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Desaibhai Kashibhai Desai Vs. S.M. Dudani - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 542 of 1959
Judge
Reported in(1959)61BOMLR1326
AppellantDesaibhai Kashibhai Desai
RespondentS.M. Dudani
Excerpt:
.....boroughs act (bom. xviii of 1925), sections 58(a) & (b), 46-nadiad borough municipality rules, rules 43, 2(5)-whether word 'officer' in rule 43 includes president of municipality-procedure for electing president where no statutory provision thereto made or in absence of precedent of local body.;the word 'officer' occurring in rule 43 of the rules framed by the nadiad borough municipality under section 55(a) and (b) read with section 46 of the bombay municipal boroughs act, 1925, must be understood in a wider sense, and not in the narrower sense as defined in rule 2(5) of the rules. therefore, the president would be included in the word 'officer' as used in rule 43 and the procedure prescribed in that rule for the purpose of voting would apply for electing a president.;in the..........rules are at p. 25 of the bombay municipal corporation rules and regulations, the important rule is rule 10. it reads as follows:-if there are more than two candidates, the candidate who gets the least number of votes shall be eliminated and votes taken again for the remaining candidates. this process shall be continued until there are two candidates left and then the one who gets more votes shall be declared elected.it is pertinent to note that the provisions of this rule are in substance similar to those of clause (2) of rule 43 of the rules of the nadiad borough municipality. next, we have the rules made by the bombay legislative department for regulating the procedure and conduct of the business of the assembly. rule 6 of the bombay legislative assembly rules relates to the.....
Judgment:

Tambe, J.

1. By this petition under Articles 226 and 227 of the Constitution of India, one Desaibhai Kashibhai Desai, an elected councillor of the Nadiad Borough Municipality, challenges the election of Chimanbhai Kashibhai Patel, opponent No. 3 hereto, to the office of the President of the Municipality held on March 23, 1959.

2. The facts giving rise to this petition in brief are, Chimanbhai was a duly elected President during the year 1958-59. His term of office expired on March 9, 1959. Section 19A read together with Section 23(2) of the Bombay Municipal Boroughs Act, 1925, (hereinafter called the Act) cast a duty on the Collector to call a meeting for the election of the President. The Collector, Kaira District, (opponent No. 1), accordingly called a meeting of the councilors of the Municipality for March 23, 1959, for electing a President of the Nadiad Borough Municipality, and he further directed the District Deputy Collector, opponent No. 2 hereto, to preside over the meeting. From among the 34 councillors 32 councillors attended the meeting. The meeting first unanimously passed a resolution that a new President should be elected for a period of one year. Thereafter, for the office of the President three nominations were made. Chimanbhai Kashibhai Patel's name was proposed by Babubhai Bhikhabhai Desai and seconded by Haribhai Govindbhai Patel. Manmohandas Bhagwan-das Desai was proposed by Balubhai Harishanker Bhatt and seconded by Desaibhai Kashibai Desai. Balubhai Harishanker Bhatt's name was proposed by Kanubhai Kashibhai Patel and seconded by Mangubhai. It appears that opponent No. 2 decided to take the poll in two rounds. He first asked the house to elect one out of the two nominees, Manmohandas Bhagwandas Desai and Balubhai Harishanker Bhatt. At this stage, Balubhai declared in the meeting that he wanted to withdraw from the election. His proposer Kanubhai, however, did not agree to the withdrawal of Balubhai. The presiding officer, therefore, did not allow Balubhai to withdraw from the contest. Poll was thereafter taken, and each of the candidates, namely, Manmohandas and Balubhai, secured 16 votes each. Lots were drawn, with the result that Balubhai was declared elected. According to the procedure initially laid down by the presiding officer, there should have been a voting as between the remaining two candidates, namely, Chimanbhai and Balubhai, the successful candidate in the first round. But before poll for the second round was taken, the proposer of Balubhai, namely, Kanubhai, with the consent of the seconder, informed the presiding officer that he withdrew the name of Balubhai from the contest. It appears that there was opposition by some of the members to the proposed withdrawal of the name of Balubhai. The presiding officer, however, ruled that the proposer having withdrawn the name of Balubhai, only one proposal remained before the House, namely, the proposal of the name of Chimanbhai for the election of presidentship and in this view of the matter he declared that Chimanbhai Kashibhai Patel was duly elected President of the Nadiad Municipal Committee. This election is challenged before us. The petitioner has claimed the following reliefs :-

