Gian Singh v. State Of Punjab And Others

G.S. Singhvi, J.

1. Primarily this petition relates to the claim of the petitioners for issue of a direction to respondent No. 1 to suspend respondent No. 2 from the office of the President, Municipal Committee, Rampura Phul, and further to remove him from that office, but a prayer has also been made for declaring Section 12(3)(ii) of the Punjab Municipal Act, 1911 as ultra vires to the Constitution in so far as it gives a right of vote to the member of the legislative Assembly.

2. Election to the Municipal Committee, Rampura Phul, was held in September, 1992, in which 15 members were elected to the said Municipal Committee. Three members, including two ladies and one person belonging to the Schedule Castes, were co-opted in accordance with the provisions of the Municipal Act, 1911 (for short, the Act). A requisition was made by petitioner Nos. 1, 5 to 7, 11 and 12 for calling a meeting to consider a motion of no-confidence against the President of Municipal Committee (respondent No. 2). A telegram was also sent for requisitioning the meeting. The requisition was received in the office of the Municipal Committee and the Executive Officer made an endorsement on 14.1.1994 itself that the requisition be brought to the notice of the President. Respondent No. 2 called a meeting to be held on 24.2.1994 at 10.0 A.M. Agenda for the meeting was issued vide order dated 27.1.1994 of the Executive Officer but in the notice purpose of the meeting was not mentioned. The requisitionists felt that respondent No. 2 was deliberately not calling the meeting within 30 days of the receipt of the requisition and, therefore, they convened a separate meeting to be held on 8.2.1994 to consider the motion of no-confidence against respondent No. 2. At the same time, they filed Civil Writ Petition No. 15S83 of 1994 and challenged the action of respondent No. 2 in convening the meeting for 24.2.1994. Respondent No. 2 filed a reply to that writ petition and pleaded that the requisition made by the petitioners was placed before him on 27.1.1994 only and, therefore, he had rightly called meeting on 24.2.1994, i.e. within a period of 30 days of the receipt of the requisition. The State Government did not file reply to the writ petition. At the instance of the State, hearing of the writ petition was adjourned but at the same time holding of the meeting on 24.2.1994 was stayed.

3. In the meeting held on 8.2.1994 by the requisitionists, a resolution is said to have been passed by 12 members for removing the President of the Municipal Committee. Deputy Commissioner, Bhatinda was informed about the resolution passed in the meeting of 8.2.1994. Similar intimation was sent to the Executive Officer. However, neither of these authorities took any action to give effect the resolution passed on 8.2.1994. Therefore, the petitioners filed Civil Writ Petition No. 2713 of 1994. This petition was disposed of by a Division Bench on 2.5.1994 after hearing both the sides. The Division Bench directed the Sub- Divisional Officer (C), Rampura Phul district Bhatinda," to call a meeting of the members of the Municipal Committee to consider the agenda of non-confidence motion. The said officer was directed to give seven days notice. The Court also directed that till disposal of the agenda in the meeting no action would be taken against the existing members to disentitle them from voting. In the meeting which was convened for 14.5.1994, 16 members of the committee turned up. However, the Sub-Divisional Officer (C) postponed the meeting on the ground that there was a chaos in the meeting. The resolution containing no-confidence motion against respondent No. 2 was not put to voting. This led to the filing of contempt petition against the Sub- Divisional Officer (C). Simultaneously the petitioner moved Civil Misc. Application No. 5275 of 1994, in Civil Writ Petition No. 2713 of 1994. The petitioners prayed that a local commissioner be appointed to hold meeting in accordance with the order of the Court dated 2.5.1994. After hearing both the parties, the Court passed order dated 2.6.1994 whereby it appointed Shri Vikrant Sharma, Advocate, as an observer for the meeting to be held on 6.6.1994. That meeting was in fact held on the appointed date. Nineteen persons, including Shri Harbans Singh Sidhu, member of the Legislative Assembly and Minister for Animal Husbandry, attended the meeting. In his report submitted to the Court, the Sub.-Divisional Officer (C) mentioned that 12 members voted in favour of the motion and seven against it. These 7 included Shri Harbans Singh Sidhu. On the basis of this voting, the Sub- Divisional Officer (C) declared that the motion of no-confidence had not been carried through. Shri Vikrant Sharma, Advocate, submitted a separate report to the Court in regard to the proceedings held on 6.6.1994. The Court considered both the reports and dispose of the Civil Misc. Application filed by the petitioners with an observation that if there was any grievance against the proceedings of the meeting held on 6.6.1994, fresh proceeding can be taken by the aggrieved party.

