Appeal No 387 of 1960
Appeal by special leave from the judgment and order dated February 12 1960 of the Andhra Pradesh High Court in Writ Petition No 5 of 1960
P A Choudhuri and K R Choudhuri for the appellants
P Ram Reddy for respondents Nos 1 2 and 6 to 11 1960
November 7
The Judgment of Gajendragadkar Subha Rao Wanchoo and
Mudholkar JJ 38 298 was delivered by Subba Rao J Sarkar J delivered a separate judgment
SUBBA RAO J
This appeal by special leave is directed against the judgment of the High Court of Judicature at Hyderabad dismissing the petition filed by the appellants under article 226 of the Constitution to issue a writ of quo warranto against respondents 1 to 10 directing them to exhibit an information as to the authority under which they are functioning as members of the Vicarabad Municipal Committee and to restrain them from selling certain plots of land belonging to the Municipality to third parties
Vica rabad was originally situate in the Part B State of Hyderabad and is now in the State of Andhra Pradesh
The Municipal Committee of Vicarabad was constituted under the Hyderabad Municipal and Town Committees Act XXVII of 1951
In the year 1953 respondents 1 to 10 were elected and five others who are not parties before us were nominated to that Committee
On November 27 1953 the Rajpramukh of the State of Hyderabad published a notification under the relevant Acts in the Hyderabad Government Gazette Extraordinary notifying the above persons as members of the said Committee
Presumably with a view to democratize the local institutions in that part of the country and to bring them on a par with those prevailing in the neighbouring States the Hyderabad District Municipalities Act 1956 XVIII of 1956 hereinafter referred to as the Act was passed by the Hyderabad _ Legislature and it received the assent of the President on August 9 1956
Under section 320 of the Act the Hyderabad Municipal and Town Committees Act 1951 XXVII of 1951 and other connected Acts were repealed
As a transitory measure under the same section any Committee constituted under the enactment so repealed was deemed to have been constituted under the Act and the members of the said Committee were to continue to hold office till the first meeting of the Committee was called under section 35 of the Act
Under that provision respondents 1 to 10 and the five nominated members continued to function as members 299 of the Municipal Committee
In or about the year 1958 the said Committee acquired land measuring acres 15 7 guntas described as  Varad Raja Omar Bagh  for Rs 18000 for the purpose of establishing a grain market gunj
For one reason or other the Municipal Committee was not in a position to construct the grain market and run it departmentally
The Committee therefore after taking the permission of the Government resolved by a requisite majority to sell the said land to third parties with a condition that the vendee or vendees should construct a building or buildings for running a grain market
There after the Committee sold the land in different plots to third parties  but the sale deeds were not executed in view of the interim order made in the writ petition by the High Court and subsequently in the appeal by this Court
In the writ petition the appellants contended inter alia that the respondents ceased to be members of the Municipal Committee on the expiry of three years from the date the new Act came into force and that therefore they had no right to sell the land and that in any view the sale made by the Committee of the property acquired for the purpose of constructing a market was ultra vires the provisions of the Act
The respondents contested the petition on various grounds
The learned Judges of the High Court dismissed the petition with costs for the following reasons 1
The old Committee will continue to function till a new Committee comes into existence
 Section 76 contemplates that property vested in it under section 72f 73 and 74 should be transferred only to Government
Here the transfer is not in favour of the Government
That apart we are told that in this case sanction of the Government was obtained at every stage
It cannot be predicated that the purpose for which the properties are being disposed of is not for a public purpose
It is not disputed that the properties are being sold only to persons who are required to build grain market 
The act now opposed is not in any way in conflict with the provisions of sections 244 245 and 247
300 4
 It looks to us that the petitioners lack in bona fides and that this petition is not conceived in the interests of the public 
The present appeal as aforesaid was filed by special leave granted by this Court
Mr P A Chowdury learned counsel for the appellants canvassed the correctness of the findings of the High Court
His first argument may be summarized thus Under section 320 of the Act any Committee constituted under the repealed enactment shall be deemed to have been constituted under the Act and the members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35 of the Act
Under section 35 of the Act the first meeting of the Committee shall not be held on a date prior to the date on which the term of the outgoing members expires under section 34
Section 34 of the Act provides that the members shall hold office for a term of three years
Therefore the term of the members of the Committee deemed to have been constituted under section 320 is three years from the date on which the Act came into force
