1. I concur in the conclusion of my learned brother that this appeal should be dismissed. In my opinion it is quite sufficient to hold that even if the defendant was disqualified, the plaintiff was not duly elected as the Chairman of the Municipal Board. For deciding this question we are confined to the provisions of the United Provinces Municipalities Act (Act 2 of 1916). It is not really necessary to rely on English authorities on the Common law rules-applicable to Parliamentary Elections. They can serve only as a guide. It is however quite clear that up to 1856 there was no special legislation and Elections were held under special charters granted to Corporations. Cases before 1882 proceeded on certain general principles and the terms of the charters and not on any statutory enactment. It was for the first time in England that in Clause 10 of Schedule 2, attached to the Municipal Corporations Act, 1882, it was provided that matters should be decided 'by the majority of such members of the Council as are present and vote at a meeting'. Such a provision removed all possibility of a deadlock being created when many members who were present did not vote at all. The modes of Election of Alderman and Mayor were laid down in Sections 60 and 61 of the Act.
2. Section 92 of the Municipalities Act of these provinces provides that all questions shall be decided 'by a majority of the votes of the members present and voting'. It is noteworthy that this section applies to all questions that may come up before a meeting of the Board and not only to the election of the Chairman, Vice-Chairman etc. The learned Counsel for the plaintiff has urged before us that the word 'validity' is understood after the word 'voting'. His contention is that the votes of only those members who are voting validly can be counted and that the votes of those who are not voting validly should be altogether excluded and such members should be considered as not to have voted at all. This is in substance applying the rule of common law governing Parliamentary Elections. In a bit; election it is very inconvenient that votes in the form of' yes' or no' should be taken with regard to each candidate. Accordingly, it has been held that the only way of voting against a candidate is by voting in favour of another candidate. But this, of course, cannot apply to all questions which come up for decision before a small Municipal Board. Those seems to be no justification for extending the English Common Law rule to votes of Municipal members. So long as the member himself is duly qualified to vote and records a vote, he is a member 'who is present and. voting'. The fact that the person for whom he voted turns out to ho a disqualified parson would render his vote useless, but it would not be accurate to say that the voting itself was futile valid. The vote was good, but it was futile inasmuch as it has been wasted or thrown away. It seems to me that the section requires that more than half the members who are present and are recording their votes on the question put should be in favour of it; otherwise it would not be duly carried As the word 'majority' of the votes is used and not the greater number of votes, the legislature obviously intended that there should be only one question put at a time and not that votes should be asked for on two separate questions put simultaneously.
3. It appears tome that the procedure adopted by the Vice-Chairman on this occasion was not quite correct. By asking the members to vote once either in favour of one or the other candidate he left no option to the members to record a negative vote against both. Members who did not like either of the candidates were left no option but to remain neutral, whereas if votes had been asked for or against one candidate at a time, it would have been definitely ascertained whether the majority were in his favour or were against him. In order to ascertain that a majority of the members present and voting were in favour of a particular candidate is is necessary to eliminate the order, and this is possible only if the two questions are put separately. To give an illustration, out of be members 25 may be against both the two candidates while three are in favour of one and two in favour of the other. If they are asked to vote only for one or the other, they cannot record a negative vote and must remain neutral. The result would be that the candidate who secures three votes, although 25 members are in reality against him, would be declared to be duly elected. In my opinion, this is not the procedure contemplated by Section 92 at all.
4. The plaintiff, in order to be declared to have been duly elected, must show that the majority of the members who were present and recorded their votes voted for him. This is admittedly not the case if we do not confine the meaning of the word 'voting' to voting for a duly qualified candidate. In this view of the matter it is not necessary to examine the further question whether the defendant was in fact disqualified. As it was not necessary to enquire into this matter, we have not heard counsel on the other points. I would therefore, prefer not to commit myself to any very definite views. But as my learned brother has gone into this question, I may perhaps say a few words to indicate how I feel inclined. I also am inclined to think that on the admitted facts the defend ant cannot probably be treated as a salaried Government servant. But I agree with the Courts below that on a proper construction of the sections of the Municipalities Act the sanction required for the election of the Chairman must exist at the time of the election. The word 'sanction', like many other English words, has undoubtedly various meanings. The question is not, what possible meanings it can have according to an English dictionary, but what particular meaning it has in the context where it has been used. We have not to interpret the meaning of the words 'elected subject to the sanction of Government', nor have we to interpret an expression like 'the Government sanctioning the election or proceeding'; the actual words to be interpreted in Section 45 are:'...shall not be elected...without the sanction of the Local Government'. It is quite obvious to me that the sanction of the Government must exist at the time when the election of the Chairman takes place. The election itself is prohibited without such sanction. The section does not say that no election shall be completed without the approval of Government.
