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Kapilaben Chimanlal Kothari Vs. the Commissioner of Revenue, Baroda Division and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1960)1GLR233
AppellantKapilaben Chimanlal Kothari
RespondentThe Commissioner of Revenue, Baroda Division and ors.
Cases ReferredKershaw v. Shoredith Corporation and Mariya Pillai
Excerpt:
.....when she first remained absent and; (3) that section 15 of the act contemplated that there must be meeting held in each of the four successive moths and in which meetings she must remain absent in order to constitute failure or default within the meaning of that subsection. nanavati argued that if no meetings were held during the four successive months obviously there would be no failure or default. he also argued that if a member was absent in a meeting held in march and no further meeting was held thereafter for a period of four successive months then again there would be no failure. he next argued that if a member were 10 he ahscni in a mceiing held in march and also in another meeting held subsequently and no more meenngs were thereafter convened there would again be no failure or..........absent from the meetings held on the 26th of march and 21st may 1959. she did not attend the meeting held on 30th july, but obtained leave for absence. under section 15(2)(e) of the act, when such leave is obtained absence from that meeting would not be considered as absence to be reckoned as creating a disability.4. a preliminary point was raised by opponents nov 2 and 3 that the petitioner has resigned as a councillor by her letter of resignation, dated july 23, 1960 she was consequently not entitled to retain her councillorship and therefore even if we were to set aside the impugned order she would not be entitled to continue to be a councillor. it was therefore, argued that this court would not entertain a petition for a writ of certiorari, where the relief if granted would be.....
Judgment:

J.M. Shelat, J.

1. This and the three other petitions raise an important question of construction of Section 15(2)(e) of the Bombay District Municipal Act 1901 All these petitions have identical facts and raise a common question of law. It would be therefore convenient to cite the facts in petition No. 803/60 as facts typical to all the three other petitions and dispose of all the four petitions by a common judgment.

2. In Special Civil Application No. 803/60 the petitioner was a duly elected councillor of the Municipality of Mehmedabad. On July 18 1959 the second opponent also a councillor of the municipality made an application under Section 15(3) of the Act to the Collector of Kaira stating therein that the petitioner had absented herself from the meetings of the municipality during four successive months and had consequently incurred disqualification laid down in Section 15(2)(e) of the Act. By his order dated 29th January 1960 the Collector held that the petitioner was not disabled from continuing as a councillor and rejected the application. The second opponent thereafter went in appeal before the Commissioner who by his order dated 22nd July 1960 set aside the order of the Collector and held that the petitioner had incurred disqualification as laid down in Section 15(2)(e) of the Act and that therefore she had ceased to be a councillor of the municipality. All the four appeals filed by the second opponent were disposed of by a common judgment. It is to challenge that order that these four Special Civil Application have been filed.

3. The facts involved in these applications are not in dispute. Between February to July 1959 four meetings in all were held viz. on the 21st of February 26 March 21 May and 30th July 1959. There is no dispute that the petitioner remained absent from the meetings held on the 26th of March and 21st May 1959. She did not attend the meeting held on 30th July, but obtained leave for absence. Under Section 15(2)(e) of the Act, when such leave is obtained absence from that meeting would not be considered as absence to be reckoned as creating a disability.

4. A preliminary point was raised by opponents Nov 2 and 3 that the petitioner has resigned as a councillor by her letter of resignation, dated July 23, 1960 She was consequently not entitled to retain her councillorship and therefore even if we were to set aside the impugned order she would not be entitled to continue to be a councillor. It was therefore, argued that this Court would not entertain a petition for a Writ of Certiorari, where the relief if granted would be futile. In our view, there is no substance in this contention If the petitioner were to be right in her contentions and yet no relief were to be granted to her by reason of this contention there would remain against her an order on record which would tend to cast upon her a slur in the sense that she was unmindful of her obligations and duties as a councillor and that would perhaps affect prejudicially her interests in future elections. The petitioner, in our view, is entitled to move this Courts for relief.

5. The question that arises for our determination is. whether by reason of Section 15(2)(e) petitioner is disabled from continuing to be a councillor by her having remained absent in the two meetings held on the 26th of March and the 21st of May 1959. Section 15(2)(e) of the Act provides as follow:

If any councillor during the term for which he has been elected or appointed not being a president or vice-president or a salaried servant of the Government absents himself during four successive months from the meetings of the Municipality, except with the leave of the Municipality he shall be disabled from continuing to be a councillor and his office shall become vacant.