If the term fixed Under section 34 does not apply to the members of the said Committee the result will be that the said members will continue to hold office indefinitely for the first meeting of the Committee could not be legally convened under the Act as section 16 which enables the Collector to do so imposes a duty on him to hold a general election within three months before the expiry of the term of office of the members of the Committee as specified in section 34 and as no definite term has been prescribed for the members of the Committee under section 320 the election machinery fails with the result that the members of the  deemed  Committee would continue to be members of the said Committee indefinitely
On this inter pretation learned counsel contends that the section would be void for the following reasons 1 section 3201a of the Act would be ultra vires the powers of the State Legislature under article 246 of the Constitution read with entry 5 List II VII Schedule 2 the said section deprives the appellants of the right to equality and protection of the laws guaranteed under article 14 301 of the Constitution 3 section 320 would be void also as inconsistent with the entire scheme of the provisions of the Act
Let us first test the validity of the construction of section 320 of the Act suggested by the learned counsel
The material part of section 320 reads  1 The Hyderabad Municipal and Town Committees Act 1951 XXVII of 1951    is hereby repealed  provided that a any Committee constituted under the enactment so repealed hereinafter referred to in this section as the said Committee shall be deemed to have been constituted under this Act and Members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35
The terms of the section are clear and do not lend any scope for argument
The section makes a distinction between the  said Committee and the Committee elected under the
Act and says  Members of the said Committee shall continue to hold office till the first meeting of the Committee is called under section 35 
Though the word  Committee is defined in section 25 to mean a Municipal or Town Committee established or deemed to be established under the Act that definition must give way if there is anything repugnant in the subject or context
As the section makes a clear distinction between the  said  Committee and the Committee elected under the Act in the context the Committee in section 320 cannot mean the Committee elected under the Act
The term fixed for the members of the Committee constituted under the Act cannot apply to the members of the Committee deemed to have been constituted under the Act
Section 32 which provides for the culminating stage of the process of election under the Act says that the names of all members finally elected to any Committee shall be forthwith published in the official Gazette
Section 34 prescribes the term of office of the members so elected
Under it  except as is otherwise provided in this Act members shall hold office for a term of three years Section 3201a provides a different term for the 302 members of the Committee deemed to have been constituted under the Act
Thereunder the term is fixed not by any number of years but by the happening of an event
The Committee constituted under section 320 clearly falls under the exception
But it is suggested that the exception refers only to section 28 whereunder a member of a Committee ceases to be one by a supervening disqualification
Firstly this section does not fix a term but only imposes a disqualification on the basis of a term fixed under section 34 secondly assuming that the said section also fixes a term the exception may as well cover both the deviations from the normal rule
That apart sub section
2 of section 34 dispels any doubt that may arise on the construction of sub section 1 of the section
Under sub section
2 the term of office of such members shall be deemed to commence on the date of the first meeting called by the Collector under section 35
Section 35 directs the Collector to call a meeting after giving at least five clear days notice within thirty days from the date of the publication of the names of members under section 32
This provision clearly indicates that the members of the Committee mentioned in section 34 are only the members elected under the Act and not members of tile Committee deemed to have been elected under the Act for in the case of the latter Committee no publication under section 32 is provided for and therefore the provisions of section 35 cannot apply to them
It is therefore manifest that the term prescribed in section 34 cannot apply to a member of the deemed  Committee
Let us now see whether this interpretation would necessarily lead us to hold that the members of the  deemed  Committee under section 3201a would have an indefinite duration
This result it is suggested would flow from a correct interpretation of the relevant provisions of section 16 of the Act
The judgment of the High Court does not disclose that any argument was addressed before that Court on the basis of section 16 of the Act
But we allowed the learned counsel to raise the point as in effect it is only a link in the chain of his argument to persuade us to hold in his favour on the construction of section 320
303 Before we consider this argument in some detail it will be convenient at this stage to notice some of the well established rules of Construction which would help us to steer clear of the complications created by the Act
