Appeal No 481 of 1965
Appeal from the judgment and order dated April 30 1965 of the Bombay High Court in Special Civil Application No 447 of 1965
C B Agarwala section N Prasad J B Dadachanji O C Mathur and Ravinder Narain for the appellant
section V Gupte Solicitor General and B R G K Achar for respondent Nos 2 to 4
The Judgment of the Court was delivered by Subba Rao J
This appeal by certificate raises the question of the true construction of the provisions of sections 19 and 25 of the Bombay Municipal Borough Act 1925 Bom
Act 18 of 1925 hereinafter called the Act read with section 3 of the Maharashtra Municipalities Postponement of General Elections Pending Unification of Municipal Laws Act 1964 hereinafter called the Maharashtra Act
The facts lie in a small compass
The last general election of the members of the Bhusaval Borough Municipality was held 697 under the provisions of the Act in the year 1960
The first general meeting thereafter was held on February 18 1961
Under the provisions of section 25 of the Act
in the normal course the life of the Municipality would have expired on February 17 1965 but under section 3 of the Maharashtra Act the term of the Councillors of the Municipality was by fiction extended to and inclusive of December 31 1965
On July 18 1964 the appellant was elected the President of the Municipality and on the same day the Municipality passed a resolution to the effect that the term of the office of the President shall be the residue of the term of office of the Municipality
On the assumption that the term of the President expired on February 17 1965 the Collector of Jalgaon issued a notice on March 2 1965 calling for a meeting of the Municipality on March 15 1965 for electing a new President
Thereafter the appellant filed an application under articles 226 and 227 of the Constitution in the High Court of Maharashtra for the issue of an appropriate order setting aside the notice issued by the Collector
There the appellant contended that as the term of office of the Municipality had been extended by the Maharashtra Act up to December 31 1965 he was entitled to continue in office as President till that date
A Division Bench of the said High Court rejected that contention and dismissed the petition
Hence the appeal
The short question in the appeal is whether the expression the residue of the Municipality in the resolution of the Municipality dated July 18 1964 means the residue of the Municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act
Mr Agarwala learned counsel for the appellant contended that the appellant would get the extended term provided in the Maharashtra Act because in effect it was an extension under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act with the result the residue of the term was extended to December 31 1965
The learned Solicitor General on the other hand argued that the second proviso to section 19 of the Act had no application for it dealt only with an extension by notification or otherwise under the provisions of the Act and the statutory extension given by the Maharashtra Act could not possibly be an extension under the Act that even if the Maharashtra Act had the effect of amending section 25 of the Act with the result that the life of the 698 members of the Municipality was extended by the amendment of the Act itself it would not help the appellant as the scope of the resolution passed by the Municipality should be construed on the basis of the circumstances existing at the time the resolution was passed ie previous to the election of the President and at that time the councillors of the Municipality could have only passed the resolution fixing the term of the President during the residue of the life the Municipality had at that time  to put it in other words the intention of the Councillors who passed the resolution could be gathered only from the circumstances statutory or otherwise existing at the time the resolution was passed
The problem presented from different angles by the learned counsel can only be solved on a true interpretation of the said provisions
It will therefore be convenient at this stage to read the relevant provisions
Section 19 of the Act  1 Save as otherwise provided in this Act a president or vice president shall hold his office for such term not less than one year or not less than the residue of the term of office of the municipality whichever is less and not exceeding four years as the municipality shall previous to the election of the president or vicepresident determine or until the expiry within the said term of his term of office as councillor but shall be eligible for reelection  Provided that  
Provided further that where the term of office of a municipality Is extended under this Act to a term not exceeding in the aggregate five years the president and vice president holding offices immediately before the date with effect from which such term is extended shall continue to hold their respective offices until the date on which the term so extended expires
Section 25 of the Act  1 Councillors nominated or elected at a general election under this Act shall save as otherwise provided in this Act hold office for a term of four years extensible by order of the State Government to a term not exceeding in the aggregate five years if on any occasion the State Government shall think fit for 699 reasons which shall be notified together with the order in the Official Gazette so to extend the same Section 3 of the Maharashtra Act Postponement of municipal elections
Notwith standing anything in any Act by or under which any municipality is constituted or established a b the term or extended term of office of the Councillors or members of a municipality who were in office on the date of the commencement of the Ordinance and whose term or extended term will expire before the 31st day of December 1965 shall be deemed to be extended to and inclusive of the 31st day of December 1965
SCHEDULE See section 2 2
The Bombay Municipal Boroughs Act 1925 Bom
XVIII of 1925
The combined effect of these two Acts may be stated thus Under section 25 of the Act the term of the Councillors of the Municipality is 4 years
It may be extended by the State Government to a term not exceeding in the aggregate five years
If the term is so extended by the Government in the manner prescribed by section 25 of the Act under the second proviso to section 19 of the Act the term of the President also is automatically extended to the date on which the term so extended expires
The expression  under this Act in the second proviso to section 19 of the Act certainly attracts the extension of the term of the councillors under section 25 as it is an extension under the Act
The impact of section 3 of the Maharashtra Act on the provisions of the Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act
If that be the legal effect of section 3 of the Maharashtra Act the second proviso is not attracted to the instant case as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the councillors fixed under section 25 of the Act
Therefore for the present purpose we leave out of consideration the second proviso to section 19 and approach the problem on the basis of the fiction that the term of the 700 councillors prescribed under section 25 of the Act was extended up to December 31 1965
If that be so the next question is whether on July 18 1964 when the Municipal councillors passed a resolution to the effect that the term of office of the appellant shall be the residue of the Municipality their intention was that his term should extend only up to February 17 1965 ie the date when the term of the Municipal councillors would have expired but for the statutory extension given by the Maharashtra Act
The intention of the Municipality can be gathered only from the circumstances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution
