Blackwell, Officiating C.J.
1. This is an appeal from a decision of Mr. Justice B. J. Wadia on a petition under Section 45 of the Specific Relief Act, calling upon the respondents, who are the Municipal Corporation of Bombay and the Municipal Commissioner, to show cause why they should not be restrained by an injunction from proceeding at a meeting of the Corporation to fill up one of two vacancies in the Corporation for B Ward in the circumstances set out in the petition, and why the 2nd respondent should not be directed to hold a bye-election for the purpose of filling up that vacancy. The facts are fully set out in the judgment of the learned Judge, and I do not think it necessary to detail them at length. It is sufficient to set out a few salient facts for the purpose of the decision of this appeal.
2. Elections to the Corporation of Bombay are held once every three years. At the election held in 1932, sixteen persons were elected to represent the B Ward, with which this appeal is concerned. One of these sixteen Councillors was Mr. Ramji Bharmal. He resigned his seat by his letter of November 15, 1934, addressed to the Municipal Commissioner. It appears that that letter was received on November 29, 1934, and that it was not considered by the Corporation until January 10, 1935, and was then recorded.
3. By virtue of Section 9 of the City of Bombay Municipal Act of 1888, in the event, among other things, of the resignation of a Councillor, there shall be deemed to be a casual vacancy in the office, and such vacancy shall be filled up as soon as it conveniently may be by election or appointment, as the case may be of a person thereto, and that person is to hold office so long only as the Councillor in whose place he is elected or appointed would have been entitled to hold it, if the vacancy had not occurred. That section is imperative, and reading it with Section 22 (3) it is incumbent upon the Commissioner to fill up a casual vacancy by fixing a day for an election as soon as conveniently may be after the occurrence of the vacancy. In fact, that casual vacancy was not filled up, and the reason given therefor is that as the resignation was in November, 'and an election was to be held in January or February, it was not considered desirable to incur the expense of a bye-election. It is, however, to be borne -in mind that councillors do not retire till April 1, and that there was a vacancy from November till that date. The statute confers no discretion upon the Commissioner in such an event, and the failure of the Commissioner to comply with the statutory requirement in that behalf has, in my opinion, involved the Corporation in the difficulty which has arisen in the present case, as I shall later point out.
4. It was the duty of the Councillors for B Ward, who had' been elected at the 1932 election, to retire on April 1. There were only fifteen existing Councillors at that date by reason of the resignation of Ramji Bharmal, and they duly retired.
5. In clue course, a General Election was held on January 22, 1935, and sixteen Councillors were elected for B Ward. Thereafter, in accordance with the provisions of Section 33 (2) of the Municipal Act, the validity of their election was called in question. An enquiry was held by my learned brother Chitre, as Chief Judge of the Small Causes Court, as he then was, and pursuant to that inquiry, he found that the election was not a valid election, and he set that election aside.
6. Section 33, Sub-section (4), provides for what is to happen in the event of an election being set aside. That Sub-section (4) is as follows :-
If lie sets aside an election or if, when he declares a person who has been declared elected disqualified for being a councillor, there is no other candidate who can be deemed to have been elected, proceedings for filling the vacancy or vacancies shall be taken under Section 34.
7. Section 34 is as follows :-
34(7) If from any cause no councillor is elected at any general election, the retiring councillor or councillors shall, if willing to serve, be deemed to be re-elected.
(2) If, in any such case, the retiring councillor is not willing to serve, or some of the retiring councillors are willing to serve and some are not, or if, in the case of an election to fill a casual vacancy, no councillor is elected, or if, in the case of any election, an insufficient number of councillors are elected,...
the Commissioner shall without any delay inform the Corporation of the circumstances, and thereupon the corporation, so far as it is constituted, may appoint a duly qualified person to fill the vacancy, or each vacancy, as the case may be, arid, if the Corporation shall fail within fifteen days after receipt of such information to appoint a person as aforesaid, the Commissioner shall appoint another day for holding a fresh election.
(3) A fresh election held under this section shall be held subject in all respects to the same provisions as if it were an election to fill a casual vacancy.
8. The Municipal Commissioner on June 26, 1935, addressed a letter to the Municipal Secretary, the material portion of which is as follows :-
There are sixteen seats allotted to the B Ward. Out of the sixteen Councillors from that ward in the last Corporation, one councillor Mr. Ramji Bharmal resigned on November 15, 1934. No bye-election was then held to fill the vacancy, as the General Elections were impending. As it was not clear whether in view of the setting aside of the election of B Ward by the Chief Judge of the Small Causes Court, an appointment to this vacancy should be made by the Corporation or whether a bye-election would be necessary, the Municipal Solicitors were consulted in the matter. I forward herewith a copy of their letter No. L. 7410, dated June 21, 1935, wherein they state that the provisions of Section 34(2) apply to this case, and that the Corporation should be informed of the circumstances under which the vacancy has occurred, and asked to appoint a duly qualified person to the vacancy, and that if they fail to do so, the vacancy should be filled by a fresh election. In view of this opinion, I have to request the Corporation to take steps to fill this vacancy also under Section 34(2) of the Municipal Act.