Maxwell  On the Interpretation of Statutes 10th Edn says at p 7 thus    if the choice is between two inter pretations the narrower of which would fail to achieve the manifest purpose of the legislation we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result
 It is said in Craies on Statute Law 5th Edn at p 82 Manifest absurdity or futility palpable injustice or absurd inconvenience or anomaly to be avoided  Lord Davey in Canada Sugar Refining Co vs R provides another useful guide of correct perspective to such a problem in the following words  Every clause of a statute should be construed with reference to the context and the other clauses of the Act so as so far as possible to make a consistent enactment of the whole statute or series of statutes relating to the subject matter
 To appreciate the problem presented and to give an adequate answer to the same it would be necessary and convenient to notice the scheme of the Act as reflected in the relevant sections namely sections 16 17 18 20 32 34 and 320
The said scheme of the Act may be stated thus Under the Act there are general elections and elections to casual vacancies
The general elections may be in regard to the first election after the Act came into force or to the subsequent elections under the Act
Section 5 imposes a duty on the Government to constitute a Municipal Committee for each town and notify the date when it shall come into existence
Section 17 enjoins on the Government to issue a notification calling upon all the constituencies to elect members in accordance 1 304 with the provisions of the Act on or before such date or dates as may be specified in the said notification
Section 16 imposes a duty upon the Collector to hold a general election in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34 of the Act
Sub section 2 of section 16 provides for a bye election for filling up of a casual vacancy
Section 18 enables the Collector with the approval of the Government to designate or nominate a Returning Officer
Section 19 imposes a duty upon such an officer to do all such acts and things as may be necessary for effectually conducting the election in the manner provided by the Act and the rules made there under
Section 20 authorizes the Collector to issue a notification in the Official Gazette appointing the dates for making nominations for the scrutiny of nominations for the withdrawal of candidatures and for the holding of the poll
After the elections are held in the manner prescribed the names of all the members finally elected to any Committee shall be published in the Official Gazette
Except as otherwise provided in the Act section 34 prescribes the term of three years for a member so elected
As a transitory provision till such an election is held section 320 says that the members of the previous Committee constituted under the earlier Act shall be deemed to be constituted under the Act and the members thereof shall hold office till the first meeting of the Committee is called under section 35 of the Act
It is clear from the aforesaid provisions that the Government notifies the dates calling upon all the constituencies to elect the members before such date or dates prescribed the Collector holds the election and fixes the dates for the various stages of the process of election  the Returning Officer appointed by the Collector does all acts and things necessary for effectually conducting the election
On the general scheme of the Act we do not see any legal objection to the Collector holding the first elections under the Act
The legal obstacle for such a course is sought to be raised on the wording of section 161
305 Every general election requisite for the purpose of this Act shall be held by the Collector in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34
 The argument is that the Collector s power to hold a general election is confined to section 161 and as in the case of the members of the Committee deemed to have been constituted under the Act the second limb of the section cannot apply and as the Collector s power is limited by the second limb of the section the Collector has no power to hold the first general election under the Act
If this interpretation be accepted the Act would become a dead letter and the obvious intention of the Legislature would be defeated
Such a construction cannot be accepted except in cases of absolute intractability of the language used
While the Legislature repealed the earlier Act with an express intention to constitute new Committees on broad based democratic principles by this interpretation the Committee under the old Act perpetuates itself indefinitely
In our view section 161 does not have any such effect
Section 161 may be read along with the aforesaid other relevant provisions of the Act
If so read it would be clear that it could not apply to the first election after the Act came into force but should be confined to subsequent elections
So far as the first general election is concerned there is a self contained and integrated machinery for holding the election without in any way calling in aid the provisions of section 161
Section 17 applies to all elections that is general as well as bye elections
It applies to the first general election as well as subsequent general elections
The proviso to that section says that for the purpose of holding elections under sub section
1 of section 16 no such notification shall be issued at any time earlier than four months before the expiry of the term of office of the members of the Committee as specified in section 34