5. The reason which appeals to me strongly is that the legislature has advisedly in this very Act used three different expressions in the different sections. Under Section 57 the appointment and salary of an Executive Officer and conditions attached thereto have to be subject to the approval of the Local Government'. Under Section 66 the appointment of a Secretary is to be subject to the approval of the Commissioner'. Again under Section 68 the appointment of a Health Officer, Engineer etc., has to be 'subject to the approval of the Local Government'.
6. These expressions undoubtedly mean that the approval has to be obtained after the appointment has been made. Section 99(2) speaks of sanctioning of budget. Here also the sanctioning of it must be after the budget has been prepared. Under Section 102 the Local Government can direct that the budget of a Board shall be 'subject to the sanction of the Local Government or the Commissioner'. Here again the sanction is obviously to be obtained after the budget has been passed. In marked contrast with these expressions, we have in Section 45 the words 'shall not be elected...without the sanction of the Local Government'. It is, therefore, clear to me that in this last mentioned section the sanction must exist at the time of the election. Now, in order to sea what the word elected' means we have not to see the root meaning of the dictionary meaning of the word 'election'. Undoubtedly that word has various meanings including the ratification of a contracted by a minor on attainment of majority. The sole question is what is the meaning of the word 'elected' (and not election) in Section 45. In order to understand the meaning of that word it is necessary to find out how a Chairman is to be 'elected' under the Act. Section 43 provides that:
Whenever it becomes necessary by reason of an existing, or an anticipated vacancy or otherwise to appoint a Chairman, the Board shall, by special resolution elect one of its members or some person qualified for election as a member etc.
7. Thus, when appointment is necessary the Hoard has to 'elect' by a special, resolution. Obviously, the only body which can 'elect' a Chairman is the Board. The Government does not 'elect' him at all, nor is there any other authority which plaintiff' him; and the way to 'elect' him if by a special resolution, and that is the resolution of the Board and not of Government. It follows that the 'election' under Section 43 must take place as soon as the special resolution is passed. Nothing further is required to 'elect' the Chairman. The language of Sections 43 and 45 read together appears to my mind to indicate that the sanction of the Government should be obtained previously so that the outgoing Chairman, who has had two terms of office in succession, should become qualified to be elected as Chairman as without such sanction he cannot be elected at all. Thus, although the word 'previous' is not used there can be no doubt that the sanction must exist previous to the election, for the election itself is prohibited and is not made subject to approval of Government.
8. The reason why this should be so is to my mind obvious. If the names of several candidates are proposed, as regards one of whom it is doubtful whether the Government would ultimately approve of his election as chairman, then the members would remain in doubt and would run the risk of throwing away their votes on a candidate whom the Government may not ultimately approve. I do not think that the Legislature intended that at the time of the voting there should be any such doubt in the minds of the members. Indeed, if such an uncertainty remains, there would not be a fair voting at all as members might not like to vote for one whose final approval by Government is still a matter of doubt. That practical difficulties were likely to be caused by the other interpretation is now apparent from the circumstance that the Legislature itself had thought fit to introduce the word 'previous' before the word 'sanction' in the Amending Act. As, however, the point has not been argued by counsel, I would prefer not to commit myself finally. I am inclined to think that the intimation received from Government that they would sanction the defendant's term of office for the third time, if he was elected, was perhaps a sufficient sanction as required, by Section 45. The future tense was used merely because the Government took the view that previous sanction was not necessary. But as the point has not been argued by counsel I would reserve my opinion on this question as well.
