1. This is a writ application by Deodutt Sharma under Article 226 of the Constitution, and arises out of an election dispute relating to the office of chairman of the Ajmer Municipal Committee. The petitioner claims to be the duly elected chairman of this committee. The respondent No. 1 Zahoor Ah-med Zaid is the Senior Vice Chairman. The respondent No. 5 Pratapchand Jain also claims to have been duly elected to the office of the Chairman of this Committee and is at present functioning as such.
The respondent No. 4 is the Municipal Committee, Ajmer and respondents Nos. 2 and 3 are the Government of Rajasthan and the Collector, Ajmer. It appears that there are factions in this Committee, which are more or less evenly balanced, and these factions have been in existence for some time.
2. In order to appreciate the controversy which has been raised before us, it is necessary to narrate a few material facts. A casual vacancy arose for the chairmanship of the Ajmer Municipal Committee on the 18th October, 1958, when the resignation of Jwalaprasad, the outgoing Chairman, was accepted. A meeting was scheduled to be held both for considering the resignation of Jwalaprasad and for electing a successor to him for the same date, that is. the 18th October, 1958.
The resignation of Jwalaprasad was accepted, but the election of the new Chairman was postponed obviously owing to short notice, and it was decided that a further meeting for the said purpose be called within ten days. The Senior Vice Chairman Zahoor Ahmed Zaid acted as chairman pending the filling up of the vacancy. The Senior Vice Chairman did not call any meeting up to the 23rd October, 1958.
On the last-mentioned date, as he was absent from the station, the Junior Vice Chairman Lekhraj Thakkar called a meeting for the 24th October, 1958, for the purpose of electing a new chairman. This meeting was cancelled by the Senior Vice Chairman who happened to arrive back in Ajmer before the meeting was actually held. The Senior Vice Chairman also represented the matter to the Collector who under Section 238 of the Ajmer-Merwara Municipalities Regulation (No. VI) of 1925 (hereinafter called the Regulation) cancelled the meeting.
Some 17 or 19 members thereafter sent a requisition to the Senior Vice Chairman, respondent No. 1, on the 25th October, 1958, under Section 50(2) of the Regulation, for summoning the meeting of the Committee for the purpose of electing its chairman. The Senior Vice Chairman Zahoor Ahmed Zaid paid no heed to this. Thereupon, a writ application was filed by six members of the Committee including the Junior Vice Chairman Lekhraj Thakkar in this Court on the 3rd November, 1958, for a writ of mandamus directing the Senior Vice Chairman to call a meeting for the said purpose.
It was contended before the Bench before which the case came up for hearing that a casual vacancy in the office of the Chairman was required to be filled up within 15 days of the occurrence of the vacancy under Section 13(2) of the Regulation, and that it was provided under Sub-section (4) of the said section that where the Committee fails to elect a chairman in the manner required by Sub-section (2), the Government may nominate a chairman.
This contention was repelled, and it was held that the Senior Vice Chairman had no valid excuse for not calling the meeting as desired by the Committee by its resolution dated the 18th October, 1958. The learned Judges also held that it could not be said in the circumstances that the Committee had failed to elect a chairman in the manner prescribed by Section 13(2) of the Regulation.
They further held that the Senior Vice Chairman Zahoor Ahmed Zaid had not acted bona fide and that he had deliberately failed to call a meeting of the Committee to elect its new chairman. Finally, the Court granted a mandamus calling upon the Senior Vice Chairman, respondent No. 1, to convene a meeting of the Committee to be held on the 17th December, 1958, at 4 P.M. at the office of the Municipal Committee, and a copy of the order was directed to be sent to the State Government and the Collector. This order was passed on the 10th December, 1958, and is annexure No. 1.
3. The Senior Vice Chairman thereupon called a meeting for the 17th December, 1958, at 4 P.M. by a notice dated the 16th December, 1958, (Annexure No. 2), for the election of the chairman. The total number of the members of this Committee is 32 and out of these 31 members were present at the meeting. One of its members Radheshyam Dani, obviously a member of the group of the Senior Vice Chairman, raised a point of order, which was this :
'Whether in view of the provisions of Section 13(2) of the Ajmer-Merwara Municipalities Regulation, the Committee has got the powers to elect Chairman and to fill in the casual vacancy created on account of the resignation of the chairman under the provisions of the said section.'
4. A member of the petitioner's group Kishen Gumani raised a counter point of order, namely, that the point of order raised by Radheshyam Dani was not in order, keeping in view the judgment of the High Court dated the 10th December, 1958. What happened at this meeting is contained in annexures A 1 and AMC 1. These annexures are the official notes prepared by a stenographer of the municipality of what had transpired at the meeting.
From these notes, it is obvious that the petitioner and his friends stoutly opposed the point of order raised by Radheyshyam Dani under Section 13(2) of the Regulation, and they maintained that the said point had already been decided by the High Court by its judgment dated the 10th December, 1958. The Senior Vice Chairman who was in the chair, however, announced that the point required further consideration and that the counsel of the municipality in the writ case referred to above, Mr. Beri was not available having gone out of station and so he would reserve his ruling on the point of order raised by Radheyshyam Dani, and he also declared that the meeting be adjourned.
The case of the petitioner is that the Senior Vice Chairman was bent upon adjourning the meeting and did adjourn it, as the group to which he belonged happened to be in a minority at the meeting. There is no doubt that out of the total number of persons present at the meeting on that date, 16 were on the side of the petitioner as the subsequent proceedings do go to show.
5. The petitioner's case further is that the Senior Viee Chairman had no right to adjourn the meeting at his free will and pleasure, and the members desiring to continue the meeting had an undoubted right to proceed to finish the business for which the meeting was called, namely, to elect the chairman. Consequently, they continued the meeting under the chairmanship of Lekhraj Thakkar, the Junior Vice Chairman of the Committee, and all the 16 members then present duly elected the petitioner as chairman of the Committee.
It is alleged that as the officers of the Committee had withdrawn from the meeting after it had been adjourned by the Senior Vice Chairman, the petitioner and his friends were compelled to record the proceedings of the further meeting on a separate sheet of paper. Thereafter, they went to the Collector, Ajmer and communicated to him all that had happened, and all these members put their signatures on the paper containing the proceedings of the said meeting.
This is annexure No. 4 which is also signed by the Collector, Ajmer, Shri Mohan Mukherjee. These proceedings show that the Junior Vice Chairman Lekhraj Thakkar who presided at the meeting ruled out the point of order which had earlier been raised by Radheshyam Dani, and thereafter the petitioner was proposed as chairman by Kishen Gur-nani and seconded by Omprakash Vajdya, and as there wag no other proposal and all the 16 members present had voted for it, it was declared to have been carried unanimously, and the petitioner Deodutt was declared as the chairman of the Ajmer Municipal Committee.
On the 18th December, 1958, the petitioner went to the office of the Committee to take over charge but the Senior Vice Chairman did not give it to him. On the other hand, the Senior Vice Chairman, respondent No. 1, called a further meeting for the 19th December, 1958, to elect a chairman of the Committee. The petitioner, having come to know of this, wrote a letter to the Collector (Annexure 7) and requested him to prohibit the meeting under Section 238 of the Regulation.
The order of the Collector dated the 19th December, 1958, is Annexure No. 8. The main points made out in this order may briefly be summarized as follows :
(1) At the meeting which was held on the 17th December, the group of the petitioner was in a majority, their total number being 16, the Senior Vice Chairman having the support of 14 other members only.
(2) The only member who was absent was Su-ganchand who had made a first information report on the 18th December that he had been kidnapped by the supporters of the petitioner. But as to whether this allegation was correct or Suganchand had absented himself for some other cause, the Collector was obviously not in a position to say anything definite.
(3) The point of order raised by Radheshyam Dani was frivolous as the High Court had already held by its order dated the 10th December (Annexure 1) that Section 13(2) of the Regulation was not attracted in the circumstances of the case.
(4) The Senior Vice Chairman should have dismissed the point of order at once and his action in taking it seriously and adjourning the meeting in order to get further legal opinion of a lawyer in whom the Senior Vice Chairman had his confidence appeared mala fide.
(5) According to the Collector, however, even though such action was a mala fide one, it might not have been illegal; and the argument seems to have had some sway with him that it may be open to a chairman to reserve a ruling on a point of law, and that there was no specific provision in the bye-laws which prevented the reservation of a ruling by the chairman, and, therefore, the chairman may have an inherent right to adjourn the meeting in circumstances where there was no other business on the agenda. Thus, according to the Collector, the legality of the adjournment was a doubtful matter, and the validity or otherwise of the petitioner's election to the office of the chairman depended on the legality or otherwise of the adjournment ordered by the Senior Vice Chairman.
The Collector was further of the opinion that the duty of determining whether any such act was legal or otherwise rested with the Government under Section 242 (2) of the Regulation. Consequently, the Collector referred this question for decision to the Government under Section 238 of the Regulation, but did not consider it expedient or necessary to prohibit the meeting which was called by the Senior Vice Chairman for the election of a chairman on the 19th December, 1958.
The Collector however thought fit further to order that whoever be elected as Chairman of the Ajmer Municipal Committee at the meeting held on the 19th December, 1958, at 7 P.M., shall not discharge the functions of the chairman until decision is taken by Government under Section 242(2) of the Regulation about the legality or otherwise of the adjournment of the meeting held on the 17th December, 1958.
6. The result was that a meeting of the municipal committee as called by the Senior Vice Chairman for the election of the new Chairman was held at the office of the municipal committee on the 19th December. The petitioner and his supporters boycotted this meeting and respondent No. 5 Pratapchand Jain was elected as the chairman of the committee (vide Annexure No. A2).
It is interesting to note that 16 members including Suganchand were present at this meeting and the Senior Vice Chairman disposed of the point of order raised by Radheshyam Dani on the 17th December, by saying that the authority of the High Court was supreme and that he had called the meeting according to the directions of the High Court and that the point raised by Radhey-shyam required no comments from him and therefore he would over-rule the point of order.
7. The position, therefore, is that both the petitioner and respondent No. 5 claim to be the duly elected chairman of the Ajmer Municipal Committee. Three members of the petitioner's group namely Arjundass, Moolchand Goyal and Gulabchand Sogani made a representation to the Minister for Local Self-Government on the 29th December, 1958, to give his verdict on the legality of the adjournment, ordered by the Senior Vice Chairman, of the meeting held on the 17th December, 1958. (Annexure No. 11).