The proviso can be given full meaning for it provides only for a case covered by section 161 and as the first general election is outside the scope of section 161 39 306 it also falls outside the scope of the proviso to section 17
Under section 17 therefore the Government in respect of the first general election calls upon all the constituencies to elect members before the date or dates fixed by it
Under section 20 the Collector fixes the dates for the various stages of the election
The Returning Officer does all the acts and things necessary for conducting the election and when the election process is completed the names of the members elected are published
All these can be done without reference to section 161 for the Collector is also empowered under section 20 to hold the elections
In this view there cannot be any legal difficulty for conducting the first election after the Act came into force
If so the term of the members of the Committee deemed to have been elected would come to an end when the first meeting of the Committee was called under section 35
The Legislature in enacting the law not only assumed but also expected that the Government would issue the requisite notification under section 17 of the Act within a reasonable time from the date when the Act came into force
The scheme of the Act should be judged on that basis if so judged the sections disclose an integrated scheme giving section 320 a transitory character
It is conceded by learned counsel that if section 3201a is constructed in the manner we do the other points particularised above do not arise for consideration
Before leaving this part of the case we must observe that the difficulty is created not by the provisions of the Act but by the fact of the Government not proceeding under section 17 of the Act within a reasonable time from the date on which the Act came into force
This is a typical case of the legislative intention being obstructed or deflected by the inaction of the executive
Mr Ram Reddy learned counsel for the respondents states that there are many good reasons why the Government did not implement the Act
There may be many such reasons but when the Legislature made an Act in 1956 with a view to democratize municipal administration in that part of the country so as to bring it on a par with that obtaining in other 307 States it is no answer to say that the Government had good reasons for not implementing the Act
If the Government had any such reasons that might be an occasion for moving the Legislature to repeal the Act or to amend it
If the affected parties had filed a writ of mandamus in time this situation could have been avoided  but it was not done
We hope and trust that the Government would take immediate steps to hold elections to the Municipal Committee so that the body constituted as early as 1953 under a different Act could be replaced by an elected body under the Act
Even so learned counsel for the appellants contends that the Municipal Committee had no power to sell the land acquired by it for constructing a market
To appreciate this contention it would be convenient to notice the relevant provisions of the Act
Under section 72f all land or other property transferred to the Committee by the Government or the District Board or acquired by gift purchase or otherwise for local purposes shall vest in and be under the control of the Committee
Section 73 enables the Government in consultation with the Committee to direct that any property movable or immovable which is vested in it shall vest in such Committee
Section 74 empowers the Government on the request of the Committee to acquire any land for the purposes of the Act
Under section 76 the Committee may with the sanction of the Government transfer to the Government any property vested in the Committee under sections 72f 73 and 74 but not so as to affect any trust or public right subject to which the property is held
Learned counsel contends that as the land was acquired by the Committee for the construction of a market the Committee has power to transfer the same to the Government only subject to the conditions laid down in section 76 and that it has no power to sell the land to third parties
This argument ignores the express intention of section 77 of the Act
Section 77 says  Subject to such exceptions as the Government may by general or special order direct no Committee shall transfer any immovable property except in pursuance of a resolution passed at a meeting by a 308 majority of not less than two third of the whole number of members and in accordance with rules made under this Act and no Committee shall transfer any property which has been vested in it by the Government except with the sanction of the Government Provided that nothing in this section shall apply to leases of immovable property for a term not exceeding three years 
This section confers on the Committee an express power couched in a negative form
Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statute imperative
If the section is recast in an affirmative form it reads to the effect that the Committee shall have power to transfer any immovable property if the conditions laid down under the section are complied with
