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J.T. Mathias Vs. A.M. Bangalorie and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2508 of 1974
Judge
Reported inAIR1975Kant150; ILR1974KAR1439; 1975(1)KarLJ114
ActsConstitution of India - Article 226; Bombay Provincial Municipal Corporations Act, 1949 - Sections 4(1), 19, 19(1) and 448; Corporation Rules - Rules 27, 31, 42, 44, 45 and 46
AppellantJ.T. Mathias
RespondentA.M. Bangalorie and ors.
Appellant AdvocateM. Rama Jois, Adv.
Respondent AdvocateK.A. Swami, ;S. Vijaya Shankar and ;H.K. Vasudeva Reddy, Advs.
Excerpt:
.....to perform their statutory duties. it is, therefore, obvious in a case like this, section 448 is of no assistance to any aggrieved person. 6. the next question for consideration is, whether respondent 1 has failed to perform his statutory duty in not taking further steps to elect the mayor and deputy mayor. it was argued for respondent 1 that the point of order was relevant and he was well within his powers to accept it and this court has no jurisdiction to interfere with his discretionary powers. the act or omission complained of against the mayor in this case is not a small matter......respondents 1 and 2 to fix the date for the adjourned meeting for holding of election of mayor and deputy mayor for the corporation forthwith and to proceed with the election from the stage it was interrupted by the illegal adjournment made by respondent 1 and to complete the election in accordance with law.2. the events leading up to the petition are these:respondent 1 is the outgoing mayor of the corporation. respondent 2 is the secretary of the corporation. the corporation was constituted and is governed by the provisions of the bombay provincial municipal corporations act, 1949, hereinafter called 'the act'. in the month of may, 1972, there was general election to the corporation to elect its councillors. after that election, the first meeting of the corporation was held on 3rd june,.....
Judgment:
ORDER

1. In this petition under Article 226, a candidate for the office of the Mayor of the Hubli-Dharwar Municipal Corporation, hereinafter called the 'Corporation', has prayed for the following relief:

To issue a writ of mandamus directing respondents 1 and 2 to fix the date for the adjourned meeting for holding of election of Mayor and Deputy Mayor for the Corporation forthwith and to proceed with the election from the stage it was interrupted by the illegal adjournment made by respondent 1 and to complete the election in accordance with law.

2. The events leading up to the petition are these:

Respondent 1 is the outgoing Mayor of the Corporation. Respondent 2 is the Secretary of the Corporation. The Corporation was constituted and is governed by the provisions of the Bombay Provincial Municipal Corporations Act, 1949, hereinafter called 'the Act'. In the month of May, 1972, there was general election to the Corporation to elect its Councillors. After that election, the first meeting of the Corporation was held on 3rd June, 1972 in which the Mayor and the Deputy Mayor were elected. In the same month, in 1973, there was another meeting in which respondent 1 was elected as the Mayor. For electing the Mayor and Deputy Mayor for the year 1974-75, respondent 1, called a meeting of the Corporation on 3rd June, 1974. In accordance with the notice of the said meeting, the petitioner filed his nomination paper for the office of the Mayor, Respondent 4 was a rival candidate for the said office. Likewise, respondents 5 and 6 were rival candidates for the office of the Deputy Mayor. The meeting presided over by the Mayor commenced at 3.00 p. m. evidently to take ballot voting. Thus far the Mayor was right; but what happened next is a little disturbing. Before the voting took place, respondent 7 who is one of the Councillors raised a point of order. His point was that the notice of the meeting was defective as it did not specify the term of office of the Mayor and the Deputy Mayor. The Mayor, I am told, after some discussion, accepted the point of order and adjourned the meeting sine die. The events that followed immediately thereafter are in dispute. It appears that there was a lot of commotion followed by holding 'Dharana' by the followers of the petitioner, both in the Corporation hall and also before the residence of the Mayor; but the fact remains that the Mayor has not yet called another meeting. So, the petitioner has preferred this writ petition on 24th June, 1974, for a writ to compel respondent 1 to take steps to hold the election.

