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Shyabuddinsab Mohidinsab Akki Vs. the Gadag-betgeri Municipal Borough and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1955SC314; (1955)57BOMLR671; [1955]1SCR1268
ActsBombay Municipal Boroughs Act, 1925 - Sections 19, 19(1), 19-A(2), 23(1), 35(3), (4) and (6), 35(11) and 57; Municipal Boroughs (Amendment) Act, 1954; Constitution of India - Article 226
AppellantShyabuddinsab Mohidinsab Akki
RespondentThe Gadag-betgeri Municipal Borough and ors.
Cases ReferredOfficialReceiver v. Ramratan Kuer
Excerpt:
.....and not mandatory- further the respondents no. 2 and 3 had been validly elected as president and vice president respectively- it was further held that under the provisions of section 35(3) of the act, the presence at or the absence from the meeting of the members of the public had no legal consequence so far as the validity of the election was concerned. - indian penal code, 1890 section 34: [dr. arijit pasayat & asok kumar ganguly,jj] scope held, section is based on principle of joint liability. essence of liability is to be found in existence of a common intention. section applies even if no injury has been caused by particular accused himself. sections 34: murder common intention - accused alleged to have killed deceased as he has eloped with sister of one of accused -..........other appropriate writdirected against the election of the 2nd and 3rd respondents as president andvice-president respectively of the gadag-betgeri municipal borough, the 1strespondent in this appeal. 2. the facts of this case are not in dispute and may shortly be stated asfollows : the 1st respondent is a municipality governed by the provisions ofthe municipal boroughs act (bombay act xviii of 1925) which hereinafter shallbe referred to as the act for the sake of brevity. the appellant is on of the32 councillors constituting the municipality. the last general election to themunicipality took place on the 7th may 1951. the term of the councillors wasthree years computed from the date of the first general meeting held after thegeneral election aforesaid - in this case the 10th july 1951......
Judgment:

Sinha J.

1. This is an appeal by special leave against the judgment and order datedthe 23rd August, 1954 of the High Court of Judicature at Bombay, dismissing theappellant's petition for a writ of quo warranto or any other appropriate writdirected against the election of the 2nd and 3rd respondents as President andVice-President respectively of the Gadag-Betgeri Municipal Borough, the 1strespondent in this appeal.

2. The facts of this case are not in dispute and may shortly be stated asfollows : The 1st respondent is a municipality governed by the provisions ofthe Municipal Boroughs Act (Bombay Act XVIII of 1925) which hereinafter shallbe referred to as the Act for the sake of brevity. The appellant is on of the32 councillors constituting the municipality. The last general election to themunicipality took place on the 7th May 1951. The term of the councillors wasthree years computed from the date of the first general meeting held after thegeneral election aforesaid - in this case the 10th July 1951. In that meetingthe 4th and 5th respondents were elected President and Vice-Presidentrespectively of the municipality for a term of three years. The Act was amendedby Bombay Act XXXV of 1954, under which the term of office of the councillorswas extended from 3 to 4 years ending on the 9th July 1955. As the term ofrespondents 4 and 5 aforesaid was to expire at the end of three years from the10th July 1951 and as the term of the municipality was extended by one yearunder the amending Act aforesaid, the vacancies thus occurring had to be filledup by a fresh election of President and Vice-President. The Collector thereforecalled a special general meeting of the municipality to be held on the 30thJuly 1954 to elect a President and Vice-President for the remaining period ofthe quadrennium. The Collector had nominated the Prant Officer (the DistrictDeputy Collector) to preside over that special general meeting. On the 30thJuly, 1954 the Prant Officer under instructions from the Collector adjournedthe meeting to the 3rd August 1954 without transacting any business, the onlyitem on the agenda being the election of the President and Vice-President. The3rd respondent raised a point of order against the adjournment but thepresiding officer aforesaid overruled that objection. Hence the special generalmeting was held on the 3rd August 1954. At that meeting the appellant raised apoint of order that under the provisions of the Act a President could not beelected for a term less than a year and that therefore the proposed electionwould be in the teeth of those provisions. The presiding officer who was thesame person who had adjourned the meeting on the 30th July 1954 overruled that objectiontoo. Thereupon 13 out of the 32 councillors who were present walked out on theground that they did not propose to participate in a meeting in which theproposal was to elect a President for less than a year contrary to theprovisions of the Act. The appellant was one of those 13 councillors who walkedout. It may be added that the full strength of the municipality is 32councillors all of whom were present both on the 30th July 1954 and the 3rdAugust 1954. The remaining 19 councillors proceeded to transact business andelected the 2nd respondent as the President, the proposal being that he'should be President of the municipality for the remaining period of thequadrennium' and that was the proposal which was carried. Immediately afterthe election of the President another meeting was held for the election of theVice-President under the presidency of the newly elected President (the 2ndrespondent). The appellant raised the same point of order as he had done in thecase of the election of the President and that was also overruled. Thereuponsix of the councillors present including the appellant walked out and theremaining councillors elected the 3rd respondent as the Vice-President.