6. Prima facie, it would seem that by the petitioner absenting herself from those two meetings, the only two meetings convened by the President during the relevant period she would be said to have remained absent from meetings during four successive months i.e. for the period from March 26, to July 25, 1959. Since the period of these four successive months would end on the 25th July 1959, the meeting held on the 30th July 1959 would not be relevant for our consideration and therefore her having obtained the leave of absence from the Municipality in respect of that meeting would not avail her.

7. The contention of Mr. Nanavati was three-fold; (1) that has the President did not canvene meetings during this period, though it was incumbent upon him to do under Sub-section (1) of Section 26 of the Act in the months of April and July 1959, it cannot be said that there was failure to attend or that there was absence from meetings as contemplated by Section 15(2)(e) of the Act; (2) that there was no failure to attend meetings during the four successive months inasmuch as the period of default should be reckoned from the 1st of April and not from March 26, 1959, the date of the meeting when she first remained absent and; (3) that Section 15 of the Act contemplated that there must be meeting held in each of the four successive moths and in which meetings she must remain absent in order to constitute failure or default within the meaning of that subsection. Mr. Nanavati argued that if no meetings were held during the four successive months obviously there would be no failure or default. He also argued that if a member was absent in a meeting held in March and no further meeting was held thereafter for a period of four successive months then again there would be no failure. He next argued that if a member were 10 he ahscni in a mceiing held in March and also in another meeting held subsequently and no more meenngs were thereafter convened there would again be no failure or defauli on the part of such a councillor. His contention was that such a councillor can legitimately expect that the President would convene meeting as required of him under Sub-section (1) of Section 26 of the Act. In other words, the petitioner could legitimately expect that the President would convene the two ordinary general meetings as contemplated by that sub-section one on or about the 10th of April 1959, and the other on or about the 10th of July 1959. which the petitioner would attend in order not to invite upon herself the disability laid down in Section 15(2)(e) of the Act. He argued that the Legislature could not have intended that a President in breach of his public duty would not convene meetings ordained by Section 26(1) of the Act and thus create a situation in which a member remaining absent in two meetings previously held would be declared desabled under Section 15(2)(e). The argument no doubt has some force for one can well contemplate a President wishing to take advantage of the absence from two meetings by a member and not convening any more meetings during the prescribed period and thus placing such a member in a difficult situation. But we have to take this statute as it is and construe it according to the words contained in it.

