Kuna Manikyam Pandu and ors., Chairman and Councillors of Municipalities Vs. Government of A.P., Represented by the Secretary, Municipal Administration and Urban Development Department and anr. - Court Judgment

Excerpt:
- all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and (5) of rule 5 are solely dependent on compliance with sub-rule (3) by the tenant. the payment or deposit of rent under section 11 read with sub-rule (6) of rule 5 arises only in respect of a tenant who did not take recourse to section 8 or section 9 before an application for eviction has been made against him in respect of any rent in arrears by date of that application, whereas in respect of rent that becomes subsequently due since date of application for eviction, the tenant is bound to pay or deposit regularly until termination of proceedings in order to enable him to contest the application. any violation of section 11(1) to (3) and sub-rule (6) of rule 5 makes the tenant liable for the adverse consequences under sub-section (4) of section 11. thus, the provisions of section 11 and sub-rule (6) of rule 5 are intended only to ensure the payment and deposit of rent including arrears during pendency and till termination of proceedings for eviction. the forfeiture of right of tenant to contest in case of default is to protect the rights and interests of landlord pending such an application for eviction, but not to confer any right on tenant to plead that all defaults committed by him prior to application for eviction can never be considered wilful, if he were to deposit all arrears of rent due within fifteen days under rule 5(6) read with sub-section (1) of section 11. the object and effect of section 11 and sub-rules (1) to (5) to rule 5, the former being for protection of landlord during pendency of eviction proceedings and the later being for protection of tenant to avoid any liability for eviction on ground of wilful default. consequently, while taking recourse to section 8 by tenant is optional, once that option is exercised, compliance with sub-rules (1) to (5) of rule 5 becomes mandatory in the sense that any non-compliance with prescribed procedure will positively indicate the wilful nature of default committed in paying or tendering rent as prescribed. while deposit of rent in terms of provisions of act and the rules amounts to valid tender of rent to landlord, the failure to comply with rule 5 (3) requiring delivery of a copy of the challan for deposit of rent in office of controller or appellate authority, as the case may be, so as to enable controller or appellate authority to cause maintenance of proper accounts under sub-rule (5) and give notice of deposit to person amounts to wilful default in making valid payment or lawful tender of the rent by the tenant to the landlord. thus, where a tenant obtains an order to deposit rent, same shall be deposited at least by the last day of the month following that for which rent is payable and rent challan shall be delivered in the office of controller within a reasonable time so that rent controller can take necessary action for service of notice of deposit under sub-rule (4) of rule 5 of the rules within seven days of such delivery. in the absence of compliance in so depositing rent and delivering challan in the office of controller, tenant shall be deemed to have committed wilful default. - it is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. the classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. it is also well established by the decisions of this court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure. section 7(5) clearly lays down that the term of office shall expire at the end of five years only if the date specified under sub-section (2) is the first day of july and in other cases the term will expire at the end of five years from the first day of july immediately preceding such date. it is not the function of this court to go into questions of propriety or how better results could have been achieved by the legislature if a certain device had been adopted. the statute, also provides for extension of tenure, (proviso to 20(1)(a) and the proviso to sub-section (3) of section 23) to overcome difficulties, if any, in this regard. 14. for the foregoing reasons the writ petitions fail and accordingly they are dismissed.orderm.n. rao, j.1. on 6-3-88 elections were held in 25 newly constituted municipalities in the state of andhra pradesh for election of chairmen and councillors. the chairmen and councillors of nine (9) municipalities have filed these writ petitions seeking a declaration that they are entitled to continue in their respective offices till 21-3-1993 or in the alternative a writ of certiorari to quash sub-section (5) of section 7 of the a.p. municipalities act, 1965 (hereinafter referred to as the act).2. there are 108 municipalities in the state of andhra pradesh. section 3(1) of the act confers power on the state government by notification in the a.p. gazette to constitute a local area in the vicinity thereof or to exclude from a municipality