*THE HON'BLE SRI JUSTICE P.S. NARAYANA +W.P.No.49 of 1997 % 13-11-2007 # B.Lakshman and another .... PETITIONERS AND $ The Union of India, Ministry of Defence, New Delhi, rep. by its Secretary and two others ...RESPONDENTS <GIST: >HEAD NOTE: ! Counsel for the petitioners : Mr.D.V.Seetharama Murthy ^ Counsel for the respondent No.1 : Mr.Deepak Bhattacharjee ^ Counsel for the respondent No.2 : Mr.Y.V.Ravi Prasad ?CASES REFERRED : 1. AIR 1987 A.P. 15 THE HONOURABLE SRI JUSTICE P.S.NARAYANA Writ Petition No.49 of 2007: Date:13-11-2007 Between: B.Lakshman and another .. Petitioners And The Union of India, Ministry of Defence, New Delhi rep. By its Secretary and two others. .. Respondents ORDER: Heard Sri D.V.Seetharama Murthy, the learned counsel representing the writ petitioners, Sri Deepak Bhattacharjee, the learned counsel representing the first respondent and Sri Y.V.Ravi Prasad, the learned counsel representing the second respondent. 2. This Court issued Rule Nisi on 05.01.2007. In W.P.M.P.No.69 of 2007, this Court made the following order: “The petitioners who are the elected members of the Cantonment Board, Secunderabad filed the main writ petition aggrieved by the action of the respondents in not permitting them to function as members of the Cantonment Board. It is not in dispute that after the petitioners were elected vide notification dated 19.05.2006, which was notified by the Government of India under Section 16(1) of the Cantonments Act, 1924, the Cantonments Act 2006 (41 of 2006) has come into force w.e.f. 18.12.2006. By virtue of the said Act, the Cantonment Act, 1924 stood repealed. It is not in dispute that in exercise of powers conferred under clause (b) of sub-sections (1) & (4) of Section 13 of the Act 41 of 2006 the Central Government made a declaration to vary the constitution of Secunderabad Cantonment Board w.e.f. 18.12.2006 up to 31.07.2007 and by a consequential notification dated 18.12.2006 notified constitution of a Board in terms of sub-section (3) of Section 13 of the Act 41 of 2006. It is also not in dispute that the Board so constituted under the Notification dated 18.12.2006 has taken charge and has been functioning. Whether the powers under Section 13(1) of the Act 41 of 2006 can be exercised for varying the Board constituted under the repealed Act, in the absence of any specific provision under Act 41 of 2006 for cessation of the Board elected under the repealed Act is a larger question which requires consideration in the main writ petition after the necessary counter-affidavits are filed by all the respondents. So far as this miscellaneous petition is concerned, it is to be noted that out of the 7 elected members only two members are before this Court seeking a direction to permit them to continue as members of the Cantonment Board. Since the members of the Board constituted under Section 13 (3) of the Act 41 of 2006 have already assumed charge, the direction as prayed for cannot be granted until and unless the notification dated 18.12.2006 is set aside. That apart, as rightly contended by the learned counsel for the respondents, in view of the savings clause under Section 360 (2) of the Act 41 of 2006 the notification in which the elected Board was notified under the repealed Act which is not in accordance with the provisions of the Act 41 of 2006, prima facie appears to be inoperative on the enforcement of the Act 41 of 2006. Hence, the directions as prayed for cannot be granted as an interim measure. Accordingly, W.P.M.P. is dismissed. However, having regard to the nature of the dispute involved, I deem it appropriate to post the main writ petition for final hearing at an early date. Accordingly, Registry is directed to post the writ petition for final hearing on 05.02.2007 subject to part- heard.” 3. W.P.M.P.No.760 of 2007 was ordered on 05.01.2007 and by virtue of the same, the third respondent was impleaded as party. It appears that the writ petitioners being unsuccessful in getting interim order, carried the matter by way of Writ Appeal No. 112 of 2007 and the same was dismissed on 06.02.2007. 4. Sri D.V.Seetharama Murthy, the learned counsel representing the writ petitioners had taken this Court through the contents of the affidavit filed in support of the writ petition and also the respective stands taken by the parties and would submit that when the elected term of the body did not expire, the question of issuing such impugned notice is not justified. The learned counsel had also taken this Court through the chronological events, the relevant dates and also the relevant provisions of Cantonment Act, 2006 (hereinafter referred to as ‘the present Act’) and the Cantonment Act, 1924 (hereinafter referred to as ‘the repealed Act’) and would submit that in the light of the language of Sections 12, 30, 34, 60 and 360 of the present Act, it cannot be said that the provisions are retrospective and the present Act being prospective, the period of elected body cannot be reduced by virtue of such notification and at any rate, there are no reasons at all and even otherwise, Section 13(b) of the present Act cannot be said to be applicable to the facts of the case. The learned counsel would submit that the substance of the prayer prayed for in the writ petition to be taken into consideration and the relief can be moulded by this Court depending upon the facts and circumstances of the case. 5. Sri Deepak Bhattacharjee, the learned counsel representing first respondent would submit that under what circumstances, the impugned action had been taken since in the light of the changed situation, in as much as the composition of the body itself is changed under the present Act when compared to the repealed Act, the elected body to be replaced. The learned counsel would also submit that it is a general notification and further the learned counsel would submit that as per his instructions, the elections are going to be held to all these Cantonments in January 2008. The learned counsel also would submit that in such a case, the question of recorded reasons may not be necessary in the light of legislative change. The learned counsel also relied on certain decisions. 