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The Municipal Corporation Vs. Hashu P. Advani - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberO.C.J. Appeal No. 62 of 1962 : Miscellaneous Application No. 308 of 1961
Judge
Reported in(1963)65BOMLR494; 1963MhLJ763
AppellantThe Municipal Corporation
RespondentHashu P. Advani
DispositionAppeal allowed
Excerpt:
.....corporation act bom. iii of 1888, sections 36, 38 and 50-constitution of india, article 226- nomination paper deposited after 5 p.m. but during office hours of municipal secretary-validity of such nomination paper-construction of statute-words 'shall' or 'must' whether imply literal compliance and non-compliance renders act invalid.; under rule 47 of the bombay municipal corporation procedure rules and regulations made under section 36 of the bombay municipal corporation act, 1888, non-presentation of the nomination paper before 5 p.m. does not render the nomination paper invalid. it is sufficient compliance with the rule if the paper is deposited during office hours with the municipal secretary.; cutting v. windsor (1924) 40 t.l.r. 395, rathis chandra munshi v. amulya charan..........the intention was to render the nomination invalid for non-compliance with the earlier part of the rule, the rule-makers would have expressly said so.15. it has been very seriously pressed upon us by reference to decided cases that time prescribed for presentation of nomination papers must be strictly complied with and non-compliance renders the nomination invalid. we were referred to cutting v. windsor (1924) 40 t.l.r. 395 where a rule under the municipal corporations act, 1882, said to be practically worded in the same form as the present rule was held to be mandatory and non-compliance with it was held to render the nomination paper invalid. in the first place it is not correct to say that the rule mils worded exactly as the present rule. in any case the rule reproduced at p. 396 of.....
Judgment:

Patel, J.

1. This is an appeal against the judgment of Mr. Justice Kantawala against an order under Article 226 of the Constitution and the point involved is as to the interpretation of Rule 47 made by the Municipal Corporation of Bombay for the purposes of appointment to the Standing Committee and/or the Bombay Electric Supply and Transport Committee.

2. A vacancy in the Bombay Electric Supply & Transport Committee occurred by the resignation of one N.M. Kamble in or about April 1961. On September 25, 1961, the Corporation passed a resolution deciding to elect on a date to be fixed by the Mayor one member in place of Mr. Kamble. October 3, 1961, was fixed by the Mayor for this purpose. The Municipal Secretary issued a notice or memorandum on September 26, 1961, to all the Councillors intimating that October 3, 1961, was fixed for the election and invited nomination papers as per Rule 47 of the Corporation Procedure Rules. The rale required that nomination papers be deposited between 10 A.M. and 5 P.M. three clear days before the date of election. Respondent No. 1 and respondent No. 3 duly deposited their papers before 5 o'clock of September 29, 1961. The paper of respondent No. 4 was deposited at about 5-30 P.M. on that day-clearly after 5 o'clock. The Secretary showed the names of all the three candidates remarking against the name of respondent No. 4 that his paper was received after 5 P.M. At the meeting on October 3, 1961, objections were taken to his candidature. The Mayor reserved his ruling in this connection which he gave on May 7, 1962. In the meantime on October 3, 1961, respondents Nos. 1 and 2 had already filed a petition on the Original Side of this Court challenging the acceptance of the nomination paper of respondent No. 4. After the Mayor gave his ruling and the election was made, the petition was amended challenging the election of respondent No. 4 as also the ruling of the Mayor. The Mayor ruled that as Rule 47 was framed when office hours were from 10 A.M. to 5 P.M. according to Bombay time, the intention must be that the paper was to be deposited with the Secretary during office hours and as the office hours have since changed to 10.30 A.M. to 5.30 P.M. (Standard time) and that of the Secretary's Office to 11 A.M. to 6 P.M., the paper was properly presented. The learned Judge disagreed with this ruling and held that the ruling was erroneous in law and that the election was bad. He, therefore, directed reelection of a member to that Committee out of the two candidates only remaining in the field. This order is being challenged before us.

3. We have doubts whether it is possible for any member of the Corporation to challenge a ruling of the Mayor by adopting the procedure under Article 226 of the Constitution. It is not, however, necessary to decide that matter in the present case since in our view the decision under appeal is erroneous.

4. Originally Rule 47 was framed for appointment to the Standing Committee. After the B.E.S.T. Undertaking was taken over, by a resolution No. 523 dated July 24, 1947, it was decided to appoint a Committee of nine persons. In the same resolution it was provided that Rule 47 of the Corporation Procedure Rules as modified by Corporation's Resolution No. 7933 dated November 2, 1925, be adopted as far as the same may be applicable for election of members on the B.E.S.T. Committee. Rule 47 is at page 13 of the publication of Procedure Rules and Regulations and the relevant portion, is in these terms:

(I) Candidates for appointment to the Standing Committee must be nominated by nomination paper, which must be deposited with the Municipal Secretary between 10 A.M. and 5 P.M. at least three clear days before the day of the meeting at which the appointment is to be made; and each, nomination paper must state the name of the candidate in full, and be subscribed by two councillors as proposer and seconder.