The conditions laid down are 1 there shall be a resolution passed at a meeting by a majority of not less than two third of the whole number of members of the Committee 2 it shall be in accordance with the rules made under the Act 3 in the case of a property vested in it by the Government the transfer can be made only with the sanction of the Government and 4 the sale is not exempted by the Government by general or special order from the operation of section 77 of the Act
It is not disputed that the relevant conditions have been complied with in the present case
If so the power of the Committee to alienate the property cannot be questioned
Learned counsel contends that the provisions of section 76 govern the situation and that section 77 may apply only to a property vested in the Committee under provisions other than those of sections 72f 73 and 74 and that further if a wider interpretation was given to section 77 while under section 76 the transfer in favour of the Government would be subject to a trust or public right under section 77 it would be free from it if it was transferred to a private party
The first objection has no force as there are no sections other than sections 72 73 and 74 whereunder the Government vests property in a Committee
The second objection also has no merits for the trust or public right mentioned in section 76 309 does not appear to relate to the purpose for which the property is purchased but to the trust or public right existing over the property so alienated by the Committee
Further the proviso to section 77 which says  nothing in this section shall apply to leases of immovable property for a term not exceeding three years  indicates that the main section applies also to the property vested in the Committee under the previous section for it exempts from the operation of the operative part of section 77 leases for a term not exceeding three years in respect of properties covered by the preceding section and other sections
This interpretation need not cause any apprehension that a Com mittee may squander away the municipal property for section 77 is hedged in by four conditions and the conditions afford sufficient guarantee against improper and improvident alienations
In this context learned counsel for the appellants invoked the doctrine of law that an action of a statutory corporation may be ultra vires its powers without being illegal and also the principle that when a statute confers an express power a power inconsistent with that expressly given cannot be implied
It is not necessary to consider all the decisions cited as learned counsel for the respondents does not canvass the correctness of the said principles
It would therefore be sufficient to notice two of the decisions cited at the Bar
The decision in Elizabeth Dowager Baroness Wenlock vs The River Dee Company 1 is relied upon in support of the proposition that when a corporation is authorised to do an act subject to certain conditions it must be deemed to have been prohibited to do the said act except in accordance with the provisions of that Act which confers the authority on it
Where by Act 14  15 Viet
a company was empowered to borrow at interest for the purposes of the concerned Acts subject to certain conditions it was held that the company was prohibited by the said Act from borrowing except in accordance with the provisions of that Act
Strong reliance is placed on the decision in Attorney General vs Fulham Corporation 1 2 310 There in exercise of the powers conferred under the Baths and Wash houses Acts the Metropolitan Borough of Fulham propounded a scheme in substitution of an earlier one whereunder it installed a wash house to which persons resorted for washing their clothes bringing their own wash materials and utilised the facilities offered by the municipality on payment of the prescribed charges
Sarjant J held that the object of the legislation was to provide for persons who became customers facilities for doing their own washing but the scheme provided for washing by the municipality itself and that therefore it was ultra vires the statute
In coming to that conclusion the learned Judge after considering an earlier decision on the subject applied the following principle to the facts of the case before him   That recognises that in every case it is for a corporation of this kind to show that it has affirmatively an authority to do particular acts but that in applying that principle the rule is not to be applied too narrowly and the corporation is entitled to do not only that which is expressly authorised but that which is reasonably incidental to or consequential upon that which is in terms authorized
 The principle so stated is unobjectionable
The correctness of these principles also need not be canvassed for the construction we have placed on the provisions of the Act does not run counter to any of these principles
We have held that section 77 confers an express power on the Municipal Committee to sell property subject to the conditions mentioned therein
Therefore the impugned sales are not ultra vires the powers of the Committee
In view of the said express power no prohibition can be implied from the provisions of section 76
Learned counsel further contends that the statutory power can be exercised only for the purposes sanctioned by the statute that the sales of the acquired land to private persons were not for one of such purposes and that therefore they were void
The principle that a statutory body can only function within the statute is unexcecutionable but the 311 Legislature can confer a power on a statutory corporation to sell its land is equally uncontestable