any local area comprised therein. section 5 lays down that there shall be constituted for every municipality a body called the municipal council having authority over the municipality and consisting of such number of councillors as may be notified in the a.p. gazette by the government in the manner specified therein. sub-section (2) lays down as to who shall be the ex- officio councillor of a municipality and the manner in which he shall be elected. by section 6, every municipality constituted under section 5 shall be a body corporate with a perpetual succession and a common seal. section 7 contains special provisions in the case of newly constituted and reconstituted councils. when a municipality is constituted for the first time the government is empowered by sub-section (1) to appoint a special officer to exercise the powers, discharge the duties and perform the functions of the council, its chairman and the commissioner. under sub-section (1) of section 23 the chairman is elected by the persons whose names appear in the electoral roll for the municipality from among themselves, in the manner prescribed. sub- section (3) lays down that save as otherwise expressly provided in the act, the term of office of the chairman who is elected at an ordinary election shall be five years from the date, appointed by the election authority for the first meeting of the council. the proviso to sub-section (3) empowers the government to extend the term of office of the chairman. under sub-section (1) of section 20 the term of office of elected councillors save as otherwise expressly provided in the act, shall be five years from the date appointed by the election authority for the first meeting of the council. section 7 incorporates special provision in the case of newly constituted and reconstituted councils. sub-section (1) says that notwithstanding any other provision in the act, where a municipality is constituted for the first time, the government may appoint a special officer to exercise the powers, discharge the duties and perform the function of the council, its chairman and the commissioner. sub-section (2) lays down:'7(2) the special officer shall cause arrangements for election to be made so that the chairman and the elected councillors may come into office on such date as may be specified by the government by an order made in this behalf:provided that the government may, from time to time, postpone the date within a period of one year so specified if, for any reason, the elections cannot be completed before such date.'sub-section (5) says: '(5) the term of office of the elected councillors and the chairman shall expire at the end of five years if the date specified under sub-section (2) is the first day of july, and in other cases at the end of five years from the first day of july, immediately preceding such date.'3. until 1986, election to the office of the chairman of a municipality was by indirect election. by act 33 of 1986 section 23 of the principal act was suitably amended providing for direct election of the chairman by the registered voters of the municipality. section 20(1)(a) prior to the amendment act 33 of 1986 was in the following terms:'20(1)(a): the term of office of elected councillors shall, save as otherwise expressly provided in this act, be five years beginning and expiring at noon on the first day of july.'after the amendment it reads:'20(1)(a) the term of office of elected councillors shall, save as otherwise expressly provided in this act, be five years from the date appointed by the election authority for the first meeting of the council.' (proviso omitted)4. under section 7(2) of the act, the state government notified that with effect from 21-3-88 the chairmen and the elected councillors of the newly constituted municipalities shall come into office. the director of municipal administration had requested the state government for clarification as to the term of office of the elective councillors of the newly constituted municipalities. the state government clarified the matter by issuing memo no. 140/election1/91-6/m.a., dated 15-7-91 stating that in respect of the newly constituted municipalities the term of office will expire on 30th june, 1992. these writ petitions were therefore, filed seeking the reliefs stated supra.'5. s/sri e. manohar and m.r.k. choudrary, learned counsel for the petitioners have contended that the petitioners are entitled to continue in office for a period of five years. the purpose of specifying the date in sub-section (5) of section 7 as the first day of july was to enable the state government to conduct elections at a time to both the old and the newly constituted municipalities and that accorded with the position obtaining under the unamended sub-section (1)(a) of section 20 which laid down that the term of office of elected councillors 'shall be five years beginning and expiring at noon on the first day of july.' when sub-section (1) of section 20 was amended by act 33 of 1986 providing for the term of office of the elected councillors as five