3. The appellant moved the High Court of Bombay under art. 226 of theConstitution for a writ of quo warranto or any other appropriate writ or orderor direction against the 2nd and 3rd respondents 'restraining them fromusurping the office of the President and Vice-President respectively of theopponent No. 1 Municipality and restraining them from performing any duties andfrom exercising any powers as President and Vice-President respectively'.The High Court held that the election of the 2nd and 3rd respondents was notillegal and dismissed the application. If held that on a proper construction ofthe relevant provisions of the Act it was not correct to say that the term ofoffice of the councillors or of the newly elected President and Vice-Presidentshall end with the 9th July 1955; that the intention was to elect the Presidentand the Vice-President for the remaining term of the municipality which was notonly a period of four years certain but an additional period up to the datewhen new President and Vice-President would be elected and take over after afresh general election; that the adjournment of the meeting of the 30th Julywas not beyond the powers of the presiding officer; and that consequently themeeting of the 3rd August was not vitiated by any illegality. It was alsopointed out by the High Court that all the councillors constituting themunicipality had notice of the adjourned meeting and did as a matter of factattend that meeting and that even if there was any irregularity in theadjournment on the 30th July 1954 that did not affect the illegality of theadjourned meeting and the business transacted therein.

4. The appellant moved the High Court for leave to appeal to this court butthat application was rejected. The appellant then applied to this court forspecial leave to appeal which was granted on the 3rd September 1954.

It has been argued on behalf of the appellant that the meeting held on 3rdAugust 1954 as aforesaid was invalid for the reasons :

1. that it was not an adjournedmeeting inasmuch as the meeting of the 30th July 1954 had not been validlyadjourned,

2. that it had not been called bythe Collector, and

3. that the written noticerequired by section 35(3) had not been given and in any event, had not beenserved and published as required by law.

Secondly it was urged that the meeting of the 3rd August being thus invalid,the business transacted at that meeting, namely, the election of the Presidentwas equally invalid. Thirdly it was urged that the election of the Presidentbeing invalid, the meeting held that vary day under the presidency of thePresident thus elected was also invalid and the election of the Vice-Presidentconsequently was illegal. It was further argued that the election of thePresident and the Vice-President being in violation of section 19 of the Actwas invalid on that ground also; and finally, that the amendment of section 19by the amending Act LIV of 1954 after leave to appeal had been granted by thiscourt could not affect the present proceedings which were then pending eventhough the amending Act purported to make it retrospective.