4. The petitioners have, now questioned the declaration made by the Sub- Divisional Officer (C) that the motion of no-confidence moved by the petitioners has been defeated. According to the petitioners, the Sub-Divisional Officer has illegally observed that 7 members had voted against the no-confidence, motion. According to the petitioners, three co-opted members of the Municipal Committee ceased to hold office with the amendment of the Punjab Municipal Act, 1911 and, therefore, they had no right to cast their votes in the meeting held on 6,6.1994 and if their votes are ignored from the total number of votes, the motion will be deemed to have been carried out by 11 votes. Another ground of challenge to the declaration made by the Sub-Divisional Officer is that the local member of the Legislative Assembly had no right to vote in the meeting held on 6.6.1994 and if his vote is excluded, the no-confidence motion will be deemed to have been carried out. Challenge to the constitutional validity of the amendment made in the Act is founded on the plea of the petitioners that by amendment made in the year, 1994, the Legislature could not have conferred a right upon the members of the Legislative Assembly to interfere with the functioning of a duly constituted Municipal Committee, which could independently function under the Act of 1911.

5. The writ petition has been opposed by respondent No. 1 on the ground that the petitioners have no right to claim issue of a writ for treating the. no-confidence motion as having been carried because out of 19 members of the Municipal Committee, as many as 7 members voted against the resolution of no-confidence motion. Respondent No. l has pleaded that amendment to the Punjab Municipal Act, 1911, was necessitated in view of 73rd and 74th Constitutional amendments. Respondent No. 1 has also pleaded that right to contest election, the right to become a candidate, the right to vote or not-to vote do not constitute a civil right or a fundamental right so as to entitle an individual to challenge the matters relating to election in a Court of law. Moreover, in terms of the Punjab Municipal Act, 1911, as it stands after amendment, the members of the Legislative Assembly not, only becomes a member of the Municipal Committee; but he/she also gets a right to vote. A reply on more or less same lines has been filed by. respondent No. 2 who has pleaded that by virtue of the Punjab Municipal (Amendment) Act, 1994, a Municipal Committee constituted under that Act shall be deemed to have been constituted as a smaller urban area and the municipality existing for the area shall be deemed to have been constituted under the amended Act for that area and every member of the Municipal Committee shall have a right to vote. The provisions which disentitled the associate member to vote has been deleted and, therefore, all the members of a Municipal Committee are entitled to vote.

6. Argument of Shri Jain, learned counsel for the petitioner, is that the amended Act came into force with effect from 1.6.1994 whereas requisition for no-confidence motion was submitted by the petitioners as early as on 14.1.1994 and, therefore, the provisions of the amended Act are inapplicable to the meeting convened by the petitioners. Learned counsel argued that even respondent No. 2 had issued notice for the meeting to be held on 24.2.1994 and, therefore, only those members of the Municipal Committee should have been allowed to cast their votes who could vote on the resolution of no-confidence motion as on 24.2.1994. Learned Assistant Advocate General and Shri Sibal argued that meeting for consideration of the no-confidence motion was in fact held on 6.6.1994 and, therefore, all the members of the Municipal Committee, who were eligible to cast their votes on the no- confidence motion could legitimately exercise their vote on 6.6.1994. Learned counsel argued that the meeting held on 6.6.1994 cannot be considered to be a meeting held on 24.2.1994.