years from the date appointed by the election authority for the first meeting of the council, the reference to first day of july in sub-section (5) of section 7 became absolutely irrelevant. when sub-section (1) of section 20 was amended, they contended, sub-section (5) of section 7 also ought to have been amended suitably. holding of elections to municipalities old and new should be at one and the same time; if elections could not be held to all the municipalities at the same time, the chairmen and the elected councillors of the newly constituted municipalities should be allowed to continue in office for a period of five years. this court should read down sub-section (5) of section 7 by resorting to harmonious construction. the classification of municipalities into old and newly constituted is irrational and unreasonable. in the context of the stand taken in the counter-affidavit that subsection (5) of section 7 was designed to enable conduct of election to all the municipalities both old and new, the contention advanced on behalf of the petitioners is that such a purpose cannot be achieved after the amendment of sub-section (1) of section 20 as the term of office of the elected councillors of the old municipalities would not empire by the first day of july and so section 7(5) became otiose.6. in opposition to this, the learned advocate-general has argued that as sub-section (5) of section 7 does not suffer from any infirmity, the language employed therein being explicit, it is not possible to resort to the device of reading down its provisions for the purpose of enabling the elected councillors and chairmen of the newly constituted municipalities to continue in office for a period of five years. the classification of the municipalities into old and new is legally permissible. the object of the act is not to hold elections to all the municipalities both old and new at one time but the object is to hold elections at the same time to all the new municipalities which came into existence in one year. even before the amendment of sub-section (2) of section 20 it was not possible to hold elections to all the municipalities in the state at a time. the position fluctuates depending upon the population in local areas; a panchayat may become a municipality if its population crosses the limit of 25,000, and likewise a municipality may lose its status if its population comes down below 25,000.7. the first contention relating to the validity of classification of municipalities into old and new for the purpose of conducting elections and determining the term of office is devoid of merit. a seven member bench of the supreme court as far back as 1955 in budhan choudhary v. the state of bihar, : 1955crilj374 dealing with the question of permissible classification by legislation observed:'it is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. in order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an itelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. the classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. what is necessary is that there must be a nexus between the basis of classification and the object of the act under consideration. it is also well established by the decisions of this court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure.'classification of municipalities into existing and newly constituted ones is absolutely necessary. as already noticed, if a local area has not less than 25,000 population it has to be notified as a municipality and the strength of the number of councillors shall be as specified in section 5(1). as the status of a local area depends upon its population and as section 3(1) confers power on the state government to include any local area in a municipality and likewise to exclude any local area from a municipality, classification of municipalities becomes inevitable. the classification, therefore, is founded upon clear and discernible differentia distinguishing the old municipalities from the newly constituted ones and the same has rational nexus with the object sought to be achieved, namely, to bring them into being statutorily.8. the second contention that sub-section (5) of section 7 should be read down harmoniously so as to enable the chairmen and councillors of the newly constituted municipalities to continue in office for five years cannot be accepted. section 7(5) clearly lays down that the term of office shall expire at the end of five years only if the date specified under sub-section (2) is the first day of july and in other cases the term will expire at the end of five years from the first day of july immediately preceding such date. the date specified under sub-section (2) is 21-3-88 but not the first day of july and, therefore, the petitioners are not entitled to continue in office for five years; the later limb of sub-section (5) comes into operation according to which the five year period had to be computed from the first day of july immediately preceding the specified date. the specified date being 21-3-88, the five year period commences from 