The petitioner also sent a telegram to the Minister, Local Self-Government claiming that he was the duly elected chairman and that the election of respondent No. 5 was illegal and that the action of the Collector in allowing the meeting to be held was improper and illegal and praying for an early decision at the latest by the 1st January, 1959. (Annexure No. 12). The petitioner then filed the present writ application in this Court on the 2nd January, 1959.
8. It appears, however, that the matter was taken up by the Minister on the 5th January, 1959, in the presence of the petitioner and his supporters Arjundas., Lekhraj Thakkar and Manakchand Sogani on the one hand and respondent No 1 (Senior Vice Chairman) and respondent No. 5 Pratapchand Jain and the Executive Officer of the Ajmer Municipality on the other (vide Annexure No. A9).
On the same day the Senior Vice Chairman filed an application (Annexure No. A12) and an affidavit (Annexure No. All) in which he contended that no meeting had been held at all on the 17th December after he had adjourned it. It is important to bear in mind precisely what the Senior Vice Chairman said in his affidavit in this connection :
'That no such meeting as alleged by Sri Lekhraj Thakkar and his collaborators ever took place on 17-12-1958 in the Board Room after I adjourned the meeting. I was all the time sitting in the chair, and vacated it when all the members had left the Board Room. I then got the Board Room locked at about 5.15 or 5.30 P.M.'
9. On the other hand, a counter affidavit was filed by the Junior Vice Chairman Lekhraj Thakkar that a meeting had undoubtedly taken place; and so the Minister appointed Shri R. N. Shivpuri, Deputy Secretary, Local Self Government, to in-quire into this matter and submit his report within three days as to which version was correct. The case was then fixed for hearing for the 11th January, 1959. The report of Sri Shivpuri dated the 11th January, 1959, is Annexure No. A7.
It may be pointed out that Sri Shivpuri recorded the evidence of a number of witnesses on the matter which was referred to him for report, though the petitioner refused to give his evidence on the ground, first, that he had already filed a writ application before the High Court and secondly that the inquiry which was being conducted by Sri Puri was ultra vires and without jurisdiction.
10. The findings of Sri Shivpuri may now be briefly summarized as follows :
1. The Senior Vice Chairman, after he had reserved his ruling on the point of order raised before him, adjourned, the meeting, and the staff was directed to go. A number of municipal members also left; others however remained behind, sitting in the room. The Senior Vice Chairman rinding that home of the members were still sitting in the room, continued to keep himself seated on the dias until the remaining members left,
2. As to the exact stage wben Arjundas, a supporter of the petitioner, had left the Board room for the chairman's room to apprise the Collector as to what was happening at the meeting, there was some controversy, as, according to the Senior Vice Chairman, this incident should have happened after they had finally left the room, while according to the Junior Vice Chairman Lekhraj Thakkar and Arjun Das, this happened some time before the actual announcement of the adjournment by the Se-pior Vice Chairman respondent No. 1.
3. In any case, it is admitted that the object of Arjundas and Lekhraj Thakkar was to seek the intervention of the Collector in the municipal affairs which had taken or were taking a wrong turn according to them; but the Collector apparently expressed his helplessness to do anything in the matter.
4. Arjundas returned to the board room after about 15 minutes and told the members that the Collector was not prepared to interfere at this stage, and thereafter they invited the Junior Vice Chairman to the chair which was placed near the dias as the Senior Vice Chairman kept sitting all the while on the dias himself and thereafter the further proceedings took place at which the petitioner was elected as chairman. What Sri Puri then says may be best expressed in his words :
'The whole team then goes out of the Board Room and down among the public which cried Jai Jai garlanded Sri Deodutta. The whole party then goes to the Collector to get the signature of members for purposes of verification and authenticity of the document (which he calls Ex. A-1 (B) and which is the same as Annexure A-4). 5. Sri Puri then expresses himself as under:'It is true that after the meeting was declared adjourned nearly half of the members present having gone along with the whole of the staff, 16 members did meet, decided that the adjournment was illegal and the remaining members had a right to continue the meeting as if no adjournment had been declared.'
11. It appears to us, therefore, that on the question of the factum of the meeting having taken place after the Senior Vice Chairman had adjourned the meeting of the Committee on 17th December, Sri Puri's finding was in the affirmative and to the effect that meeting was held by the 16 members present thereafter.
A further stand seems, however, to have been developed before Sri Puri as to the validity or legality of this meeting, and the questions posed by Sri Purl in this connection were (1) whether the Junior Vice Chairman could preside at the meeting while the Senior Vice Chairman was throughout present in the Board room. In this connection, Arjundas seems to have told Sri Puri that he had requested the Senior Vice Chairman to preside over the meeting, but he had refused, a fact which, according to Sri Puri, had not been borne out by any other oral or documentary evidence.
The next question posed was that 14 members had left after the adjournment had been announced by the' senior Vice Chairman, and whether they could be denied the right to vote for a matter of such important character. The third point that was raised in the same connection was that when Arjundas and a few of his followers had left the board room, the house was not in quorum. To this, however, Sri Puri's answer as contained in his own report was that this was a very far fetched idea, and that during discussions, members generally left for one word or the other, and that all that was necessary was that the quorum must be there when the voting took place.
Summing up the entire position in the last sentence o his report, Sri Puri concluded that 'the party of Shri Arjundas and Shri Lekhraj did meet, did consider the adjournment as illegal and went into the election of the chairman and elected Shri Deodutta.' According to him however, it was a legal question for consideration whether this could be called a valid meeting of the committee, and Sri Puri further stated that counsel for the parties had agreed before him that they would argue the legal aspect of the case before the Minister for Local Self-Gov-ernment.
12. This brings us to the order of the Minister dated 21-1-1959 the validity of which has, been seriously assailed before us. This order is Annexune No. A 8. The introductory part of this order recites the facts, and then at page two thereof it is said that three questions arose for decision; these being (1) Whether the meeting had been lawfully adjourned by the Senior Vice Chairman on 17-12-1958. (2) Whether the alleged meeting held thereafter in the same room with the Junior Vice Chairman Lekh Raj Thakkar as chairman was a proceeding of the Ajmer Municipality in conformity with the law ami (3) whether the meeting held on 19-12-1958, was a proceeding of the said committee in accordance with law.
Then at page 3, it is mentioned that the question of the conformity or non-conformity with law of the meeting presided over by the Junior Vice Chairman would not arise if the meeting was never held, and therefore, Sri Puri, Deputy Secretary, Local Self-Government had been appointed to inquire and submit his report to the Government on that matter. It is then said that both the parties had accepted the findings of fact reported in the said report of the Deputy Secretary, which findings we have already summarized above.
Then the respective arguments of the two parties arc mentioned and thereafter at page 4 some seven points are mentioned as arising for consideration, and these appear to us to be all connected with the question bearing on the legality of the meeting which took place allegedly in continuation of the earlier meeting.
13. It is significant, however that the first point among the three points already referred to above as having been propounded on page two of the order of the Minister, viz., whether the meeting had been lawfully adjourned by the Senior Vice Chairman on 17-12-1958 was completely over looked, and no finding whatsoever has been given by the Minister thereon,
It is also remarkable that the Collector had specifically made a reference to the Government for a decision of this question under S'. 238 of the Regulation, as, according to him, the validity of the meeting as continued by the petitioner and his supporters depended upon the legality or otherwise of the adjournment. The order then proceeds to state as under :
'Whereas the enquiry officer held that after the adjournment by Senior Vice Chairman, the said 16 members met as a party that the Collector was then contacted and after the lapse of about 15 minutes these 16 members finding that the Collector would not interfere at that stage decided to convert themselves into a continuity meeting of the Ajmer Municipal Committee convened by the Chairman at 4 P. M.
Whereas in view of these findings it is difficult to hold how the meeting at which Sri Deo Dutt is alleged to have been elected Chairman could be held to be a continuance of the meeting of the Ajmer Municipal Committee alleged to have been adjourned earlier by the Senior Vice Chairman, specially when a break of 15 minutes occurred during which period less than 18 members of the Ajmer Municipal Committee were present in the Board Room :Now, therefore, it is ordered that the so-called meeting at which Sri Deodutt is alleged to have been elected Chairman was not a meeting of the Ajmer Municipal Committee in conformity with law and Sri Deodutt therefore cannot be held to have been duly elected as Chairman by the Ajmer Municipal Committee and that since it has not been challenged that the meeting called by Senior Vice Chairman on 19-12-1958 was not legal, the proceedings of this meeting were quite regular and according to law and the election of Sri Pratap Chand Jam was in order.'
We shall have occasion to analyse this order critically at a later stage.
14. As this order came to have been passed after the present writ petition was filed by the petitioner in this Court on 2-1-1959, we thought it proper to give opportunity to the petitioner to amend his writ application suitably if he so chose. The amended application was consequently filed on 10-3-1959. The opposite parties were likewise given a fresh opportunity to file further written statements, if they so chose to the amended writ application.
Such replies have been filed by the respondent No. 1 Zahoor Ahmed Zaid, the Senior Vice Chairman, and by respondent No. 5 Pratapchand Jain who is functioning as the Chairman at present and the Executive Officer of the Municipal Committee on behalf of the Committee, respondent No. 4.
15. The petitioner's application has been strenuously resisted by all the respondents on a number of grounds and principal ones being (1) that the Senior Vice Chairman had lawful authority to reserve his ruling on the point of order raised at the meeting on. 17-12-1958 and that the adjournment of the house was simply consequential as there was no other item on the agenda except the election of the chairman, & therefore the adjournment was perfectly lawful and proper; (2) that the alleged meeting at which the petitioner is said to have been elected as chairman was not a meeting of Ajmer Municipality in conformity with law and the petitioner, therefore could not have claimed to have been properly elected as chairman at, that meeting; (3) that the Minister of the Local Self Government on behalf of the State Government had, in exercise of the powers under Section 242 (2) of the Regulation, examined the whole case and had passed an order dated 21-1-1959, by which he had declared the respondent No. 5 as the duly elected chairman of the committee and that he had jurisdiction to do so, and in any case, the petitioner had submitted to that jurisdiction, and therefore, could not challenge it, and (4) that the aforesaid order was in any event, an administrative or executive order and that under Section 242 (2) of the Regulation, the Government was under no obligation to act judicially and did not act as a judicial or a quasi-judicial tribunal and, therefore, it was not amenable to writ or order of certiorari.
16. The main points for determination which emerge out of the contentions referred to above are these :
1. Whether the meeting of the Municipal Committee, Ajmer, which was held on 17-12-1958 was lawfully adjourned by the Senior Vice Chairman, respondent No. 1.
