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Kashinath Laxman Bhide and ors. Vs. the State of Bombay - Court Judgment

LegalCrystal Citation
SubjectConstitution;Election
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 530 of 1953
Judge
Reported inAIR1954Bom41; (1953)55BOMLR758; ILR1954Bom290
ActsCode of Civil Procedure (CPC), 1908; Bombay Municipal Boroughs Act, 1928 - Sections 19, 19(1) and 214(3); Constitution of India - Article 226; Bombay Municipal Boroughs Act, 1925 - Sections 19(1), 23(1) and 23(1A)
AppellantKashinath Laxman Bhide and ors.
RespondentThe State of Bombay
Appellant AdvocateV.M. Tarkunde and ;M.A. Rane, Advs.
Respondent AdvocateM.P. Amin, Adv. General and Little & Co.
Excerpt:
.....to speculate as to what the intention of the legislature might be because a case not covered by the exact and precise words used by the legislature has arisen. 2 was not in accordance with law on 1-4-1952, for precisely the same reasons his election was invalid on 1-6-1952, because that election was also for a period less than one year. fortunately, the bombay municipal boroughs act, 1925, seems to have provided for a contingency like the present by enacting section 57 and we hope that no difficulty would arise with regard to the acts performed by opponent no......of the kalyan municipality were elected by a general election in the beginning of 1949 and their term of office was three years. the first meeting of the municipality was held on 29-4-1949, and petitioner no. 1 was elected president up to 31-3-1950. one hande was elected president from 1-4-1950 to 31-3-1951, and petitioner no. 2 was elected president for the period 1-4-1951 to 31-3-1952. opponent no. 2 was elected president from 1-4-1952 to 31-5-1952. he was elected only for a period of two months because government had extended ttie life of the kalyan municipality for a period of two months.under the law, the ordinary term of office, as already pointed out, of the municipality is-three years, but government have been given the power to extend it for one year. government further.....
Judgment:

Chagla, C.J.

1. The councillors of the Kalyan Municipality were elected by a general election in the beginning of 1949 and their term of office was three years. The first meeting of the Municipality was held on 29-4-1949, and petitioner No. 1 was elected president up to 31-3-1950. One Hande was elected president from 1-4-1950 to 31-3-1951, and petitioner No. 2 was elected president for the period 1-4-1951 to 31-3-1952. Opponent No. 2 was elected president from 1-4-1952 to 31-5-1952. He was elected only for a period of two months because Government had extended ttie life of the Kalyan Municipality for a period of two months.

Under the law, the ordinary term of office, as already pointed out, of the Municipality is-three years, but Government have been given the power to extend it for one year. Government further extended the life of the Municipality for seven months up to 31-12-1952. ami on 1-6-1952, opponent No. 2 was again elected president for seven months up to 31-12-1952. Government further extended the life of the Municipality up to 29-4-1953. A meeting was called by opponent No. 2 for 6-1-1953, to elect a president, but for some reason the meeting could not be held and no election of the president took place. On 31-1-1953, opponent No. 2 called a routine meeting of the Municipality.

On 29-1-1953, the petitioners addressed a letter to the Collector of Thana pointing out that opponent No. 2 wes only elected up to 31-12-1952, and no meeting had been called for election of another President and the Collector should interfere and take necessary action. On 2-2-1953, the Collector passed an order holding that it was not lawful for opponent No. 2 to call the meeting on 31-1-1953, to conduct the ordinary business. On 16-2-1953, an application was made to the Collector to call a meeting for the election of a president and on 13-3-1933, the Collector passed an order calling a meeting for 19-3-1953. It may be nointed out that on 27-2-1953, the Director of Local Authorities confirmed the action taken by the Collector on 2-2-1953, and he took the view that the president's action in calling a meeting on 31-1-1953, for conducting the ordinary business after his term as president had expired was 'ultra vires' of the provisions of the Act.