6. Sri Y.V. Ravi Prasad, learned counsel representing the second respondent representing had taken this Court through the counter-affidavit and would submit that the substantial stand taken by the second respondent is the same stand taken by the first respondent and only a consequential order was made and the notification as such had not been challenged. The learned counsel also explained the subsequent events and would submit that in the facts and circumstances of the case, the writ petition being devoid of merit and the same is liable to be dismissed. 7. Heard the counsel. 8. The present writ petition is filed by the petitioners viz. B.Lakshman and B.Prabhakar, the elected members of the Cantonment Board, Secunderabad praying for a writ of mandamus declaring the action of the respondents in not permitting them to function as members of the Cantonment Board by virtue of the order, dated 18.12.2006, as arbitrary and illegal being violative of Articles 14, 21 and 243-P of the Constitution of India, apart from being contrary to the various provisions of the present Act and pass such other suitable orders. 9. The case of the writ petitioners is that they were duly elected members of Ward Nos.2 and 3 respectively in the elections conducted to Cantonment Board on 06.08.2006, results were declared on 07.08.2006 in Form 9 under Rule 9 of the Rules issued under the Cantonment Act. The said result was communicated to the first respondent. In pursuance of the same, the first respondent issued a notification on 23.08.2006 notifying the election of the first petitioner and another petitioner herein along with other candidates. A copy of the same is filed in the material papers for the ready reference of the Court. After the notification of the first respondent, proceedings were issued by the second respondent on 26.08.2006 informing about the special meeting to be held on 30.08.2006, wherein the first petitioner and the another petitioner herein and other candidates were to take oath and the copy of the same is filed in the material papers for ready reference of the Court. Accordingly, all the members elected from their respective wards took oath on 30.08.2006 and thereafter, the election of the Vice president was also held and one Mr.P.Gourishankar was elected as the Vice President of the Cantonment Board. Subsequent to their election as the members of the Board, they transacted the business of the Board while conducting the meetings by issuing agenda notice and taking consequential decisions in pursuance of the meeting held on 28.10.2006. The extracts of the relevant proceedings are filed in the material papers to show that the Board is functioning by virtue of their election as the members of the Board. Similarly, they were also asked to participate in several meetings of the Board as is evident from the proceedings dated 16.09.2006 and 18.09.2006. All the above proceedings would clearly show that they are functioning as the members of the Cantonment Board. Therefore, all of them have a valid right to continue as such for a period of five years, as such they were elected. Further it is averred that while matters stood thus, the petitioners came to know through a news item appeared in Eenadu Telugu Daily, dated 19.12.2006 that the elected board was dissolved. A copy of the said news item along with translation is filed in the material papers for the ready reference of the Court. Thereafter, the petitioners approached the authorities, then they have issued the proceedings dated 22.12.2006 enclosing the impugned proceedings dated 18.12.2006, wherein it was mentioned that the said action of the respondents in dissolving the elected board under the guise of varying the constitution in the Cantonment Board by virtue of the present Act which is highly illegal, unjust, arbitrary, highhanded and capricious on the part of the respondents, which is tainted with legal mala fides and also contrary to the principles of natural justice, violative of fundamental rights guaranteed under Articles 14, 21, 243-P and various provisions of the Cantonment Act. Therefore, the same has to be set-aside with a further direction to the respondents to continue them as the members of the Cantonment Board for the term for which they were elected. Specific stand has been taken that the respondents did not issue any notice before issuance of the proceedings nor did they inform about the dissolution of the board except stating in the news item, which appeared on 19.09.2006. The respondents without passing any order with reference to the dissolution of the Board further had not permitted the petitioners to function as members of the Board under the guise of the order, dated 18.12.2006 wherein the Central Government had taken a decision to vary the constitution of the Board by virtue of the provisions of the present Act. Such action is arbitrary and violative of Article 14 of the Constitution of India. Further it is averred that the respondents 1 and 2 have no power to remove the elected members of the Board except by way of power conferred upon them under Section 34 of the present Act. Section 34 of the Present Act deals with removal of members which reads as hereunder: “34. Removal of members:- (1) The Central Government may remove from a Board any member thereof, who— (a) becomes or is found to have been at the time of his election or nomination subject to any of the disqualifications specified in sub-section (2) of section 28 or in section 29; or (b) has absented himself for more than three consecutive meetings or three months (whichever is later) of