2. If not whether the subsequent proceeding at which the petitioner was elected as a chairman, after the meeting had been unlawfully adjourned by the Senior Vice Chairman, was a lawful meeting, and the members who took part in it had a right to elect chairman at the same for which purpose the said meeting had been originally convened.
3. Whether the order of the Minister dated 21-1-3959 was an order within his jurisdiction and in any case whether the petitioner had submitted to the jurisdiction of the Minister, and, therefore, cannot challenge it now?
4. Whether the aforesaid order is merely an administrative or a ministerial order, and, therefore is not amenable to a writ of certiorari?
5. If our conclusion be that the order of the Minister is of a quasi-judicial nature, does it call for any interference by this Court in the extraordinary exercise of its certiorari jurisdiction?
17. We propose to take up the fourth question first, because if the order of the Minister as contended for by the respondents is merely an administrative or ministerial order, this court will have no jurisdiction in interfere with it in its certiorari jurisdiction and (his must lead to the dismissal of the present writ application without going into any other matters raised for our determination.
18. Now admittedly the order of the Minister has been passed under Section 242 of the Regulation. This section is in the following terms :
'242 (I) The Chief Commissioner, and the Commissioner acting under the orders of the Chief Commissioner, shall be bound to require that the proceedings of committees shall be in conformity with the law for the time being in force.
(2) The Chief Commissioner may exercise all powers necessary for the performance of this duty and may among other things, by order in writing annul or modify any proceeding which he may consider not to be in conformity with law.
(3) The Commissioner may, for the same purpose, exercise such powers as may be conferred upon him by rule made in this behalf.'
19. It is admitted that we must substitute the word Government for the Chief Commissioner in the aforesaid section.
20. It was strenuously contended before us by the respondents that the authority exercised under Section 242 is of a merely executive or administrative character and that this intention of the Legislature was to be gathered from the circumstances firstly that the Government was not required to follow any quasi-judicial procedure in exercising its powers under it and further, that what Sub-section (2) clearly says is that an occasion for the State Government to exercise its powers under this sub-section, would only arise where, to repeat the precise expression used in the section, any proceeding which he may consider not to be in conformity with law, has been undertaken by the committee. It was also argued in this connection that whether a particular proceeding, being not in conformity with law, required the interference on the part of the State Government was a matter for its own subjective satisfaction. Our attention was invited in this connection to several English and Indian authorities, and to some ol these, we would now refer.
21. In R. v. Electricity Commissioner, 1924-1 KB 171, said Atkin L. J. (as he then was) :
'Wherever any body of persons, having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority, they are subject to the controlling jurisdiction of the Kings, Bench Division exercised in these Writs.'
22. In Rex v. Legislative Committee of Church Assembly, 1928-1 KB 411, Lord Hewart C. J. laid down that:
'In order that a body may satisfy the required test, it is not enough that it should have legal authority to determine questions affecting the rights of subjects; there must be superadded to that characteristic the further characteristic that the body has the duty to act judicially.'
23. In the King v. London County Council, 1931-2 KB 215, Scrutton L. J. observed as follows :
'It is not necessary that it should be a Court in the sense in which this Court is a Corut; it is enough if it is exercising after hearing evidence, judicial functions in the sense that it has to decide on evidence between a proposal and an opposition, and it is not necessary to be strictly a Court. If it is a tribunal which has to decide rights after hearing evidence and opposition it is amenable to the writ of certiorari.'
24. In Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222, the aforesaid statement of law was approved, by their Lordships of the Supreme Court.
25. Our attention was also invited to a recent decision of their Lordships of the Supreme Court in Radheshyam v. State of Madhya Pradesh, AIR 1959 SC 107, wherein it has been laid down that three requisites must be fulfilled in order that the act of a certain body may be quasi-judicial; namely that the body of persons (1) must have legal authority, (2) to determine questions, affecting the rights of parties and (3) must have the duty to act judicially. It was further observed that the real and determining test for ascertaining whether an act authorised by a statute is a quasi-judicial act or an administrative act is whether the statute has expressly or impliedly imposed upon the statutory body the duty to act judicially.
26. It may, therefore, be taken as well settled that before this Court will interfere with an order in the exercise of its certiorari jurisdiction, such order must have been either of a Court in the exercise of its judicial functions or of any other lawful body or tribunal which may not be, strictly speaking, a Court, but still which may have lawful authority to decide between a lis or a proposal and an opposition, and such Court or tribunal is under a duty, which may be express or necessarily implied, to decide between the competing rights of the persons concerned by means of a judicial approach thereto, that is, by an objective and not a subjective method.
It may be pointed out that it is not necessary that the strict rules of the law of evidence should be observed in the making of the inquiry and the procedure for investigation of the facts and reception of evidence may vary to suit the requirements of a given case. Indeed, the procedure need not be elaborate as in a Court of law but must involve the making of some kind of inquiry, hearing and weighing of evidence, if any, and the consideration of all the facts and circumstances having a bearing on the merits of the controversy before any decision can be arrived at. As Mukherjea J. as he then was, observ-ed in Khushaldas' case, AIR 1950 SC 222 :
'There need not be any hard and fast rule on such matters but the decision which the authority arrives at must not be his subjective or private opinion. It must be something which conforms to an objective standard or criterion laid down or recognised by law, and the soundness or otherwise of the determination must be capable of being tested by the same external standard.'
26a. While there is hardly any scope for much dispute as regards the principles attracting the certi-orari jurisdiction, the question of the application of these principles to a given case is often a matter of no small difficulty. To use the words of Mahajan J., as he then was, in Khushaldas' case, AIR 1950 SC 222 :
'In the actual application of the abstract propositions to the circumstances of different cases the exercise of jurisdiction to issue a writ of certiorari varies according to the foot of the Chancellor.' In other words, the question whether an act is judicial or quasi-judicial or purely executive or administrative will depend upon the terms of the particu-lar rule and the nature and effect of the particular power in the exercise whereof the act may have been done, in short, on the circumstances of each particular case, and no general rule can possibly he laid down which will suit all cases.
27. The crucial question which we have to decide in the present case is, in the light of the above principles, whether the exercise of the powers under Section 242 expressly or impliedly imposes a duty on the State Government to act judicially. We shall assume for the purposes of the present argument that the Government had the authority to decide as to whether the proceeding at which the petitioner was elected as a Chairman was in conformity with law or not, though we shall have to revert to this question in greater detail later when we come to deal with point No. 3, among the points which we have set out for our determination above. The facts here, put succinctly, are that two persons claim to have been lawfully elected, each as chairman of the Ajmer Municipality, at two different meetings.
There is, therefore, clearly a proposal and an opposition as each of these persons claims to have the right of functioning as the chairman of the Municipality. The question is whether in deciding as to their respective rights, or the matters upon which their rights depended, the duty of the State Government is merely to act administratively. We have eiven our most careful and anxious consideration to this question, and the more we think on the matter, the more do we feel persuaded to come to the conclu-sion that the duty of the State Government to act in a matter like this cannot be anything except quasijudicial. It is true that the Regulation does not lay, down the procedure which the State Government I may adopt in deciding a matter under this section.
But that cannot, in our opinion, be held to be conclusive; because a duty to act judicially, even where it is not expressly prescribed by law itself, may be necessarily implied therein by the very nature of the case, and where such a duty can be reasonably held to be so implied, we are of opinion that .She duty on the part of the Government or the tribunal would still be to act judicially. We cannot imagine that the Legislature could have ever intended that the respective rights of persons each laying claim to an elective office are to be decided by the State Government in a purely executive manner and without the element of judicial approach being necessarily involved in such determination.
We should also like to point out here that it is not possible to decide this question upon the facts of any other case, because, as has been observed in AIR 1959 SC 107 on which learned counsel for the respondent strongly relied that the duty to act judicially may arise in widely different circumstances, and it would be impossible and indeed inadvisable to attempt to define them exhaustively. In the aforesaid case it was held that an order passed by the State Government under Section 53-A of the C. P. and Berar Municipalities Act (No. II) of 1922 appointing an executive officer for a certain period with certain powers was a merely administrative order, and that it was more a matter of policy rather than of a judicial determination and was, therefore, not a judicial or a quasi-judicial act but in administrative act.
In our view, that case is entirely distinguishable from the case before us, and we are unable by any rational process of reasoning, to hold that the determination of the respective rights of certain claimants to an elective office like that of the chairman of a municipal committee or board is a matter which can be decided on mere considerations of expediency or policy and for our part, we should like affirmatively to hold that a matter like this is essentially one which in the very nature of things the tribunal deciding it must decide in a quasi-judicial manner. We have, therefore, no hesitation in holding that the order of the Minister dated 21-1-1959, is a quasi-judicial order.
It further follows that this Court will have jurisdiction to interfere with it, if the further conditions for the exercise of certiorari jurisdiction are satisfied such as (1) where the tribunal has acted] without jurisdiction or in excess of it, or has failed to exercise its jurisdiction which rightly vested in it, or (2) where the tribunal acts illegally in the exercise of its undoubted jurisdiction such as by violating the principles of natural justice, or (3) where there is an error apparent on the face of the record of the proceedings of the tribunal.
28. But before we determine this question, we think it proper to address ourselves to the first and the second points set out for determination by us. We shall take up the first point now.
29. The question is whether the meeting which was called by the Senior Vice Chairman in pursuance of the direction of this Court given in its judgment dated the 10th December, 1958, was or could be lawfully adjourned by him, without the business scheduled for the meeting having been transacted except with the consent of the house. The facts leading to the adjournment are not in dispute. At the meeting on the 17th December, one of the supporters of respondent No. I, Radheyshyam Dani raised a point of order to the effect that the meeting could not proceed to elect a chairman as more than 15 days had elapsed between the occurrence of the casual vacancy caused by the acceptance of the resignation of the outgoing chairman Jwalaprasad on the 18th December, 1958 and Sec. 13(2) of the Regulation would stand in the way of the Committee holding such election.
This point of order was forcefully opposed by the petitioner and his supporters as the shorthand notes prepared by the stenographer of the municipality Annexure Al clearly show. It was pointed out, time and again, that the learned Judges of the High Court had in their judgment considered the applicability or otherwise of Section 13(2) of the Regulation to the facts and circumstances of the election in question and that they had clearly ruled that that section was not attracted into application in the circumstances of the case, and, therefore, there was no force in the point of order and it should be ruled out.