7. A recapitulation of the facts of the case shows that although requisition for meeting was submitted by the petitioners on 14.1.1994 and the President had called the meeting for 24.2.1994, that meeting did not take place in view of the stay order passed by this Court on 22.2.1994. The petitioners filed a second petition and sought a direction from the Court that the motion of no-confidence resolved in the meeting held on 8.2.1994 be declared as passed. This request was not accepted by the High Court. Instead the Court gave a direction for holding a meeting on 14.5.1994. In that meeting no-confidence motion could not be put to vote. Thereafter, the petitioners themselves filed a Civil Misc. Application and sought fresh direction for holding a meeting to consider the no-confidence motion. Their request was accepted by the High Court on 2.6.1994 and a direction was given for holding a meeting on 6.6.1994. It can thus be said that the meeting dated 6.6.1994 was held under an order of the Court and not strictly on the basis of the requisition submitted by the petitioners. In view of this peculiar fact, it is not possible to uphold the contention of Shri Jain that the provisions of the Punjab Municipal (Amendment) Act, 1994, should be ignored for the purpose of considering the legality of the no-confidence motion.

8. Second contention of Shri Jain is tat even if the amended provisions were to be applied, the motion of no-confidence should be treated to have been carried out because 12 out of 18 members who were eligible to cast their votes had voted in favour of the no-confidence motion whereas six had voted against it. Shri Jain relied on a decision of Division Bench in, Civil Writ Petition No. 13190 of 1994 (Dr. Harbhajan Singh v. State of Punjab and Ors. 1995 109 P.L.R. 30 .

9. Shri Sibal, learned counsel appearing for respondent No. 2, on the other hand, argued that the Municipal Act was amended vide notification dated 21.9.1994 and the amended provisions became effective from 1.6.1994 and in terms of the amended provisions the Municipal, Committee will be deemed to have been constituted under the amended Act and, therefore, the member of the Legislative Assembly could legitimately cast his vote in the meeting of no-confidence motion. Shri Sibal placed reliance on the judgments of the Supreme Court in N.P. Ponnuswami v. The Returning Officer , Jyoti Basu v. Debi Ghosal, : A.I.R. 1982 S.C. 983, Rama Kant Pandey v. Union of India , and M. Venugopal v. Divisional Manager, Life Insurance Corporation, Machilipatnam .

10. Shri Sibal further argued that right given to a member of the Legislative Assembly to cast vote will have to be given full effect and, therefore, participation of Shri Harbans Singh Sidhu in the meeting and his action of casting vote in the meeting held on 6.6.1994 cannot be characterised as illegal. He also invited our attention to a decision of this Court in Civil Writ Petition No. 9579 of 1994 (Kulwant Singh and Ors. v. State of Punjab and Ors.) in which a Division Bench held that curtailment of the tenure of an elected body by an amendment in the Act does not result in violation of any constitutional or legal right of the holder of a public office.

11. Section 4 of the Punjab Municipal Act, 1911, as it stood prior to the amendment of 1994, contained procedure for constituting municipality. The State Government was empowered to constitute any local area as a Municipality. Section 5 empowered the Government to alter the limits of a Municipality. Sections 6 and 7 dealt with exclusion of any local area from the Municipality. Section 11 dealt with establishment of committees whereas Section 12 provided for the constitution of committees. Section 12-A, 12-B, 12-C, 12-D and 12-E dealt with issue of co-option from amongst Balmikis, Churas, Bhangis, Women, Backward Classes other than Scheduled Castes and also provided the manner of co-option and the consequences of failure of a Municipal Committee to co-opt in accordance with Sections 12A, 12-B and 12-C. Section 14 gave power to the Government to issue direction in relation to the constitution of committees. Section 15 contained provisions regarding resignation of member of a committee. Section 16 empowered the Government to remove members.