(a) That the Hon'ble Court be pleased to issue a Writ of quo warranto or a writ, order or direction of like nature against the 3rd respondent herein and call for the record and proceedings of the said election and quash the same and set aside the said election;

(b) That the Hon'ble Court be pleased to issue a writ of prohibition or a writ, order or direction of like nature and restrain the 3rd respondent herein from acting as the President until such time that he may be validly elected if at all as a President in another valid election;

(c) That the Hon'ble Court be pleased to command or direct by a writ of Mandamus or a writ, order or direction of like nature, the 1st respondent to hold with the utmost expedition possible another election for electing the President of the 4th respondent in accordance with law and procedure and in accordance with the provisions of Rule 43 of the Rules of the Nadiad Borough Municipality.

3. Mr. Kotwal, who appears for the petitioner, contends that the procedure adopted by the District Deputy Collector in holding the election of the President is contrary to law; he ought to have conducted the election in accordance with the provisions contained in Rule 43 of the Rules framed by the Municipality under Section 58(a) and (i) read with Section 46 of the Act. In the second instance, Mr, Kotwal contends that even assuming that the provisions of Rule 43 were not applicable, the District Deputy Collector should have held the election according to the parliamentary procedure. At any rate, according to Mr. Kotwal, the District Deputy Collector was in error in not allowing Balubhai to withdraw from the election before poll was taken for the first time. It is his further contention that after having refused to allow Balubhai to withdraw his candidature, the District Deputy Collector ought not to have permitted Kanubhai, the proposer of Balubhai, to withdraw the proposal at the commencement of the second round. Lastly, it is contended by Mr. Kotwal that in any event it was the bounden duty of the District Deputy Collector to have put to the vote of the House as to whether they approved the election of Chimanbhai as the President of the Municipality. On the other hand, it is contended by the learned Government Pleader, who appears for the District Deputy Collector, and Mr. Desai, the learned Counsel for Chimanbhai, that the provisions of Rule 43 have no application to the election of a President, It was open to the Prant Officer to adopt any procedure he thought best suited. In the instant case, the Prant Officer adopted the aforesaid procedure with the consent of the members, of the Municipality and, therefore, it is not open to any of the members of the Municipality to challenge the procedure now in this Court by a petition under Article 226 or 227 of the Constitution of India.

4. The first question to be considered is, whether Rule 43 would govern the case. It reads as follows:-

43. Voting for appointment of Committees or officers-Voting for appointment of committees and for officers by ballot shall be conducted as follows:-

(1) Printed or typewritten slips of papers bearing the names of the candidates shall be circulated among the Councillors present at the meeting fixed for the selection and the voting shall be by putting a cross against the name of the candidate for whom they want to vote without signing the slips. The first ballot shall be kept open, for 15 minutes from the commencement thereof, the votes for all the candidates shall be counted by the presiding authority with the assistance of the Chief Officer or the Secretary.

(2) On the announcement of the result of the first ballot, the name of the nominee who obtains the lowest number of votes shall be struck off and a fresh ballot shall be taken from the rest of the original nominees. The nominee with the lowest number of votes shall then be struck off, and this process shall be repeated until there remain only as many nominees as places, when the nominees thus remaining shall be declared duly elected.