30. It may be pointed out here that the Senior Vice Chairman had the judgment of the High Court read out at the meeting in the very first instance, and on its last page the learned Judges clearly expressed themselves in the following words: 'We accordingly hold that the Senior Vice Chairman did not act bona fide. He deliberately did not call a meeting of the Committee to elect a Chairman. There is no provision in the above Regulation similar to the provision contained in the Rajasthan Town Municipalities Act authorising the Collector to convene a meeting to elect a Chairman. It cannot be said in the circumstances that the Committee failed to elect a Chairman in the manner prescribed by Section 13(2) of the Regulation. We accordingly direct that the Senior Vice-Chairman shall convene a meeting of the Committee to be held on 17th December, 1958, at 4 P.M. at the Municipal Office.'
The petitioner and also certain other members who were obviously his supporters more than once requested the Senior Vice Chairman, who was in the chair, to give his ruling then and there. The Senior Vice Chairman, however, took shelter under the excuse that a legal objection had been raised and he did not know so much of law, and he also observed that the member who raised the point of order had every right to do so, and that as the question was a legal one, he would have to consult his legal adviser and that he was unequal to the task of giving a decision on the point immediately. The notes also show that when the chairman said that he will have to take legal advice, one of the members, Arjundas, clearly pointed out that there was hardly any matter which called for any legal advice being taken, and that if he still wanted to take any advice, 'he could consult the municipal counsel and that he would have no right to adjoum the meeting.
Another member Kishcn Gurnani also pointed out that the meeting could only be adjourned with the consent of the house, and, therefore, he should consult the house before adjourning it. The Senior Vice Chairman replied that he had no need to take the consent of the House and that it was for him to decide the point of order and the question of adiournment could only be raised afterwards, and once again it was pointed nut by Arjundas that the Senior Vice Chairman had no right to adjourn the meeting at his own will and pleasure but in vain.
The Senior Vice Chairman then announced that he would reserve his ruling on the point of order raised by Dani and the counter objection raised by Gurnani. It seems from the further questions and answers that the petitioner and his supporters would not have minded an adjournment for a short time such as an hour or two hours, and they suggested that if Mr. Beri whom the Senior Vice Chairman wanted to consult was not in the station, there were any number of lawyers in Ajmer who could be consulted. The Senior Vice Chairman was, however, adamant and he eventually announced that he would reserve his ruling and adjourned the meeting. He also said that the staff could go.
31. From what we have pointed out above, it is clear that the Senior Vice Chairman with the help of his supporters was bent upon adjourning the meeting, while the petitioner and his supporters were equally insistent that the election should be held at that very meeting. The question to decide in these circumstances is whether the adjournment so ordered by the Senior Vice Chairman was lawful.
32. It is contended on his behalf that a difficult question of law had been raised for his decision at the meeting which he could not anticipate, that no member of the municipal committee could be prevented from raising such a point, and that as he did not feel equal to the task of giving his decision on the point of order so raised, he had the right to reserve his ruling, and consequently there was nothing left but that the house should stand adjourned as there was no other work on the agenda which could thereafter have been done.
Our attention was invited in this connection to bye-law 12 of the Bye-laws framed by the Ajmer Municipality under Section 58 of the Regulation governing the holding of meetings, which lays down that the chairman shall regulate the course of all business to be brought forward, and shall decide all points of order and procedure; and also to bye-law 31 which provides that any member may submit any point of order to the Chairman but there shall be no discussion on any such point, unless the Chairman thinks fit to ask members present for their opinion thereon.
All this however shows no more than this that a point of order could have been raised by a member, and that when such a point is raised, it is for the chairman to decide it. It has been hotly debated before us that the chairman had no authority to reserve his ruling on the point of order. Our attention has not been drawn to any bye-law which bears on this question.
33. Now, we do not wish to lay down that under no circumstances a chairman of a meeting, and of a statutory body like the present, can reserve his- ruling on a point of order raised before him. We should certainly like to say however that broadly speaking, all such points of order should be decided then and there, the more so when the refusal of the chairman to give his ruling at the meeting itself would result in an adjournment of the house. As for the power of the chairman to adjourn the house, we may draw attention to Section 55 of the Regulation, which is in these terms :
'Any meeting of a Committee may, with the consent of a majority of the members present thereat, be adjourned from time to time, but no business shall be discussed at the adjourned meeting other than that left undisposed of at the meeting at which the adjournment took place.'
34. It is clear from the plain wording of this provision that a chairman cannot adjourn a meeting at his sweet-will and pleasure, and that he should do so only with the consent of the majority of the house. In fact, the attention of the Senior Vice Chairman, respondent No. 1 was pointedly drawn to this but to no effect, and all that he kept on saying was that the question of adjournment would arise only after he had given his decision on the point of order raised at the meeting, and that the objecting members should then raise their objection but not before. We may also point out in this connection that the common law rule as to adjournments under the English law is that a right to adjourn the meeting is vested in the assembly itself unless there are particular rules which vest this power in the chairman.
35. Reference may be made in support of this view to Stoughton v. Reynolds, (1736) 2 Stra 1045, (among others to which we propose to refer a little later). A vestry meeting was held for the election of churchwardens. The Vicar presided at the meeting. He had as his nominee for the office of churchwarden, one, Chapman, while the parishioners' nominees were Stoughton and Farren. The Vicar left before the election was completed and against the wish of many present and adjourned the meeting on the next day.
Stoughton and his supporters remained behind and completed the poll as a result of which Stoughton was declared successful, Further developments took place but we shall have occasion to refer to them hereafter. Suffice it to say for the present that the question arose whether the Vicar had the power to adjourn the meeting. Lord Har-wick answered this question thus:
'The power must arise from the custom or common law. Here is no custom found, and I know of no book that shows how it stands at common law ................ Is the right of adjourning in the Churchwardens? There is no case for that though if there was, this is found to be the act of one only. We must, therefore, resort to the common right which is in the whole assembly where all are upon an equal foot.'
We think that the aforementioned principle correctly sums up the legal position and is in accord with Section 55 of the Regulation with which we are directly concerned.
36. Our attention was also invited in this connection to bye-law 33 of the Bye-laws of the Ajmer Municipality governing the conduct of meet-'ings :
'Discipline - (a) The Chairman may order a member who does not accept his ruling, or is disorderly, to withdraw from the meeting and the member shall withdraw forthwith failing which the Chairman may call such aid as he deems expedient to secure such withdrawal.
(b) If there be any refusal on the part of meeting to obey the ruling of the Chairman on a point of order, or if disorder should arise on any other account whatever, it shall be competent to the Chairman to adjourn the meeting and by the declaration of adjournment the meeting is immediately adjourned and no business, if any, subsequently transacted shall be valid or shall appear in the minutes and the meeting shall be deemed as adjourned with the consent of majority of members present at the meeting'.
The effect of this extraordinary provision, however, b to invest the chairman with an authority to adjourn the meeting where the meeting itself refuses to obey the ruling of the chairman on a point of order and disorder ensues, or if disorder should arise on any account whatsoever. An attempt was made on behalf of the respondent to show that he had authority to adjourn the meeting under this bye-law also, We are of opinion, however, that there is no substance in this contention, the simple reason being that respondent No. 1 never adjourned the meeting on this ground, and we are of the opinion that any attempt on his part to bring his action under bye-law No. 33 is a pure and simple afterthought.
37. As for the contention of respondent No. 1 that he had adjourned the meeting simply because a point of order had been raised and as he felt unequal to the task of deciding it immediately, he had no alternative but to reserve the point of order, and as thereafter there was no other business before the meeting to be transacted, the result inevitably was that the meeting had to be adjourned. We have already mentioned above that the so-called point of order which was sought to be raised by Radheshyam Dani turned on the interpretatio' of Section 13(2) of the Regulation.
But there is no gain-saying the point that this very question had been raised before the High Court apparently on behalf of this very respondent, and the point was negatived, and it was held that Section 13(2} did not and would not come into play in the circumstances of this case. There was scarcely any substance, therefore, in the point of order raised by Radheshyam Dani, and so far as we can see, the so-called point of order could have been decided without any trouble or hesitation at the meeting itself, and there was hardly any necessity for the Senior Vice Chairman who was acting as Chairman for the meeting to consult anybody in the matter.
In fact, the Senior Vice Chairman decided the point of order which he had reserved, at the next meeting held by him on the 19th December, by saying no more than this that the point stood already decided for the meeting and, at any rate, for himself by the judgment of the High Court dated the 10th December, 1958. We are, therefore, convinced that the attitude adopted by the Senior Vice Chairman at this meeting was nothing but a pretext for adjourning the meeting and gaining time thereby, According to the report submitted by the Collector (Annexure No. S), the point of order raised by Dani was 'frivolous' and the Senior Vice Chairman's action in taking it seriously and adjourning the meeting to get legal opinion on it 'appeared to be mala fide'.
38. Having regard to all the circumstances of the case, to which we have made detailed reference above, we have no manner of hesitation in saying that the reservation of the ruling on the point of order raised by Radheshyam Dani was completely lacking in good faith on the part oi respondent No. 3, and it was little short of a subterfuge. We are, however, unable to share the view of the collector that, even though this adjournment was mala fide, it may still be legal. So far as the reservation of the ruling is concerned, we have already held that there was hardly anything in the point of order raised which should have required the Senior Vice Chairman to reserve his ruling, a point which stood clearly decided by the judgment of this court.
So far as the adjournment is concerned, we are clearly of the opinion that he could not have adjourned the house merely on his sweet will and pleasure and without the consent of the majority of the members present. In these circumstances, we are inclined to hold that the adjournment of the meeting as ordered by the Senior Vice Chairman, respondent No. 1, was clearly illegal. We pause here to point out that the order of the Minister dated the 21st January, 1959, has entirely over-looked this aspect of the case and it has not given any finding on it, though this was one of the points which, according to the very order, was admittedly raised for consideration.
39. We now turn to the point No. 2 which is this:
'Whether the subsequent proceeding at which the petitioner was elected as chairman after the meeting had been unlawfully adjourned by the Senior Vice Chairman on the 17th December, 1958, was a lawful meeting, and, therefore, the members who took part in it had a right to elect a chairman at the same for which purpose the said meeting had been originally convened.'
40. We should like to point out at the very outset that the controversy which seems to have been raised before the Minister on behalf of respondent No. 1, the Senior Vice Chairman, up to the 5th January, 1959, was that no subsequent meeting had at all been held. The said respondent had filed before the minister an application supported by an affidavit, (Annexures 12 and 11 respectively) in which his contention clearly was that the Collector had assumed that a meeting as alleged by the petitioner and his supporters had taken phase subsequent to the adjournment, and that this assumption was totally unwarranted, and the hard fact was that 'no such meeting ever took place'. Therefore it was that this matter was referred for inquiry and report to Shri Pun, the Deputy Secretary to the Local Self Government Department. We have already summarised above the findings of Shri Puri as embodied in his report Annexure A.7. The finding of Shri Puri, briefly put, was that
'the party of Shri Arjundas and Shri Lekhraj did meet, did consider the adjournment as illegal and went into the election of the chairman and elected Shri Deodutt.'