9. Before that letter could be acted upon, the petition in this case was duly filed, and the matter came before Mr. Justice B. J. Wadia, He took the view that the case does not come within Section 34 and he granted an injunction restraining the respondents to the petition from acting upon the request contained in the letter, and he further directed that a bye-election should be held on such date as the 2nd respondent, the Municipal Commissioner, might fix.
10. The learned Advocate General has submitted that this case falls within the words in Sub-section (2) of Section 34, ' or if, in the case of any election, an insufficient number of councillors are elected '. His argument is that there has been an election, that an insufficient number of councillors have been elected, and that therefore the Corporation may appoint a duly qualified person to fill the vacancy. By reason of the decision of the Chief Judge of the Small Causes Court, the election held in 1935 was set aside and Sub-section (I) of Section 34 undoubtedly came into operation. By virtue of that sub-section, the retiring Councillors, if willing to serve, were to be deemed to be re-elected. Owing to the failure to fill up the casual vacancy, there were only fifteen retiring councillors who could be asked if they were willing to serve. Fourteen of them were willing to serve, and they are deemed to be re-elected. One of them, Mr. Vora, was unwilling to serve again. The learned Advocate General has argued that the fact that fourteen retiring councillors are deemed to be re-elected under Section 34 (1) constitutes an election, and that inasmuch as at that election, as he calls it, an insufficient number of councillors have been elected, it is open to the Corporation to appoint to fill the vacancy.
11. The case of Mr. Vora is expressly provided for by the opening words of Sub-section (2) of Section 34, namely, ' If, in any such case, the retiring councillor is not willing to serve'. Then undoubtedly the Corporation may appoint a duly qualified person to fill the vacancy, and if there had been sixteen retiring councillors, the present difficulty would not have arisen. But the question is whether the fact that fourteen retiring councillors have been deemed to be re-elected constitutes an election within the meaning of the words, ' if, in the case of any election, an insufficient number of councillors are elected'. The learned Advocate General relies upon the definition of ' councillor ' in Section 3(c), whereby, ' 'councillor' means a member of the Corporation duly elected, appointed or co-opted under this Act.' The learned Advocate General says that the fourteen councillors who have been deemed to be re-elected are elected, and that they have been elected at the general election held in 1935, by reason of the Act. I think that is not a proper construction to put upon the words, ' if, in the case of any election, an insufficient number of councillors are elected' in Section 34, Sub-section (2). In my opinion, the fact that fourteen retiring councillors are deemed to be re-elected, does not amount to an election of them at the general election of 1935. It is in my view a statutory substitution for the general election, not falling within the expression 'election' as used in Sub-section (2) of Section 34. No doubt, they are councillors, and no doubt, they have been elected ; but they have been deemed to be re-elected by virtue of the statute, and I think that it is straining the meaning of words to treat them as having been elected at an election, within the meaning of Section 34, Sub-section (2). The Advocate General pointed to the words in Section 33 (4) 'or if.. . there is no other candidate who can be deemed to have been elected, proceedings for filling the vacancy or vacancies shall be taken under Section 34'. He said, and I think rightly, that such a case would fall within the words of Section 34 (2) 'or if, in the case of an election, an insufficient number of councillors are elected '. Such a case presupposes an election, and candidates who have offered themselves for election at the election. Such a case is, in my opinion, entirely different from the case which arises when retiring councillors, who have not themselves been candidates at the election, are deemed, not to be elected at that election, but to be re-elected by reason of the failure of the election ; and in my view a statutory provision whereby councillors shall be deemed to be re-elected is a substitution for an election, and not in itself an election within the meaning of Sub-section (2) of Section 34. Consequently, I think that Mr. Justice B. J. Wadia was right when he took the view that this case did not fall within the case of an election at which an insufficient number of councillors had been elected. In my judgment, the words 'any election' must be taken to bear the meaning which they would bear in their ordinary signification, namely, an election at which the voters of Bombay would have the right to cast their votes in favour of any particular candidate. I think, therefore, that it was not open to the Municipal Commissioner to treat the case as falling within Sub-section (2) of Section 34,. and that the Corporation would not be entitled to act upon the notice which he sent by filling' up the vacancy by appointment. Accordingly I agree with Mr. Justice Wadia that the first respondents to the petition must be restrained by injunction from filling the vacancy by appointing a duly qualified person.