3. It is admitted on all hands, that respondent 1 has to call a meeting of the Corporation for electing the Mayor and Deputy Mayor for the year 1974-75. But he has filed his objections opposing the relief prayed for by the petitioner. Firstly, he has stated that the petitioner is not entitled to a writ of mandamus as there is an alternate remedy available to him under Section 448 of the Act. Secondly, he has sought to justify his action in adjourning the meeting sine die. He has stated that the point of order raised by respondent 7 was relevant; that the notice of the meeting, without specifying the term of the Mayor was defective, and that he has accepted the point of order in good faith and adjourned the meeting. He has also stated that his decision was final and could not be questioned in court of law. He has further stated that he could not convene a fresh meeting to elect the Mayor and Deputy Mayor as some of the Councillors started 'Dharana' in the Corporation meeting hall and also before his house, and further caused disappearance of the papers pertaining to the election and attempted to assault the Municipal Secretary. Lastly he has stated:

'In view of the issue raised by the opposition members that 1st respondent has ceased to be a Mayor the 1st respondent before taking steps in the matter was required to take legal opinion about it. Therefore, he has directed his law Officer to examine the position and if need be to consult Corporation Lawyer. When all this was going on the top noted writ petition has been filed. After filing of the writ petition the matter became sub judice, no further action could be taken as it would have affected or interfered with the course of justice.'

The statement of objections by respondent 2, substantially corroborates the above averments of the Mayor.

4. Before I proceed to consider the main question involved in the petition, it is necessary to decide the preliminary objection raised for the respondents. It was urged that the petitioner is not entitled to a writ of mandamus as he has a specific legal remedy under Section 448 of the Act, and the existence of another remedy is a bar for the issuance of writ of mandamus, it is true that mandamus will not issue where there is another adequate and specific legal remedy competent to afford relief upon the same subject-matter. In 'The Law of Extraordinary Legal Remedies', by Ferris and Ferris, 1926, it is stated thus at p. 245 :

'Mandamus is a supplementary remedy, to be used where the party has a clear legal right and no other appropriate redress to prevent a failure of justice. It does not supersede legal remedies, but rather supplies the want of such a remedy. Its use is confined to those occasions where the law has established no specific remedy, and where in practice and good Government there ought to be one. It is for this reason that the prerogative writ is issued.'

The learned authors in the same volume at page 247, have further stated that

'the other remedy, to supersede mandamus, must be competent to afford relief upon the very subject-matter of the application, and be equally convenient, beneficial and effective.'

I may also refer to the following two decisions of the Supreme Court on the question. In Thansingh v. Superintendent of Taxes, Dhubri, : [1964]6SCR654 , the Supreme Court observed:

'Ordinarily, the court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. The exercise of jurisdiction is discretionary. It does not exercise merely because it is lawful to do so.....Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under -the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.'

In British India Steam Navigation Company v. Jasjit Singh, : AIR1964SC1451 the above principles have been reiterated with an observation that the High Court should be slow in encouraging parties to circumvent the special provisions made providing for revisions in respect of the orders which they seek to challenge by a writ under Article 226.

With these principles, let me now see whether the petitioner has an adequate and efficacious remedy under Section 448 of the Act. The said section provides:

'448. (1) If it shall at any time appear to the Provincial Government upon complaint or otherwise that default has been made in the performance of any duty imposed on any of the municipal authorities by or under this Act or by or under any enactment for the time being in force, the Provincial Government may, if satisfied after due inquiry that the alleged default has been made, make an order prescribed for the performance of that duty:

Provided that, except in any case which appears to the Provincial Government to be one of emergency, no such order shall be made until after the expiry of one month from the date of service of a written notice on the Corporation, and if the Provincial Government shall think fit, on the Commissioner, requiring cause to be shown why such order should not be made, nor until the cause, if any, so shown has been considered by the Provincial Government.

(2) If the duty is not performed within the period prescribed in an order made under Sub-section (1), the Provincial Government may appoint some person to perform the same and may direct that the expense of performing such duty, together with such reasonable remuneration to the persons performing the same as the Provincial Government shall determine and the cost of the proceedings under this section shall be paid out of the Municipal Fund.'