Earlier, Shri Puri had also observed that
'it was true that after the meeting was declared adjourned, nearly half of the members present having gone along with the whole of the staff, 16 members did meet, decided that the adjournment was illegal and the remaining members had a right to continue the meeting as if no adjournment had been declared'.
Certain legal points were, however, further raised before the inquiry officer, and he made a reference to them in his report: these points being: (1) whether the Junior Vice Chairman could preside at the meeting in the presence of the Senior Vice Chairman; (2) whether the remaining members could hold the meeting in the absence of the members who had already departed, even though the former constituted a majority and (3) whether there was a quorum at this subsequent proceeding as Arjundas along with one or two other members had left the committee room in the interval to talk on the telephone with the Collector.
41. Rut these questions, apart, the fact seems to stand out that the finding of the inquiry officer was that the meeting was continued by the supporters of the petitioner after it had been adjourned by the Senior Vice Chairman and at that meeting the petitioner was elected as chairman. The order of the Minister at page three of its report states that both the parties who were heard on the 11th January, 1959, had accepted the findings of facts reported by the Enquiry Officer. A little later in the order, however, the Minister observed that the Enquiry Officer had held that after the adjournment by the Senior Vice Chairman, the said 16 members met as a party, and that the Collector was, thereafter, contacted, and after the lapse of about 15 minutes, these 16 members
'decided to convert themselves into a conti-nuity meeting of the Ajmer Municipal Committee conveyed by the Chairman at 4 P.M.'
We desire to point out at this place that the En-quiry Officer has nowhere found that 16 members had met as a party and that these members then converted themselves into a continuity meeting of the Ajmer Municipal Committee held earlier. What the Enquiry Officer had really found was that after the meeting had been declared adjourned by the Senior Vice Chairman and nearly half of the members had left along with the staff, the remaining 16 members had met; these members of course belonged to the party of Arjundas. But for that reason it could hardly be said that this was a party meeting of Arjundas, Deodutt and their supporters in the sense in which the expression seems to have been used in the impugned order.
The point that we wish to emphasise is that if the finding of the Minister is that these i6 members had met 'as a party' evidently suggesting thereby that they were not meeting as members of the Committee but as though in a party meeting of this group, and it is only later, that is, after Arjundas had returned from the Chairman's room having had a talk with the Collector that they reconstituted themselves into a meeting of the Committee, then, this finding seems to us, if we may say so without any disrespect, to be based on a misreading of the Enquiry Officer's report.
If we were to sum up the finding of the En-quiry Officer in one sentence, it was this that after the Senior Vice Chairman had adjourned the meeting, the remaining members (who belonged to the party of Arjundas) had continued the meeting as a matter of fact, but whether this meeting was valid in law was a different question altogether and be left it for the decision of the Minister. Be that as it may, it is also pointed out in the order of the Minister that a break of 15 minutes had occurred in between the adjournment ordered by the Senior Vice Chairman and the further proceedings taken by the dissident members, and therefore, the further proceeding could not be a continuance of the meeting of the committee which had earlier been adjourned by the Senior Vice Chairman.
A further reason for coming to the conclusion to winch the Minister did was that there were less than 16 members in the Committee present in the Committee Room during this interval, and, therefore, there was lack of quorum and in these circum-stances the meeting at which the petitioner was elected as a Chairman could not be held to be a valid meeting in the eye of law. For all these reasons, the Minister came to the conclusion that the meeting at which the petitioner was elected as chairman was not a valid meeting and, therefore, the subsequent election of respondent No. 5 as chairman of the committee could not be takes exception to.
42. It was contended before us that the view of the Minister was plainly wrong, and wrong on the face of it, as it was founded on a misconception of law that the remaining members of the committee, to which so ever group they might have belonged, after the meeting had been illegally ad-journed by the Senior Vice Chairman, had no right to continue the proceedings, and that what had really taken place after what is called the '15 minutes break' was an entirely new meeting.
It was also contended that the view of the Minister that during all this interval, 16 members of the committee, who were required to constitute the quorum for a special meeting should have been throughout present in the committee room is wrong on the face of it inasmuch as 16 members were present when the election of the petitioner took place and they were also present in the committee room when the meeting had been adjourned by the Senior Vice Chairman, and the casual absence of some of the members in the interval could not lawfully affect the validity of the meeting, and it was also pointed out in this connection that this was what the enquiry officer had himself conceded in his report.
43. From the above discussion, two points emerge. The first is that those members of the committee who were opposed to the meeting being adjourned by the Senior Vice Chairman and who had protested against it continued to sit in the committee room as a body. They subsequently asked the Junior Vice Chairman to take the chair and the proceedings were continued, and the petitioner was elected as chairman. The contention of respondent No. 1 that such a meeting was never held is, to our mind, wrong, and unsustainable.
The second point on which, however, there 19 a tremendous controversy between the parties and which appears to have been raised before the enquiry officer and thereafter when the matter came before the Minister was whether this subsequent proceeding was a valid meeting of the Committee in the eye of law. We now propose to address ourselves to a few English and Indian decided cases which may serve as a guide for the decision of this interesting point.
44. The earliest case in this connection is that of (1736) 2 Stra 1045 to which we have already referred above. In that case a meeting was called for the election of a churchwarden and the Vicar who presided adjourned the meeting before the election was completed, contrary to the wishes of many of the parishioners present. The Vicar had nominated Chapman, and parishioners nominated Stoughton and Farren for the churchwardens. The result was that after the Vicar along with his supporters had left Stoughton and his supporters remained behind and completed the election. On the next day the Vicar and Chapman and his supporters met and continued the poll with the result that Farren was elected. It was- held that the right of adjourning the meeting was in the Parish and consequently he had acted wrongly when he had adjourned the meeting. It was further held that the meeting was rightly continued and that Stoughton was duly elected.
45. In National Dwellings Society v. Sykes, (1894) 3 Ch 159, a meeting of the society was called for the purpose of passing the accounts, considering reports and electing auditors. The chairman Sykes moved the motion: 'That the report and accounts he received'. This motion was seconded but several share-holders wished to move an amendment to the effect that a committee of investigation be appointed to ascertain the position of the Company. This amendment was also moved and seconded. The chair-man ruled if out of order as no previous notice thereof had been given. Thereafter he put the original motion to the vote, and six votes were found in favour of the motion and twenty-eight against it.
Annoyed with this result, he declared the resolution to be lost and closed the meeting. Sykes left the chair and the room with his supporters although other business including the election of directors and auditors had remained untransacted. Thereafter the remaining shareholders elected another chairman, transacted the business left unfinished and unanimously passed certain resolutions. A question arose as to the legality of the chairman's conduct in adjourning voting against the wishes of the majority of the members present. Chitty J. held that the power to stop the meeting at his own will and pleasure was not within the scope of the authority of the Chairman, and that once the business had been opened he could not say that he would stop the meeting and dissolve it. What the learned Judge further observed may best be stated in his own words :
'The meeting by itself can resolve to go on with the business for which it has been convened, and appoint a chairman to conduct the business, which the other Chairman, forgetful of his duty or violating his duty, has tried to stop because the proceedings have taken a turn which he himself does not like.'
46. The next case to which reference may be made is Catesby v. Burnett, 1916-2 Ch 325. A general meeting of the company was called on 10-12-1915, at which meeting, according to the articles, some directors were to retire by rotation. There was much opposition at the meeting and the only item of business that could be transacted was the appointment of a committee of a number of share-holders to investigate the affairs of the company, and the meeting stood adjourned to receive the committee's report. The adjourned meeting was held on 10-3-1916, at which the report of the committee was presented and discussed. The chairman then desired that the election of the auditors should be moved when it was pointed out to him by several shareholders that the next business was the election of directors.
There was considerable uproar when the chairman declared the auditors elected, and thereafter he ruled that a certain notice which had been received on 21-2-1916, relating to the election of directors was out of order, and he declared the business to be closed and left the chair and the hall. Those remaining thereupon continued the business of the meeting and elected Catesby to the chair and some new directors were elected. The question arose whether the proceedings, after the chairman had vacated the chair and dissolved the meeting, were valid. It was held that the proceedings were regular and that the appointment of the new directors was valid.
47. The above cases clearly establish the principle that where a meeting has been unlawfully adjourned by the chairman and he has been neglectful of his duties, the remaining members do have the right to continue the meeting and finish the business which was left off untransacted by the chairman.
48. As against these cases, considerable reliance was placed before us on behalf of the resnondents on another case, namely R. v. Caborian, (1809) 11 East 77. In this case a meeting was convened for the purpose of nominating and electing a new mayor and the existing mayor presided over the meeting. On votes being taken, it was found that the candidates nominated had polled equal votes. Thereupon he dissolved the meeting. No one objected to the adjournment at the time. The chairman had left and some other freemen along with him. Thereafter the freemen proceeded to complete the election. It was held that the election was void as it was a surprise and fraud on the other electors,
It will be noticed, however, that the facts of this case were peculiar. The presiding mayor having found that the candidates nominated had polled an equal number of votes came to the conclusion that no election could be made and he directed a proclamation to be made for dissolving the assembly. No one objected to this announcement at the time and no one could have imagined that after the mayor had departed those remaining behind would still proceed and complete so much of the election which still remained to be made with the result that the freemen who had departed along with the mayor could have had no notice whatsoever that any further proceedings would be held after their departure.
The ratio of this decision seems to be that there was no opposition or protest against the adjournment by the mayor and on the other hand there was silence and acquiescence on the part of the freemen present and that any election held thereafter was nothing short of a surprise, and fraud on the other electors.
49. Turning to Indian cases, in Narayana Chettiar v. Kaleeswarar Mills Ltd., AIR 1952 Mad 515, Satyanarayan Rao'J. who delivered the judgment of the Bench thus describes the duty of a chairman in the matter of an adjournment:
'The Chairman of the meeting is not entitled to stop the meeting at his own will and pleasure. If a meeting is called for a particular purpose of the company, undoubtedly, a person should preside at that meeting and invariably the constitution of the company provides for the same. It is not open to the chairman to stop the meeting and dissolve it before the business of the meeting is finished. It is the privilege and the right of the shareholders assembled at the meeting to decide whether they should continue the business of the meeting on that day or adjourn it for a subsequent date. If the Chairman unjustly and without the consent of the shareholders stops the meeting and declares it dissolved, it is perfectly within the powers of the meeting to elect a chairman and conduct the business remaining unfinished.'