In this case we have held that the statute conferred such a power on the Municipal Committee subject to stringent limitations
Many situations can be visualized when such a sale would be necessary and would be to the benefit of the corporation
of course the price fetched by such sales can only be utilised for the purposes sanctioned by the Act
The last point raised is that the learned Judges of the High Court were not justified in holding on the materials placed before them that the appellants lacked bona fides and that the petition filed by them was not conceived in the interests of the public
We do not find any material on the record to sustain this finding
Indeed but for the petitioner appellants the extraordinary situation created by the inaction of the Government in the matter of implementing the Act affecting thereby the municipal administration of all the districts in Telangana area might not have been brought to light
We cannot describe the action of the appellants either mala fide or frivolous
In the result the appeal fails and is dismissed but in the circumstances without costs
SARKAR J
The first question is whether the first ten respondents are still members of the Municipal Committee of Vicarabad
These persons had been elected to the Committee in the elections held in 1953 under the Hyderabad Municipal and Town Commit tees Act 1951 Hyderabad Act XXVII of 1951 hereafter called the repealed Act
That Act was repealed by the Hyderabad District Municipalities Act Hyderabad Act XVIII of 1956 hereafter called the new Act which came into force in August 1956
The appellants who are rate payers of the Municipality contend that on a proper reading of the new Act it must be held that these ten respondents have ceased to be members of the Committee and they seek a writ of quo warranto against the respondents
Section 320 of the new Act provides that any Committee constituted under the repealed Act shall be deemed to have been constituted under the new Act 312 and its members shall continue to hold office till the first meeting of the Committee is called under section 35 of the new Act
The ten respondents contend that as admittedly the meeting under section 35 has not been called their term of office has not yet expired
Now section 35 so far as is material provides that the first meeting of the Committee shall be called by the Collector within thirty days of the date of publication of the names of members under section 32
Section 32 states that the names of members finally elected to any Committee shall be forthwith published in the official Gazette
It is quite clear therefore that the Committee mentioned in this section is a Committee constituted by an election held under the new Act
It would follow that the meeting contemplated in section 35 is a meeting of a Committee constituted by an election held under the new Act
The provisions of that section put this beyond doubt
In order therefore that a meeting of the Committee contemplated in section 35 may be held there has first to be an election under the new Act to constitute the Committee
No such election has yet been held
It is the provision concerning election in the new Act that has given rise to the difficulty that arises in this case
Section 16 sub section
1 gives the power to hold the general elections
It is in these words Every general election requisite for the purpose of this Act shall be held by the Collector in the manner prescribed within three months before the expiry of the term of office of the members of the Committee as specified in section 34 
Section 34 in substance states that except as other
wise provided members of the Committee shall hold office for a term of three years and that term of office shall be deemed to commence on the date of the first meeting called under section 35
It would therefore appear that the members whose term of office is sought to be specified by section 34 are members elected under the new Act for their term is to commence on the date that they first meet under section 35 and as earlier stated the meeting under section 35 is a meeting of members elected under the new Act
313 The contention for the appellants is that if a 34 is construed in the way mentioned above the first general election under the new Act cannot be held under section 16 for an election can be held under that section only within three months before the expiry of the term of office of members elected under the new Act and in the case of first election there are ex hypothesi no such members
It is said that as there is no other provision in the new Act for holding a general election the Act would then become unworkable for if the first general election cannot be held no subsequent election can be held either
 The result it is contended is that the Committee elected under the repealed Act would continue for ever by virtue of section 320
Such a situation it is said could not have been intended by the new Act
It is therefore suggested that section 34 should be construed as specifying a term of office of three years from the commencement of the new Act for members elected under the repealed Act who are under section 320 to be deemed to form a Committee constituted under the new Act
If section 34 is so construed then the first general election under the new Act can properly be held under section 16
It is on this basis that the appellants contend that the ten respondents  term of office expired in August 1959 and they are in possession of the office now without any warrant