12. In the year, 1992, the Parliament enacted the Constitution (74th Amendment) Act, 1992, and added Part-IX-A to the Constitution. This part consists of 18 Articles numbered as Article 243P to Article 243ZG. Article 243P contains definitions of terms Committee, District, Metropolitan area, Municipal area, Municipality, Panchayat and Population. Article 243Q deals with constitution of Municipalities. Article 243R deals with composition of Municipalities. Clause (2) of this Article empowers of the Legislature of a State of enact law for providing representation in a municipality of person having special knowledge or experience in local administration, members of the House of the People and members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area, the members of the Council of States and the member of the Legislative Council of the State registered as electors within the Municipal area. Sub-Clause (iv) of clause (2) of Article 243R contains a proviso to the effect that the members having - special knowledge or experience in local administration shall not have the right to vote in the meeting of the Municipality. Article 243S deals with constitution and composition of Wards Committees. Article 243T speaks of reservation of seats for the Scheduled Castes and the Scheduled Tribes, Women and Backward Classes. Article 243U provides for the tenure of the Municipalities. Article 243V speaks of disqualifications for membership. Article 243W empowers, the Legislature of a State to make law conferring powers and authority on the Municipalities. Article 243X confers powers on the Legislature of a State of enact law to authorise the Municipalities to levy, collect and appropriate such taxes, duties, tolls and fees. Article 243Y envisages role of the Finance Commission constituted under Article 243I in matters relating to financial position of the Municipalities. Article 243Z empowers the State Government to enact law to provide for maintenance of accounts by the Municipalities and the auditing of such accounts. Article 243ZA deals with election to the Municipalities. Other Articles are really not relevant in the context of the present controversy and, therefore, reference to them is being avoided. Of the above-referred Articles, Articles 243Q, 243R and 243U are quoted below for ready reference :-

"Article 243-Q.

(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 purpose of this Part.

Article 243-R.

(1) Save as provided in clause (2), all the 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.

(2) The Legislature of a State may, by law, provide-

(a) for the representation in a Municipality of-

(i) persons having special knowledge of experience in Municipal administration ;

(ii) the members of the House of People and the members of the Legislative Assembly of the State representing constituencies which comprise wholly or partly the Municipal area;

(iii) the members of the Council of States and the members of the Legislative Council of the State registered as electors- within the Municipal area ;

(iv) the Chairpersons of the Committees constituted under clause (5) of Article 243S:

Provided that the persons referred to in paragraph (i) shall not have the right to vote in the meetings of the Municipality;

(b) the manner of election of the Chairperson of a Municipality. Article 243U.

(1) Every Municipality unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer:

Provided that a Municipality shall be given a reasonable opportunity of being heard before its dissolution. (2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Municipality at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).

(3) An election to constitute a Municipality shall be completed,

(a) before the expiry of its duration specified in clause (1);

(b) before expiration of a period of six months from the date of its dissolution:

Provided that where the remainder of the period for which the dissolved Municipality would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Municipality for such period.

(4) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under clause (1) had it not been so dissolved."

13. In exercise of the powers vested in it, the Punjab Legislative Assembly enacted the Punjab Municipal (Amendment) Act of 1994 and thereby drastically amended various provisions of Act of 1911, Section 3(8b) of the Act defines Municipal Council, Section 3(8c) defines Municipal area and Section 3(9b) defines the-term newly constituted committee. Section 4, 8, 12 and 13 and various other provisions of the Act of 1991 have been substituted. Likewise existing Sections 6, 7, 9, 10, 11, 12-A, 12-B, 12-C, 12-D and 12-E have been omitted. Substituted Sections 4,12 and 13 of the Municipal Act, 1911 read thus:

"Section 4

(1) Specification of Local areas to be smaller urban areas or transitional area and constitution of Municipal Councils and Nagar Panchayats.

(1) The State Government may, having regard to 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 it may deem fit, specify, by notification in the Official Gazette, any area to be a transitional area or a smaller urban area for the purposes of this Act:

Provided that no military cantonment or any part thereof shall be included in such transitional area or a small urban area :

Provided further such an urban area or part thereof, as the State Government may, having regard to the size of the area and municipal services being provided or proposed to be provided by an industrial establishment in the area and such other factors as it may deem fit, by notification, specify to be an industrial township shall not form part of a transitional area or a smaller urban area.

(2) Where an area is specified as a transitional area or as a smaller urban area under sub-section (1), the State Government may, by notification in the Official Gazette, constitute for the transitional area so specified a Nagar Panchayat and for the smaller urban area so specified a Municipal Council of the first class, second class or third class:

Provided that the State Government may, after consulting the Municipal Council by notification change its classification from one class to another.