The above provision confers power on the State Government to require performance of duties in default of any Municipal authorities. The State Government may act either suo motu or on the complaint of any aggrieved person. It was said that one of the Councillors has already filed a petition before the State Government complaining the default of respondent 1 in not convening the meeting to elect the Mayor and Deputy Mayor and the petitioner should await the outcome of the said complaint.

5. In my view, Section 448 is not at all a remedy for any aggrieved person. It is a right preserved to the State Government to compel the Municipal authorities to perform their statutory duties. But none could compel the Government to take action under the said section. Mr. K. A. Swami, counsel for respondent 1, in fact, has fairly submitted that the section does not confer any right on an aggrieved person. In my view, it is not a remedy provided also.

Even otherwise, it is doubtful whether the State Government could command the Mayor under Section 448 to call the meeting. The State, under the said section could compel the Municipal authorities, if they fail to perform their statutory duties. The Municipal authorities charged with the duty to carry out the provisions of the Act are enumerated under Section 4 of the Act, which reads:

4. (1) The municipal authorities charged with carrying the provisions of this Act for each city:--

(A) a Corporation;

(B) a Standing Committee;

(C) a Municipal Commissioner;and, in the event of the Corpora-tion establishing or acquiring aTransport Undertaking;

(D) a Transport Committee; (E) a Transport Manager.'

The Mayor is not one of the authorities mentioned therein. It was urged that the Corporation consists of Councillors and the Mayor is one among them and therefore, he falls within the meaning of the Corporation. Plainly, that contention is untenable. It is too much to equate the Mayor with the Corporation. A Municipal Corporation is a legal institution with a corporate name and continuous succession with the authority of subordinate self-Government, and local administration of the affairs of the State. The duties of the Corporation under the Act are different from the duties of the Mayor. For the default of one, the other cannot be compelled or found fault with. It is, therefore, obvious in a case like this, Section 448 is of no assistance to any aggrieved person.

6. The next question for consideration is, whether respondent 1 has failed to perform his statutory duty in not taking further steps to elect the Mayor and Deputy Mayor. The answer to this question firstly depends very much on the validity of the adjournment of the meeting held on 3rd June, 1974, and secondly on the reasonableness of the excuses given by respondent 1 for not calling another meeting hitherto.

7. The notice of the meeting was issued on 18-5-1974. It was in effect the election calendar, with the last dates mentioned to file nominations and also for their withdrawals. Accordingly, the nominations were deposited with the Municipal Secretary between 3.00 p.m. and 5 p.m. on or before 30-5-1974 Since there were more than one candidate for each office, the election ought to have been held by ballot in the manner prescribed by Rule 42 of the Corporation Rules. Before it was done, a point of order was raised by the 7th respondent stating that the notice of the meeting did not specify the term of office of the Mayor and Deputy Mayor and therefore the poll could not take place. Respondent 1 accepted the point of order and adjourned the meeting sine die. It was argued for respondent 1 that the point of order was relevant and he was well within his powers to accept it and this Court has no jurisdiction to interfere with his discretionary powers.

If the point of order was relevant and if it was accepted bona fide by respondent 1, this Court would not interfere with the discretion exercised by the Mayor in conducting the deliberations of the meeting. But if the Mayor acted illegally or mala fide, and adjourned the statutory meeting without holding the election, which he ought to, this Court will not hesitate to interfere. The act or omission complained of against the Mayor in this case is not a small matter. It was an omission to hold the annual election to the highest public office in the Corporation. Such election has to be held in the manner provided by Section 19 of the Act. It reads:

'19. (1) The Corporation shall at its first meeting after general elections and at its first meeting in the same month in each succeeding year elect from amongst the Councillors one of its members to be the Mayor and another to be the Deputy Mayor.

(2) The Mayor and the Deputy Mayor shall hold office until a new Mayor and a new Deputy Mayor have been elected under Sub-section (1) and, in a year in which general elections have been held, shall do so notwithstanding that they have not been returned as Councillors on the result of the elections.

(3) A retiring Mayor or Deputy Mayor shall be eligible for re-election to either office.'