the Board and is unable to explain such absence to the satisfaction of the Board. Explanation: In computing the aforesaid period of three consecutive months, no account shall be taken of any period of absence with the leave of the Board; or (c) has knowingly contravened the provisions of section 32; or (d) being a legal practitioner, acts or appears on behalf of any other person against the Board in any legal proceeding or against the Government in any such proceeding relating to any matter in which the Board is or has been concerned or acts or appears on behalf of any person in any criminal proceeding instituted by or on behalf of the Board against such person. (e) has himself done or aided or abetted encroachments and illegal constructions on defence land in contravention of the provisions of this Act and rules and bye-laws made thereunder. (2) The Central Government may remove from a Board any member who, in the opinion of the Central Government, has so abused in any manner his position as a member of the Board as to render his continuance as a member detrimental to the public interests. (3) The General Officer Commanding-in-Chief, the Command may, on receipt of a report from the Officer Commanding the station remove from a Board any military officer nominated as a member of the Board who is, in the opinion of the Officer Commanding the station, unable to discharge his duties as a member of the Board and has failed to resign his office. (4) No member shall be removed from a Board under sub- section (1) or sub-section (2) of this section unless he has been given a reasonable opportunity of showing cause against his removal.” 10. Further specific stand has been taken that the respondents do not have power to supersede the Board except for the grounds mentioned in Section 60 of the present Act. Section 60 of the Present Act deals with supersession of the Board and the said provision reads as hereunder: “60. Supersession of Board: (1) If, in the opinion of the Central Government, any Board is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this Act or otherwise by law, or exceeds or abuses its powers, the Central Government may by an order published, together with the statement of the reasons therefore, in the Official Gazette, declare the Board to be incompetent or in default or to have exceeded or abused its powers, as the case may be, and supersede it for such period as may be specified in the order: Provided that no Board shall be superseded unless a reasonable opportunity has been given to it to show cause against the supersession. (2) When a Board is superseded by an order under sub-section (1)--- (a) all members of the Board shall, on such date as may be specified in the order, vacate their offices as such members but without prejudice to their eligibility for election or nomination under clause (c); (b) during the supersession of the Board, all powers and duties conferred and imposed upon the Board or under this Act shall be exercised and performed by the Officer Commanding the station, or by such officer as may be authorized by the Central Government,subject to such reservation if any, as the Central Government may prescribed in this behalf; and (c) before the expiry of the period of supersession elections shall be held and nominations made for the purpose of reconstituting the Board. Section 60 of the present Act correspondents to Section 54 of the repealed Act. Section 54 of the Repealed Act reads as hereunder: “54. SUPERSESSION OF BOARD:---(1) If, in the opinion of the (Central Government), any Board is not competent to perform or persistently makes default in the performance of the duties imposed on it by or under this Act or otherwise by law, or exceeds or abuses its powers, the (Central Government) may, by an order published, together with the statement of the reasons therefor, in the official Gazette, declare the Board to be incompetent or in default or to have exceeded or abused its powers, as the case may be, and supersede it for such period as may be specified in the order; Provided that no Board shall be superseded unless a reasonable opportunity has been given to it to show cause against the supersession. (2) When a Board is superseded by an order under sub-section (1),--- (a) all members of the Board shall, on such date as may be specified in the order, vacate their offices as such members but without prejudice to their eligibility for election or nomination under Cl.(c); (b) during the supersession of the Board, all powers and duties conferred and imposed upon the Board by or under this Act or otherwise by law shall be exercised and performed by the (Officer Commanding the Station) subject to such reservation, if any, as the (Central Government) may prescribe in this behalf; and (c) before the expiry of the period of supersession elections shall be held and nomination made for the purpose of reconstituting the Board.” 11. In the light of the Section 60 of the present Act and Section 54 of the repealed Act, it is stated that under either of these provisions, the respondents have no power to dissolve the Board except to supersede the Board or remove the members as per the provisions specified thereunder. Further it is stated that the election notification was issued on 09.05.2006, As per the same, the election was held on 06.08.2006, results were declared on 07.08.2006 and the same was notified by the first respondent by way of notification on 23.08.2006. The oath was administered on 30.08.2006. Meanwhile the present Act came into force. Section 1(3) of the present Act says that it come into force from the date of publication of the Act in the gazette. The same was gazetted in the month of September, 2006. During the said period, the election was completed, oath was taken and the petitioners have transacted the business of the Board. Hence, the term of the office cannot be varied by virtue of the present Act. Hence, the petitioners are to be continued till the expiration of the term for which they were elected. Further a specific stand has been taken that the present Act cannot be said to be retrospective operation. Section 2 of the present Act deals with the definitions. Section 2(zk) of the present Act defines ‘ordinary election’ means an election held to fill a vacancy in the office of an elected member of a Board arising by efflux of time. Section 360 of the present Act deals with repeals and savings, which reads as under: “360. Repeals and savings.