On 13-3-1953, the Government passed an order purporting to be under powers vested in them under Sub-section (3) of Section 214 of the Municipal Boroughs Act, setting aside the orders issued by the Collector of Thana and confirmed by the Director of Local Authorities, and directing that the action of the president of the Kalyan Municipality in calling a meeting on 31-1-1953, for conducting the ordinary business was in order. In this order the Government expressed the opinion that the term of the Municipality having been extended up to 29-4-1953, and as Mr. Shukla, opponent No. 2, would be holding the office of the president for not less than one year, his continuing in office could not now be questioned. The present petition has been preferred challenging the order passed by Government and also for an order restraining opponent No. 2 from functioning as the President of the Municipality.

2. Mr. Tarkunde has made it clear that he is not asking for any writ against the State of Bombay, nor does he want the order of the Government to be quashed. He says that he is not interested in challenging that order. What he really wants in this petition is a writ in the nature of 'quo warranto' and his contention is that opponent No. 2 is not entitled in law to hold the office of President of the Kalyan Municipality, and that we should give a declaration to that effect and pass an injunction restraining opponent No. 2 from functioning as President of the Kalyan Municipality.

3. Section 19(1) of the Bombay Municipal Boroughs Act, 1925, provides :

'Save as otherwise provided in this Act a president or vice-president shall hold his office for such term, not less than one year and not exceeding three years, as the municipality shall, previous to the election of the president or vice-president determine, or until the expiry within the said term of his term of office as councillor, but shall be eligible for re-election.'

Therefore, under this section the term of Office of the president has been fixed at not less than one year and not exceeding three years, and the term of office has to be determined by the Municipality previous to the election. In the case of petitioner No. 1, in the case of Mr. Hande and in the case of petitioner No. 2 the term of office was in each case not less than one year, but when we come to the election of opponent No. 2 on 1-4-1952, the term of his office was only two months. This was unavoidable because the life of the Municipality was only extended for two months, and the life being extended only for two months the Municipality while electing him as President specifically fixed the period of his office up to 31-5-1952.

Now there is a very curious lacuna in the jBombay Municipal Boroughs Act, 1925. Section 19(1) only deals with the ordinary case where the Municipality continues for three years, and the section provides that the President may be elected either for the whole period of three years or for a period of not less than lone year. But this Sub-section obviously does not contemplate the contingency that has arisen here where after the three years have expired Government does not choose to extend the life of the Municipality by one year but by a shorter term, viz., two months. If the Government had extended the life of the Municipality for one year, no difficulty could have arisen because opponent No. 2 could have been elected President for one year. But as the Government chose to extend the life of the Municipality only for two months the Municipality thought that a President had to be elected and naturally he could only be elected for the remaining term of the Municipality.

Section 23(1) deals with vacancies in the office of president and vice-president and how they should be filled up. That section has no application to the present case because that deals with a case where the president either dies or resigns or is removed from his office during the term of his office and the section provides for filling up the vacancy which has arisen under those circumstances.

Then Section 23(1A) provides :

'In the event of the expiry of the term of office of the president or vice-president determined by the municipality under Sub-section (1) of section 19, unless section 19A applies, a new president or vice-president as the case may be shall be elected within twenty-five days from the date of such expiry.'

Therefore, there is a mandatory provision for the election of a new president after the term of office of the president fixed under Sub-section. (1) of Section 19 expires, and it is pointed out that it was incumbent upon the Municipality under this Sub-section to elect a new president within 25 days after the term of office of petitioner No. 2 expired. But although it was incumbent upon the Municipality to proceed to elect a new president, a new president in law could not be elected because the remaining term of the Municipality was only two months and under Section 19(1) a president could not be elected for that short duration. Therefore, the question that arises is whether the election of opponent No. 2 on 1-4-1952, was a valid election.