1-7-87 and counting from that date the term expires on 30-6-92. it is true that section 20 sub-section (1) before its amendment provided that the term of office was five years beginning and ending at noon on the first day of july. after the amendment the reckoning of the five year period is from the date of the first meeting of the council save as otherwise expressly provided in the act. sub-section (5) of section 7 is a clear exception to section 20(1)(a) in regard to the computation of term of office. the legislative intention was expressed in explicit terms. the computation of five years with effect from the first meeting of the council will have effect only if there are no provisions expressly providing for any other method of computing the term of office. one of the other methods is incorporated in sub-section (5) of section 7 in respect of newly constituted and reconstituted municipalities. therefore, the petitioners being the elected chairmen and councillors of the newly constituted municipalities cannot base their claims on sub-section (1) of section 20.9. the amendment to sub-section (1) of section 20 brought about by act 33 of 1986 dispensing with the first day of july as the starting point for reckoning the period of five years need not necessarily result in any amendment to subsection (5) of section 7. it would have been more appropriate had there been a corresponding amendment to sub-section (5) of section 7, cannot be a valid argument for the purpose of ignoring the specific legislative mandate. it is not the function of this court to go into questions of propriety or how better results could have been achieved by the legislature if a certain device had been adopted.10. the fact remains that by the application of section 7(5) the petitioners cannot continue in office beyond 30-6-92. sub-section (5) cannot be said to be unconstitutional either on the ground of violation of article 14 or want of legislative competence. in such a situation it is not permissible to resort to the device of reading down the provision in order to enable the petitioners to continue in office for five years with effect from the date of first meeting of the municipal council. the doctrine of reading down, it appears, first originated in the public law of australia in the celebrated case of d'emden v. pedder, (1904) 1 c.l.r. 91. according to an australian jurist:'reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being within power. it has the practical effect that where an act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power......being no more than a technique of construction, reading down yields to any contrary intention appearing in the act. the most obvious way in which a contrary intention can appear is by means of explicit language.', colin howard, 'australian federal constitutional law' second edition p. 18.11. if a provision of law, when read literally, is in conflict with any of the guaranteed fundamental rights or outside the legislative competence, the device of reading down the provision is resorted to by courts (vide in re: hindu women's rights to property act, air 1941 fc 72; all saints' high school v. govt. of a.p., : [1980]2scr924 and bhim singh v. union of india, : air1981sc234 .)12. there is no merit in the contention that sub-section (5) of section 7 became otiose after the amendment of sub-section (1) of section 20. no part of the provision should be construed as superfluous is an accepted principle of interpretation. there is no superfluity in sub-section (5) of section 7. it is an integral part of a rational scheme envisaged by the legislature in regard to the newly constituted municipalities and the counter-affidavit rightly says that the object is to enable the municipalities constituted in one year to go for polls at the same time. the position under the unamended law prior to coming into force of act 33 of 1986 did not ensure uniform tenure of five years both for old and new municipalities. it is not possible in the context of section 20(1) and 7(5) to conduct elections at one time to all the municipalities, old and new, and so the act takes care to ensure holding of elections at one time in respect of municipalities brought into being in one year. the statute, also provides for extension of tenure, (proviso to 20(1)(a) and the proviso to sub-section (3) of section 23) to overcome difficulties, if any, in this regard.13. it is needless to mention that right to contest in an election is not a fundamental right; the para meters of the right is regulated by the relevant statute. the petitioners when they contested in the elections were aware of their tenure. even otherwise it is open to the legislature, by appropriate legislation, to regulate and determine the tenure of an elective office. the theory of legitimate expectations has no relevance in judging the legality of a legislative enactment; that applies only to actions of public officials and public bodies.14. for the foregoing reasons the writ petitions fail and accordingly they are dismissed. there shall be no order as to costs.