8. It is clear that under Section 15(2)(e) if a member were to remain absent from meetings during four successive months, such a member would be disabled from continuing to be a councillor. The first question is what is the meaning to be attached to the word 'month'? Mr. Nanavati argued that since the Legislature has used the words 'successive months', those words imply that the period to be reckoned would commence from the first day of the month following the date of absence which absence must be continuous during the four months, and therefore, the period should be computed from the 1st of April 1960. The contention on behalf of the opponents on the other hand was that since the word 'month' has not been defined in the Act, the meaning to be attached to the word 'month' must be according to the Bombay General Clauses Act which under Section 3(30) defines the month as meaning a month reckoned according to the British calendar, month means the period here fore commencing from the 1st of the month and therefore the period of absence must be reckoned from the 1st of March 1959, and ending on 30 June 1959. In our view; neither of these contentions is correct. The word 'month' defined in Section 3(30) of the Bombay General Clauses Act means only that wherever the word 'month' occurs in any of the statutes, unless there is anything contrary or repugnant in the context, the month would mean the month in the British calendar and not in a Hindu or any other calendar. The definition does not mean that it must always be reckoned from the 1st day of the month. Section 15(2)(e) it self makes the meaning clear, for the absence that is necessary under that section is the absence from meetings during four successive months. In other words four successive months are to be computed from the date of the absence which absence has to be continuous from meetings during four successive months. The period therefore, must be computed from the date of the meeting in which the member first remained absent. It will be observed that the section uses the words 'successive months' and not 'succeeding months'. The word successive means following one after another in uninterrupted succession and is synonymous with the word consecutive. The period therefore must be computed from the date of the meeting when the member was absent and then it must be established that he was absent from meetings during four successive months from that date Therefore the period would be from March 26, 1959 to July 25. 1959. We are fortified in this conclusion by an English decision in Keshaw v. Shoredith Corporation (1906) 22 T.L.R 302 quoted with approval in Halsburys IMWS of England third edition Vol. 24 page 445, Para 837. In that case by the 1894 Act Section 46(6) which is incorporated in London Government Act, 1899, by Section 2(5), so far as it related to the offices of a mayor and an alderman if a member of a council for a parish or district were to be absent from meetings of the council for more than six months consecutively except in certain cases his office on the expiration of those months would become vacant. The plaintiff who was an alderman of a metropolitan borough was absent from a meeting of the council on June 6 1905 and from each subsequent meeting until November 21 when he was again present. It was there held that the absence must begin to be reckoned from the first meeting at which the plaintiff was absent viz. June 6 and as the six months from that date had not expired on November 21 his office had not become vacant. Similarly in S.K. Mariya Pillai v. Muthuvelu Pandaram I.L.R. 49. Mad. 563 the question was from what date the period of such absence should be computed. Under Section 66(1)(h) of the Madras Local Boards Act, 1920, it was provided that failure of a member of a Taluka Board to attend meetings of the Board for three consecutive months entitled discontinuance of his membership. It was there observed that the absence that mattered was not from three consecutive meetings but what mattered was the absence from attending the meetings of the Board for three consecutive months. It was held that the period of absence for three consecutive months is to be computed from the date of first default in attending a meeting. It was however suggested that such computation would create difficulties. At page 565 of the report the learned Judges put that difficulty in the form of an illustration and stated:

Supposing the Local Board does not meet in January meets in February does not meet in March; there is only one meeting held during the three months and it is asked in such a case does the sub-section apply? The answer is perfectly clear. The sub-section uses the word 'meetings' and not 'meeting'. There must therefore be at least two meetings which a member has failed to attend and Section 56(h) will not otherwise apply.

9. We may observe that Section 15(2)(e) of the Act also uses a similar phraseology, viz., 'meetings'. Therefore there must be more than one meeting held during the period in question in which the member has remained absent. On the other hand it was contended by Mr. Vakil that the word 'meetings' must be construed in the light of the General Clauses Act which provides that a singular includes plural and vice versa. Therefore even if we were to exclude the meeting held on March 26, 1959, the absence of the petitioner from the meeting held on May 21, 1959, would be sufficient to cast disability upon her. There is in our view no validity in that argument. As in the case of the Madras Act the Legislature has deliberately used the plural to avoid a probable mischief that a President might be tempted to commit on finding that a member has remained absent from a meeting and upon that not calling any other meeting during the four successive months or to avoid a member suffering from disability on his having remained absent due to unavoidable circumstances from even one meeting. In our view, therefore, the period to be computed would be from March 26, 1959 and ending on July 25, 1959.

10. A more substantial point raised by Mr. Nanavati was that there would be no failure or default on the pan of a councillor even if such a councillor has remained absent in a meeting or meetings of the municipality if the President has not convened the meetings which under the provisions of the Act, he is bound to convene. As we have said the relevant meetings held by the municipality were of March 26 and May 21. 1959, in both of which the petitioner had remained absent. The argument was that under Sub-section (1) of Section 26 of the Act President was bound to call meetings in April and July on or about the 10th of each of these two months and the President having failed to call these meetings there would not be any failure or absence within the meaning of Section 15(2)(e) of the Act. The petitioner who had absented herself from the two meetings held on 26th March and 21st May 1959, could legitimately expect that the two compulsory meetings provided for under Sub-section (1) of Section 26 would be convened by the President when she could remain present and thus avoid any possible disability. The contention of Mr. Vakil, on the other hand was that Section 26(1) of the Act was not mandatory but directory and that even if the provision for calling the four ordinary general meetings were to be held mandatory the requirement that those meetings should be convened on or about the dates set out therein was not mandatory but merely directory. He relied upon certain observations from Maxwell on the Interpretation of Statutes, 10 edition page 381 where it is observed:

Where the prescriptions of a statute relate to the performance of a public duty and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the legislature such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed or in other words as directory only. The neglect of them may be penal indeed but it does not affect the validity of the act done in disregard of them. It has often been held for instance when an Act ordered a thing to be done by a public body or public officers and pointed out the specific time when it was to be done that the Act was directory only and might be complied with after the prescribed time.