According to the learned Government Pleader and Mr. Desai, the procedure prescribed in Rule 43 has application only when the question of appointment of committees and of officers arises. According to them, the word 'officers' has to be understood and given the meaning as is given to it in the interpretation clause, Rule 2(5) of the rules, which defines that 'officer' means any Municipal employee, whose salary, or in the case of time scale of pay, the maximum salary, exceeds Rs. 50 per mensem. On the other hand, it is the contention of Mr. Kotwal that the word 'officer' has to be understood in its wider sense. It includes not only the servants of the Municipality, hut also other persons occupying the various posts and offices in the Municipality. 'We find it difficult to accept the contention raised on behalf of opponents Nos. 2 and 55 and give the word 'officer' a very restricted meaning as is contended for by them. It is true that in the definition in Rule 2(5) such a restricted meaning is given to the word 'officer'. But then it has to be kept in mind that that meaning cannot be given when there is something repugnant in the subject or the context. It would be seen that even in the rules themselves the word 'officer' is used in a sense other than the servant of the Municipality. If we turn to Rule 2(3)(i) we find that the President is a Controlling officer of the auditors. It cannot be disputed that the President is not a servant of the Municipality drawing any pay from the Municipal funds. If we refer to the Shorter Oxford English Dictionary, we find that there are various shades of meaning of the word 'officer'. In one sense, it means 'one who holds a public, civil or ecclesiastical office; a servant or minister of the king; a functionary authoritatively appointed or elected to exercise some public, municipal or corporate function.' In another sense, it means 'a person holding the office of president, treasurer, secretary etc. of a society or institution;' or, in other words 'an office-bearer'. Turning to the provisions of the Act, we find that Section 18 provides that a person is elected to the office of the president. Section 19 provides for the term of office of President. Section 20 provides for the resignation from the office of the President. Section 21 provides for the removal of a person from the office of the President. Section 23-A provides for handing over of the charge by the person holding the office of the President. It is, therefore, clear that the President holds office, or, in other words, is an office-bearer of a municipality. The President, therefore, can be termed as an officer within the wider meaning of the word 'officer' as defined in the Oxford Dictionary. Turning now to the provisions of Rule 43 itself, we find a certain procedure prescribed for the purpose of voting, and a person successful therein is termed as a duly elected person, and persons contesting are termed as nominees. These expressions used in the rule indicate that the procedure prescribed in the rule relates to holding an election. It is not in dispute that a person appointed in the post of the President has to be elected by the members of the municipality. It is also worth noting that this rule provides for the appointment of committees, and turning to the provisions of the statute, namely, Sections 37 and 38, it is clear that the various committees are to be elected by the members of the municipality. On the other hand, it cannot be said that the servants of the municipality are appointed by holding an election. It also cannot be said that persons, who apply for service, are the nominees of any of the members of the municipality. For reasons stated above, in our opinion, the word 'officer' occurring in Rule 43 of the rules has to be understood in a wider sense, and not in the narrower sense as defined in Rule 2(5), To hold otherwise, we would have to assume that no provision exists either in the Act or in the rules regarding the procedure to be followed for electing a president. We find it difficult to make such an assumption.

5. Even assuming for a moment that Rule 43 has no application to the election of the President, then the course open to the District Deputy Collector was to adopt such a procedure as would enable him to perform his duties and adequately ensure to the councillors of the Nadiad Municipality the exercise of their statutory right of electing their President. Section 19-A read with Section 23(2) of the Act casts a duty on the Collector to call a meeting of the municipality for the purpose of electing a President and preside over that meeting, or appoint some other person to preside over it. Thus, whoever be the person that presides over the meeting has a duty to perform, namely, to hold an election. The right to elect consists in free and honest expression of the will by the electoral council. It, therefore, follows that the duty that fell on the District Deputy Collector was to adopt such a procedure as would ensure to the members of the Nadiad Municipality a free and honest expression of their will.