12. In my opinion, however, the learned Judge had no jurisdiction to direct that a bye-election should be held on such date as the 2nd respondent, the Municipal Commissioner, may fix. Presumably, he did so upon the footing that if restrained by injunction, the Corporation would not act upon the notice, that fifteen days would expire from the receipt of the notice, and that an election would then be held after the Commissioner had appointed another date for holding a fresh election. As to whether that is the position in law which will now operate, I think it desirable to express no opinion. Even if it were so, in my judgment, the learned Judge was premature in giving the direction which he gave, seeing that at the time he gave it fifteen days had not elapsed from the receipt by the Corporation of the information given to them by the Commissioner, and fifteen days have not even yet expired. Mr. Banaji, who appeared for the respondent to the appeal, has not seriously sought to support this direction. In my opinion, it was wrong, and to that extent, I think, that the order passed by the learned Judge must be varied. No doubt the vacancy will now be filled up according to law.
13. There remains the question of costs. The learned Judge made no order as to costs. He has given no reasons for his decision in that behalf, so that we have not the advantage of knowing why he made no order as to the costs of the rule. I can myself see no reason why the petitioner should be deprived of hiss costs. I think that he was entitled as a matter of public duty to present this petition to the Court, if he felt that the Corporation were proposing to act in a manner not in accordance with law. In my judgment, the Corporation were proposing to act in a manner not in accordance with the law, and I think that the learned Judge ought to have given him the costs of the petition and the hearing before him. I think, therefore, that the learned Judge's order ought aim also be varied by directing that the first respondents to the petition should pay the costs of the petitioner.
14. As regards the costs of this appeal, the learned Advocate General has submitted that the appellants ought not to be directed to pay the costs of the appeal, inasmuch as they have succeeded, so far as the direction to hold a bye-election was concerned. I cannot accede to this contention. In substance the appellants have failed,-the important matter being as to whether they should of should not be restrained by an injunction from filling up the vacancy in the manner contemplated by Section 34 (2). Accordingly, in my opinion, this appeal should be dismissed with costs,-the order in the Court below being varied in the manner which I have indicated.
15. The facts of the case are not in dispute. They have been stated in great detail in the judgment of the learned Judge, Mr. Justice B. J. Wadia, and the substance of it is given by his Lordship the officiating Chief Justice.
16. There is no dispute that the Corporation is entitled to fill up the vacancy created by reason of the unwillingness of Mr. Harilal Vora to serve. He was one of the sixteen councillors, who were elected to the Bombay Municipal Corporation at the election of 1932 for the ' B ' Ward. On his expression of unwillingness to serve, there were in all fifteen councillors, who could be deemed to be re-elected under Section 34 (I),-the whole of the election of the ' B ' Ward having been set aside by the Chief Judge of the Small Causes Court.
17. The only question in dispute is whether the Corporation is also entitled to make the other appointment in place of Mr. Ramji Bharmal, who had resigned his seat on November 15, 1934. That letter of resignation was placed before the Corporation on January 10, 1935, and was then recorded ; but as the general election was to take place within a few weeks, it seems that for reasons of convenience, a bye-election was not held, though it was incumbent on the Corporation to do so. The result was that Ramji Bharmal was not a retiring councillor and under Section 34(2) he could not be deemed to be re-elected. Thus out of the sixteen councillors, fourteen were retiring councillors, who were willing to serve, the fifteenth although he was a retiring councillor, was unwilling to serve, and the sixteenth councillor Mr. Ramji Bharmal was a registered councillor, who could not be deemed to be re-elected. It was in respect of this one seat that the Municipal Commissioner referred the matter to the Municipal Secretary, and under legal advice, he requested the Corporation to fill in both the vacancies under Section 34(2).
18. Sub-section (2) of Section 34 runs as follows :-
If, in any such case, the retiring councillor is not willing to serve, or some of the retiring councillors are willing to serve, and some are not, or if, in the case of an election to fill a casual vacancy, no councillor is elected, or if, in the case of any election, an insufficient number., .is elected...
the procedure to be followed is laid down in the next paragraph.
