M.R. Mody, J.
1. The Godhra Borough Municipality is a municipality constituted under the provisions of the Bombay Municipal Boroughs Act XVIII of 1925 (hereinafter referred to as the Act). The councilors of this municipality were elected at the general election held in 1958. For the year 1958-59 the fifth petitioner was elected as the president whereas for the year 1959-60 the third petitioner was elected as the president of the municipality. For the year 1960-61 the first petitioner was elected as president of the municipality. The term of office for which the first petitioner was elected as president of the municipality having expired the Collector of Panchmahals pursuant to the provisions of Section 19A of the Act issued a notice dated June 26 1961 to the councilors of the municipality informing teem that a meeting of the councilors of the municipality would be held on July 13 1969 for the purpose of electing the president for the year 1961-62. It was also stated in the notice that the meeting to be held for the purpose of electing the president would be presided over by the Personal Assistant to the Collector.
On July 13 1961 a meeting of the councilors of the municipality was held pursuant to the notice given by the Collector. This meeting was presided over by one G.C. Mankad the Personal Assistant to the Collector of Panchmahals as already indicated in the notice given by the Collector. The meeting was attended by the 26 councilors of the municipality. As to what transpired at that meeting has been recorded in the minutes of the meeting in the records of the municipality and an office translation of these minutes is annexed to the petition. For the present it is sufficient to state that one Jadurai Ramshanker Vyas the first respondent herein was duty proposed and seconded for the post of the president of the municipality. It appears that thereafter amendment was duly proposed and seconded to the motion whereby one Sakalchand Mohanlal Mehta the third petitioner herein was proposed for election as the president of the municipality. A second amendment was also moved to the original motion and by the second amendment it was proposed that one Arjandas Jodharam the second petitioner herein should be elected as the president of the municipality. Following the procedure laid down in Rule 38 of the Rules of the Godhra Borough Municipality framed under the provisions of the Act (to which rule we will presently refer) the two amendments were put to vote against each other and on votes being cast the first amendment was lost and the second was carried. Thus under the amendment thus carried the house voted that the second petitioner should be elected as the president of the municipality in preference to the third petitioner. Thereafter the second amendment viz. the one proposing the second petitioner for being elected as the president of the municipality and the original motion proposing the first respondent for being elected as the president of the municipality were put to vote as against one another and the original motion was carried and the amendment was lost by a vote of 14 as against 12. Thereafter the Presiding Officer declared the first respondent as having been elected as the president of the municipality. It may be noted that the original motion proposing the first respondent for being elected as the president of the municipality was not put to the house as a substantive resolution at all before the Presiding Officer declared the first respondent as having been duly elected as the president of the municipality for the remaining term of the office of the municipality.
2. Immediately after his election on the very day the first respondent as the elected president issued a notice to all the councilors of the municipality calling a Special General Meeting of the municipality on July 18 1961 The first respondent also as the elected president proceeded to act as the president of the municipality. On these facts the petitioners who are nine of the councilors of the municipality filed a petition under Article 226 of the Constitution of India on July 17 1961 against the first respondent who was elected as the president of the municipality at the election mentioned above against the presiding officer who was impleaded as the second respondent against the Collector of Panchmahals who was impleaded as the third respondent and the Godhra Borough Municipality which was impleaded as the fourth respondent in the petition. The petitioners prayed for reliefs for issue of a writ of quo warranto or writ in the nature of quo warranto or a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ direction or order and in particular prayed for the following reliefs:
(i) to declare that the first respondent has not been elected as president of the respondent No. 4 municipality and is an usurper to the said office;
(ii) to declare that the notice dated 13-7-1961 is issued by the respondent No. 1 as the president of the respondent No. 4 municipality is illegal and invalid;
(iii) to restrain the respondent No. 1 from discharging any of the functions and/or duties and exercising any of the rights as the president of the respondent No. 4 municipality and from holding a meeting of the councilors of the respondent No. 4 municipality pursuant to the aforesaid notice dated 13-7-61;
(iv) to restrain respondent No. 4 from holding any meeting under any notice or direction issued by respondent No. 1;
(v) to declare that the petitioner No. 1 continues as the president of the respondent No. 4 municipality and is entitled to act as such till a fresh election has been held under the provisions of the Bombay Municipal Boroughs Act 1925 to elect the new president; and
(vi) to provide for the costs of this petition. At the hearing of the petition Mr. Vakil the learned advocate appearing on behalf of the petitioners stated that he did not want to proceed against the presiding officer and the Collector of Panchmahals being the second and the third respondents respectively and that accordingly their names should be treated as deleted from the record. We accordingly treated the names of the second and the third respondent as deleted from the record.