50. The next case to which we may refer is Ved Prakash Dusraj v. Municipal Corporation, Secunderabad, 1958-1 Andh WR 22. This was a case which arose in the Secunderabad Municipal Corporation. An adjourned meeting of the Corporation was held on 20-7-1957. The mayor during the consideration of certain items of business stated that he had to attend another important engagement and so he was adjourning the meeting. Before the Mayor got down from the dais, a member pointed out that the Mayor could not adjourn the meeting without the consent of the members. The Mayor's attention was drawn to Section 88 (m) of the Hyderabad Municipal Corporation Act (No. 2) of 1956 which, let it be noted, is exactly worded like Section 55 of the Regulation we have been called upon to consider in this case.
Nevertheless the Mayor left. Some other councillors also left with him. Thereafter another member was elected to preside over the meeting which was sought to be continued. An objection was raised to this, and it was pointed out that it would be illegal to continue the meeting under the circumstances. The remaining members however transacted the business which had been left unfinished. Then some more business was transacted which was not on the agenda, and in pursuance of leave obtained from the chairman a certain member was elected as a member of the standing committee. The election of this member was challenged on several grounds, one of these being that when the meeting had been adjourned by the Mayor, it could not have been validly continued.
It is this aspect of the case only which is relevant for our present purposes. A Division Bench of the Andhra High Court held that the adjournment of the meeting by the chairman without the consent of the majority and in spite of protest was invalid. It was further observed that no matter that the meeting happens to be commenced with the Mayor (or in his absence, the Deputy Mayor) in the chair, in the absence of the majority permitting an adjournment, the meeting could be continued, and if the Mayor or the Deputy Mayor was unable to go on with the meeting due to any reason, the meeting could be continued with another chairman, and that once the meeting was held, the councillors present would control the adjournment and that if the Mayor or the Deputy Mayor or both of them, as the case may be, found it inconvenient to go on with the meeting, they could not adjourn the meeting at their will and pleasure without the consent of the majority, and if they did HO and left the hall, they would be deemed to be absent.
Reliance was placed in arriving at this decision on the case in (1894) 3 Ch 159. Reference was also made in this case to the case of R. v. Norris, (1730) 1 Barn KB 385, in which it was held that the pre-sence of the Mayor was necessary at all corporate assemblies, but where the Mayor dissolved the assembly, the assembly had always a right to proceed with the business that was begun when he was present. In this view of the matter it was held that the adjournment being clearly invalid, the remaining members could continue the meeting, though it may be pointed out that it was further held that the disposal of certain additional business which was not originally on the agenda, and to transact which the permission of the chairman had been taken, had not been validly transacted according to the rules of the corporation, but with that further finding we are not concerned.
51. From the aforesaid view of cases, the following principles clearly emerge:
1. That once a meeting had been properly called and it meets the chairman of the meeting can only adjourn it with the consent of the majority of the members subject of course to the rules and regulations of the particular body in relation to which such a question might arise. Thus where a meeting, according to a statute or the rules under which It has been called, must have a certain quorum, and such quorum is not present, the chairman will have the authority to adjourn the meeting because in its absence no lawful meeting can be held.
2. In the absence of any rule to the contrary, the common law doctrine should be held to prevail that the adjournment of the meeting rests with the majority of the members present and is not a matter merely of the pleasure of the chairman.
3. An exception to the aforesaid rule which has been almost universally accepted is that where disorder breaks out at a meeting, the chairman has an inherent right, even if it has not been granted by statute or the rules, to adjourn the meeting, without consulting the majority.
4. These exceptions apart, if the chairman adjourns a meeting contrary to the wishes of the members present and thereby interrupts or leaves unfinished the business for which the meeting was summmoned, the remaining members can lawfully con-tinue the business; and in the absence oi' their pro-per chairman, it is open to them to elect another chairman to act as his substitute and continue the business, and any business which was duly notified in the notice for the meeting could be transacted to completion, and if it is so transacted it would be valid.
5. Where, however, the adjournment has been properly ordered by the chairman, or it having been ordered the members have acquiesced in it, and thereafter it dawns on or strikes some of them to continue the business of the meeting, then such continuance should be held to be invalid as being a surprise or a fraud on the members who may have already left the meeting.
52. How do these principles apply to the case before us? The meeting for the election of the chairman of the Ajmer Municipal Committee was properly called in compliance with the mandate of this court for 17-12-1958. 31 members out of the total strength of 32 of this Committee were present at this meeting. The business before the Committee was opened by the Senior Vice Chairman who was in the chair. A point of order was raised by a member that such election would be' contrary to a certain section of the Regulation, which point stood already decided by a judgment of this Court. Most emphatic protests were raised against the point of order and the in-clination of the chairman to adjourn the house in order to decide the point of order.
The said point of order hardly arose, and, assuming that it did arise it was one which could have seem decided without difficulty then and there. In spite of alt this, the chairman reserved his ruling on she point of order and adjourned the house. We have already held above, for reasons which we need not repeat, that this adjournment was illegal. The remaining members therefore, would seem to us to have a right to continue the meeting and carry to completion the business for whieli the meeting was called by electing another chairman and by a proper motion proposed and seconded and duly passed.
53. As against the last mentioned conclusion ithas been strenuously pressed upon us that there wasa break of 15 minutes between the adjournmentordered by the Senior Vice Chairman and (sic) com-mencement of the business by the remaining members thereafter, and that during this interval of 15minutes or so, Arjundas, a member of the Committeealong with one or two other members had contactedthe Collector on the telephone, and on the Collector's refusing to intervene, had come back to theCommittee room and informed the members of whatthe Collector had told them, and in the meantimesome of the members of the Committee who apparently were the supporters of the Senior Vice Chairman's point of view had already left and, therefore,any further proceeding, such as election (or anyother matter) which was carried on by the remaining members without notice to the departing members, was as if at a new meeting which could not bosaid to be a continuance of the earlier one, and whatever the remaining members did in such circumstances was a complete surprise to the other members and a fraud on them and, therefore, could not be upheld as valid.
54. We have given our most careful and anxious consideration to this submission and have not felt persuaded to accept it as correct. We are clearly of opinion that this case does not fall within the principle of the case in (1809} 11 East 77, for here a could not possibly be suggested with any semblance of justification that the dissident members had directly or indirectly acquiesced in the Senior Vica Chairman's desire to adjourn the meeting. If at all, they had raised a storm of protest and expressed unmistakable resentment against the action which the Senior Vice Chairman was proposing to take.
They had clearly expressed the desire that the election should take place at that very meeting and they had also forewarned that serious consequences might ensue if the Chairman persisted in his desire to adjourn the meeting. Despite all this, the respondent No. 1 adjourned the meeting. The dissident members, namely, the petitioner and his supporters did not leave the Committee Room and on the other hand kept sitting there as a body. It is admitted that respondent No. 1 also continued sitting in the Committee Room on the dais. This in itself is not without considerable significance, for ordinarily we should have expected him to leave after he had declared the meeting to be adjourned. He must have sensed that the remaining members were in a mood to finish the election.
An interregnum of 15 minutes or so between the adjournment of the meeting ordered by respondent No. 1 and the resumption of business during which brief spell Arjundas and some others may have telephoned to the Collector for his intervention, in our opinion, cannot in these circumstances amount to a break of that day's meeting; for, quite obviously, the situation in which the remaining members found themselves was an unusual one, and before resuming proceedings they might have thought it necessary or expedient to apprise the Collector of what was happening, and an interruption like this is hardly sufficient for us to hold that what had happened at the earlier meeting was beyond recall or resumption. We are also clearly of opinion that the argument of learned counsel for the respondents that the continuance of the meeting in such circumstances was or should have been a surprise to the members who had left has no substance.
We say so because the resumption of proceedings by the remaining members almost immediately after the adjournment of a meeting like this, the adjournment having been made the subject of vehement and persistent protests in no mistakable terms by the petitioner and his supporters, fully negatives the theory of surprise and fraud with respect to the members who had already departed, and, in our judgment, no further notice to the departing members of the intention of the remaining members to continue the proceedings was necessary in the eye of law. If we may say so, such a notice was almost implicit in this kind of proceedings, and whoever neglects it does so at his own peril.
55. It was also pressed before us in this connection that in order to resume the business after the meeting had been adjourned, there should have been a regular motion to continue the meeting before the house had adjourned and that the motion should have been in writing and duly seconded, and that the Enquiry Officer's report showed that no such motion had really been moved much less passed. We ore unable to accept the submission as correct, because if that were the correct legal view to take, the right of the remaining members to continue the meeting, where it has been illegally adjourned by the presiding chairman, can always be defeated with impunity by the supporters of the chairman by simply leaving the meeting post-haste after the adjournment is announced and without leaving a momentto the dissident members to reduce their motion to writing and bring it before the entire house before even a single member should have left the meeting.
We are, therefore, definitely of the view that there is no warrant for holding that in order to unable the remaining members to continue the proceedings of an unlawfully adjourned meeting, they must have moved such a regular motion. Such a motion, in our opinion is entirely unnecessary aiso because the meeting was already called and had assembled for the transaction of certain business and happened to be unlawfully adjourned so that where the remaining members protested against the adjournment of the meeting they were all the time wanting it to he continued, and no substantive motion to continue the meeting was at all necessary. We hold accordingly.
56. It was also contended in this connection that, according to Section 53 of the Regulation, the Chairman whenever he is present is required to preside at all the meetings of the Committee, and that in his absence the Senior Vice Chairman should preside, but as the Junior Vice Chairman Lekhraj Thakkar had presided over the resumed meeting, although the Senior Vice Chairman respondent No. 1 was throughout present in the Committee Room, the entire proceedings were invalid. We arc of opinion that this contention is also devoid of all force.
Even if we accept the finding of the Enquiry Officer that the version of Arjundas that he had asked Lekhraj Thakkar to take the chair as respondent No. I had refused to preside when asked to do so is not correct, we are entirely unable to accept that the mere physical presence of the Senior Vice Chairman in the Committee Room was sufficient to invalidate the proceedings at the resumed meeting. The reascn which persuades us to come to this con-clusion is plain enough. The thing that matters is the willingness of the Chairman or the Senior Vice Chairman as the case may be, to occupy the chair and not merely his physical presence.
We find it impossible for us to accept that in this case the Senior Vice Chairman should have ever been willing to occupy the chair and stultify himself when he had already adjourned the house capriciously and in the teeth of tremendous opposition. We may also point out that if the view contended for were to prevail, the presiding authority could always nullify the right of the members to continue the meeting, which may have been unlawfully adjourned by himself, and their right to lawfully transact the business which may have been left unfinished, by sheer obstinacy in not leaving his seat in the Com-mittee Room even after he had unlawfully adjourned the meeting. Consequently, we overrule this contention also.
