of the additional grounds. He has also contended that certain number of voters have been transferred from one Ward to another. He has further contended that in the matter of delimitation of the Wards, the State Election Commission has not taken into account number of voters transferred from one Ward to another. Mr. Kore has further submitted that the 1991 Census cannot be relied upon in the matter of preparation of Voters' List. He has further submitted that the Electoral Rolls have not been properly prepared. In the circumstances, he has submitted that the Notification dated 16th December 1994 should be struck down. We do not find any merit in the contention advanced on behalf of the petitioners in Writ Petition No. 5269 of 1994 and Writ petition No. 73 of 1995, pertaining to Navi Mumbai Municipal Corporation. Under Article 243 ZG, it is provided that notwithstanding anything in the Constitution, no elections to any Municipality shall be called in question except by Election Petition presented to a Competent Authority and in such manner as is provided for by or under any law made by the Legislature of the State. Under the said Article 243 ZG, it is further provided that validity of any law relating to delimitation of constituencies or allotment of seats to such constituencies under Article 243 ZA, shall not be called in question in any Court. Apart from the provisions of Article 243 ZG, we ourselves examined the contentions advanced by Mr. Kore on behalf of the petitioner in Writ Petition 5269 of 1994. On going through the plan submitted by Mr. Kore, we find that Ward No. 51 is in fact a compact Ward. Mr. Kore has relied upon a plan prepared under the Development Rules. It is not a plan prepared under Section 5 and Section 7 A of the Bombay Provincial Municipal Corporations Act, 1949. On the other hand, the learned Advocate appearing on behalf of Navi Mumbai Municipal Corporation has produced a plan prepared under Section 7 A of the said Act, 1949, which indicates that Ward No. 51 is a compact Ward. Similarly, with regard to the submission of Mr. Kore regarding the population, Mr. C.J.Sawant, the learned Counsel appearing for the respondents has correctly pointed out that with regard to delimitation of Wards, respondents have relied upon 1991 Census. As regards preparation of Electoral Rolls, the respondents have placed reliance on the basis of Notification issued by the State Election Commission on 16th November 1994 under Section 7 A of the said Act, 1949, as amended, which lays down that for the purposes of preparation of Voters' List, ward-wise, the latest segment of Assembly Rolls as on November 1, 1994, has to be taken into consideration. In the circumstances, there is no merit in the above contentions advanced by Mr. Kore on behalf of the petitioners. As regards Mr. Oka's contention, it may be mentioned that in this present case, since the entire process of election before publication of the election programme has taken place under the two Ordinances in view of Section 163(2) of the Maharashtra Amending Act No. XLI of 1994, the election to Navi Mumbai Municipal Corporation is required to be held on the basis of the Ordinances. Since the elections are being held for the first time and since the elections are general elections, the Municipality to be constituted will be for five years. In the above circumstances, we do not find any merit in the contention of Mr. Oka that since elections are being held for the first time, the number of councillors should be treated as 66 and not 57.

16. One of the contentions taken up by the petitioners in Writ Petition No. 416 of 1995 dealing with Aurangabad Municipal Corporation was that on the basis of the population of the Corporation, there should have been 83 Wards and not 82 for which election was proposed to be held since Wards have not been properly formed and since they have been formed in contravention of Maharashtra Amending Act No. XLI of 1994, the entire elections stood vitiated. It is contended that the population of Aurangabad Municipal Corporation is 5,73,272 and respondent No.2 has divided the said population into 82 Wards as per Maharashtra Ordinance No. X of 1994 and not as per the Amending Act No. XLI of 1994. As regards Aurangabad municipal Corporation, following facts are important. The period of the elected Body of the Aurangabad Municipal Corporation ended on May 5, 1993. In the meantime, the State government, in exercise of its powers under Section 7 A(1) of the Bombay Provincial Municipal Corporations Act, 1949, appointed an Administrator on April 30, 1993. The Administrator took charge on May 5, 1993. Thereafter, the Corporation is administered by the Administrator. Pursuant to the Constitution (74th Amendment) Act 1992, Ordinance No. VII of 1994 was issued under which State Election Commission, vide letter dated September 15, 1994 issued instructions to constitute division of Municipal area into Wards on the basis of 1991 Census population under Section 5(3) of the Bombay Provincial Municipal Corporations Act, 1949, as amended. On October 27, 1994, on the basis of 1991 Census population, a plan showing 82 Wards on the basis of the provisions of the Ordinance was submitted to the State Election Commission. The State Election Commission approved the plan/map. In the above circumstances, after receiving objections on the draft Notification indicating the Wards, the formation of Wards alongwith reservation specified, was finally published on 23rd November 1994. After finalisation of the Wards, the State Election Commissioner directed the Corporation, vide letter dated November 16, 1994, to prepare Ward Rolls for ensuing general elections of the Corporation on the basis of Electoral Rolls of Maharashtra Legislative Assembly, specifying 1st November 1994 to be the date for adopting Electoral Rolls of Maharashtra Legislative Assembly. On 30th November 1994, the Competent Authority published provisional ward-wise Voters' List of 82 Wards. After considering the objections, final Voters' List was published on 15th December 1994. The above facts indicate that the process culminating into elections took place under the Ordinances. The population ratio contemplated by the Ordinance for fixing the number of Councillors was different from the population ratio for that purpose under the Amending Act No. XLI of 1994 and, therefore, there was a difference. For the reasons stated hereinabove, there is no merit in this Writ Petition pertaining to Aurangabad Municipal Corporation.

17. For the foregoing reasons, all the above Writ Petitions Nos. 4985/1994, 5159/1994, 5167/1994, 5269/1994, 5271/1994, 5312/1994, 5313/1994, 415 of 1995, 416/1995, 417/1995, 418/1995, 419/1995 and 73 of 1995 are hereby dismissed with no order as to costs.

18. As stated hereinabove under Part IX-A of the Constitution read with the said two Ordinances and the Amending Act No. XLI of 1994, in case of dissolution of Municipalities under proviso to Article 243 ZF, elections are required to be held within six months from the date of dissolution. Some of the Municipalities have been dissolved pursuant to the Ordinances on 26th July 1994. The period of six months ended on 25th January 1995. The Petitions were heard together on various dates commencing from 22nd February 1995. The election programme in all these cases was declared on 16th December 1994. The elections came to be stayed pursuant to the various Orders passed by the Bombay High Court at Aurangabad as well as at Bombay. In the circumstances, we direct that the State Election Commission shall proceed with the holding of the elections by issuing a fresh programme and hold the elections to the above Municipalities within six months from 26th July 1994 as provided under Article 243 U(3)(b) read with the Maharashtra Ordinance No. VII and No. X of 1994. The Municipalities which were dissolved under the proviso to Article 243 ZF were dissolved on 26th July 1994. The period of six months expired on 25th January 1995. The election programme was declared on 16th December 1994. However, the said programme was stayed. In the process, the period from 16th December 1994 upto 25th January 1995 (both days inclusive) is lost. The said period consists of 41 days. The said number of 41 days shall be added back in order to enable the State Election Commission to hold the elections within six months, as stipulated in Part IX-A of the Constitution. The said period of 41 days shall be calculated from the date of this judgment.

The learned Advocates for petitioners apply for stay of the judgment. Stay refused.

Certified copy be expedited out of turn.

P.C.

In view of the nature of the controversy which involves important questions of law, ordinary copy of the judgment may be supplied to the parties out of turn, without insisting on the compliance of the High Court Appellate Side Rules.

Petition dismissed.