3. As far as the facts of this petition are concerned there is no dispute at all between the parties. An affidavit was filed by the first respondent and by one Kantilal P. Shah the officiating Chief Officer of the fourth respondent viz. the Godhra Borough Municipality in reply to the petition. Neither the first respondent nor the fourth respondent has raised any dispute on a question of facts.
4. Before setting out the contentions raised by Mr. Vakil on behalf of the petitioners it will be convenient at this stage to refer to Rule 38 of the rules of the Godhra Borough Municipality. This rule was framed under Clauses (a) and (b) of Section 58 of the Act and was approved by the Government under their resolution dated July 5 1943 Rule 38 provides as under:
Voting on original motion and amendments:
When only one amendment is moved to a motion votes shall be taken between the motion and the amendment When there are more than one amendment the one last proposed shall be put against that immediately preceding and then the one which is carried shall be put against the next preceding and so on until only one amendment is left. Votes shall then be taken between the last remaining amendment and the original motion and whichever is carried shall be put as a substantive resolution without further discussion: provided that the Presiding Authority shall be at liberty to give precedence to any amendment which he deems to be most in favour with the meeting and that any amendment carried unanimously shall then and there be taken as a substantive resolution and be recorded without further discussion as the resolution of the meeting.
5. It is common ground that right or wrong the procedure that was purported to be adopted by the Presiding Officer at the meeting mentioned above was the procedure laid down in this Rule 38 of the Rules of the municipality.
6. The contentions raised by Mr. Vakil for the petitioners were: (1) The procedure to be followed in the case of an election of a president or according to Mr. Vakil as a matter of that any election at all is not the procedure laid down in Rule 38 and the procedure that was purported to have been followed by the presiding officer being the one laid down in Rule 38 the election of the first respondent as the president of the municipality was illegal and/or void. (2) That even in the event of its being held that Rule 38 was the proper procedure the presiding officer had failed to follow the procedure as laid down in Rule 38 and even on that account the election of the first respondent was in any event void and (3) In any event argued Mr. Vakil the procedure followed did not reflect the choice of the majority and even for that reason the procedure was ex facie bad and the election was liable to be set aside.
7. It will be convenient to deal with the first and the third contentions raised by Mr. Vakil together the provisions relevant to elections and constitution of municipalities are contained in Sections 4 to 34 in Chapter II of the Act. Section 9 provides that every municipality should consist of elected councilors. Sections 10 to 16 and 17A to 171 deal with the election of councilors the maintenance of a list of voters and other matters ancillary thereto whereas Section 17 provides for the publication by the Collector in the official gazette of the names of all councilors finally elected to any municipality and the names of the nominated councilors if any appointed thereto. Having made provision (or the election and the nomination of councilors Section 18 of the Act so far as it is relevant goes on to provide that a municipality should be presided over by a president who should be elected by the councilors from among their number. Section 19 provides that the president should hold office for such term being not less than one year or not less than the residue of the term of office of the Municipality whichever may be less and not exceeding four years as the municipality shall previous to the election of the president or vice-president determine or until the expiry within the said term of his term of office as councilor but shall be eligible for reelection. The first proviso to Section 19(1) makes provision for the extension of the term of office of the president till the election of his successor and is in these terms:
Provided that the term of office of such president or vice-president shall be deemed to extend to and expire with the date on which his successor is elected.
8. Section 19A deals with the election of the president and the vice-president. Under Section 19A(1) after a new municipality is constituted after a general election the Collector has to call a meeting for the election of the president and the vice-president within the time mentioned in that section. Under Sub-section (2) of Section 19A it is provided that the meeting called by the Collector should be presided over by the Collector or such other officer as the Collector may by order in writing appoint in that behalf and that the Collector or such officer should when presiding over such meeting have the same powers as the president of a municipality has when presiding over a meeting of the municipality. There is a proviso to this sub-section which provides for an additional power to the Collector or to the officer presiding over such meeting to refuse to adjourn such meeting. Under Sub-section (3) it is provided that no business other than the election of the president and the vice-president can be transacted at the meeting for the election of the president and the vice-president. Under Sub-section (4) it is provided that if in the election of the president or the vice-president there is an equality of votes the result of the election should be decided by lot to be drawn in the presence of the Collector or the officer presiding in such manner as he may determine. The effect of Sections 18, 19 and 19A is that after the names of the elected and nominated councilors are published in the Official Gazette by the Collector as provided by Section 17 the Collector has to call a meeting for the election of a president who is to hold office for the period mentioned in these sections and these sections further provide for the manner in which this meeting is to be convened.
9. Section 23(1) and (2) provide that in certain contingencies mentioned in that section where a vacancy arises in the office of the president the same should be filled up by an election and refers to Section 19A for the procedure to be followed at such meeting. Under Section 25(2) it is provided that the term of office of councilors should be deemed to commence from the date of the first general meeting to be held after such election.