5. On behalf of respondents 1, 2 and 3 who only have appeared in this court,it has been urged that a President and Vice-President could be elected for aterm of less than one year as section 19 of the Act was subject to section 23(1)(A);that in any view of the matter, section 19 as amended by the amending Act LIVof 1954 rendered the election beyond question as the Act in terms was meant tovalidate all elections held between the passing of the amending Act XXXV of1954 and the amending Act LIV of 1954; that the presiding officer had inherent,if not statutory power to adjourn the meeting of the 30th July 1954 and that inany event the meeting held on the 3rd August 1954 could be treated as a freshmeeting called by the Collector and that any irregularity in serving the noticeor in the appointment of the presiding officer was cured by the provisions ofsection 57 of the Act. It was also argued that the appellant was not thecouncillor who had objected to the adjournment of the meeting of the 30th Julyand could not therefore object to it at a later stage. Finally it was arguedthat the appellant had no right to a writ or order prayed for as he had notbeen injured in any sense.

It would thus appear that there are two main questions in controversybetween the parties, namely :

(1) whether the meeting of the3rd August, 1954 had been validly held; and

(2) whether the president and theVice-President having been elected 'for the remaining period of thequadrennium' had been validly elected.

There are a number of subsidiaryquestions bearing upon these two main questions which have been canvassedbefore us.

6. A good deal of argument was addressed to us contending that the presidingofficer had no power to adjourn the meeting of the 30th July 1954 in view ofthe provisions of section 35(11) of the Act. In this connection reference wasalso made to the proviso to section 19-A(2). Those provisions, it was argued,point to the conclusion that the powers of the presiding officer are the sameas those of the president of a municipality when presiding over an ordinarymeeting of the municipality except that section 35(11) relating to adjournmentshad been qualified only to this extent by the proviso aforesaid, that theCollector or the officer presiding over the meeting for the purpose of holdingan election of the president or vice-president may refuse to adjourn such ameeting in spite of the wishes of the majority of the members present to thecontrary. It was also argued that the High Court had wrongly taken the viewthat the presiding officer had the inherent right to adjourn the meeting.Reference was made to certain passages in 'The Law of Meetings' byHead, 'The Law on the Practice of Meetings' by Shackleton, and'Company Meetings' by Talbot. In our opinion, it is unnecessary forthe purpose of this case to pronounce upon the merits of that controversy inthe view we take of the meeting of the 3rd August, 1954, assuming that themeeting of the 30th July, 1954 had been adjourned without authority.

7. It is common ground that it was the Collector who called the meeting ofthe 30th July 1954 and that it was under instructions from the Collector thatthat meeting was adjourned. Under the provisions of section 23(1)(A), on theexpiry of the term of office of the president or vice-president as determinedby the municipality under section 19(1) of the Act, a new president orvice-president shall be elected within 25 days from the date of such expiry.The provisions of section 19-A which relate to the procedure for calling ameeting of a newly constituted municipality for the election of a president andvice-president have been made applicable to the calling of a meeting and theprocedure to be followed at such meeting for the election of a president.Section 19-A requires the Collector to call a meeting for holding such anelection. Such a meeting shall be presided over by the Collector or suchofficer as the Collector may by order in writing appoint in this behalf. TheCollector or his nominee, when presiding over such a meeting, shall have thesame powers as the president of a municipality when presiding over a meeting ofthe municipality has, but shall not have the right to vote. On the 30th July,1954 a special general meeting had been called by the Collector for theelection of the President. In the proceedings of the meeting it has beenrecorded that 'Under instructions from the Collector of Dharwar thepresiding authority adjourns the meeting to 3rd August 1954 at 3 P.M.'. Atthat meeting all the 32 councillor were present and admittedly in theirpresence the presiding officer declared openly that the meeting will be held onthe 3rd August 1954 under instructions from the Collector concerned. When themeeting was held on the 3rd August 1954 at 3 P.M. as previously notified, againthe 32 councillors were present. The proceedings show that the same PrantOfficer 'occupied the chair as authorised by the Collector'. Thepresiding authority read out and explained to the members present the followingtelegraphic message from the Collector :

'Government have directed to hold election ofPresident of Gadag Municipality on 3rd August as already arranged. Holdelection accordingly today without fail'.