Judgment:
ORDER

M.N. Rao, J.

1. On 6-3-88 elections were held in 25 newly constituted municipalities in the State of Andhra Pradesh for election of Chairmen and Councillors. The Chairmen and Councillors of nine (9) municipalities have filed these writ petitions seeking a declaration that they are entitled to continue in their respective offices till 21-3-1993 or in the alternative a writ of certiorari to quash Sub-section (5) of Section 7 of the A.P. Municipalities Act, 1965 (hereinafter referred to as the Act).

2. There are 108 municipalities in the State of Andhra Pradesh. Section 3(1) of the Act confers power on the State Government by notification in the A.P. Gazette to constitute a local area in the vicinity thereof or to exclude from a municipality any local area comprised therein. Section 5 lays down that there shall be constituted for every municipality a body called the municipal council having authority over the municipality and consisting of such number of councillors as may be notified in the A.P. Gazette by the Government in the manner specified therein. Sub-section (2) lays down as to who shall be the ex- officio councillor of a municipality and the manner in which he shall be elected. By Section 6, every municipality constituted under Section 5 shall be a body corporate with a perpetual succession and a common seal. Section 7 contains special provisions in the case of newly constituted and reconstituted councils. When a municipality is constituted for the first time the Government is empowered by Sub-section (1) to appoint a special officer to exercise the powers, discharge the duties and perform the functions of the council, its chairman and the Commissioner. Under Sub-section (1) of Section 23 the Chairman is elected by the persons whose names appear in the electoral roll for the municipality from among themselves, in the manner prescribed. Sub- section (3) lays down that save as otherwise expressly provided in the Act, the term of office of the Chairman who is elected at an ordinary election shall be five years from the date, appointed by the election authority for the first meeting of the council. The proviso to Sub-section (3) empowers the Government to extend the term of office of the Chairman. Under Sub-section (1) of Section 20 the term of office of elected councillors save as otherwise expressly provided in the Act, shall be five years from the date appointed by the election authority for the first meeting of the council. Section 7 incorporates special provision in the case of newly constituted and reconstituted councils. Sub-section (1) says that notwithstanding any other provision in the Act, where a municipality is constituted for the first time, the Government may appoint a Special Officer to exercise the powers, discharge the duties and perform the function of the council, its Chairman and the Commissioner. Sub-section (2) lays down:

'7(2) The Special Officer shall cause arrangements for election to be made so that the Chairman and the elected councillors may come into office on such date as may be specified by the Government by an order made in this behalf:

Provided that the Government may, from time to time, postpone the date within a period of one year so specified if, for any reason, the elections cannot be completed before such date.'

Sub-section (5) says:

'(5) The term of office of the elected councillors and the chairman shall expire at the end of five years if the date specified under Sub-section (2) is the first day of July, and in other cases at the end of five years from the first day of July, immediately preceding such date.'

3. Until 1986, election to the office of the Chairman of a municipality was by indirect election. By Act 33 of 1986 Section 23 of the principal Act was suitably amended providing for direct election of the Chairman by the registered voters of the municipality. Section 20(1)(a) prior to the Amendment Act 33 of 1986 was in the following terms:

'20(1)(a): The term of office of elected councillors shall, save as otherwise expressly provided in this Act, be five years beginning and expiring at noon on the first day of July.'

After the Amendment it reads:

'20(1)(a) The term of office of elected councillors shall, save as otherwise expressly provided in this Act, be five years from the date appointed by the election authority for the first meeting of the Council.' (Proviso omitted)

4. Under Section 7(2) of the Act, the State Government notified that with effect from 21-3-88 the Chairmen and the elected Councillors of the newly constituted municipalities shall come into office. The Director of Municipal Administration had requested the State Government for clarification as to the term of office of the elective Councillors of the newly constituted municipalities. The State Government clarified the matter by issuing Memo No. 140/Election1/91-6/M.A., dated 15-7-91 stating that in respect of the newly constituted municipalities the term of office will expire on 30th June, 1992. These writ petitions were therefore, filed seeking the reliefs stated supra.'