57. Summing up our conclusion on this point, therefore, we are firmly of the opinion that the true position in law is that the remaining members of the Committee after the meeting of the 17th had been unlawfully adjourned by the respondent No. 1 had a right to continue the meeting and transact the business for which the meeting had been called, and which business had been left untransacted, and, therefore, this meeting was lawful; and it must follow from this that the election of the petitioner at that meeting, which as a matter of fact, was found to have taken place both by the Collector as well as the Enquiry Officer, cannot but be accepted as having been lawfully made.
58. We now come to the third point, namely, whether the order of the Minister dated 21-1-1959, was an order which he had jurisdiction to make, and, in any event, whether the petitioner had submitted to the jurisdiction of the Minister, and, therefore, he cannot challenge it now, Admittedly, the Minister passed his order under Section 242 (2) of the Regulation, which we have already reproduced above. Learned counsel for the petitioner contends that the Minister had no jurisdiction to pass this order or that in any case he acted in excess of his jurisdiction under this section and also that he had no right to appoint any Enquiry Officer in this connection. It is common ground, however, that in a dispute relating to the election of a chairman, no election petition lies under the relevant law.
59. Section 242 occurs in Chapter XIII of the Regulation which bears the heading 'Control'. Ss. 237 to 241 give the Commissioner (now the Collector) certain supervisory powers over the activities of the Municipal Committee. Section 238, broadly speaking, empowers the Collector to suspend the execution of any resolution or order of the Committee or prohibit the doing of any act which is being done or about to be done under certain circumstances mentioned in the section. Section 239 further authorises the Collector in cases of emergency to get certain things done which are necessary for the service or the safety of the public.
Under Section 240 he may fix a period for the performance of such things by the municipality itself or in default thereof he may get them done by some other agency at the expense of the Municipality. By Section 241, the Collector is required to report the action taken by him under Ss. 238 and 240 to the Chief Commissioner or now the State Government, and Section 241 also provides that on such report being submitted to it the State Government may confirm, modify or rescind the order passed by the Collector as it thinks fit.
60. Then comes Section 242 under the sub-head 'Control by Chief Commissioner' which now must be read as 'State Government'. This section provides under Sub-section (1) that the State Government (or the Collector acting under the orders of the State Government) shall be bound to require that the proceedings of the Committees shall be in conformity with the law for the time being in force. Sub-section (2) then provides that the State Government may exercise all powers necessary for the performance of the duty aforesaid and may among other things by order in writing annul or modify any proceeding which it may consider not to be in conformity with law. There is a third sub-section also, but that is not material for our present purposes.
61. Now the first question is if a dispute as to whether the petitioner was lawfully elected as chairman of the Ajmer Municipal Committee at its meeting held on 17th December, or again, whether respondent No. 5 was duly elected to that office at a subsequent meeting held on the 19th December is a matter falling within the purview of this section. In other words, is it a proceeding of the committee which was required to be in conformity with law? We unhesitatingly think it is. A proceeding is a comprehensive word and cannot but embrace an election, such as that of a Chairman, or a meeting at which such an election is held. Now if a dispute is raised as to the lawfulness of such a proceeding, it is the duty of the State Government under this section to pronounce its decision upon it. We are, therefore, satisfied that a matter like this did and would fall under the jurisdiction of the Minister as a delegate of the State Government,
62. The next argument which was raised before us on this aspect of the case was that even on our aforesaid finding, before the Government can lawfully take any action under Sub-section (2) of Section 242, it must require under Sub-section (1) the Committee to bring its proceeding in accordance with law, and until this has been done, no order under Sub-section (2) can be passed by the State Government, annulling or modifying any proceeding which it may consider not to be in conformity with any law. The submission is that the expression 'shall be bound to require' appearing in Sub-section (1) is a very strong one and that it connotes that there must be two parties --one to require something to be done, and the other of whom the thing is required.
Developing this argument, learned counsel contended that all that the Government can do under this section is to 'require' the committee to bring its action in conformity with law where it may not be in such conformity, and it is only where the committee has failed to do so that the Government can exercise its powers under Sub-section (2) but not otherwise. It was, therefore, submitted that even if the Government had jurisdiction to deal with a matter like the present under this section, it had clearly exceeded its jurisdiction by not requiring the committee, in the first instance, to bring its action in conformity with law.
63. We have carefully considered this submission and think that although the contention raised by learned counsel seems to be plausible at first sight, it does not appear to us to be correct on closer consideration. Let it be remembered in this connection that the Regulation was itself enacted in 1925, and Section 242 thereof is almost a verbatim copy of Section 236 of the Punjab Municipal Act (No. III) of 1911. The language of this section is not very happy and perhaps suffers from a certain amount of obscurity.
But we are disposed to think that if we were to put the construction on this section which has been suggested on behalf of the petitioner, we would be introducing certain words into Sub-section (2) such as 'if the committee fails to bring its proceeding in accordance with law as required by the State Government' which are not to be found in this Sub-section. We are certain that it is not for us to import these words into Sub-section (2). We are, therefore, not prepared to accept this interpretation as correct.
64. Again we think that the proceedings of a committee may be considered as falling under two broad heads. They may relate to certain things which are intended or proposed to be done. On the other hand, they may relate to certain things which have already been done, and are, therefore, completed acts. We do not see what useful purpose can be served by the Government asking the Committee to require in the case of completed acts that it must bring them in conformity with law. A necessity for this requirement can properly arise in respect of matters which may be intended to be due and are not fait accompli.
It seems to us that sub-section (1) enunciates the duty of the State Government generally and is also intended to deal with acts of this last-mentioned category. Sub-section (2) in its first part further lays down that the State Government will have all powers which may be necessary for the performance of the aforesaid duty, and it further provides, obviously in relation to acts which have already been completed, that the Government may set them right and if necessary annul or modify them in order to bring them in conformity with law.
65. Again, the proceeding of a committee may be seriously objectionable and may lead to very grave consequence and, therefore, may require immediate or ad interim suspension in the public interest. (See Section 238 in this connection). It the two sub-sections of Section 242 are interpreted in the manner propounded on behalf of the petitioner, we are inclined to think that the State Government would be helpless to do anything in such a case before it can effectively deal with such a proceeding, it must require the committee to bring it in order, and it is only on its failure to do so that the Government would be enabled to take appropriate action.
We consider that this narrow interpretation would lead to extremely inconvenient consequences and could hardly have been contemplated by the Legislature, particularly in the times when this section was enacted; and that all that was intended to be laid down was that it was and would be the duty of the State Government to require in the case of matters which were still contemplated to be done and of which the Government might have been informed or which otherwise come to its notice that the proceedings of the committee should be in accordance with law, and that the Government was left free to exercise all powers which may be required to ensure a satisfactory performance of this duty, and it was further provided that where the Government considered that a proceeding which was already a fait accompli and was not in conformity with law, then in pursuance of the duty which was laid on the Government under Sub-section (1), the Government was armed with all necessary powers including the power to annul or modify any such proceedings.
We, therefore, think tbat where an election had already taken place as in this case, it is futile to say that the Government shall be bound to call upon the committee to bring its proceedings in conformity with law before adjudicating upon it; for as a matter of fact the committee had already done the deed, and it would be extremely difficult for it, if not impossible, situate as such committees are or even otherwise, to alter its own proceedings.
66. On this interpretation of Section 242, we are disposed to hold that the Minister on behalf of the State Government had jurisdiction to deal with a matter like this where two persons claim to have been duly elected to one and the same office as that of a Chairman, the State Government has been placed under a statutory duty to see that the proceedings of the committee are in conformity with law and to annul or modify a proceeding which may not be in conformity with law.
Again, for the due performance of this duty, all necessary powers have been vested in the Government, and this power necessarily includes the power to investigate facts or to entrust them for investigation and report to a duly appointed officer for the purpose as was done in the present 'case. We are, therefore, not prepared to hold that the Minister had no inherent jurisdiction to deal with this matter or that he has exceeded it. Consequently, we consider it unnecessary to go into the further question as to whether the petitioner had submitted to the jurisdiction of the Minister or that he had even invited it and has thereby placed himself under a disability to question that jurisdiction any further.
67. This brings us to the question No. 5, viz. that if our conclusion be that the order of the Minister is of a quasi-judicial nature, does it call for any interference by this court in the extraordinary exercise of its certiorari jurisdiction. We have already held above that the order of the Minister is not open to any challenge on the ground of an inherent lack of jurisdiction. No interference with the order can, therefore, be made On this score. We are also satisfied that this order was passed after reasonable opportunity was given to the parties concerned to put their points of view before the Minister, and therefore, the order could not be said to be illegal as violative of any principles of natural justice.
68. In this connection it was contended on the side of the respondents that the order passed by the Minister annulling the election of the petitioner and upholding that of respondent No. 5 was correctly passed, and, in any case, that even if it was not correct in law, we should not interfere with that order in the exercise of our extraordinary jurisdiction because we are a supervising and not an appellate authority. It is submitted that a court or tribunal which has jurisdiction over a subject matter has jurisdiction to decide righly as well as wrongly and that when the Legislature has not chosen to -confer a right of appeal against such a decision, it would be defeating its purpose and policy if a superior court were to re-hear the case on the evidence and substitute its own findings in place of those of the tribunal in the exercise of certiorari jurisdiction.
69. Now so far as the last mentioned proposition is concerned, we may say at once that it is well established and is not open to any dispute. It is indeed well established that a writ of certio-rari can be issued for example where an inferior court or tribunal usurps jurisdiction or fails to exercise it where it has such jurisdiction, and also where the court or tribunal having jurisdiction acts illegally in the exercise thereof. Apart from these, however, the authorities also show that a writ of certio-rari can be issued to correct an error of law which is manifest on the face of the record.
70. Thus it was held by their lordships of the Supreme Court in T. C. Basappa v. Nagappa, AIR 1954 SC 440, that an error in the decision or determination itself may be amenable to a writ of certiorari provided it is a manifest error apparent on the face of the proceedings,
71. In R. v. Northumberland Compensation Appeal Tribunal; Ex parte Shaw, 1951-1 KB 711, it was held that certiorari is not a remedy which can be granted only where an inferior tribunal has acted without or in excess of its jurisdiction, but it can also be granted when the decision of the inferior tribunal where the latter has embodied the reasons for its order, has made a 'speaking order', and those reasons are bad in law. This case has been cited with approval in Hari Vishnu v. Ahmad Ishaque, (S) AIR 1955 SC 233, where the law has been summed up in the following words :
'It may, therefore, be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should, be something more than a mere error; it must be one which must be manifest on the face of the record.'