8. At this meeting the appellant raised two points of order, (1) that theelection of the president for the remaining period of the quadrennium asmentioned in the agenda was illegal, and (2) that the meeting was not anadjourned meeting of the municipality and was also illegal because it was underthe instructions of the Collector that the adjourned meeting was being held andthat the Collector had no such power. The minutes of the proceedings furthershow that 'the presiding authority ruled out the points of order on theground that this was a special meeting called by the Collector for the electionof the President and the election has to be held as already fixed'. Afterthe ruling given by the presiding authority, 13 members including the appellantexpressed a desire to walk out and walked out with the permission of thepresiding authority. The remaining members, as already indicated, continued thebusiness of the meeting and the proposal that the 2nd respondent should beelected president of the municipality for the remaining period of thequadrennium after having been duly made and seconded was carried unanimouslyand the meeting terminated.

9. It would thus appear that the meeting of the 3rd August 1954 for theelection of the president had been called by the Collector who had authorizedthe Prant Officer to preside over that meeting and that the 2nd respondent wasduly elected president. Under section 35(3) of the Act, for such a specialgeneral meeting three clear days' notice has to be given 'specifying thetime and place at which such meeting is to be held and the business to betransacted thereat shall be served upon the councillors, and posted up at themunicipal office or the kacheri or some other public building in the municipalborough and also published in a local vernacular newspaper having a largecirculation if such exists'.

10. It has been contended on behalf of the appellant that the noticerequired by section 35(3) contemplates a written notice to be served andpublished in the manner specified, and that the meeting of the 3rd August 1954could not be said to have been held after complying with the terms ofsub-section (3) of section 35. It was also contended that the requirements ofsection 19-A(1) and (2) have also not been complied with because there is noevidence that the Collector had called that meeting or that he had made anorder in writing that the presiding authority had been authorized to presideover that meeting. In our opinion, there is no substance in any one of thesecontentions. From the record of the proceedings of the proposed meeting of the30th July 1954 and the actual meeting on the 3rd August 1954 it is clear thatwhatever had been done had been done under the orders of the Collector. He hadcalled the meeting of the 30th July as also of the 3rd August 1954. It was hewho had appointed the Prant Officer as the presiding officer for both thosemeetings. It is true that the notice of the meeting of the 3rd August 1954 hadnot been given in writing but had only been intimated to all the councillorswho were present at the meeting of the 30th July 1954. The notice amplysatisfies the requirement of three days' clear notice, though it was not inwriting. It had indicated the time of the meeting and the business to be transacted.Under section 35(4) the ordinary venue of a meeting is the municipal officeunless otherwise indicated in the notice. It is also true that the notice wasnot served in the manner indicated in sub-section (3) of section 35 of the Act.There is no evidence that there existed a local vernacular newspaper with largecirculation, in which the notice of the meeting could be published. Thequestion is, do those omissions render the notice ineffective in law. Thatcould only be so if those provisions were held to be mandatory. The followingprovisions (omitting the words not material to this case) would show that thoseprovisions of section 35(3) are directory and not mandatory and that anyomissions in the manner of service of the notice are mere irregularities whichwould not vitiate the proceedings unless it was shown that those irregularitieshad prejudicially affected the proceedings :-

'No resolution of a municipality.......... shall bedeemed invalid on account of any irregularity in the service of notice upon anycouncillor or member provided that the proceedings of the municipality........were not prejudicially affected by such irregularity'.