(3) Where any area which is within the jurisdiction of any other local authority, is constituted as or included in a transitional area or smaller urban area, the State Government may pass such orders as it may deem fit as to the transfer of such area to the Nagar Panchayat of such transitional area or disposal otherwise, of the assets or institutions of such local authority and as to the discharge of the liabilities, if any, of such local authority, relating to such assets or institutions.

(4) Where any area is excluded from a transitional area or a smaller urban area and included in the area of any other local authority, the State Government pass such order as it may deem fit as to the transfer to such local authority or disposal otherwise of, the assets or institution, of such local authority in that area or as to the discharge of the liabilities, if any, of such local authority, relating to such assets and institutions.

(5) Every area, which immediately before the commencement of the Punjab Municipal (Amendment) Act, 1994 was constituted .as a Municipality under this Act, shall be deemed to have been constituted as smaller urban area under sub-section (1) and Municipality existing for that area before such commencement and specified in Schedule II shall be deemed to have been constituted under this Act for that area.

(6) Every area, which immediately before the commencement of the Punjab Municipal (Amendment) Act, 1994 was constituted as a Notified Area Under Section 241 of this Act, shall be deemed to have been specified as a transitional area or a smaller urban area under sub-section (1) and a Municipality of the category as indicated in Schedule III shall be deemed to have been constituted under this Act for that area.

Section 12:

Composition of Municipalities :- (1) A Municipal Council or a Nagar Panchayat constituted Under Section 4 shall consist of a body of members, specified in section (3), having authority over such area.

(2) The Nagar Panchayat or the Municipal Council constituted under sub-section (1) shall be a body corporate having perpetual succession and a common seal with powers, subject to the provisions of this Act, to hold, acquire and dispose of property and may by that name sue or be used.

(3) The Nagar Panchayat or the Municipal Council constituted under sub-section (1) shall consist of the following members, namely :

(i) such number of elected members as may be determined from time to time by the State Government in accordance with the prescribed principles; and

(ii) all members of the Legislative Assembly of the State representing constituencies comprising wholly or partly the Municipal area.

Section 13:

Duration of Municipalities :- (1) Every Municipality save as otherwise provided in this Act, shall continue for five years from the date appointed for its first meeting and no longer.

Explanation:- In this section first meeting means the meeting of the newly constituted Municipality held for the election of its President and Vice President Under Section 20 of this Act.

(2) All Municipalities existing immediately before the commencement of the Constitution (Seventy-Fourth) Amendment Act, 1992, shall continue fill the expiration of their duration unless sooner dissolved by a resolution passed to that effect by the State Legislature.

(3) An election to constitute a Municipality shall be completed,

(a) before the expiry of its duration specified in sub-section (1);

(b) before the expiration of a period of six months, from the date of its dissolution :

Provided that when the remainder of the period for which the dissolved Municipality would have continued is less than, six months, it shall not be necessary to hold any election under clause (b) for constituting the Municipality for such period.

(4) The first election to a Municipality constituted under this Act after the commencement of the Punjab Municipal (Amendment) Act 11, 1994, shall be held within a period of six months of its being notified as such.

(5) Elections to the Municipalities where no elected body exists immediately before the commencement of Punjab Municipal (Amendment) Act 11, 1994, shall be held within a period of six months from the date of such commencement.

(6) A Municipality constituted upon the dissolution of a Municipality before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Municipality would have continued under sub-section (1) had it not been so dissolved."