--- (1) The Cantonments Act, 1924 (2 of 1924) is hereby repealed. (2) Notwithstanding the repeal of the Cantonments Act, 1924 (2 of 1924),-- (a) any appointment, notification, order, scheme, rule, form, notice or bye-law made or issued, and any licence or permission granted under the Act shall, in so far as it is not inconsistent with the provisions of this Act continue in force and be deeded to have been made, issued or granted, under the provisions of this Act, unless and until it is superseded by any appointment, notification,order, scheme, rule, form, notice or bye-law made or issued or any licence or permission granted under the said provisions; (b) all debts, obligations and liabilities incurred, all contracts entered into and all matters and things engaged to be done by, with or for the Board shall be deemed to have been incurred, entered into or engaged to be done by, with or for the Board constituted under this Act; (c) all budget estimates, assessments, valuations, measurements or divisions made by the Board shall in so far as they are not inconsistent with the provisions of this Act, continue in force and be deemed to have been made under the provisions of this Act, continue in force and be deemed to have been made under the provisions of this Act unless and until they are superseded by any budget estimate, assessment, valuation, measurement or division made by the Board constituted under the said provisions; (d) all properties, movable and immovable and all interests of whatsoever nature and kind therein, vested in the Board shall with all rights of whatsoever description, use, enjoyed or possessed by the said Board vest in the Board constituted under this Act; (e) all rates, taxes, fees, rents and other sums of money due to the Board shall be deemed to be due to the Board constituted under this Act; (f) all rates, taxes, fees, rents, fares and other charges shall, until and unless they are varied by the Board constituted under this Act, continue to be levied at the same rate at which they were being levied by the Board immediately before the commencement of this Act; (g) all suits, prosecutions and other legal proceedings instituted or which might have been instituted by or against the Board may be continued or instituted by or against the Board constituted under this Act.” Section 10 of the present Act falls under Chapter III of Cantonment Boards and this provision deals with Cantonment Board, sub-section (2) of Section 10 of the present Act specifies that every Board shall be deemed to be a municipality under clause (e) of Article 243P of the Constitution for the purpose of-(a) receiving grants and allocations; or (b) implementing the Central Government schemes of social welfare, public health, hygiene, safety, water supply, sanitation, urban renewal and education. Article 243P of the Constitution of India reads as hereunder: “243P. Definitions:-- In this Part, unless the context otherwise requires,-- (a) ‘Committee’ means a Committee constituted under article 243S; (b) ‘district’ means a district in a State; (c) ‘Metropolitan area’ means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous area, specified by the Governor by public notification to be Metropolitan area for the purposes of this Part; (d) ‘Municipal area’ means the territorial area of Municipality as is notified by the Governor; (e) ‘Municipality’ means an institution of self-government constituted under article 243Q; (f) ‘Panchayat’ means a Panchayat constituted under article 243B; (g) ‘population’ means the population as ascertained at the last preceding census of which the relevant figures have been published. “ 12. It may be appropriate to have a glance of Article 243Q of the Constitution of India also and the said provision reads as under: “243Q. Constitution of Municipalities:--(1) There shall be constituted in every State--- (a) a Nagar Panchayat (by whatever name called) for a transitional area, that is to say, an area in transition from a rural area to an urban area. (b) A Municipal Council for a smaller urban area; and (c) A Municipal Corporation for a larger urban area, in accordance with the provisions of this Part: Provided that a Municipality under this clause may not be constituted in such urban area or part thereof as the Governor may, having regard to the size of the area and the municipal services being provided or proposed to be provided by an industrial establishment in that area and such other factors as he may deem fit, by public notification, specify to be an industrial township. (2) In this article, ‘a transitional area’, ‘a smaller urban area’ or ‘a larger urban area’ means such area as the Governor may, having regard to the population of the area, the density of the population therein, the revenue generated for local administration, the percentage of employment in non-agricultural activities, the economic importance or such other factors as he may deem fit, specify by public notification for the purposes of this Part.” 13. Further it is averred that even if the stand is taken as a correct stand, the same may be applicable in the case of future elected bodies and not in case of already elected bodies. Further it is stated that these elections were held in pursuance of certain directions of the Courts and