11. Fortunately for the respondents, all the councillors constituting themunicipality were present on both the occasions, namely, 30th July and 3rdAugust, 1954. Hence they had ample notice of the meeting to be held on the 3rdAugust, 1954, the time and place of the meeting and the business to betransacted. It has not been either alleged or proved that the irregularities inthe service of the notice or the omissions complained of had prejudiciallyaffected the proceedings. But is was contended that as the notice had not beenposted up at the municipal office or the local kacheri or some other publicbuilding and had also not been published in a local vernacular news paper, ifthere were one, though all the councillors were present on 3rd August, 1954,the members of the public had no such notice and naturally therefore could notbe present at that meeting. In this connection it was pointed out thatsub-section (6) of section 35 provides that every such meeting shall be open tothe public, unless the presiding authority directs to the contrary. It isevident from the provisions of that sub-section that though the presence of thepublic at such meetings may be desirable, it is not obligatory. The presence ator the absence from such a meeting of the members of the public has no legalconsequence so far as the validity of the election is concerned. It musttherefore be held that the meeting of the 3rd August, 1954 in substance, thoughnot in form, complied with the requirements of the law for holding a validspecial general meeting and that therefore that meeting was not invalid,assuming, as already said, that the order of the presiding authority adjourningthe meeting of the 30th July, 1954 was not authorized. It has to be rememberedin this connection that such as special general meeting can be presided overonly by the Collector or the person authorized by him and if either theCollector or his nominee does not hold the meeting, it is not competent forcouncillors present to elect their own chairman for presiding over such ameeting. Therefore if the presiding authority admittedly under instructionsfrom the Collector refused to proceed with the elections on the 30th July 1954,the councillors present could not hold a meeting of their own with a presidentof their own choice and transact the only business on the agenda, namely, theelection of president. Hence, rightly or wrongly, if the meeting called for the30th July was not held, another meeting had to be held for the purpose within25 days of the occurrence of the vacancy. In this case, as a result of theexpiry of the original term of office of the president and vice-president,another meeting giving the required three days statutory notice had to be held.The meeting held on the 3rd August 1954 was such a meeting. Indeed, there weresome omissions in the manner of publication or service of the notice but thosein law were mere irregularities which do not have the effect of vitiating theelection held at that meeting. The election of the president therefore, if nototherwise invalid, could not be assailed on the ground of the irregularity inthe service or publication of the notice, in the special circumstances of thiscase. If all the councillors had not been present on the 30th July or had notbeen informed of the proposed meeting of the 3rd August 1954, otherconsiderations may have arisen but in this case it is clear that there wasabsolutely no prejudice to any party or individual or the municipality as awhole. But it was further contended that the walking out of the 13 councillorsrendered the meeting infructuous. In our opinion, such a result does not followfrom the voluntary act of the 13 councillors who chose to walk out. It was noteven suggested that there was no quorum for the special general meeting afterthe 13 councillors walked out.

12. The next question is whether the provisions of section 19(1) as theystood on the 3rd August 1954 render the election of the president and thevice-president on the 3rd August 1954 invalid as it was 'for the remainingperiod of the quadrennium'. The High Court has taken the view that theremaining period of the quadrennium would not necessarily end on the 9th July1955, in view of the proviso to section 19(1) 'that the term of office ofsuch president or vice-president shall be deemed to extend to and expire withthe date on which his successor is elected'. In view of the events thathave happened it is not necessary for us to pronounce on the correctness orotherwise of that decision. After the judgment of the High Court and after thegrant of special leave by this court, the Bombay Legislature enacted Act LIV of1954 which was published in the Bombay Gazette on the 14th October 1954.Sections 2 and 3 of the amending Act are in these terms :

'2. In section 19 of theBombay Municipal Boroughs Act, 1925, in sub-section (1), -

(1) after the words 'not lessthan one year' the words 'or not less than the residue of the term of office ofthe municipality, whichever is less' shall be inserted;

(2) for the words 'three years'the words 'four years' shall be substituted.

3. (1) The amendments made bythis Act shall be deemed to have come into force on the date on which theBombay District Municipal and Municipal Boroughs (Amendment) Act, 1954, cameinto force (hereinafter in this section referred to as 'the said date') and allelections to the office of the president or vice-president, held on or afterthe said date and before the coming into force of this Act, shall be deemed tobe valid as if this Act had been in force on the said date; and any personelected to the office of the president or vice-president at any of such electionsshall not be deemed to have been illegally elected merely on the ground thatthe residue of the term of office of the municipality being less than one yearat the time of such election, he would hold his office for a term less than oneyear in contravention of section 19 of the Bombay Municipal Boroughs Act, 1925,as it was in operation before the coming into force of this Act.