5. S/Sri E. Manohar and M.R.K. Choudrary, learned counsel for the petitioners have contended that the petitioners are entitled to continue in office for a period of five years. The purpose of specifying the date in Sub-section (5) of Section 7 as the first day of July was to enable the State Government to conduct elections at a time to both the old and the newly constituted municipalities and that accorded with the position obtaining under the unamended Sub-section (1)(a) of Section 20 which laid down that the term of office of elected councillors 'shall be five years beginning and expiring at noon on the first day of July.' When Sub-section (1) of Section 20 was amended by Act 33 of 1986 providing for the term of office of the elected councillors as five years from the date appointed by the election authority for the first meeting of the council, the reference to first day of July in Sub-section (5) of Section 7 became absolutely irrelevant. When Sub-section (1) of Section 20 was amended, they contended, Sub-section (5) of Section 7 also ought to have been amended suitably. Holding of elections to municipalities old and new should be at one and the same time; if elections could not be held to all the municipalities at the same time, the Chairmen and the elected councillors of the newly constituted municipalities should be allowed to continue in office for a period of five years. This court should read down Sub-section (5) of Section 7 by resorting to harmonious construction. The classification of municipalities into old and newly constituted is irrational and unreasonable. In the context of the stand taken in the counter-affidavit that subsection (5) of Section 7 was designed to enable conduct of election to all the municipalities both old and new, the contention advanced on behalf of the petitioners is that such a purpose cannot be achieved after the amendment of Sub-section (1) of Section 20 as the term of office of the elected councillors of the old municipalities would not empire by the first day of July and so Section 7(5) became otiose.

6. In opposition to this, the learned Advocate-General has argued that as Sub-section (5) of Section 7 does not suffer from any infirmity, the language employed therein being explicit, it is not possible to resort to the device of reading down its provisions for the purpose of enabling the elected councillors and Chairmen of the newly constituted municipalities to continue in office for a period of five years. The classification of the municipalities into old and new is legally permissible. The object of the Act is not to hold elections to all the municipalities both old and new at one time but the object is to hold elections at the same time to all the new municipalities which came into existence in one year. Even before the amendment of Sub-section (2) of Section 20 it was not possible to hold elections to all the municipalities in the State at a time. The position fluctuates depending upon the population in local areas; a Panchayat may become a municipality if its population crosses the limit of 25,000, and likewise a municipality may lose its status if its population comes down below 25,000.

7. The first contention relating to the validity of classification of municipalities into old and new for the purpose of conducting elections and determining the term of office is devoid of merit. A seven member Bench of the Supreme Court as far back as 1955 in Budhan Choudhary v. The State of Bihar, : 1955CriLJ374 dealing with the question of permissible classification by legislation observed:

'It is now well established that while Article 14 forbids class legislation, it does not forbid reasonable classification for the purpose of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an itelligible differentia which distinguishes persons or things that are grouped together from others left out of the group; and (ii) that differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that Article 14 condemns discrimination not only by a substantive law but also by a law of procedure.'

Classification of municipalities into existing and newly constituted ones is absolutely necessary. As already noticed, if a local area has not less than 25,000 population it has to be notified as a municipality and the strength of the number of councillors shall be as specified in Section 5(1). As the status of a local area depends upon its population and as Section 3(1) confers power on the State Government to include any local area in a municipality and likewise to exclude any local area from a municipality, classification of municipalities becomes inevitable. The classification, therefore, is founded upon clear and discernible differentia distinguishing the old municipalities from the newly constituted ones and the same has rational nexus with the object sought to be achieved, namely, to bring them into being statutorily.

8. The second contention that Sub-section (5) of Section 7 should be read down harmoniously so as to enable the Chairmen and councillors of the newly constituted municipalities to continue in office for five years cannot be accepted. Section 7(5) clearly lays down that the term of office shall expire at the end of five years only if the date specified under Sub-section (2) is the first day of July and in other cases the term will expire at the end of five years from the first day of July immediately preceding such date. The date specified under Sub-section (2) is 21-3-88 but not the first day of July and, therefore, the petitioners are not entitled to continue in office for five years; the later limb of Sub-section (5) comes into operation according to which the five year period had to be computed from the first day of July immediately preceding the specified date. The specified date being 21-3-88, the five year period commences from 1-7-87 and counting from that date the term expires on 30-6-92. It is true that Section 20 Sub-section (1) before its amendment provided that the term of office was five years beginning and ending at noon on the first day of July. After the amendment the reckoning of the five year period is from the date of the first meeting of the council save as otherwise expressly provided in the Act. Sub-section (5) of Section 7 is a clear exception to Section 20(1)(a) in regard to the computation of term of office. The legislative intention was expressed in explicit terms. The computation of five years with effect from the first meeting of the council will have effect only if there are no provisions expressly providing for any other method of computing the term of office. One of the other methods is incorporated in Sub-section (5) of Section 7 in respect of newly constituted and reconstituted municipalities. Therefore, the petitioners being the elected Chairmen and Councillors of the newly constituted municipalities cannot base their claims on Sub-section (1) of Section 20.