9. Holding the view that the plaintiff was not duly elected I would dismiss the appeal with coats.
10. This is a second appeal brought by the plaintiff Mr. Harnandan Prasad advocate against defendant 1, Rai Bahadur B. Kamta Prasad and defendant 2, the Municipal Board of Allahabad. The plaintiff sued for an injunction restraining the defendants from interfering with the plaintiff's right of exercising the powers of Chairman of the Municipal Board. The main defence was that defendant 1 and not the plaintiff had been duly elected Chairman. The Munsif dismissed the suit of the plaintiff and the Subordinate Judge dismissed the appeal of the plaintiff. The first ground of appeal is
Because both the Courts below having held that the defendant Kamta Prasad Kakkar was disqualified from being elected Chairman, the plaintiff being the only candidate must in law be doomed to have been elected.
11. The facts found by the lower Court are:
In the meeting of 7th March (1932) the name of the defendant Mr. Kamta Prasad was proposed first and duly seconded. The name of the plaintiff Mr. Harnandan Prasad was next proposed and seconded. At this meeting 28 members voted for Mr. Kamta Prasad and 6 voted for the plaintiff. Mr. Kamta Prasad was accordingly declared elected, and this election was admittedly sanctioned by the Local Government by a G.O. dated 14th March 1932.
12. And further the lower Court found:
In the present case Mr. Harnandan Prasad got 6 votes and the other 26(28) members present in that meeting voted for another person. Those 26(28) votes were in form and substance against Mr. Harnandan Prasad and ho therefore could not be deemed to have been elected. That is, the special resolution proposing his name was lost. In fact there were two special resolution. In one the name of the plaintiff was propound and in the other that of defendant 1. The two resolutions were jointly put up for voting and the result was that the resolution proposing the name of the plaintiff was lost.
13. The appellant objects to the part of this finding that
those 26 votes were in form and substance against Mr. Harnandan Prasad and he therefore could not be deemed to have been elected. That is, the special resolution proposing his name was lost.
14. The appellant relies on a doctrine of the English common law in regard to elections laid down by Lord Deuman, C.J., in the case of Gosling v. Veley and Joslin (1847) 16 L.J.Q.B. 201, as follows:
The cases in which the rule has been either stated or applied in regard to corporate elections are very numerous. The result of the decisions appears to be this. When the majority of the electors vote for a disqualified person, in ignorance of the fact of disqualification, the election may be void or voidable, or in the latter case may be capable of being made good according to the nature of the disqualification; the objection may require some ulterial proceedings to be taken before some competent tribunal in order to make it available; or it may be such as to place the elected candidate on the same footing as if he had never existed and the votes for him wore a nullity. But in no such case are the electors who vote for him deprived of their votes; if the fact becomes known, and is declared while the election is still incomplete, they may instantly, proceed to another nomination and for another candidate, if it be disclosed afterwards, the party elected may be ousted, and the election declared void, but the candidate in the minority will not be deemed ipso facto elected. But where an elector before voting receives due notice that a particular candidate is disqualified and yet will do nothing but tender his vote for him, he must be taken voluntarily to abstain from exercising his franchise; and therefore however strongly he may in fact dissent, and in however strong terms be may disclose his dissent, he must be taken in law to assent to the election of the opposite and qualified candidate; for he will not take the only course by which it can be resisted, that is, the helping to the election of some other person.... Where this qualification depends upon a fact which may be unknown to the elector, he is entitled to notice for, without that the inference of assent could, not be fairly drawn, nor would the consequence as to the vote be just. But if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given. No one can doubt that if an elector would nominate and vote only for a woman to fill the office of Mayor or Burgess in Parliament his vote would be thrown away; there the fact would be notorious, and every man would, be presumed to know the law upon that fact.
15. This casa was of the year 1847, and on appeal it was decided by the House of Lords in 1854, as reported in 4 House of Lords, 679. It was there held by the judgment given by Lord Truro, Lord Chancellor, that the peculiar rule, of common law in regard to elections could not be applied to that case, which concerned the levy of a rata by a parish for the repairs of a church, a statutory duty of the parish under 10 Anne c. 11 Section 24. Lord Truro stated that the law regarding elections stands much less upon principles and more upon absolute rules, originating in that peculiar branch, and for the most part never yet applied to any other branch of the law, than it does in most other departments of it. (Revised Reports 94 House of Lords 815 at p. 380).