(2) Nothing contained in thissection shall affect the judgment, decree or order of any competent court,passed before the coming into force of this Act, holding any of such electionsinvalid on the ground specified in sub-section (1)'.

13. It has not been contended that section 19 as amended by Act LIV of 1954does not in terms cover the elections now impugned, nor that section 3 of theamending Act quoted above is not retrospective; but it has been urged on behalfof the appellant that it is not retrospective to the extent of affectingpending proceedings. In terms the amendment in question is deemed to have comeinto force on the 11th May 1954 on which date the amending Act XXXV of 1954 hadcome into force. Section 3 in terms also declares that all elections to theoffice of president and vice-president held on or after the 11th May 1954 andbefore the coming into force of the amending Act shall be deemed to have beenvalid. The section also declares in unequivocal terms that such an electionshall not be questioned simply on the ground of contravention of section 19 onwhich the election of the 2nd and 3rd respondents had been questioned beforethe High Court. The legislature apparently thought fit to declare beyond allcontroversy that an election of president or vice-president for the unexpiredportion of the term of a municipality could not be questioned on the groundthat the provisions of section 19 as it stood before the amendment had beencontravened. But it was argued on behalf of the appellant that in terms theamendment had not been made applicable to pending litigation and that thereforethis court should hold that the amendment did not have the effect of validatingthe elections which were already under challenge in a court. No authority hasbeen cited before us in support of the contention that unless there are expresswords in the amending statute to the effect that the amendment shall apply topending proceedings also, it cannot affect such proceedings. There is clearauthority to the contrary in the following dictum of Lord Reading, C.J. in thecase of The King v. The General Commissioners of Income-tax for Southampton; Exparte W. M. Singer [1916] 2 K.B. 249, -

'I cannot accept the contention of the applicantthat an enactment can only take away vested rights of action for which legalproceedings have been commenced if there are in the enactment express words tothat effect. There is no authority for this proposition, and I do not see whyin principle it should be the law. But it is necessary that clear languageshould be used to make the retrospective effect applicable to proceedingscommenced before the passing of the statute'.

14. That was a case in which the Act in question had validated assessmentsmade by commissioners for wrong parishes. It was held by the court that theretrospective effect of the relevant section extended to proceedings for aprohibition commenced before the Act came into force and the rule nisi for aprohibition was therefore discharged. In every case the language of theamending statute has to be examined to find out whether the legislature clearlyintended even pending proceedings to be affected by such statute. A number ofauthorities were cited before us but it is only necessary to refer to thedecision of their Lordships of the Judicial Committee in Mukerjee, OfficialReceiver v. Ramratan Kuer [1935] L.R. 63 I.A. 47, which is clearly in point.In that case while an appeal had been pending before the Judicial Committee theamending Act had been passed clearly showing that the Act was retrospective inthe sense that it applied to all cases of a particular description, without referenceto pending litigation. In those circumstances their Lordships pointed out thatif any saving were to be implied in favour of pending proceedings, then theprovisions of the statute would largely be rendered nugatory. Thoseobservations apply with full force to the present case, inasmuch as if anysaving were to be implied in favour of cases pending on the date of theamendment, the words 'all elections to the office of the president orvice-president, held on or after the said date and before the coming into forceof this Act, shall be deemed to be valid' could not be given their fulleffect. As there are no such saving clauses in express or implied terms, itmust be held that the amendment was clearly intended by the legislature toapply to all cases of election of president or vice-president, whether or notthe matter had been taken to court. It is the duty of courts to give fulleffect to the intentions of the legislature as expressed in a statute. Thatbeing so, it must be held that the amending Act had the effect of curing anyillegality or irregularity in the elections in question with reference to theprovisions of section 19 of the Act.

15. For the reasons aforesaid it must be held that the meeting of the 3rdAugust 1954 had been validly held and that there is no illegality in theelection of the 2nd and 3rd respondents as president and vice-presidentrespectively. We accordingly affirm the orders of the High Court, though notfor the same reasons. The appeal fails and is dismissed with costs.

16. Appeal dismissed.


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