10. Prom the above provisions it is obvious that no procedure is prescribed for the holding of an election of a president under Section 19A of the Act. The purported election in this case was held in purported compliance with Rule 38 of the Rules of the Municipality. Rule 38 is a rule framed under the provisions of Clauses (a) and (b) of Section 58 of the Act. Under these clauses it is competent to a municipality to make rules not inconsistent with the Act inter alia for regulating the conduct of its business for determining the executive functions to be performed by the president vice-president and the chairman of any committee and for the other purposes mentioned in its sub-clauses which are not relevant for the purpose of this petition. Section 58 is the first Section in Chapter IV which is instituted Rules and By-Laws Chapter III of the Act is instituted Conduct of Business and deals with municipal meetings committees joint transactions with other bodies contracts with the municipalities acquisition of lands liabilities of councilors officers and servants and validity of proceedings. In other words Chapter III is intended to make provision for the conduct of the day-to-day business of the municipality and its actual working and its relations with regard to other bodies. The power given under Section 58 Sub-clause (a) to the municipality to make rules is for the purpose of regulating the conduct of its business and has therefore direct reference to Chapter IH of the Act which deals with the conduct of business of the municipality. There is no power in the municipality to make rules under Section 58 for the purposes of Chapter II of the Act which provides for elections including the election of the president or the vice-president of the municipality. It seems to be obvious that what was intended by this rule-making power was to provide for detailed rules and regulations for the management and the conduct of the business of a municipality and not to provide for any rules regulating any elections either of councilors or president or vice-president who are to be elected under the provisions of Chapter II of the Act. It is relevant to note that under Section 35 which is the first section in Chapter III instituted Conduct of business provision is made for the calling of ordinary general meetings and other-meetings of the municipalities by the president. Now such meetings could only be called after the president is elected as such and it could not be that it was intended that the rules and regulations that have been framed under Section 58 Clauses (a) and (b) for the conduct of the business of the municipality would be applicable to any meeting for electing the president himself which has of necessity to be held prior to any meeting which may be called by the president under Section 35 of the Act after his election.
11. While Mr. Thakore appearing for the municipality conceded that Rule 38 had no application to the election of the president Mr. Patel on behalf of the first respondent strenuously argued that the business of the election of the president of a municipality was municipal business and in any event should be deemed to be the business of the municipality. Mr. Patel urged that after all what the municipality was doing was electing a president for itself and posed the question: If this were not termed the business of the municipality what else could be the business of the Municipality? According to Mr. Patel the first function of the council of a municipality is to elect the president and it is not the business of some outside agency. Mr. Patel is right when he says that the business of the election of president could not be the business of any outside body or agency but in our view the argument of Mr. Patel that it amounts to the business of the municipality within the meaning of Section 58 Clause (a) read with Section 35 is based on an entirely erroneous reading of the provisions of the Act. The nature of the meeting held under Section 19A is different from any meeting held by the president under Section 35 which as pointed out above deals with the conduct of the business of the municipality. Whereas the meeting to be held under Section 23 read with Section 19A is to be presided over by the Collector or his nominee the meeting under Section 35 is to be presided over ordinarily by the president or in certain events mentioned in the section by the vice-president or in any event by a councilor and not an outsider. The meeting under Section 19A is a special type of meeting to be held for the specific purpose of electing a President and is a meeting which is presided over by a person who is not a member of the municipality and a meeting at which no business other than the business of the election of the president and/or vice-president can be transacted. Under Section 35 on the other hand there can be no meeting which can be presided over by any one other than either the president or the vice-president or in their absence by a councilor In the circumstances mentioned in that section but in any event not by an outsider as is the case of the meeting under Section 19A. Now the Collector or his nominee when presiding over a meeting under Section 19A is not doing municipal business nor can he be deemed to be doing municipal business as contended by Mr. Patel. The Collector or his nominee would just be discharging the statutory function assigned to him under the provisions of the Act and nothing more. In discharging these functions it cannot by any stretch of imagination be said that the Collector or his nominee is doing municipal business. It may be that the business of that meeting may be said to pertain to municipal business but in our judgment calling it municipal business or even deeming it to be so would be entirely fallacious. It is not competent to the rule making authority under Clauses (a) and (b) of Section 58 to frame any rule for the purposes of elections under Section 19A and Rule 38 framed under these clauses could not be for the purposes of these elections. It is obvious therefore that the procedure laid down in Rule 38 framed under Clauses (a) and (b) of Section 58 of the Act was not the procedure to be Followed in the case of the election of the president under Section 19A and the election of the first respondent as the president was therefore void.