16. Further at p. 381 Lord Truro quoted Lord Mansfield as follows:
The difference between parliamentary elections and corporate elections must not be confounded; that in parliamentary elections there was no mode of defeating one candidate but by voting for another, but that in corporations it was a different thing, and that as seven candidates had beau proposed in one list, the question was whether the seven should be elected and the only answer to be given was 'Yes' or 'No' and upon that question there had been a majority against the seven in form and substance, which made an end of the whole matter.
17. This dictum of Lord Mansfield is against the appellant, as Lord Mansfield lays down that in corporate elections that is elections by the members of a corporate body, the members voting give a yes or no vote for the candidates proposed. In parliamentary elections and elections conducted in the manner of parliamentary elections the only way in which voters can vote against a candidate is by voting for another candidate. It may be explained that in England in a Municipal Corporation the burgesses, or electors of the words, elect the municipal councilors by the system of parliamentary elections. This is provided in the Municipal Corporation Act, 1882, Section 11 and Section 58. But the aldermen are elected by the Municipal Council, and so is the mayor, under Sections 60 and 61. For the election of aldermen and mayor the system of parliamentary elections does not prevail, but the system is the same as that for all business of the council. This is laid down in the second schedule, Section 10.
All acts of the Council, and all questions coming or arising before the Council, may be done and decided by the majority of such members if the Council as are present and vote at a meeting hold in pursuance of this Act, the whole number present at the meeting, whether voting or not, not being less than one third of the number of the whole Council.
18. It will be noted that the peculiar common law rule for parliamentary elections that voters cannot give a yes or no vote is not introduced into this rule. It would be quite impossible to conduct ordinary business on such a rule. For example if the proposal were that the corporation should make a certain road, it would be absurd to have a rule of procedure by which persons who were opposed to the making of the road could only oppose it by proposing another road.
19. It will further be noted that the peculiar common law rule for parliamentary elections that votes for a person whose disqualifications are notorious are votes which are thrown away is not introduced into this rule. It would also be difficult to apply this rule to the ordinary business of a corporation. The reason for the distinction is clear. Elections by large numbers of voters are expensive, and it is desirable to obtain finality if possible without recourse to another election But corporations meet frequently and there is no extra expense or difficulty in putting a matter again he fore the corporation if the meeting has elected a person who is disqualified. Arnold's Law of Municipal Corporations, fourth edition, 1894, says in a note below this Section 10:
Under the repealed Acts all questions were decided by the majority of those present. This was found so inconvenient that in many large-boroughs clauses were obtained in local Acts making the decision of the majority of the members of the Council present and voting sufficient. The words 'whether voting or not' with respect to a quorum, will prevent any doubt as to the necessity of a third of the number of the whole Council voting for any motion. Members present and not voting are present for the purpose of making a quorum. Where the mayor, under a mistaken belief that the day was not a proper one for the election of aldermen, declined to proceed with the election; but the minority delivered voting papers for certain candidates named therein; this was held to be no election at all, and a mandamus issued to proceed to an election : Reg. v. Mayor, &c.; of Bradford (1851) 20 L.J.Q.B. 226.
20. This was a case decided in 1851 under the earlier Act of 7 Will. 4 and 1 Viet. c. 78. On p. 228 of Reg v. Mayor &c;, Bradford (1851) 20 L.J.Q.B. 226, Erie, J., who decided the case stated:
It appears to mo that the act of the minority is not the act of the town Council.
21. Halshury's Laws of England Vol. 12 p. 353 para. 697 says in regard to the Municipal Elections (Corrupt and Illegal Practices) Act, 1884, Section 8(2) that
Any candidate for the mayoralty, or agent of a candidate, or person, who knowingly acts in contravention of this provision will be guilty of an illegal practice, and if the offender be the candidate or his agent, the election will be avoided thereby.
22. The actual words in the section are 'if he was elected, his election, shall be-void'. It is to be noted that the Act does not provide that if the election of a mayor is held void for this reason, than the candidate who has obtained the next largest number of votes will be held to be elected. The provision on the contrary is that the election is void, and therefore another election would have to be held.