6. In the absence of any specific provision, the procedure which a person presiding over the meeting should adopt, in the words of the learned author in his book 'The Conduct of and Procedure at Public, Company and Local Government Meetings (Crew)' at p. 32, is,

where there are no standing orders or where standing orders are inadequate, then either the practice of the House of Commons or the usual practice of the previous meetings may be followed. In a simple case, however, the difficulty may be overcome by the chairman exercising his common sense and bearing in mind that it is his duty to ascertain the views of the meeting.

In our opinion, the aforesaid observations contain a salutary rule and can in its substance be followed with advantage. The substance of the rule appears to be that in the absence of any statutory provision or a precedent of the body, the person presiding over that body should adopt some well-recognised procedure relating to the business which the meeting is convened to transact.

7. Now, in the instant case, the District Deputy Collector could have well adopted any one of the following three well-established rules of procedure. In the first instance, there is the procedure for election of Mayor of the Bombay-Municipal Corporation. The relevant rules are at p. 25 of the Bombay Municipal Corporation Rules and Regulations, The important rule is Rule 10. It reads as follows:-

If there are more than two candidates, the candidate who gets the least number of votes shall be eliminated and votes taken again for the remaining candidates. This process shall be continued until there are two candidates left and then the one who gets more votes shall be declared elected.

It is pertinent to note that the provisions of this rule are in substance similar to those of Clause (2) of Rule 43 of the Rules of the Nadiad Borough Municipality. Next, we have the Rules made by the Bombay Legislative Department for regulating the procedure and conduct of the business of the Assembly. Rule 6 of the Bombay Legislative Assembly Rules relates to the election of the Speaker. Clause (5) of the said rule contains the material provisions. It reads:

Where more than two candidates have been nominated and at the first ballot no candidate obtains more votes than the aggregate votes obtained by the other candidates, the candidate who has obtained the smallest number of votes shall be excluded from the election and balloting shall proceed, the candidate obtaining the smallest number of votes at each ballot being excluded from the election, until one candidate obtains more votes than the remaining candidate or than the aggregate votes of the remaining candidates, as the case may be. The candidate who obtains more votes than those obtained by the remaining candidate or than the aggregate votes obtained by the remaining candidates, as the case may be, shall be declared to have been elected as the Speaker.

It is again pertinent to note that the provisions of this clause are in substance similar to Rule 43 of the Nadiad Municipality Rules.

8. Next, we may refer to the relevant provisions of Rules of Procedure and Conduct of Business in the House of the People. Clause (4) of Rule 6 thereof reads:

The motions which have been moved and duly seconded shall be put one by one in the order in which they have been moved and decided if necessary by division. If any motion is carried, the person presiding shall, without putting later motions, declare that the member proposed in the motion which has been carried, has been chosen as the Speaker of the House.

These provisions, to a certain extent, differ from the other provisions referred to above. It would, however, be seen that there is a common characteristic in all these provisions and that is that, a person declared elected as the President of a body has the vote of the majority of its members in his favour. In the procedure adopted by the District Deputy Collector this basic principle has been lost sight of.

9. It is, however, contended by Mr. Desai that it was open to the President to adopt the procedure agreed to by the members of the House. He relies in that connection on the following observations occurring at p. 32 of 'Law of Meetings' by James Muirhead, 2nd edn.:-

The ultimate power and right of decision on any question rests with the body itself when duly assembled to be exercised by the vote of the majority. The board, in the absence of special provision by statute or standing order, is entitled to take its business in such order as it may think proper, and is not bound by any agenda paper that may have been previously prepared.

Now, in our opinion, the aforesaid observations have no relevance to the procedure to be adopted in the matter of election. On the other hand, it appears that the question that was being considered related to the right of the body to decide the order in which it would consider the items in the agenda before it. We feel doubtful about the advisability of leaving it to the members of the body to devise a procedure for holding an election, inasmuch as the possibility of the right of the minority suffering at the hands of the party in power cannot be excluded.