12. Mr. Patel relied on a judgment of the Division Bench of the Bombay High Court in Samalbhai Lallubhai Patel v. Jesangbhai Ranchhoddas 38 Bom. L.R. 1331 and contended that it was laid down in that case that the rules framed for the regulation of meetings of the municipality applied to the meetings held for the purpose of electing a president. Now that case was the case which arose under the provisions of the Bombay Local Boards Act 1923 and the main question that arose for determination of the Division Bench was whether the regulations made by the Taluka Local Board of North Daskroi were ultra vires of the Bombay Local Boards Act. In the first place the provisions of that Act are not pari materia with the provisions of the Act before us nor are the regulations framed under that Act the same as the rules which are before us. The observation in the judgment of Mr. Justice Tyabji at page 1338 on which Mr. Patel relied to the effect that there was no justification for holding that there was any cleavage in the two classes of business in the regulations or the Act or that the election of the president was put in a class apart from the transaction of the ordinary business was a passing observation and had nothing to do with the decision of the case directly and again as pointed out by as above if at all the observation was made on the provisions peculiar to that Act which are different from the Act and the rules which we are called upon to construe in this case. In our view therefore the case cited by Mr. Patel has no application to the facts of the case before us and is of no guidance to us.
13. An argument was also advanced on behalf of the respondents that the provision in Section 19A(2) that the Collector or the officer nominated to preside shall when presiding over such meeting have the same powers as the President of a municipality when presiding over a meeting of the municipality has could only be construed to mean that the procedure to be followed at any meeting even held under Section 19A should be the same as contemplated by Section 35 read with the rules framed under Section 58 Clauses (a) and (b). It was further urged that the proviso to this sub-section to the effect that notwithstanding anything contained in Section 35 the Collector or the officer presiding over such meeting may for such reasons which in his opinion are sufficient refuse to adjourn such meeting again indicated that no difference was indicated in the meetings to be held under Section 19A and Section 35 respectively. We do not agree with this submission. We have already indicated the fundamental difference in the nature of these meetings. What this sub-section and its proviso merely clarify is the nature of powers of the person presiding and cloth him with the additional power to refuse to adjourn such meeting. These provisions do not neutralize the difference in the nature of these meetings. They deal with powers of the presiding authority and not his obligation to follow a particular procedure in a meeting for electing a president or vice-president much less a procedure to be found in a rule framed under Clause (a) and (b) of Section 58 of the Act. In our view these provisions do not lead to the construction canvassed on behalf of the respondents.
14. This really takes us to the third submission which Mr. Vakil made viz. that in any event the procedure followed by the presiding officer did not reflect the choice of the majority and even for that reason the election was bad. This negative submission made by Mr. Vakil in reality anticipated the submission that was bound to be and was made on behalf of the respondents that in any event the election reflected the choice of the majority and should therefore be upheld by this Court.
As appears from the minutes of the meeting held by the Presiding Officer what the presiding Officer did was in the first instance to record a proposal by one Somalal Shiroia seconded by 14 others that the first respondent should be elected president. Then the Presiding Officer has gone on to record an amendment and the amendment was moved by one Lokhandwalla and seconded by one Shukla to the effect that they proposed the third petitioner to be elected president of the municipality. The Presiding Officer then records a second amendment which was moved by one Krishnalal Purani and seconded by one Umarji proposing that the second petitioner be elected president of the municipality. In the first place it was wrong on the part of the presiding officer to hold the elections in this manner. In the matter of election of a president it is wrong to treat the proposal of the first candidate in the field as a substantive proposition to be followed by further propositions in respect of the other candidate by way of amendments to the original proposal. After having initially taken a wrong step the presiding officer went on to take the next step which was to put to the house the two amendments so to say one against the other for their consideration and vote. Votes were recorded on these two amendments placed before the house one against the other and the Presiding Officer records that the amendment for electing Arjandas Jodharam had 12 supporters that there was nobody against the amendment and 14 persons reserved their votes. The Presiding Officer declared that Purani's amendment for the election of the second petitioner was carried unanimously and that Lokhandwalla's amendment for the election of the third petitioner was lost. This again is the second erroneous step which the Presiding Officer took in the course of this election. It was entirely a fallacious procedure to have put these two amendments to vote in the manner in which he has done. In the first place it was wrong to have placed the two amendments for vote one against the other and in the second place it was entirely wrong to follow any such procedure in the case of an election.
15. It appears that at this stage some councilors present demanded a poll and on that the presiding officer had votes taken and even on poll the result was the same and he once again declared that Purani's amendment for electing the second petitioner as president was carried whereas the amendment moved by Lokhandwalla was lost.