23. The distinction between parliamentary and corporate elections is still maintained in England. The provision for corporate elections is that already quoted, from the Municipal Corporations Act, 1882, Schedule 2, Section 10. For parliamentary elections it is provided in the Ballot Act 1872 (35 and 36 Viet c. 33) Section 2 that the returning officer shall
declare to be elected the candidate or candidates to whom the majority of the votes have been given : see Halsbury'a Laws of England Vol. 12 p. 331 para, 645.
24. That is, in one case the decision is by the majority of votes and in the other casa by the majority of the votes of the members present and voting. The distinction in the language is no doubt introduced to prevent the very arguments on which the appellant relies. Further the provisions for corporations used to be that all questions wore decided by a majority of those present. That rule is quite contrary to any suggestion that the majority could be ascertained by leaving out any of the persons present on the ground that their acts were invalid. Arnold says that the words 'and voting' ware added as the former rule was inconvenient. Possibly the inconvenience arose from the fact that the exact number of members present when any particular resolution was carried would not usually be recorded, only the numbers voting for and against it, and the number of members who did attend the meeting. It would be quite contrary to the word and the spirit of the Municipal Corporations Act to introduce the idea that for ascertaining the total number of members present 'and voting' only those members should be counted who gave votes for a duly qualified candidate. Now with the exception of the provision about a quorum, the provision in Schedule 2, Section 10, Municipal Corporations Act, 1882, have been reproduced in Section 92(1), of the United Provinces Municipalities Act, 1916, which governs the procedure of the Board in the present case:
92(1). All questions which may come before a meeting of a board shall be decided by a majority of the votes of the members present and voting.
25. The same considerations will apply to Section 92(1), as apply to the English Act. Like the English Act the U.P. Act and the rules under it provide for the election of members of the board to be by the majority of the votes. But the election of the Chairman made by the members stands on a different footing and the rule of election by mere majority of votes does not apply. There is the further condition, a 'majority of the votes of the members present and voting.' The appellant argues that the two systems of election should be reduced to the same system by introduction of the common law rule for parliamentary elections, and that a person receiving a minority of votes should be declared elected on the ground that votes given to a disqualified candidate should be disregarded.
26. There is nothing whatever in the U.P. Municipalities Act, 1916, to support such a strange suggestion. If such a rule were intended there is no reason why it should not have been embodied in the Act. Such a rule could not be applied to the general conduct of business of the board. If 'voting' is to be taken as voting for a duly qualified candidate' in the case of election of a chairman what is it to be taken for in the case of other business, say the making of roads and buildings? No ruling either on the English Acts or on the U.P. Act has been cited in support of the appellant. There is a ruling reported in A.I.R. 1926 Oudh 388 Municipal Board of Lucknow v. Debi Das, where it is stated at p. 389:
Section 92 of the Act provides that all questions which may come before a meeting of a Board shall ba decided by a majority of the votes of the members present and voting. It is clear that before a contract can be said to have been sanctioned by the Board by a resolution the members of the Board should have been asked whether they agreed to the contract, and, if they did so agree, the entry should have been made that the contract had been sanctioned.
27. This ruling is that each member present should be asked whether he agrees to the resolution or not, and the ruling is not consistent with the theory that if a minority said they agreed the resolution would be carried against the wishes of the majority who said they did not agree. On the finding of the lower appellate Court that defendant 1 was disqualified from being elected chairman, the plaintiff cannot be deemed to have been duly elected for the following three considerations:
(1) There were 34 members present and voting, and plaintiff would have required 18 votes to have a 'majority of the votes of the members present and voting' but plaintiff only obtained 6 votes.
(2) The 28 votes for defendant 1 were votes against the plaintiff and therefore the resolution that the plaintiff be appointed chairman was defeated by 28 votes to 6.
(3) The meeting elected defendant 1. If he is held to be disqualified following the English practice the election is void and a new election must be held.