No councillor shall propose or second the nomination of more candidates than the number of vacancies to be filled up. Any nomination paper subscribed in contravention of this Rule shall be invalid and be declared as such by the presiding authority.

The question is whether the ruling of the Mayor is correct.

5. It cannot be always insisted upon that the words 'shall' or 'must' ought necessarily to imply literal compliance and non-compliance must render the act invalid or void. In every case it is the duty of the Court to ascertain the intention of the framers of the provision with due reference to the surrounding circumstances. If the provision is not intended to be mandatory, substantial compliance is all that is required. In The Liverpool Borough Bank v. Turner (1861) 30 L.J.Ch. 379 Lord Campbell said (p. 380):.No universal rule can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory, with an implied nullification for disobedience, It is the duty of Courts of justice to try to get at the real intention of the legislature, by carefully attending to the whole scope of the statute to be construed.

This dictum was cited with approval by Lord Penzance in Howard v. Bodington (1877) 2 P.D. 203 where the learned Judge said (p. 211):

I believe, as far as any Rule is concerned, you cannot safely go further than that in each case you must look to the subject-matter; consider the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

In Poppatlal Shah v. The State of Madras : 1953CriLJ1105 it is said (p. 683):

It is a settled rule of construction that to ascertain the legislative intent, all the constituent parts of a statute are to be taken together and each word, phrase or sentence is to be considered in the light of the general purpose and object of the Act itself.

In Jagan Nath v. Jaswant Singh : [1954]1SCR892 it was also observed (p. 901):.It is one of the Rules of construction that a provision like this is not mandatory unless non-compliance with it is made penal.

6. It is undoubtedly true that there may be cases where even though non-compliance is not made penal, on a construction of the statute with due regard to its object and the purpose to be achieved the Court may be constrained to hold that non-compliance would fender the act invalid. We must, therefore, in construing this rule consider the provisions under which it is made, the purpose intended to be achieved and the results of non-compliance with the rule.

7. The appointment to the Standing Committee and to the B.E.S.T. Committee is made under Sections 38 and 50. Section 38 reads:

The corporation may from time to time appoint out of their own body such and so many committees consisting of such number of persons, and may refer to such committees for inquiry and report or for opinion, such special subjects relating to the purposes of this Act as they shall think fit.

It is evident from the words that appointment to the Committee is not a question of formal election at all. From time to time the Corporation has to appoint committees for various purposes and except that the subject be on the agenda nothing seems to be required under the section. Similarly Section 50(1) is:

The corporation shall appoint a committee to be called the Bombay Electric Supply and Transport Committee for the purpose of conducting the Bombay Electric Supply and Transport Undertaking in accordance with the provisions of this Act and subject to the Conditions and limitations as are in this Act contained.

Sub-section (3) of Section 50 provides that the Chairman shall be an ex-officio member of the committee and the other members shall be appointed by the corporation from among persons who, in the opinion of the corporation, have had experience of and have shown capacity in administration, transport, or electric supply or in engineering, industrial, commercial, financial or labour matters and who may or may not be councillors. Sub-section (4) provides for disqualification for being appointed as a member of the committee. Here also it is clear that it is not a question of formal election as such. It is argued by Mr. Tunara that in Sub-section (1) the words 'in accordance with the provisions of this Act and subject to the conditions and limitations as are in this Act contained' must necessarily mean subject to all rules that may possibly be framed by the corporation in such matter. It is not possible to go the whole way as contended by Mr. Tunara. From Section 50 onwards there are several provisions for regulating the appointment of members, their office, their qualifications, their disqualification and for filling up vacancies etc. What is intended by these words is that all such appointments shall be made subject to these provisions.

10. The Rule to which we have referred to is a rule made under Section 36 of the Act which enables the Corporation to make rules or regulations for transaction and managing the business of the Corporation. These rules are not required to be made in a manner different from that of an ordinary resolution. They do not also require sanction of the State Government. In other words they are not constitutional provisions as such. They cannot, therefore, impair the rights of the Corporation under the Act. It would appear that in spite of a nomination of a particular person if he is unsuited and has not one of the attributes required under Sub-section (3) he may not be appointed to the Committee. In other words, the Corporation is not bound to appoint him to that office.

12. Coming to the rule in question, it is clear that a period of three clear days for nomination of a candidate is provided in order that the Corporators should have notice as to the persons who are in the field and out of whom a choice has to be effected. One must also remember that there are not more than 150 councillors and, therefore, considerations involved in election to the various Legislatures or to the Corporation itself cannot arise in the case of appointment by such a small body.