16. The next step taken by the Presiding Officer was that he put the one 5, remaining amendment for electing the second petitioner as the president and the original motion of Somalal Shiroia for the election of the first respondent as president to vote of the house once again one against the other. It appears that 12 persons voted in favour of the amendment and against the proposal and 14 persons voted against the amendment and in favour of the proposal. The Presiding Officer declared that by a majority vote amendment was lost and the motion of Somalal Shiroia was accepted. Once again a poll was demanded and even on poll being taken the same was the result. As in the case of the second step taken by the Presiding Officer this step was again entirely wrong for the same reasons. After having taken this step without putting the original proposition to vote the Presiding Officer declared the first respondent to have been elected as the president of the municipality for the remaining term. This again was entirely wrong because in any view of the matters it was incumbent on the Presiding Officer to have put the original proposition to vote again. It was not for him to speculate that even on the original proposition having been put up to vote the same result would follow, it appears to us in the first place that in matters of election of an office bearer like the president of the municipality it was wrong to hold the elections in the manner in which he has done by putting up the names of the other candidates as amendments to the original motion. Secondly what are in substance substantive propositions were wrongly put up as amendments by the Presiding Officer. Mr. Patel contended that by whatever name called the amendment was really a substantive proposition but Mr. Patel forgot that his client himself had in his affidavit defended these propositions not as substantive propositions but as amendments. Then Mr. Patel contended that it made no difference whether they were regarded as substantive propositions or amendments. In whatever view of the matter the procedure adopted by the Presiding Officer was wrong because the proposition as to who should be elected as the president was never before the house. At all the stages of the election what was put to the house was whether the house would elect a particular person as a president or another without having taken the next necessary step of putting up the substantive proposition as a substantive proposition.
17. In our view the procedure followed by the Presiding Officer was in any event erroneous and did not reflect the choice of the majority of the house which it would be the purpose of any election to do.
But argued Mr. Thakore that if no procedure is laid down under the Act and the Presiding Officer has followed the procedure which appeared to him to be the best procedure particularly when no objection was taken by any of the councilors present the Court should not interfere by a writ under Article 226 of the Constitution irrespective of the fact whether the procedure followed was right or wrong What Mr. Thakore argued was that the house accepted the procedure as the procedure they would have for the purpose of the election of the president of municipality and h fact there was a demand for a poll by some of the councilors present which according to him indicated a further imprimatur of the house to the procedure followed. He further submitted that on the facts of this case the result would have been the same in any event and no prejudice could have been caused to any of the petitioners or as a matter of that to any of the other councilors even if any other or correct procedure was followed. In other words this argument of Mr. Thakore fell into two parts viz. (1) That when no procedure is laid down whatever may be the procedure followed by the presiding officer the election should not be disturbed by the Court and (2) that in any event where the house has accepted the procedure it would amount to an express or tacit agreement to the procedure being adopted for the election and the election results should therefore not be disturbed particularly when they would have been the same in any event. In further support of this point Mr. Patel the learned Counsel for respondent No. I also urged that we are not when exercising jurisdiction under Article 226 an appellate authority and it is not for us to record findings as in appeals as to whether the procedure was good or not. We agree with Mr. Patel that we are neither an appellate authority nor an appellate court sitting in judgment over the judgment of the Presiding Officer. But the arguments advanced on behalf of the respondent lose sight of one important fact that when procedure for a particular important purpose like an election is not found in the provisions of the Art it is the Court which has to see whether the procedure adopted was proper and was properly followed and whether the elections reflected the will of the majority of those present and who voted at the elections. The important right of franchise is exercised at elections the real purpose of elections is to find out the will of the majority. The Court therefore in election matters is jealous about the rights of citizens in the matter of the exercise of franchise and to see whether proper procedure that would reflect the correct wishes of the majority was followed or not. If the Court is of the view as we are in this case that the procedure adopted was anomalous as it did not properly elicit the view of the majority then no amount of acquiescence can validate invalid procedure. As observed by Tmbe J. in the case of Desaibhai Kashibhai Desai v. S.M. Udani 61 Bom L.R. 1326 at page 1330 it is not advisable either to leave it to the members of a body to devise a procedure for holding an election inasmuch as the possibility of the right of the minority suffering at the hands of the party in power cannot be excluded.
18. Then again if the Court is of the view that the procedure is wrong then merely because the presiding officer has followed the procedure no sanctity becomes attached to the procedure. We exercising our jurisdiction under Article 226 of the Constitution would for the protection of the right of franchise of a citizen certainly interfere in the matter irrespective of the fact that the particular procedure has been adopted by the Presiding Officer. The argument that no prejudice could have been caused in any event to any of the petitioners or as matter of that to any of the councilors and therefore we should not interfere is in our view also wrong It is not for us to speculate what the result would have been had the proper procedure been followed. As to what actually happened or could have happened in this case in not a consideration relevant to the issues of the case. We have got to see whether the procedure is correct or not and not to speculate as to the ultimate possible upshot of the elections the reasons guiding human beings in their actions can be infinite and it may well have been that had a proper procedure been followed as would bring out the real wishes of the majority of those present the result of the election may have been different. In event there is no material before us to show that in fact no prejudice was caused or could have been caused to the other councilors.