28. On this view of Section 92 the appellant's suit must fail and he is not entitled to an injunction enabling him to act as Chairman without interference from defendant. Two other questions have however been decided by the lower appellate Court which may be considered. It has held that defendant 1 is a 'salaried servant of Government' and therefore not qualified to be elected as chairman under Section 43, U.P. Municipalities Act. The facts found and admitted are that since 1917 Mr. Kakkar has been civil Government 'pleader' of Allahabad and that he receiver fees for the cases which he conducts for Government in Court, and that he also receives Rs. 50 per mensem forgiving legal advice to local officers outside Court hours. As regards his Court work he does not receive a salary but ordinary fees like any other lawyer and such fees are not salary; he cannot be considered as a 'salaried Government servant' in respect of his Court work. The Rs. 50 per mensem which he receives for work out of Court is no doubt 'salary' and comes under that definition in the Financial Handbook of Government. But can it be said that he is a 'servant' in respect of this work of giving legal advice? He may do it at any time or place he likes and in any manner he likes. Sir Hugh Fraser, Law of Torts, 1921, p. 42 states:
What then, is an independent contractor as distinguished from a servant? An independent contractor is one who undertakes to produce a given result, without being in any way controlled as to the method by which he attains that result. A servant, on the other hand, is under the orders and control of his master in respect of the means and methods used to attain the end for which he is employed : see the judgment of Crompton, J., in Saddler v. Henlock (1835) 4 E1 & B1 570 and also Johnson v. Lindsay (1889) 23 Q.B.D. 508 (C.A.), Rex v. Solomons (1909) 2 K.B. 980 : see also Pollook's Law of Torts, 11th Kiln. p. 80; and Underhill's Law of Torts in England and India, 19ld, p. 72.
29. Whore a pleader or advocate is engaged by a client to conduct a case he does not become the servant of the client, but the relations between them are those of contract by which the client agrees to pay a sum of money and the professional man agrees to do certain work. He is not subject to the orders of his client as to how ho does that work. Nor does the case differ where a client engages a pleader or advocate to give him advice when required in consideration or paying a fixed sum monthly. If the lawyer does not become the servant of private client by such an engagement to give advice, why should the result be different when the lawyer engages to give the local Government officials advice? If Government makes a fixed monthly payment for advice to a firm of architects that does not make the architects the servants of Government. From these considerations it appears that on the facts found the defendant 1 is not a 'salaried servant of Government' and is not disqualified on that ground.
30. The lower appellate Court has also held that defendant 1 was disqualified because he did not obtain the previous sanction of Government under Section 45 U.P. Municipalities Act, and that such previous sanction was necessary and that the sanction granted subsequent to the meeting was not sufficient. The question is whether S 45 requires previous sanction. The section runs:
A person shall not be elected for more than two terms of office in succession as chairman of a city without the sanction of the Local Government.
31. The appellant wants to read the word 'sanction' as meaning 'previous sanction.' He has no explanation as to why the word 'previous' is omitted if the meaning of previous is intended. On the theory of the appellant where there is no previous sanction the election will not be a valid election. We must therefore read the word 'elected' in the section as 'validly elected' for of course the physical fact of giving votes for the candidate can take place, as it did in the present case. The section therefore reads:
A person shall not be (validly) elected...without the sanction of the Local Government.
32. Now when we introduce the word valid there is no reason why the sanction should not be subsequent. The election as a physical fact takes place by the voting of the members. But that voting will not make a valid election unless it is made valid by the subsequent sanction of Government. This form of procedure by subsequent sanction is by no means uncommon, and the expression 'subject to the sanction of Government' is not infrequent. For example in Section 80-A(3), Government of India Act there is a provision that the local legislature may not make certain laws 'without; the previous sanction of the Governor-General'. The word 'previous' is expressed. There is a proviso in the same sub-section that if there is the subsequent assent of the Governor General the act will not be invalid. Them in Section 129 A(1) there is provision that
the rules shall be made by the Governor-General in Council, with the sanction of the Secretary of State in Council.