13. Looking to the object of the framing of the rule, it would seem that it was never intended to be observed in its letter. The hours 10 A.M. to 5 P.M. were mentioned in the rule, because, as said by the Mayor, the rule was framed at a time when the office time was 10 A.M. to 5 P.M. according to Bombay time. Intendment was that the papers should be deposited during office hours. Non-presentation of the paper before 5 P.M. does not really affect the merits of the matter as long as three dear days are left as provided in the rule.

14. It has also to be noted that the first para. of Rule 47(1) provides (i) that the nomination paper shall be deposited between 10 A.M. and 5 P.M. at least three clear days and (ii) how it must be subscribed. Thus the rule is divided into two parts and yet ill the second part, the consequence of rendering the nomination invalid is only attached to the paper subscribed in contravention of that rule. It only means that if the nomination paper does not state the name of the candidate in full and/or is not subscribed by two councillors as proposer and seconder then the nomination paper must be rendered invalid. Yet the Mayor's ruling that the nomination of petitioner No. 1 whose father's name has not been given in full was valid as he can be identified is accepted as correct by the petitioners. We must, therefore, be not unmindful of the fact that the Corporation was providing for two matters in the earlier part of the rule and expressly said that non-compliance with the second requirement of that rule would render the paper invalid. The rule expressio unius est exclusio alterius then applies since if the intention was to render the nomination invalid for non-compliance with the earlier part of the rule, the rule-makers would have expressly said so.

15. It has been very seriously pressed upon us by reference to decided cases that time prescribed for presentation of nomination papers must be strictly complied with and non-compliance renders the nomination invalid. We were referred to Cutting v. Windsor (1924) 40 T.L.R. 395 where a rule under the Municipal Corporations Act, 1882, said to be practically worded in the same form as the present rule was held to be mandatory and non-compliance with it was held to render the nomination paper invalid. In the first place it is not correct to say that the rule MILS worded exactly as the present rule. In any case the rule reproduced at p. 396 of the report shows that the similarity is only this that no consequence is provided. The rule did not deal with two matters nor did the consequence deal with one of the two matters. Even if, however, this decision must be regarded as an authority on the interpretation of the rule, in our view, it has no application. Section 55 of the relevant Act said:

The nomination of candidates for the office of councillor should be conducted in accordance with the rules in part II of the third Schedule to the Act.

16. It is clear that it related to a matter pertinent to the election of the councillor to the Corporation. Moreover, it was a statutory provision and as in all election cases the requirement was held to be mandatory. Same is the answer regarding Rathis Chandra Munshi v. Amulya Charan Ghatak Doabia's Election Cases 1935 2 Case 198 decided by the Calcutta High Court in connection with the election to the Municipal Corporation under the corresponding Act of Bengal. It was there provided that the municipal elections were to be held in accordance with the rules framed by the Government of Bengal. Rule 15 (1) of those rules provided that 'every person who is a candidate for election shall send his name to the Chairman in writing not less than 28 days before the date fixed for the ejection.' These cases, therefore, do not advance the case of the respondents any further.

17. Mr. Tunara on behalf of his clients referred us to the decision in Collector of Monghyr v. Keshav Prasad : [1963]1SCR98 where even though no consequence of invalidity was provided in the statute itself, the Court held that the provision requiring that reasons be given by the Collector was mandatory and non-compliance with the provision rendered his Act invalid. Their Lordship's remarks show that the requirement was a condition for the exercise, of the power by the Collector and since the rights of a subject were involved it was held that the provision was mandatory.

18. It was contended on behalf of respondent No. 4 that an attempt was made to present the nomination paper to the Secretary at about 4 o'clock but he was not in his office. The learned Judge has expressed the view that this was an afterthought. However, from the affidavit filed by the Secretary, Mr. Pandya, it does emerge that he was not in his office at 5 o'clock. If the question had to be considered, we would have probably taken the view that if the Secretary was not in his office at 5 o'clock compliance with the rule was not possible. However, we have not heard any arguments on that question and we do not propose to express any conclusive opinion on the same.

19. The decision under appeal must, therefore, be set aside. We accordingly allow the appeal and discharge the rule with costs throughout. The trial Court has quantified the costs of petitioners at Rs. 400. In our view, looking to the number of hearings that took place in the trial Court, that is a fair amount that should be allowed to the Corporation now who has finally succeeded. The appellants will, therefore, get Rs. 400 as costs of the trial and taxed costs of the appeal from respondents Nos. 1 and 2. As to respondent No. 4, there would be no order as to costs. The attorneys for the appellants are allowed to withdraw the amount deposited by them as security for costs.


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