14. A combined reading. of the provisions of the Constitution together with the Punjab Municipal Act, 1911, as it stood prior to its amendment by the amending Act of 1994, as also the amended provisions, shows that even before the addition of Part-IXA to the Constitution, the Legislature of Punjab had enacted the Punjab Municipal Act which dealt with constitution of the Municipalities, composition thereof, the duration of the Municipalities, term of the office of the members etc. What has been achieved by the 74th Amendment of the Constitution is to make uniform provisions all-over the country in regard to the Municipalities. There was a demand for uniform legislation governing the Municipalities in the entire country and by virtue of 74th Amendment, the Parliament has achieved the objective of having a common piece of legislation governing all the Municipalities in the country. At the same time, Legislature of the respective States have been empowered to make suitable provisions according to the need of a particular local area. In terms of unamended Section 4 of the Act of 1911, the Government had the power to constitute a local area into a Municipality. Similar power has been conferred under the amended Section 4(1). The difference is that under the amended Section 4, the State Government can constitute a transitional area into a Nagar Panchayat and a smaller urban area into a Municipal Council of the first class, second class or third class. Sub-section (5) of Section 4, as it stands after amendment, contains a deeming clause and provides that every area which was constituted as a Municipality under the Act of 1911 immediately before the commencement of the Punjab Municipal (Amendment) Act 11, 1994, be deemed to have been constituted as a smaller urban area Under Section 4(1) and the existing Municipality shall be deemed to have been constituted under the Act for that area. Section 12, as it stood prior to its amendment of 1994, dealt with constitution of the committees. Such committee was to consist of the elected members, co-opted members and associated members. Proviso to Section 12(l)(c) imposed a bar on the associate member from exercising his right to vote in any meeting of the committee or its sub-committee. Amended Section 12 deals with composition of Municipalities. Section 12(5) says that the Municipal Council shall consist of elected members and all members of the Legislative Assembly of the State representing constituencies comprising wholly or partly the Municipal area. Unamended Section 13(2) provided that term of the office of the elected members shall be five years and the State Government was required to hold fresh election before the expiry of the aforesaid term. Term of the office of an associate member was co-terminus with his term as member of the Legislative Assembly. Section 13(2-B) also provided that the term of office of a co-opted member shall be coterminous with term of elected member fixed under sub-section (2). Under the amended provisions, the term of a Municipality has been fixed as five years from the date appointed for its first meeting. Sub-section (2) of Section 13 has saved the existing municipalities till the expiration of their duration subject to earlier dissolution by the State Legislature. In terms of Section 13(4), first election to a Municipality constituted under the amended Act is required to be held within a period of six months of its being notified as such.

15. From the above analysis of the various provisions of the Constitution and the Act of 1911, it is clear that in view of the amendment made in the Act of 1911, the Government is required to issue notification in the Official Gazette to constitute transitional area into a Nagar Panchayat and a smaller urban area into a Municipal Council, and elections are required to be held for the Municipalities constituted under the Act of 1911 after the commencement of the Punjab Municipal (Amendment) Act 11, 1994. However, at the same time, the existing Municipalities have been treated as Municipalities constituted under the Act for a smaller urban area. Section 12, as it stood before the coming into force the amended Act, together with Sections 12-A, 12-B and 12-C if compared with the new Section 12(1) clearly shows that constitution of the Municipalities under the unamended Act is drastically different than the composition of a Municipal Council under the new Section 12. Coupled with this, provisions contained in Section 13, as it stands after commencement of the Amendment Act, 1994, clearly shows that the Legislature has intended that while the existing Municipalities shall not be disturbed, election should be held to the new Municipal Council after coming into force the amended Act, 1994. Since the existing Municipalities have been saved by virtue of Section 4(5) in so far as its geographical area is concerned and even the tenure of existing Municipalities has been saved by virtue of Section 13(2), it is clear to us that all those persons who were members of the existing Municipalities would continue to hold the office till the expiry of term subject to the dissolution of the Municipality by a resolution of the State Legislature. The saving of existing Municipalities logically means that even those who had been co-opted as members of the Municipal Committees Under Sections 12-A, 12-B and 12-C will continue to hold their office. There is nothing in the scheme of the amended Sections 4, 12 or 13 to indicate that with the coming into force the amended provisions, the composition of the Municipality would undergo a change. In fact such a situation would have led to a serious anomaly because while the tenure of the Municipality has been saved the term of the office of various members would have been treated as curtailed. Moreover, the Legislature could not have curtailed the term of the existing Municipalities in view of the Article 243U(2). The language used in Article 243U is unambiguous. It unequivocally saves the term of the existing Municipalities. Therefore, in our opinion, all the Municipalities which were in existence on 1.6.1994 will continue for their full term subject of course, to the provisions contained in Article 243U and Section 13 of the Act of 1911. This would naturally mean that the rights which were being enjoyed by the members of such Municipalities / Municipal Committee would continue to be enjoyed by them till the expiry of the term of the Municipality concerned. This would further mean that if some restrictions were imposed on the existing members, those restrictions would also continue qua such members. We are also of the opinion that the rights which have been conferred on the members by virtue of the amending Act of 1994 will be exercisable by them in the Municipalities to be constituted after election are held in terms of the provisions of the amended Act. In terms of the amended Act different form of reservation will have to be made for every Municipality and unless the elections are held under the amended Act, the percentage of reservation for Scheduled Castes, Backward Classes and Women cannot be given effect to. Therefore, the provisions of the amended Act will have their application only in future. They have not been made applicable to the existing Municipalities and, therefore, we do not find any justification to hold that the restriction which operated on an associated member Under Section 12(1) (c) and proviso thereof stands obliterated in so far as the old Municipalities are concerned. Only after change in the composition of the Municipalities in terms of Section 12(1) read with Section 8, the members will enjoy rights and privileges under the amended Act. In our opinion, the view taken by the Division Bench in Dr. Harbhajan Singhs case (Supra) does not require reconsideration.