There is no doubt that the Act raises some difficulty
It was certainly not intended that the members elected to the Committee under the repealed Act should be given a permanent tenure of office nor that there would be no elections under the new Act
Yet such a result would appear to follow if the language used in the new Act is strictly and literally interpreted
It is however well established that  Where the language of a statute in its ordinary meaning and grammatical construction leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity hardship or in justice presumably not intended a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence   40 314 Where the main object and intention of a statute are clear it must not be reduced to a nullity by the draftsman s unskilfulness or ignorance of the law except in a case of necessity or the absolute intractability of the language used
Nevertheless the courts are very reluctant to substitute words in a Statute or to add words to it and it has been said that they will only do so where there is a repugnancy to good Bense see Maxwell on Statutes 10th ed p 229
In Seaford Court Estates Ltd vs Asher 1 Denning L J said  when a defect appears a judge cannot simply fold his hands and blame the draftsman
He must set to work on the constructive task of finding the intention of Parliament   and then he must supplement the written word so as to give  force and life  to the intention of the legislature  
A judge should ask himself the question how if the makers of the Act had themselves come across this ruck in the texture of it they would have straightened it out  He must then do as they would have done
A judge must not alter the material of which the Act is woven but he can and should iron out the creases
 I conceive it my duty therefore so to read the new Act unless I am prevented by the intractability of the language used as to make it carry out the obvious intention of the legislature
Now there does not seem to be the slightest doubt that the intention of the makers of the new Act was that there should be elections held under it and that the Municipal Committees should be constituted by such elections to run the administration of the municipalities
The sections to which I have so far referred and the other provisions of the new Act make this perfectly plain
Thus section 5 provides for the establishment of municipal committees and section 8 states that the committees shall consist of a certain number of elected members
The other sections show that the Committees shall have charge of the administration of the municipalities for the benefit of the dwellers within them
It is plain 1 164 351 that the entire object of the new Act would fail if no general election could be held under it
The question then is How should the Act be read so as to make it possible to hold general elections under it  I agree with the learned advocate for the appellants that the only section in the new Act providing for general elections being held is section 161
In my view section 20 does not authorise the holding of any general election it only provides for a notification of the date on which the poll shall if necessary be taken
There is no doubt that under section 161 the second and all subsequent general elections can be held  in regard to such general elections no difficulty is created by the language of the section
It would be curious if section 20 also provided for general elections for then there would be two provisions in the Act authorising general elections other than the first
Then I find hat all the sections referring to general elections refer to such elections being held under section 161 and not under section 20
Thus section 31 provides that if at a general election held under section 16 no member is elected a fresh election shall be held
It would follow that if in an election under section 20 assuming that that section authorises an election no member is elected no fresh election can be held
There would be no reason to make this distinction between elections held under section 16 and under section 20
Again the proviso to section 17 requires a certain notification to be issued within a prescribed time for holding elections under section 161
If an election can be held under section 20 no such notification need be issued for there is no provision requiring it
This could not have been intended
For all these reasons it seems to me that section 20 does not confer any power to hold any election
I have earlier said that the suggestion for the appellants is that the best way out of the difficulty is to read section 34 as specifying a term of office of three years commencing from the coming into force of the new Act for the members elected under the repealed Act who are to be deemed under section 320 to be a committee constituted under the new Act
It seems to me that this is not a correct solution of the problem
First 316 the object of continuing the members elected under the repealed Act in office is clearly to have what may be called a caretaker committee to do the work of the Municipality till a committee is constituted by election under the new Act
It could not have been intended that the committee of the members elected under the repealed Act would function for three years after the new Act has come into operation nor that such members would have the same term of office as members elected under the new Act
Secondly I do not find the language used in section 34 sufficiently tractable to cover by any alteration a member elected under the repealed Act