11. He also relied upon the observations of the Supreme Court in Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. 1959 S.C.R. 1104, where it has been observed that it was a well-established principle than an enactment nevertheless mandatory might in substance be directory and that the use of the word 'shall' does not conclude the matter. These are well known rules for determining when a statute should be construed as mandatory and when directory. But all of them are only aids for ascertaining the true intention of the legislature which is the determining factor and that must ultimately depend on the context. In every case, therefore, where the Court is called upon to consider whether provisions of an enactment are mandatory or merely directory in nature the determining factor is the intention of the Legislature So far as the present statute is concerned, it is clear that the intention of the Legislature in enacting Sub-section (1) of Section 26 was to lay down a mandatory provision. Sub-section (1) of Section 26 imposes both a duty and confers power upon the President. Under this sub section a duty is cast upon the President to call at least four ordinary general meetings distributed approximately at three months regular intervals the object of the sub-section being that the councillors should be associated with the earring on of the municipal administration and to prevent the President from currying on the administration by himself. At the same time the sub-section confers power upon the President to call other ordinary general meetings if he finds it necessary to do so. Subsection (2) also confers power upon the President to convene special general meetings, whenever he finds such meetings to be necessary. The object of the Legislature seems to be to prevent the President from carrying on the municipal administration without the assistance and association of the councillors or from calling meetings at one time or in such a way as to cause inconvenience to the councillors. With that object in mind the Legislature distributed the four ordinary general meetings, which the President must convene at stated intervals. Sub-section (1) of Section 26 if read with Section 15(2)(c) would indicate that a duty is cast upon the President, which, if not performed would create inconvenience and even injustice to persons who have no control over him or at any rate, who cannot compel him to perform his duties without recourse to a Court of law. As stated by Maxwell, at page 376, where powers rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a regorous observance of them as essential to the acquisition of the right or authority conferred. But when a public duty is imposed and the statute requires that it shall be performed in certain manner or within a certain time or under other specified conditions such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative. In our view Section 26(1) contains both duties and powers, the former being mandatory. It is, therefore, incumbent upon the President to call at least the four ordinary general meetings on or about the dates mentioned therein.

12. Mr. Vakil for the opponents contended that in that event the meetings held on the 26th March and the 30th July should be deemed to be the ordinary general meetings which under Sub-section (1) of Section 26 were to be held on or about the 10th of April and 10th of July 1959. He submitted that since the section itself provides that these meetings are to be held on or about the 10th of those two months the meeting held on 26th of March i.e. about 15 days before the scheduled date the meeting held on the 30th July i.e. about 20 days after the date should be treated as two of the four prescribed meetings. But if Section 26(1) were to have any meanings it is necessary that the words on or about used therein must be given a reasonable meaning. Those words were advisably incorporated by the legislature; for laying down a fixed and common date for all the municipalities might have created considerable inconvenience and hardship. At the same time because some margin in the date to be fixed is left to the discretion of the President it does not and cannot mean that such a meeting can be called at any time and be treated as one of the prescribed meetings. A meeting held 15 days before and another meeting held 20 days after the scheduled date cannot in our view be deemed to be meetings held on or about scheduled date. A fortnight either way from that date would not be a reasonable time in view of the fact that such meetings are expected to be convened at regular intervals of three months.