It is clear from the above provisions that the Mayor of the Corporation is elected among the Councillors. The election of the Mayor is the first business to be transacted at the first meeting of every year. The term of office of the Mayor is one year, but unless he resigns or ceases to be qualified, he continues in office until his successor is elected. The term of office of the Mayor has been fixed by the Legislature. The Mayor has no power to fix that term in the notice of the election meeting. There is no rule requiring the Mayor to specify the term of his successor in the election notice. I am told by counsel on both sides that notice specifying the term of the Mayor was not issued in the previous years including in the election in which respondent 1 was elected as the Mayor. It is thus seen, that the requirement of specifying the term of the Mayor in the election notice is, neither supported by law nor procedure or precedent. Therefore, the contention of respondent 1, that the point of order of respondent 7 was relevant and he accepted it bona fide is too difficult to believe.

8. It seems to me, that this is a case where the rules of law are discredited by those who are charged with the responsibility of administering them. Unquestionably, it is the duty of the Mayor to preside at the meeting, to preserve order, to accept or reject a relevant point of order and to take care that the proceedings are conducted in a proper manner and that the sense of the meeting is properly ascertained with regard to any question. The procedure of the meetings is regulated by statutory rules. The Mayor has no power to stop the meeting or adjourn the meeting merely because he thinks it to be reasonable. The Mayor presides at the meeting with reference to the business to be transacted. After the business has been opened, he cannot say 'I will not let this meeting proceed; I will stop it; or I adjourn the meeting sine die.' In my opinion, that is not within his power. The rules under Chapter II of the Act provide that the business of the meeting must proceed and every question shall be decided by a majority of votes of the Councillors present and voting on that question. It is only in the case of grave disorder arising in a meeting, the Mayor may suspend the meeting for a period not exceeding three days (see Rule 2 of Chapter II). Rules 27 and 31 of the Corporation Rules provide procedure for adjournment of debate or meeting. Under Rule 27, if a proposition comes for adjournment, he shall put to vote after giving the Councillors such reasonable opportunity to state the reasons for or against such motion. Under Rule 31, the Mayor may, at his discretion, adjourn the meeting with the consent of the majority of the Councillors present, even while a Councillor is speaking on a proposition. In any one of the above rules, the Mayor is not competent to accept a point of order and adjourn the meeting sine die without the consent of the majority of the Councillors present. The action of the Mayor, in accepting the point of order from respondent 7, and adjourning the election meeting sine die, was therefore wholly illegal.

9. Government by Municipal Administration is the highest form of local self-Government. The Corporations have been designed and created for that purpose. They are the seats of modern civilization, nurseries of public spirit and the centres of constitutional freedoms. They constitute the strength of our nation and the fabrics of our free Government. It is in these Corporations, the people acquire the habits of subordination and obedience to the laws and knowledge of Civil Government. Therefore, those who constitute and those who govern these Corporations owe a duty to the State and the public to maintain the spirit of democracy and the rule of law.

10. This takes me on to the question regarding the relief to be granted in this petition. The petitioner has prayed that the Mayor should be directed to convene a meeting and to continue the process of election from the stage at which it was interrupted by the point of order of respondent 7. It is not in dispute that the nomination papers for the Mayor and Deputy Mayor have been already deposited with the Secretary in accordance with the procedure provided under Rules 44 to 46 of the Corporation Rules. The next step which ought to have been taken was to take the ballot in the manner prescribed by Rule 42. Counsel for respondents 1 and 2 however submitted that in the event of this Court allowing the writ petition, there shall be a fresh calendar with opportunities to the Councillors to file again their nominations.

I do not think that it is a correct procedure to be adopted in this case. The rules relating to the election do not provide for nullification of the calendar of events which was already published in accordance with law; nor does it authorise the Mayor to cancel the nomination papers which were duly received. I have held that there was no infirmity in the election notice of the meeting held on 3rd June, 1974. In that view, respondent 1 should be directed to convene another meeting to take the ballot on the nominations already received for the Mayor and Deputy Mayor.

11. In the result, I allow the petition and make the rule absolute. A writ of mandamus shall issue to order respondents 1 and 2 to convene an extraordinary special meeting of the Corporation forthwith and to proceed with the election of the Mayor and Deputy Mayor from the stage at which it was interrupted by the adjournment of the meeting on 3rd June, 1974.

12. The petitioner is entitled to his costs. Advocate's fee Rs. 100.

13. Petition allowed.


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