To meet the suggestion of the appellants a new provision would have really to be enacted and added to section 34 and this I do not think is permissible
It would be necessary to add to the section a provision that in the case of members elected under the old Act the term of office of three years would start running from the commencement of the new Act a provision which is wholly absent in the section as it stands
Lastly so read section 34 would come into conflict with section 320 which expressly provides that the term of office of the members elected under the repealed Act would continue till the first meeting of the committee constituted under the new Act is held under section 35
This portion of section 320 would have to be completely struck out
It seems to me that the real solution of the difficulty lies in construing section 161 so as to authorise the holding of the first general election under it and remove the absurdity of there being no provision directing the first general election to be held
Now that section applies to every general election requisite for the purpose of this Act
 It therefore applies to the first and all other general elections
The clear intention hence is that the first general election will also be held under this provision
But such election cannot be held within the time mentioned therein for that time has to be calculated from the expiry of the term of office of the Committee elected under the Act and in the case of the first general election under the new Act there is no such Committee
The requirement 317 as to time cannot apply to the first general election
The section has therefore to be read as if there was no such requirement in the case of the first general election
It will have to be read with the addition of the words  provided that every general election excepting the first general election shall be held  between the words  prescribed  and  within 
That would carry out the intention of the legislature and do the least violence to the language used
So read there would be clear power under the Act to hold the first general meeting
There would of course then be no indication as to when this election is to be held but that would only mean that it has to be held within a reasonable time of the commencement of the new Act
The course suggested by me is not without the support of precedents
Thus in Salmon vs Duncombe 1 the Judicial Committee in construing a statute omitted from it the words  as if such natural born subject resided in England  because the retention of those words would have prevented the person contemplated getting full power to dispose of his immovable property by his will which it was held the object of the statute was he should get
With regard to the other point argued in this appeal namely whether the Municipal Committee even if properly constituted has power to sell the land mentioned in the petition I agree for the reasons mentioned in the judgment delivered by the majority of the members of the bench that it has such power and have nothing to add
The appeal therefore fails
Appeal dismissed


Summary:
The appellant effected sales during the period 26 1 1950 to 31 3 1950 whereunder the property in the goods passed in the State of Bihar but delivery was effected outside Bihar for consumption outside Bihar
In some of these sales the goods were delivered in the State of first destination for consumption therein whilst in other cases the goods were not for consumption in the State of first delivery of destination
The appellant contended that both these categories of sale were exempt from tax under article 2861a as they were outside sales
Held per Hidayatullah Das Gupta and Rajagopala Ayyangar JJ that the sales where delivery in the State of first destination was for consumption therein were outside the State of Bihar within the Explanation to article 2861a and Bihar could not tax them but the sales where delivery in the State of first destination was not for consumption therein were not  Explanation Sales  and were not  outside  sales and Bihar could tax them
Where the property in the goods passed within the State as a direct result of the sale the sale was not an  outside  sale for the purpose of article 2861a unless it fell within the Explanation
In the first category of sales the appellant was entitled to the
exemption and it was not necessary for it to prove that the goods delivered for consumption in the State of first destination were actually consumed therein
The State of Bombay vs United Motors India Ltd and Bengal Immunity Company Ltd vs The State of Bihar  referred to
Burmah Shell Oil Storage  Distributing Co of India Ltd vs The Commercial Tax Officer C A No 751 of 57 and C A No 10 of 1958 Unreported relied on
Per section K Das and Shah Jj
Section 33 introduced in the Bihar Sales Tax Act by the Adaptation of Laws Order 1951 engrafted the same restrictions on the taxing power of the State on the pre Constitution statutes as were imposed by article 286 upon post Constitution statutes
Section 331a1 of the Act took away only the power to tax  Explanation Sales  but not the power to tax  non Explanation Sales 
A sale in which goods had been delivered outside Bihar but not as a direct result of 277 the sale or not for the purpose of consumption in the State of first delivery was not covered by the Explanation and the right to tax the sale if it arose otherwise under the Act was not impaired by section 331ai