4. Mr. Tarkunde says that we must construe Section 19(1) so as to read that the election of the president for a period not less than one year and not exceeding three years only applies to cases where the Municipality is to continue to be in existence for one year at least, and that when a situation arises where the Municipality is to continue in existence for a period less than one year, then Section 19(1) should be applied with the necessary modification. In other words, Mr. Tarkunde's conten-tion is that impliedly power is given to the Municipality under Section 19(1) to elect a president for a shorter term where a situation arises in which it is impossible to elect a president for not less than one year, and Mr. Tarkunde says that it was open to the Municipalitv to elect opponent No. 2 for a period of two months as the circumstances then existing made it impossible for bis being elected for a longer period.

Mr. Tarkunde has requisitioned to his aid; the well-known canon of construction which permits a Court to construe words in order to bring them in accordance with the intention of the Legislature, and Mr. Tarkunde says that in this case also it is necessary to give the words used in Section 19(1) the meaning which best suits the scope and object of the statute. Now this canon of construction can only be availed of when general words are used and those general words can be restricted to the fitness of the matter, but this canon of construction cannot be availed of when the words used by the Legislature are express and precise, and in this particular case the Legislature has used express and precise terms and provided that the president shall hold his office for such term not less than one year and not exceeding three years. Under those circumstances, it is impossible for us to hold that in a particular case a president can hold office for a term which is less than one year. It will be construing Section 19(1) contrary to the precise and exact words used by the Legislature. When exact and precise words are used, they clearly show the intention of the Legislature, and it is not open to the Court to speculate as to what the intention of the Legislature might be because a case not covered by the exact and precise words used by the Legislature has arisen.

But in our opinion the way out of this impasse is to be found in the proviso to Section 19(1) and that proviso is in the following terms : 'Provided that the term of office of such president or vice-president shall be deemed to extend to and expire with the date on which his successor is elected.'

Therefore, once a president is legally and validly elected under Section 19(1), he does not cease to hold office until his successor is elected, and elected in this context must mean legally and validly elected. Therefore, till there is a successor who is elected president in accordance with law, the incumbent who holds office as president must continue to hold office under the proviso to Section 19(1).

Therefore, if our view is that on April 1, 1952, opponent No. 2 was not validly elected inasmuch as he was elected for a term shorter than provided under Section 19(1), petitioner No. 2 continued to hold office and his term of office was extended by reason of the proviso to Section 19(1) and that term of office would only expire when his successor was elected. If the election of opponent No. 2 was not in accordance with law on 1-4-1952, for precisely the same reasons his election was invalid on 1-6-1952, because that election was also for a period less than one year. Therefore, the result today is that no successor of petitioner No. 2 has been validly elected and under the proviso to Section 19(1) his term of office is extended till today and that office must continue till his successor is validly elected. In our opinion, therefore, opponent No. 2 is not entitled to hold the office of president of the Kalyan Municipality as he has not been validly elected to that office.

5. We would, therefore, issue an injunction restraining opponent No. 2 from functioning as the president of the Kalyan Municipality and from discharging any duties as president of the Kalyan Municipality. It is with some reluctance that we have come to this conclusion because we are impressed by what the Advocate General told us that opponent No. 2 has been functioning as the president from 1-4-1952. No reflection is intended against opponent No. 2 because the Municipality as a whole took the view that it could elect him president for a shorter period than one year. At both the meetings on 1-4-1952, and 1-6-1952, he was elected by the Municipality. The difficulty only started when after 31-12-1952, no further meeting was called for electing a president to hold the office after 31-12-1952.

The Advocate General says that inasmuch as opponent No. 2 has been acting as 'de facto' president, we should not interfere at this stage by issuing a writ of 'quo warranto'. In our opinion it is the duty of the Court, as soon as its attention is drawn to the fact that a person who is not qualified is holding a public office, to declare that he is not entitled to that office and to prevent him from acting as such. Fortunately, the Bombay Municipal Boroughs Act, 1925, seems to have provided for a contingency like the present by enacting Section 57 and we hope that no difficulty would arise with regard to the acts performed by opponent No. 2 as president of the Kalyan Municipality by reason of the validating provisions contained in that section.

6. The result is that the rule, to the extent that we have indicated in the judgment will be made absolute. There will be no order as to costs.

7. Order accordingly.


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