10. Even assuming for a moment that in the instant case it was open to the members of the municipality themselves to devise a procedure for the conduct of the election of the president, there is nothing in the minutes of the meeting of March 23, 1959, to show that the members of the municipality themselves had devised any such procedure. 'We, however, find in the affidavit of the District Deputy Collector an averment to the effect that the members of the municipality had decided to adopt a certain procedure. The relevant portion thereof reads as follows:-

It was found that there were three proposals, viz. proposing (1) Shri Chimanbhai Kashibhai Patel (2) Shri Manmohandas Bhagwandas Desai and (3) Shri Balubhai Harishanker Bhatt. After scrutiny it was found that all the three proposals were duly proposed and seconded. It was, therefore, then put before the house that, as there were three proposals two proposals at a time in each round should be taken like this proposal No. 3 and proposal No. 2 should be taken for contest in the first round, and whosoever wins in the first round shall contest with the proposal No. 1.

Assuming that this was the procedure to which the councillors had agreed, on the facts of the case it is clear that that procedure was not adhered to, but was very materially departed from in not holding an election in the second round. It is not the case of the District Deputy Collector nor of opponent No. 3 that it had been agreed to by the members of the Municipal Committee to allow the proposer of Balubhai to withdraw the candidature of Balubhai and declare Chimanbhai as duly elected President. The District Deputy Collector has done so. On his own admission then, it is clear that what he had done was contrary to the procedure alleged to have been agreed to by the House itself. In his return, justification is also sought on the ground that what he did was in accordance with the provisions of Rule 21. It reads as follows:-

21. Withdrawal of motion-Any motion which has been proposed and seconded may be withdrawn by the proposer with the consent of the councillor who seconded the motion.

Even assuming for a moment that this rule has any relevance to the facts of this case, it is clear that the District Deputy Collector had lost sight of the provisions of Rule 25, which provides that after a motion has been made and seconded, it shall not be withdrawn or altered in substance except with the permission of the presiding authority. Reading the return of the District Deputy Collector, there does not appear to be any averment which goes to show that he himself had applied his mind and considered the advisability of allowing Kanubhai to withdraw the candidature of Balubhai. On the other hand, it appears that he thought that under Rule 21 he was bound to allow Kanubhai to withdraw the proposal when the seconder had agreed to such a course. That clearly is an error of law. Thus, looking at the case from any angle, it is clear that the procedure adopted by the District Deputy Collector in holding this election is contrary to the provisions of law; at any rate, contrary to the well-recognised practice usually followed in holding an election. What has happened is that opponent No. 3 Chimanbhai has been declared elected without a single vote being cast in his favour by any councillor. It is not in dispute that there was opposition to the course adopted by the District Deputy Collector in allowing Kanubhai to withdraw the candidature of Balubhai. About seventeen people lodged their protest in writing before the District Deputy Collector just after the declaration of the result. It indicates that the person declared elected has not the approval of the House behind him. The procedure adopted by the District Deputy Collector has resulted in negativing the exercise of the right of electing a President conferred by the statute on the councillors of the Municipal Committee, Nadiad. It is, therefore, not possible to uphold the election of opponent No. 3.

11. In the result, we set aside the election of opponent No. 3 to the office of the elected President of Nadiad Municipality held on March 23, 1959. An injunction, therefore, will be issued against him restraining him from discharging any of the functions, exercising any rights and performing any duties of the office of the President of the Nadiad Borough Municipality as a duly elected President in the election held on March 23, 1959. 'We, however, wish to make it clear that it will be open to him to exercise such rights as are available to him under the Act as an out-going President till fresh election is held. We further direct the Collector of Kaira, opponent No. 1 hereto, to take steps, as expeditiously as possible, to hold an election for the office of the President of Nadiad Municipality in accordance with law.

12. Costs of this petition shall be borne by opponent No. 3.


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