9. The amendment to Sub-section (1) of Section 20 brought about by Act 33 of 1986 dispensing with the first day of July as the starting point for reckoning the period of five years need not necessarily result in any amendment to subsection (5) of Section 7. It would have been more appropriate had there been a corresponding amendment to Sub-section (5) of Section 7, cannot be a valid argument for the purpose of ignoring the specific legislative mandate. It is not the function of this Court to go into questions of propriety or how better results could have been achieved by the Legislature if a certain device had been adopted.

10. The fact remains that by the application of Section 7(5) the petitioners cannot continue in office beyond 30-6-92. Sub-section (5) cannot be said to be unconstitutional either on the ground of violation of Article 14 or want of legislative competence. In such a situation it is not permissible to resort to the device of reading down the provision in order to enable the petitioners to continue in office for five years with effect from the date of first meeting of the municipal council. The doctrine of reading down, it appears, first originated in the public law of Australia in the celebrated case of D'Emden v. Pedder, (1904) 1 C.L.R. 91. According to an Australian jurist:

'Reading down puts into operation the principle that so far as it is reasonably possible to do so, legislation should be construed as being within power. It has the practical effect that where an Act is expressed in language of a generality which makes it capable, if read literally, of applying to matters beyond the relevant legislative power, the court will construe it in a more limited sense so as to keep it within power......Being no more than a technique of construction, reading down yields to any contrary intention appearing in the Act. The most obvious way in which a contrary intention can appear is by means of explicit language.', Colin Howard, 'Australian Federal Constitutional Law' Second Edition P. 18.

11. If a provision of law, when read literally, is in conflict with any of the guaranteed fundamental rights or outside the legislative competence, the device of reading down the provision is resorted to by Courts (vide In Re: Hindu Women's Rights to Property Act, AIR 1941 FC 72; All Saints' High School v. Govt. of A.P., : [1980]2SCR924 and Bhim Singh v. Union of India, : AIR1981SC234 .)

12. There is no merit in the contention that Sub-section (5) of Section 7 became otiose after the amendment of Sub-section (1) of Section 20. No part of the provision should be construed as superfluous is an accepted principle of interpretation. There is no superfluity in Sub-section (5) of Section 7. It is an integral part of a rational scheme envisaged by the legislature in regard to the newly constituted municipalities and the counter-affidavit rightly says that the object is to enable the municipalities constituted in one year to go for polls at the same time. The position under the unamended law prior to coming into force of Act 33 of 1986 did not ensure uniform tenure of five years both for old and new municipalities. It is not possible in the context of Section 20(1) and 7(5) to conduct elections at one time to all the municipalities, old and new, and so the Act takes care to ensure holding of elections at one time in respect of municipalities brought into being in one year. The statute, also provides for extension of tenure, (proviso to 20(1)(a) and the proviso to Sub-section (3) of Section 23) to overcome difficulties, if any, in this regard.

13. It is needless to mention that right to contest in an election is not a fundamental right; the para meters of the right is regulated by the relevant statute. The petitioners when they contested in the elections were aware of their tenure. Even otherwise it is open to the Legislature, by appropriate legislation, to regulate and determine the tenure of an elective office. The theory of legitimate expectations has no relevance in judging the legality of a legislative enactment; that applies only to actions of public officials and public bodies.

14. For the foregoing reasons the writ petitions fail and accordingly they are dismissed. There shall be no order as to costs.