33. The rules must be made first and sanction must a given afterwards. It would in fact be impossible for the Secretary of State in Council to sanction rules which had not yet been made. This shows that where the word 'sanction' alone is used, it does not mean 'previous sanction'. There is nothing in the U.P. Municipalities Act, 1916, which indicates that the sanction must be previous. Appellant then fell back on the argument that by an amending Act of 1932 the word 'previous' had been introduced to qualify the word 'sanction'. This does not show that before the amending Act the section was to be so construed. There are obvious considerations which make it of advantage to have the words 'previous sanction' in that case the election would not become invalid if Government refused after the election to sanction. In the present case the Chief Secretary, on the application for sanction of defendant 1 in fore the election, sent a demi official letter stating that previous sanction was, on the advice of the legal advisers of Government, not necessary, but that subsequent sanction would be given. And subsequent sanction was given. There worn thus two references to Government. By making the section refer to 'previous sanction' only one reference will be required in future. The fact that the section has been amended does not indicate that the amendment should be read into the section as it stood in the Act of 1916.
34. Learned Counsel for the appellant argued that in other portions of the U.P. Municipalities Act the word 'sanction' was not used, but the words 'subject to the approval of' were used. The argument apparently is that these used to indicate that, the action of the authority approving may be subsequent but that if the word 'sanction' had been used the action would have to be previous. The three sections in question are as follows : Section 57, where the appointment of an Executive Officer, his salary and the conditions of his appointment are 'subject to the approval of the Local Government'; Section 66 where the appointment of a Secretary is 'subject to the approval of the Commissioner'; and Section 68, where the appointment of a Health Officer, etc, is 'subject to the approval of the Local Government'. It appears to me that the reason why the word 'approval' is used in these three sections is that it is a wider word than sanction'. In each of these sections there is appointment of a person to an office. By using the word 'approval' a right is reserved to consider the qualifications of the candidate for the office the Local Government, or the Commissioner, as the case may be, retains a right to reject a candidate on the ground that ho is not properly qualified, or that his character or conduct is not suitable. But in Section 45 the right reserved is much narrower. There is no question of the qualifications or the character or the conduct of the candidate for the Local Government to consider. There is only one question; whether Government will set aside for his benefit the rule against more than two terms of office in succession. No doubt the character and conduct may be taken into account; but these are not matters on which a decision has to be given. Perhaps I may make the matter clearer by stating that we can say 'I approve of a person' but we cannot say 'I sanction a person'. We can however say either 'I approve of a thing' or 'I sanction a thing'. The word 'sanction' would be inappropriate in Sections 57, 66 and 68 as it would not convey the meaning desired. In my opinion the inference cannot be drawn that 'approval' is used to denote subsequent action and sanction' is used to denote previous action. The case for the appellant implies that the word 'sanction' is equivalent to 'prior approval' or 'prior permission', and that it is necessary for the approval or permission to be obtained and then the election may take place. But is there any authority that the word 'sanction' can bear only this meaning?
35. Chamber's Twentieth Century Dictionary states for sanction:
Act of ratifying, or giving authority to : confirmation : support : a decree, a law...v. t. to give validity to : authorize : to countenance.
36. The derivation given is the Latin sancire, sanctum, to ratify; this definition and the original meaning in the derivation both indicate that the sanction would be subsequent to the act sanctioned. Stroud's Judicial Dictionary, second edition, states:
'Sanction' not only moans prior approval; generally, it also means ratification.
37. Ratification of course must take place after the act is done. According to Stroud's definition, which is based on a number of English rulings, sanction generally means ratification, and so in general sanction would be given after the act sanctioned. See in re Earl de la Warr's Settled Estates (1882) 51 L.J. Eq. 407. Another assumption in the case for the plaintiff is that the word 'election' means only the actual voting by the members of the Municipal Board for the chairman. Halsbury's Laws of England, 1910 edition, Vol 12 para. 535 says of Parliamentary elections:
Although the first formal step in every election is the issue of the writ, the election is considered for some purposes to begin at an earlier date. It is a question of fact in each case when an election begins in such a way as to make the packs concerned responsible for breaches of election law, the test being whether the contest is 'reasonably imminent.' Neither the issue of the writ nor the publication of the notice of election can be looked to as fixing the date when an election begins from this point of view. Nor, again, does the nomination day afford any criterion the election will usually begin at least earlier than the issue of the writ.