Under section 19 of the Act the Municipality can fix the term of office of the President between one and four years except when the residue of the term of the Municipality is less than one year
But the second proviso to section 19 also contemplates the extension of the term of office of the Municipality under the provisions of the Act
It is therefore not possible to predicate that at the time the resolution was passed the Municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act
With the knowledge of such a possible extension when the members used the elastic expression residue it is not reasonable to attribute to them the intention that they meant only the residue of the term available to them at that time
If that was their intention they would have prescribed a definite date on which the term of the President would expire
That apart there is sufficient material on the record which indicates that the councillors designedly used the word residue instead of fixing a precise date
It appears that it was in the contemplation of the councillors at the time of the election of the President that there was a possibility of the term of the Municipality being extended
In the Statement of Objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act it was observed as follows In July 1963 Government appointed a Committee for the purpose of considering the question of unification of the four Municipal Acts which are at present in force in the State
As substantial changes are envisaged in the unified municipal law it is considered expedient that the advantages of the new and uniform pattern of administration should be available to all those municipalities concerned simultaneously with the holding of general election in accordance with the pro visions of the unified law
Consequently the Munici 701 parties that are elected or may be elected under the existing Acts may be short lived and the time energy and expenditure incurred on holding any more general elections would be wasteful
It has therefore be on decided to postpone the general elections to such muni cipalities from the promulgation of the Ordinance until the 31st of December 1965 by which time the new unified municipal law is expected to be enacted
 This indicates that the question of extension of the term of the municipalities was under serious consideration even in July 1963
Indeed on or about July 18 1964 when the term of the Presitent of the Municipality was extended the Municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years
It is therefore clear that on the basis of statutory and other circumstances obtaining at the time the extension was made the councillors clearly expected that the term of the Municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality the intention appears to be that the term of the President should synchronize with the life of the Municipality existing or extended as the case may be
In our view therefore the order of the High Court is not Correct and the same is set aside
A writ will issue prohibiting the Collector from holding the election of the President of the Municipality of the Bhusaval Borough till December 31 1965
The controversy arose because the relevant provisions are not free from ambiguity
We therefore think that this is a fit case where the parties may be directed to bear their own costs throughout
Appeal allowed


Summary:
The appellant was elected President of the Bhusaval Borough Municipality in Bombay State in July 1964
On the same day the Municipality passed a resolution to the effect that the term of office of the President would be the residue of the term of office of the municipality
The four years  term of the municipality as provided in section 25 of the Bombay Municipal Boroughs Act 1925 Bombay Act 18 of 1925 was due to expire on February 17 1965
However in the meanwhile the Maharashtra Municipalities Postponement of General Elections Pending Unification of Municipal Laws Act 1964 was passed and under section 3 thereof the term of the councillors of the municipality was by fiction extended to December 31 1965
The Collector of the area on the assumption that the term of the President ending on February 17 1965 issued notice for a fresh election in March 1965
The appellant filed an application under articles 226 and 227 of the Constitution and contended that as the term of office of the municipality had been extended up to December 31 1965 he was entitled to be President till that date under the resolution passed by the Municipality
The High Court  jetted the contention
The appellant with a certificate of fitness granted by the High Court came to this Court
The short question in the appeal was whether the expression the residue of the municipality in the resolution of the municipality meant the residue of the municipality that would have been if the Maharashtra Act had not been passed or whether it should be interpreted in the context of the extended term provided by the Maharashtra Act
On behalf of the appellant it was argued that the appellant would get the extended term provided by the Maharashtra Act because in effect it was an extension under the Act within the meaning of the second proviso to section 19 of the Act or in any event he got the benefit because the Maharashtra Act in effect amended section 25 of the Act with the result that residue  of the term  was extended to December 31 1965
HELD  i The impact of section 3 of the Maharashtra Act on the provisions of the Municipal Boroughs Act is that it not only extends the term prescribed under section 25 of the Act but also the term extended under section 25 or under any other section of the Act
If that was the legal effect of the Maharahtra Act the second proviso to section 19 was not attracted to the instant case as there was no order or notification issued under section 25 or any other relevant section of the Act extending the term of the Councillors fixed under section 25 of the Act
Therefore for the present purpose the second proviso to section 19 had to be left out of consideration and the problem had 696 to be approached on the basis of the fiction that the term of the Councillors prescribed under section 25 of the Act was extended up to December 31 1965
699 G 700 A ii The intention of the municipality could be gathered only from the tances statutory or otherwise existing at the time when the resolution was passed and on the express terms of the said resolution
The second proviso to section 19 contemplates the extension of the term of office of the Municipality under the Act
It was therefore not possible to predicate that at the time the resolution was passed the municipality could not have contemplated a situation when the term of the Municipality would be extended under the provisions of the Act
Moreover from the Statement of objects underlying the issuance of the Ordinance which culminated in the Maharashtra Act it appeared that the question of extension of the term of the municipalities in the State was under serious consideration even in July 1963
Indeed on or about July 18 1964 when the term of the President was extended the municipality passed a resolution recommending that the term of the Municipality be extended beyond 4 years
It was therefore clear that on the basis of the statutory and other circumstances obtaining at the time the extension was made the councillors clearly expected that the term of the municipality would be or could be extended and with that knowledge they passed the resolution fixing the term of the President for the residue of the term of the Municipality the intention appeared to be that the term of the President should syncbronise with the life of the municipality existing or extended as the case may be
700 B 701 D The order of the High Court was therefore not correct and had to be set aside