19. It is sought to be argued that the case of Ramji Bharmal could not be brought under Section 34 (1) as he was not a retiring councillor and the case must therefore fall under Section 34 (2), 'if in the case of an election an insufficient number of councillors are elected '. It is contended that if the retiring councillors, willing to serve, who shall be deemed to be re-elected under Section 34(1) are insufficient in number, the case falls under the third contingency in Section 34 (2), viz., if in the case of an election an insufficient number of councillors are, elected, Elected and re-elected are two different expressions used in the same section. The difference in wording to my mind is deliberate. The retiring councillors, who are willing to serve, are deemed to-be re-elected under Section 34(2) and the reason of that expression is obvious. The retiring councillors who are deemed to be re-elected, were in fact the candidates at the election of 1932, and they were in fact elected in 1932 for this particular ward, with the result that the expression used in Section 34(2) is that the retiring councillor or councillors, if willing to serve, shall be deemed to be re-elected. 'Re-elected' is the most appropriate word to use. When we come to Sub-section (2) of Section 34, there are three contingencies mentioned : the first is that if the retiring councillor is not willing to serve, or some of the retiring councillors are willing to serve and some are not; the second contingency is that if in the case of an election to fill a casual vacancy, no councillor is elected ; and the third contingency is that if in the case of any election, (in the ordinary sense of the term where voters exercise their right to vote), an insufficient number of councillors is elected. If the case does not fall within any one of these three contingencies, then it must be held that the procedure laid down in Sub-section (2) of Section 34 cannot apply. No doubt under Section 33 (4) it is provided that in the-event of an election being set aside, the procedure to be followed for filling the vacancy or vacancies shall be taken under Section 34. In my opinion, Section 33 (4) did not contemplate that a vacancy by resignation will not be filled in by a bye-election as required by law. Direction was given to follow the procedure laid down in Section 34 which was intended to cover all cases of vacancies, not anticipating an omission on the part of the appellants to fill in a casual vacancy caused by resignation. In my opinion, none of the contingencies referred to in Sub-section (2) of Section 34 exists in the present case. The vacancy of Mr. Ramji Bharmal was not a vacancy arising out of any unwillingness to serve. That vacancy arose not because he was a retiring councillor unwilling to serve but because he had resigned before the period of retiring, viz., April 1, 1935. The second contingency is with regard to a casual vacancy, and it cannot be said that the vacancy which has arisen, by reason of there being an insufficient number of retiring councillors available, is a case of any casual vacancy. And the third contingency relates to a case of any election where an insufficient number of councillors is elected. Evidently this last contingency refers to an ordinary election by casting votes and has no reference to any councillors, who are deemed to be re-elected under Section 34 (2). The principle underlying Sections 33 and 34 appears to me to be that it is the right of the voters or citizens in the first instance to exercise their franchise, and if that privilege for any reason has not been taken advantage of, or if the privilege has not been exercised to the full extent arid if a vacancy occurs by reason of such omission, then the statutory provision comes in to fill up the vacancy by appointment. The right of the citizens to exercise the franchise is the substance, and if the substance has not been availed of, the provision for appointment is a statutory substitution. In this instance a vacancy occurred by the resignation of Mr. Ramji Bharmal in November, 1934. No bye-election was held as required by law. The constituency lost its right to elect. The general election followed in January, 1935. The same was set aside. Mr. Ramji Bharmal by reason of his resignation was not a retiring councillor who could be deemed to be re-elected under Section 34 (i). To fill in this vacancy by appointment is to deprive the constituency a second time of their right to elect to inflict on them a double wrong.
20. In the circumstances, taking the view as I do, the case of vacancy of Ramji Bharmal is not covered by Section 34, Clause (I) or Clause (2), and the injunction granted by the learned Judge appears to me to be sustainable on the true construction of the section.
21. I agree with the officiating Chief Justice that there is no occasion to give any direction either to the first or to the second appellants to hold any bye-election. The contingency has not arisen, because the letter from the Commissioner to the Corporation is only an advisory one. The Corporation may act on it, or may not act on it. The Corporation may act on the legal advice, on the Court's interpretation. The subsequent provisions of Section 34 provide as to how and under what circumstances the Corporation shall fill the vacancy within fifteen days of the receipt of such information and in default the Municipal Commissioner shall appoint another day for holding a fresh election. The period of fifteen days has not yet elapsed, and it is therefore premature to give any direction to the Commissioner as to how he should act. It is to be presumed that the appellants will act according to law.
22. The only other question that remains is the question of costs, I entirely agree with the learned officiating Chief Justice that there was no reason why costs should not have been awarded in the Court below, and as far as the appeal in this Court is concerned, the Corporation seems to me to be filling quite a novel role. The Corporation is supposed to be guardian of the interests of the citizens. The right of the citizens to exercise franchise was conceded by the order of the learned Judge. The Corporation was here not to uphold any privilege due to the citizens but they are here to go counter to the right that was conceded to the citizens by the learned Judge. They have failed on the main question of injunction, and I do not see why they should not be ordered to pay costs throughout.
23. Appeal dismissed with costs. Order of the Court below varied by deleting therefrom the direction that a bye-election was to be held, and by ordering that the first respondents to the petition to pay to the petitioner the costs below.