38. This passage shows that the word 'election' is not limited to the actual voting. The word is derived from the latin elegere, to pick out, to choose. It is similar to the word 'select', which is also used to denote persons chosen by vote, e.g., the 'select vestry' in English law. The mere obtaining of a majority of votes may not be sufficient for a person to be elected. It may be necessary for him to have something further. Thus in the case of an election for parliament he must also have been duly nominated. On this view Section 45 U.P. Municipalities Act requires that to ho chosen as chairman a person must, in addition to getting a majority of the votes of members present and voting, also in one particular case have the ratification or confirmation of Government. But there is nothing in the expression 'shall not be elected...without the sanction' which indicates that the sanction must be previous. Because 'election' is not limited to the mere giving of votes, but it embraces the whole proceedings by which a person is chosen a chairman, including in the case of a person who has already had 'two terms of office in succession' the sanction of Government. Section 45 lays down that the sanction is a necessary part of the election, and without sanction there will not be a valid election. But the election it not the mere voting. If this had beer the intention of the section it might have been expressed:
A parson shall not be voted for who has had more than two terms of office in succession as chairman of a city without the sanction of the Local Government.
39. In the amended Act the use of the word previous sanction' shows that the sanction is to be obtained before the election begins. But without the word 'previous' the natural and reasonable interpretation of the word sanction is that it amounts to ratification, and will therefore be subsequent to the voting. For these reasons Section 45 does not require the sanction of Government to be previous, and the sanction given subsequently to defendant 1 was sufficient. Defendant I therefore did not suffer from any disqualification, and the election of defendant 1 was valid. There is another point to be observed, on this question of sanction. Even if Section 45 is interpreted to mean that there must be previous sanction of the Local Government, defendant 1 is able to rely on a D.O. letter dated 17th September 1931 as conveying previous sanction. This letter was previous to the election of 7th March 1932. The letter was in reply to an application by defendant 1 to his Excellency the Governor on 7th September 1931 asking for permission to stand for the third time. The letter stated:
I am directed to say that Government will sanction your tenure of the chair of the Allahabad Municipal Board for the third time in succession if you are elected to it.
40. Learned Counsel for appellant wanted to rely on oral statements by the Chief, Secretary as to what he considered this D.O. meant, the statements being in his evidence on commission. Such statements would be inadmissible as mere expressions of opinion. The Chief Secretary is not a member of the Local Government, and the passage quoted shows that he wrote what he was directed to say. And the provisions of Section 91, Evidence Act, would also prevent evidence intended to vary the terms of the letter. The respondents relies on Dehra Dun Mussoorie Electric Tramway Co. v. Jagmandar Das : AIR1932All141 . Under Clause 37 of the Dehradun Mussoorie Tramway, order 1921, it was laid down:
the promoter shall have power to transfer the undertaking with the assent of Government previously obtained, but not otherwise, to any parson or persons or to a company.
41. Before the concession was granted to the promoter, he applied to Government for permission to transfer the undertaking to a company. A.D.O. was sent in reply stating:
As regards the request made in para. 6 of your letter I have to say that if the provisional order becomes valid Government will have no objection to the transfer.
42. Now the substance of this D.O. is exactly similar to the substance of the D.O. in the present case. Bach D.O. states that Government will have no objection to the proposed action if what the applicant expects does in fact happen. The lower appellate Court has attempted to differentiate the two cases by a consideration of the opinions on the question of procedure expressed in the D.O. letter in the present case. That does not appear to be any reason to distinguish the two cases. The facts therefore in the two cases are substantially the same. On p. 1047 of the ruling referred to it was held:
For the respondent it is argued that as formal sanction for the transfer was only accorded an 22nd February 1922 the transfer effected by the agreement of 2nd December 1921 was void since there was no previous sanction. The appellant maintains that the letter of 9th July 1921 intimating that Government will have no abjection to the transfer is sufficient authority for the transfer. In our opinion the appellant's contention is correct. The Tramway order merely lays down in Clause 37 that the undertaking can only be transferred with the assent of Government previously obtained but does not specify any form in which such assent should be expressed. In our opinion a demi-official letter such as that of 9th July 1921 by a Secretary to Government in the P.W.D. intimating that Government will have no objection to the transfer is sufficient to convey the previous assent of Government.
43. In the present case also the D.O. letter of the Chief Secretary dated 17th September 1931, is sufficient to convey the previous sanction of Government. The arise for the plaintiff-appellant therefore fails for the various reasons set out.