19. In support of the contention raised by. Mr. Patel Mr. Patel referred us to a judgment of the Madras High Court in A.R.V. Achar v. Madras State reported in : AIR1954Mad563 In that case a Division Bench of the Madras High Court held that a writ of quo warranto is not issued lightly and as a matter of course but when a relator applies for-such a writ it is in the discretion of the Court to refuse it or grant it according to the facts and circumstances of the case. The facts and circumstances in that case were that the relator himself had all along acted on the footing that the person against whom he was claiming the writ of quo Warranto was validly elected and as a matter of that had canvassed for the vote exercisable by a councilor of the person challenged by him as a councilor not validly elected. In view of the facts peculiar to that matter the Madras High Court refused to exercise their jurisdiction for the issue of a writ of quo Warranto under Article 226 and refused to grant the petitioner the relief claimed for by him. It is obvious that the facts and circumstances of the case on which the Madras High Court did not grant the writ of quo warranto were entirely different from the case before us. In the case before us there arises no question of the petitioner having taken advantage of any procedure nor of he having acquiesced in anything for in a matter of three or four days time after the purported election the petitioner in this case proceeded to file this petition before this Court. The Madras case has therefore no application to the facts of this petition.
20. The next case relied on by Mr. Patel was a judgment of a Pull Bench of the Nagpur High Court in Rajaram Laxmanji Jadhav v. R.P. Samarth and Ors. reported in A.I.R. 1956 Nagpur 218. The facts of that case were that in the case of an illiterate councilor who could not read or write except signing his name the Mayor with the consent of the members present at a meeting read out to him the names of the candidates and put down cross marks on the ballot against the names of those of them for whom he showed his preference. On these facts it was contended that the secrecy of the ballot was violated and that therefore the election was bad. Dealing with this contention put forward on behalf of the petitioner the learned Judges observed However in the absence of any provision regulating the casting of votes by illiterate persons as in Rule 26 of Representation of the People (Conduct of Elections and Election Petitions) Rules 1951 the challenge cannot be taken to a Court of Law when the meeting which had seizing of the matter had accepted the procedure. Apart from the fact that the situation in the case before the Full Bench of the Nagpur High Court was entirely different from the situation that we find in the present case it appears that the point was not argued at length and the mere observation made by the Pull Bench was as to the fact that the meeting having seizing of the matter the erroneous procedure was accepted. What really happened was that the councilors had given up their privilege of secret ballot and had agreed to such procedure being adopted. This irregularity in any event did not go to the root of the matter and was not such as was sufficient to displace the elections as an irregularity resulting in wrongly reflecting the view of the majority would and which would justify the setting aside of an election. It was a technical objection which their Lordships took was waived by the conduct of the parties present at the meeting.
21. The next case relied on by Mr. Patel was a judgment of the Supreme Court in Vice Chancellor Utkal University and Ors. v. S. & Ghosh and Ors. reported in : 1SCR883 The nature of the facts in that case was entirely different from the nature of the facts before us. The material facts there were that two resolutions dealing with an identical matter in identical terms and each having been brought up without any notice to the syndicate were placed successively at two successive meetings of the syndicate of the Utkal University. These resolutions were passed by the both the meetings and between the two meetings all the members of the syndicate were present. Dealing with the contention that the resolutions were bad on account of want of notice Their Lordships of the Supreme Court observed that the substance was more important than form and when there was substantial compliance with the spirit and substance of the law their Lordships were not prepared to let an unessential defect in form defeat what was otherwise proper and valid business and held that in mandamus petitions the High Court and the Supreme Court would not act as Courts of appeal and consider and examine the facts for themselves nor would the court of law substitute the wisdom or discretion of that person to whose judgment the matter in question was entrusted by the law. With respect we accept what is observed by the Supreme Court in that case but we are dealing with a case not of a mere technical irregularity or any irregularity that can be cured by looking at the substance of the matter. What we are dealing with is an election of the first respondent as the president following what in our judgment is an entirely erroneous procedure and that being the case we fail to see how as Mr. Patel contended the observations of the Supreme Court are applicable to the facts before us. Before we part with this case we should also like to observe that the Supreme Court make it clear that their judgment with whatever remarks they made was entirely confined to the facts of that case.