16. Argument of Shri Sibal that the deeming clause contained in Section 4(5) should be given full effect to, clearly misses the fact that composition of the Municipalities envisaged in Section 12 read with amended Section 8 is vastly different than the existing composition of the Municipalities. A Municipal Council or Nagar Panchayat will have its composition in terms of the amended provisions only after new elections. The status of co-opted members and associated members will undergo a change only when the new Municipal Committees are constituted and not in the existing Municipalities. The deeming clause contained in Section 4(5) does not have any effect on the interpretation of Section 12, as it stands amended. It is noteworthy that while Section 4 deals with the constitution of the Municipalities and Nagar Panchayats in the context of geographical consideration, Section 12 deals with composition of the Municipal Council or Nagar Panchayats as a body of several members. The rights and privileges available to, the members of the Municipal Council/Municipal Committees under the unamended Act cannot be treated to have undergone a change on the basis of the amended Section 12. Therefore, the associate members cannot be treated to have acquired a right to cast vote in the meeting of the Municipality or its sub-committee.

17. Decisions of the Supreme Court on which Shri Sibal placed reliance are of no help to the case, of respondent No. 2. In N.P. Ponnuswami v. The Returning Officer (Supra), Jyoti Basu v. Debi Ghosal (Supra), and Rama Kant Pandey v. Union of India (Supra) the Supreme Court has held that right to vote or right to be elected is neither a civil right nor a fundamental right but a statutory right and the same can be taken away by amendment of the statute. This proposition of law has no relevance in the context of controversy relating to right of an associate member to cast his vote for/against a motion of no-confidence against the President of a Municipal Committee. In M. Venugopals case (Supra) the Supreme Court has dealt with the effect of a deeming clause. The principle enunciated by the Supreme Court in para 11 of that decision is unexceptionable but as we have already held above, the deeming clause incorporated in Section 4(5) does not have the effect of conferring any right on an associate member under the amended Section 12. Therefore, the decision in M. Venugopals case (Supra) is also of no help to the case of respondent No. 2.

18. In view of the above discussion, it must be held that Shri Harbans Singh Sidhu who was non associate member of the Municipal Committee, Rampura Phul had no right to cast his vote in the meeting held on 6.6.1994 to consider the no- confidence motion moved against respondent No. 2. If his vote is excluded, it is clear that 12 votes were polled in favour of the no-confidence motion and six will be deemed to have been polled against the no-confidence motion. Therefore 2/3rd of the members of the Municipal Committee will be deemed to have cast their vote in favour of the no-confidence motion and the same will be deemed to have been carried through.

19. In the result, the writ petitions is allowed. Declaration made by the Sub-Divisional Officer (Civil), Rampura Phul, that no-confidence motion against respondent No. 2 has not been carried is declared illegal and is quashed. The respondent - State Government is directed to take appropriate action in accordance with the Act of 1911 on the premise that the no-confidence motion has been passed against respondent No. 2. Parties are left to bear their own costs.