13. Our attention was drawn to a decision of the Madras High Court in District Board of Guntur v. Desu Subba Rao : AIR1928Mad983 . where the facts were somewhat similar to those before us. A member did not attend the meeting of the Taluka Board held on 10th July 1926. There was again a meeting of the Board on 12th August 1926, which also he did not attend. There were no meetings in September and October. There was a meeting on 13th November 1926 which he attended. It was held that the period of absence for three consecutive months is to be computed from the date of his first default in attending the meeting and the member thus brought himself clearly within Section 56(1)(h) of the Madras Local Board Act 1920 A question was raised whether the member forfeited his seat by reason of his non-attending in the two meetings held in July and August. The District Judge held that he did not forfeit his seat inasmuch as he did not fail to attend two meetings in three months. Clause 1 of Section 56 provided that subject to the provisions of Section 57 a member of a Local Board shall cease to hold office if he fails for three consecutive months to attend the meetings of the Local Board. The District Judge calculated three months excluding the date of the first meeting which the respondent failed to attend. In the view of the High Court that was a wrong calculation. Relying upon the authority in Kershaw v. Shoredith Corporation and Mariya Pillai v. Mathuvelu Pandaram, it was held that the period of absence for three consecutive months is to be computed from the date of his first default in attending the meeting and therefore the member forfeited his seat. The question however that was raised in that decisions was only about the time from which the period of three consecutive months was to be reckoned. The point now agitated before us was neither raised nor determined viz. whether if the President has failed to carry out his public duty such failure would save the disability of a councillor. The decision in : AIR1928Mad983 , therefore, cannot help us in deciding the question raised before us.

14. As we have said Sub-section (1) of Section 26 of the Act does cast a duty open the President but the question is does that failure absolve the councillor from the disability that her absence imposes upon her? It is clear that neither of the two sections can be legitimately construed from the point of view of saving that disability or on considerations extraneous to the object for which they were enacted. It is well-settled that in construing a statute a Court ought not to be influenced or governed by any notions of hardship. It must look hardship in its face rather than break down the rules of law and if the law in its natural construction is not inconsistent or unreasonable or unjust, the construction is not to be departed from merely because it may operate with hardship in some particular cases. Keeping this principle in mind we must now proceed to construe Section 15(2)(e) of the Act. Section 15(2)(e) deals with absence from meetings during four successive months As envisaged by Section 26, which is a section which provides for the meetings of the Municipality, these meetings are the four minimum ordinary general meetings which are compulsory and the other ordinary general meetings and special general meetings which the President has the power to convene if he thinks it necessary to do. The contention of Mr. Nanavati would have considerable force if Section 15(2)(e) had made a distinction between the meetings which are compulsory under Sub-section (1) of Section 26 and the meetings which are not compulsory but which can be convened by the President at his discretion under the other provisions of Section 26. No such distinction is made in Section 15(2)(e) of the Act. It is clear therefore that the absence that has to be taken into consideration is the absence from any class of meetings and not merely meetings which are to be compulsorily convened under Sub-section (1) of Section 26 of the Act. It is true that the absence has to be from more than one meeting as Sub-clause (e) of sub Section (2) of Section 15 of the Act uses the word 'meetings.' As held by the High Court of Madras the absence that is required is absence from more than one meeting by reason of the Legislature having used the plural. There is no dispute that the petitioner was absent from more than one meeting viz. from the meetings held on March 26 and May 21, 1959. As we have said the meeting held on 30th July being irrelevant for computing the period of absence it is clear that the petitioner was absent from meetings during the four successive months and therefore the disability enacted under Section 15(2)(e) of the Act would attach to her.

15. If we were to accept the construction sought to be placed by Mr. Nanavati on Section 15(2)(e); viz. that there can be no failure of absence from meetings unless the President has called all the compulsory meetings during the relevant period we feel that we would be reading Section 15(2)(e) differently from what it is and re-writing that sub-section by construing to mean absence from meetings which ought to have been held which words would be contradictory in terms. There can be absence of a councillor from a meeting actually held but there cannot be absence from a meeting which ought to have been held. Section 15(2)(e) being couched in clear and unambiguous terms we must take these words in their ordinary and normal meaning. Such an interpretation must necessarily mean that if a councillor has remained absent from meetings of the municipality during four successive months the disability that is enacted there would attach to such a councillor irrespective of whether the President has convened or not the compulsory meetings provided for in Sub-section (1) of Section 26 of the Act. If the construction sought to be put by Mr. Nanavati were to be correct then the legislature would not have used the words which it has. The words 'meetings of the municipality' would in that event have been qualified by stating something to the effect that no such disability would accrue in the event where the President has failed to call the compulsory meetings as provided for in Sub-section (1) of Section 26 of the Act.

16. In this view the petition tails and must be dismissed. The rest of the three petitions also involving the same point fail and are dismissed. In view of the fact that these petitions involve a point of construction of some importance the proper order of costs would be that there shall be no order as to costs.


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