22. It was next contended that if at all there was a mere irregularity in the procedure the same did not call for interference in this petition. Mr. Thakore referred us to Section 15 of the Act which deals with the validity of elections Sub-section 5 whereof provides that if the validity of an election was brought in question only on the ground of any error by the officer or officers charged with carrying out the rule made under Clause (c) of Sub-section (1) of Section 10 or of an irregularity or informality not corruptly caused the Court should not set aside the election. When we pointed out to Mr. Thakore that in terms Section 15 was not applicable to the election of the president hut that it applied to the general election of councilors Mr. Thakore contended that that was so but we should follow the principle laid down in this section. If the legislature which thought it proper to make a definite provision in regard to general elections in Section 15(5) has not thought it proper to make such a provision in the case of the election of the president in Section 19A we do not see how it is possible for us to apply this principle laid down in Section 15(5) to the present election under Section 19A. Mr. Patel however on the other hand relied upon two judgments of the Bombay High Court one in Pandurang Narayan Adhay v. Ramchandra N. Panditrao 32 Bom. I.L.R. 1252 and the other in Bhairulal Chunilal v. State of Bombay reported in : AIR1954Bom116 Relying on these decisions Mr. Patel contended that in any event because of mere irregularities in an election the Court should not interfere. The facts in both these cases were entirely different apart from the fact that they dealt with mere irregularities not touching the root of the matter which is not the position in the case before us. In the case before us irregularities go to the root of the matter inasmuch as the procedure followed was not proper the same did not correctly reflect the wishes of the majority and it could not be said on the basis of the procedure followed that the choice of the first respondent was the choice of the majority of the councilors.
23. In the view that we take of the matter we do not think that in any event the procedure could be said to be correct. In our judgment the election of the first respondent was void and is liable to be set aside. In that view it is not necessary to deal with the second contention raised by Mr. Vakil viz. that in any event on the footing that the proper rule applicable to the election was Rule 38 the Presiding Officer failed even to apply that rule. We shall however proceed to express our view even on that point since the point was argued before us. Rule 38 provides that when an amendment is moved to a motion votes shall be taken between the motion and the amendment and that when there are more than one amendment the one last proposed should be put up against the immediately preceding and then the one which is carried should be put up against the next preceding and so on until only one amendment is left. Rule 38 then provides that votes should then be taken between the last remaining amendment and the original motion. It appears that if Rule 38 was applicable to the election the Presiding Officer correctly followed Rule 38 that far. Then Rule 38 goes on to provide and whichever is carried should be put as substantive resolution without further discussion. It was therefore necessary as would be necessary in the case of any resolution on any point under this rule that the motion should have been put up before the house as a substantive resolution. This obviously was not done by the Presiding Officer. What the Presiding Officer did was that after the surviving amendment was put to vote against the original motion and when the said amendment was lost declared the original motion as having been carried which was not in compliance with the provisions of Rule 38. Mr. Thakore argued that under Rule 38 it was not necessary to put the substantive resolution to the house but that the words shall be put as a substantive resolution indicated that the resolution should be put down in the minute book of the municipality as a substantive resolution without it being put up to vote. We entirely fail to appreciate this argument advanced by Mr. Thakore. Mr. Thakore pressed into service Rule 43 of the Rules in support of his aforesaid contention. But even on reading Rule 43 we fail to appreciate how it could be argued that the substantive resolution should be put down as a resolution duly carried without the same having been put to the house or how the words shall be put as a substantive resolution should be construed to mean should be written down as the substantive resolution in the minute book. We accordingly reject that argument advanced by Mr. Thakore. Mr. Thakore next argued that in any event there was substantial compliance with Rule 38. If procedure for any purpose is clearly laid down in a rule we fail to see how it can be said that a substantial compliance with the procedure should be sufficient. In any event on the interpretation we put on Rule 38 the substantive resolution having not been put to the house it cannot be said that the procedure laid down in Rule 38 was complied with. In this view of the matter in our judgment even if it be held that Rule 38 applied to the matters of election of the president of municipality there was no compliance of this rule by the Presiding Officer. Even for that reason the election of the president was void and liable to be set aside.
24. We accordingly hold that the first respondent has not been validly elected as the president of the municipality and was an usurper to the office and we are of the view that a writ should be issued against him restraining him from discharging any function as such as also against the municipality from holding any meeting under any notice or direction issued by the first respondent.
25. But argued Mr. Vakil that in the event of our holding the election of the first respondent as bad we should further give his client the first petitioner a declaration that he continued as the president of the municipality and is entitled to act as such until a fresh election had been held under the provisions of the Act to elect a new president. In support of this contention Mr. Vakil relied on the proviso to Section 19(1) of the Act. Section 19(1) in so far as is material to the present matter provides that the president should hold office for such term not less than one year and not more than four years as the municipality should determine. In other words therefore a terminus a quo is suggested by Section 19(1) viz. that the term of the office of the president is to come to an end on the expiry of the period determined before the election. Realizing that if the term of office of the president would come to an end on the expiry of this period there would be a gap between the expiry of the term of office of the president and the election of his successor (which may take place after the fresh elections of councilors) the legislature enacted a proviso providing that the term of office of a president should be deemed to extend to and expire with the date on which his successor is elected. In other words therefore by a deeming provision the term of office or the terminus a quo of the term of the office of the president is extended to a period which ends on the election of the successor. What Mr. Vakil contended was that the words date on which his successor is elected should be construed as meaning is validly elected. In other words Mr. Vakil's contention was that in the present case if the election was invalid there was no election at all and there was no choice by the councilors of their president and if that be so it could not be said that there was any successor who was elected and at no time did the term of office of the first petitioner (the president for the year 1960-61) come to end. Mr. Vakil, submitted that on a plain reading of this proviso we should hold that the first petitioner is entitled to continue his term of office till a successor is elected under Section 23(2) read with Section 19A. Mr. Vakil's argument absolutely ignores the provisions of Section 23(1) of the Act. Section 23(1) of the Act is in these terms:
(1) In the event of the non-acceptance of office death resignation or removal from office, of a president or of a vice-president or of his election being void or of his becoming incapable of acting in such office or having ceased to be a president or a vice-president under Sub-section (1) of Section 22 or a councilor under Sub-section (1) of Section 28 previous to the expiry of his term of office as president or vice-president the vacancy shall be filled up within twenty five days from the occurrence of the vacancy by the election of some other councilor thereto.
26. It is important to note that Section 23(1) provides for a number of contingencies. The first class of contingencies are the contingencies provided in Sections 20, 21 and 22 viz. the resignation removal or cessation of the office of the president respectively; the second are the non-acceptance of office by or death of the president or his becoming incapable of acting in such office or as councilor under Section 28 and the third is of the election being void. In these contingencies under Section 23 what is provided is that a vacancy occurs and the vacancy is to be filled up in the manner laid down in Section 19A. We have to give affect to the wording of this entire sub-section including the words of his election being void. In the case before us on the view that we have taken of the matter we have held the election to be void and if we have so held the election to be void the latter part of Section 23(1) comes into effect which provides that the vacancy should be filled up by another election. Now if the term of office of the first petitioner as a president was extended under the proviso under Section 19(1) it would extend till the date on which the successor is elected and there would therefore be no question of filling up any vacancy. Once there is an extension of a term under Section 19 there cannot be a vacancy. On the other hand once there is a vacancy under Section 23(1) there cannot be an extension of the term under the proviso to Section 19(1). We repeatedly asked Mr. Vakil as to what would be the cases in which the question of the election being void and there being a vacancy would arise but Mr. Vakil was not in a position to point out any such case. The sheet anchor of Mr. Vakil's argument was only this that under the proviso to Section 19(1) the words successor is elected can only mean successor is validly elected and this having been an invalid election the proviso would come into play and the first petitioner would not be prevented by provisions of Section 2-3(1) from continuing to act as president. Mr. Vakil referred us to Section 38(c) of the Act which provides that it should be the duty of the vice-president of the municipality pending the election of a president or during the absence of the president to exercise the powers and perform the duties of the president. Mr. Vakil argued that in the instant case the vice-president was not called upon to perform any functions at all because the term of office of the first petitioner having continued under proviso to Section 19(1) there was no question of there being the duty of the vice-president to perform any functions pending the election of the president Mr. Vakil argued that Section 32(c) could not apply to all the contingencies in Section 23(1) and the vice-president would not be called upon to function in all the contingencies laid down in that subsection. We are unable to accept the contention of Mr. Vakil. We are of the view that the word election being void in Section 23(1) should be given their full effect and in giving them their full effect the true interpretation of Section 23(1) would be that apart from the other contingencies mentioned therein a vacancy would occur only on the election of the first respondent being held void. What Section 19(1) and Section 23(1) deal with are actual elections and even though the election before us was invalid it was actually held and it is only now that it is declared to be void. If a vacancy was created by the election being declared void there would be no question of the proviso to Section 19(1) coming into play. It is really the election being found or declared to be void and the creation of a vacancy under Section 23(1) that snap the continuity contemplated by the proviso to Section 19(1). Till the vacancy is filled up by election of a president under Section 23 read with Section 19A the vice-president will have to act under Section 32(c) of the Act.
27. In this view of the matter we find that we are unable to concede to Mr. Vakil's contention to grant the first petitioner a declaration that he is entitled to continue as the president of the municipality and to act as such till a fresh election has been held to elect the president. Mr. Vakil did not press for relief in terms of prayer (ii).
Accordingly we direct a writ to be issued with the directions in terms of paragraph 10(1)(3) and (4) of the petition.
In view of the fact that we have set aside this election by reason of an error on the part not of the first respondent or the fourth respondent but on the part of the presiding officer in our view the proper order as to costs would be that each party should bear its on costs. Rule also lute as above. No orders as to costs.