It was further pointed out that the real difficulty about the matter was not so much in the statement of the principle as in the application of it to the facts of a particular case, and if we may say so. with respect, there it is that the real difficulty lies.
72. The question for consideration, therefore, is whether the order of the Minister is a 'speaking order'. In other words has he given any reasons for the conclusion to which he has come and can it be said to contain any error or errors which are manifest on the face of the record
73. We have given our most careful and anxious consideration to this question and have arrived at the conclusion that it does suffer from this defect. We have already given a critical analysis of this order and do not wish to repeat it at this place. In the first place, the main point to decide in this case was whether the adjournment of the house by the Senior Vice Chairman without the consent of the house and in the face of very vehement protests from a number of members and even without taking the consent of the house was lawful.
It was for the decision of this point that the Collector had made a reference to the Government under Section 233 of the Regulation. This question is also referred to in the order of the Minister as one of the points arising for decision; but curiously enough, it was completely over-looked. As we look at the matter, a correct decision as to the legality or otherwise of the further continuance of the proceedings at the meeting in question vitally depended upon this crucial issue. We have no doubt that if the adjournment was legal, the further proceedings taken subsequently on the same day whereat the petitioner was elected as Chairman must be held to be illegal.
If, on the other hand, the adjournment in question was illegal, then the remaining members had a right to continue the meeting, and of such right they could not be deprived merely because some little time elapsed between the adjournment and the actual resumption of proceedings later on. Unfortunately the order of the Minister has completely failed to give a finding on this crucial point, and this, in our opinion amounts to an error manifest on the face of the record.
74. In the second place, we also think that the view of law taken by the Minister is plainly incorrect when he hold that the remaining members could not have continued the meeting, because as soon as the meeting had been adjourned by the Senior Vice Chairman, all the members of the staff had left and so also the members of the Municipal Committee except the Senior Vice Chairman and 16 other persons who are said to have belonged to the party of Arjundas and Junior Vice Chairman Lekhraj Thakkar, and that Arjundas and two or three members had thereafter gone into the room of the Chairman in order to establish contact on the telephone with the Collector, and thereafter they returned to the committee room and this state of affairs continued for some 15 minutes.
That these remaining members had, therefore no right to continue the proceedings of the meeting is, in our considered opinion, again a manifest error of law on the face of the record having regard to the correct legal position we have propounded above with respect to the rights of the remaining members, who had vehemently protested against the unlawful adjournment capriciously ordered by the presiding chairman and had unmistakably displayed their desire that the election should be held at that very meeting and should in no case be adjourned to any other day. We have no hesitation in saying that the conclusion arrived at by the Minister, with all respect, would be tantamount to completely negative the rights which the members have under the statute and the principles of the common law which have been observed by the courts through all the countries since 1736.
75. In the third place, we have further to point out that the impugned order has also based its conclusion on the circumstance that during the 15 minutes interval which took place between the ordering of the adjournment and the resumption of proceedings, less than 16 members of the municipal committee were present in the committee room; the clear implication being that in order that the meeting should have been legal, the presence of 16 members in the committee room from the time of the adjournment upto the termination of the resumed proceedings was throughout necessary.
It is not the finding of the Minister or the Enquiry Officer that all the 16 members were not in the committee room, when the meeting was adjourned. It is also not the finding of any of these authorities that at the time of moving the motion that the petitioner be elected as chairman or when the resolution was seconded or when it was passed, less than 16 members were present in the committee room. Annexure 4 or A13 which was the proceeding of the 'resumed meeting and which was handed over to the Collector soon after these 16 members had completed the business of the meeting and which was signed by them in his presence clearly goes to show that all the 16 members were present at the time of voting beyond any doubt and that the resolution was carried unanimously.
Assuming that in the interval some two or three members had left the committee room for a brief spell in order to have a talk with the Collector, in our considered opinion, cannot be a valid ground in the eye of law to come to the conclusion that this meeting had transacted business without the requisite quorum. In fact the Enquiry Officer had himself observed at page 7 of the report that this by itself was hardly a sufficient ground for holding the meeting to be invalid. Section 52 of the Regulation which deals with quorum provides that the quorum necessary for the transaction of business at a special meeting of a committee shall be one-half of the number of members actually serving at the time but shall not be less than three, and there is a proviso which says that if at any ordinary or special meeting, a quorum is not present, the chairman shall adjourn the meeting to such other date as he may think fit.
All that this section means is that when the business is transacted the requisite number of members must be there. As we have already pointed out above, neither the Minister nor the Enquiry Officer has found that the requisite number of members namely 16 was not present at the meeting when the business was transacted. The well established parliamentary practice in this connection is that if the quorum is present at the beginning of the meeting, but if it is any one's grievance that it has fallen under the number required, then it is the duty of some of the members present to call the attention of the chairman to that fact by raising a point of order.
If that is done, it is the duty of the chairman to have a count, and if there is no quorum, he usually gives some time to the members to be present in sufficient strength to form the quorum, but the chairman must adjourn the meeting, should there still be want of quorum. But once the quorum is complete at the time of the commencement of business and the attention of the chairman is not drawn to lack of quorum at any time thereafter, then the proceedings of the meeting cannot be held to be bad simply bccan.se at some later stage in the proceedings, it is alleged that the attendance of the members had fallen below the minimum number required.
76. We would point out here at the risk of repetition that this objection as to want of quorum was in the nature of a pure and simple afterthought, as the real stand of respondent No. 1 throughout was that no meeting had at all taken place after he bad adjourned the meeting, and this was clearly brought out by him in the very earliest letter addressed by him to the Collector on the 18th December, 1958, Ex. A-10 wherein he expressed himself as follows :
'The meeting was adjourned by me. I directed the staff to leave the board room. Some members remained sitting in the board room for about half an hour and thereafter went away. I was all the time sitting in the chair and vacated it when all the members had left the board room.'
The question of quorum appears to have been raised by respondent No. 1 only after it seemed to him that the Enquiry Officer's finding on the question of the factum of the meeting was likely to go against him as it did. Be that as it may, we are fully satisfied that the view of the Minister thai this resumed meeting was invalid for want of quo-rum is, in our view, a finding which is manifestly erroneous on the very face of the record and we hold accordingly.
77. Our answer to this point therefore clearly is that though the impugned order was neither passed without jurisdiction nor in excess of it by the Minister, still it is what is called a 'speaking order' in the luminous phrase of Goddard C. J. and that the reasons given in support of the order are bad in law, and the errors therein are patent on the face of the record and they are substantial errors which go to the very root of the matter, and so the impugned order is amenable to the exercise of the certiorari jurisdiction of this court.
78. At this stage we may briefly dispose of a few minor points which were raised on behalf of one or the other parties before us.
79. It was contended on the side of the respondents that the petitioner had not come to court with clean hands inasmuch as he and his friends had engineered the absence of Suganchand, a member of the Municipal Committee, so as to prevent him from attending the meeting on the 17th December, and, therefore, we should not grant him any relief in the exercise of our extraordinary jurisdiction. It was urged in this connection that Suganchand had filed a first information report A14 on the 18th December, 1958, to the Deputy Superintendent of police, Ajmer, in which he complained that he had been decoyed by certain persons, and the names mentioned in this connection are of some members of the Municipal Committee apparently belonging to the group of the petitioner, and that they had kept him at various places from the 10th December to the 17th December, 1958 and that he bad been prevented by these persons from attending the meeting on the 17th December. This allegation is hotly denied by Arjundas by his affidavit dated 31st March, 1959, he being one of the main persons involved in this incident.
Arjundas in his counter affidavit emphatically contends that Suganehand's version against him and his alleged associates was absolutely false, and that although the incident is alleged to have taken place as early as the middle of December, 1958, the police had so far not interrogated him or his other friends who are alleged to have been associated with this incident. Suganchand's further affidavit in this Court is that an investigation by the police in this case was in progress and that the police had examined some five witnesses of his so far, and that they had asked him to accompany them to Kotah for further investigation.
Two things stand out in this episode. First, that the name of Deodutt does not find any place in the first report which covers more than two closely typed foolscap sheets; and, in the second place, the matter is pending investigation, before the police, and this investigation has been more leisurely than we should have expected it to be. In these circumstances, we are not prepared to accept this ground as a valid justification for refusing relief to the petitioner to which he may be otherwise entitled.
We may add that the allegations and the counter-allegations made in this connection are matters of serious dispute between the parties, and the first information report filed by Sugauchand is still pending investigation by the police, and all this is very much a matter of proof upon which we cannot anticipate a decision one way or the other on the material which is before us. We, therefore, overrule this contention.
80. It was next contended before us on behalf of the respondents that we should decline to entertain this application on the ground that the petitioner was seeking to establish his right to an elective office, and, as that was a matter of civil right, he had and still has an alternative remedy in the form of a suit and we should leave him to that remedy, and that the existence of such an alternative remedy should be held by us to be a sufficient reason for refusing him to give the relief be seeks at our hands. We have carefully considered this objection and find no force in it.
It is correct that the petitioner claims a right to an elective office which is a civil right. It is also correct that he has a remedy by way of a suit in the ordinary courts of the State for the establishment of this right. We are also willing to recognise that the existence of an alternative remedy is a factor which we should take into account when we are being asked to grant an order in the exercise of our certiorari jurisdiction.
But what we cannot accept is that the circumstance, taken by itself, that such an alternative remedy exists should be allowed to operate as an absolute reason for our refusing to exercise such jurisdiction irrespective of the surrounding circumstances of the case, and particularly where the alternative remedy cannot and would not be an equally convenient, speedy and efficacious remedy. It is admitted before us that the three year term of the present committee of the Ajmer Municipality has only a further span of about eight months or so from now onwards. It is clear that, that being so, any relief which the petitioner may get after the expiry of this period would be perfectly useless for him inasmuch as his term as a member-chairman is bound to expire with the expiry of the term of the Committee.
It hardly needs any mentioning that any civil litigation which the petitioner may commence to establish his right would or could not possibly be brought to a conclusion in such a short period. We are, therefore, categorically of the view that the existence of an alternative remedy like that of a suit in the present case is and would be an entirely ineffective or inadequate remedy for the petitioner, and consequently this can hardly be accepted as any valid justification for our declining to give him relief to which he may be otherwise entitled. Wo unhesitatingly overrule this objection accordingly.
81. It was on the other hand contended on behalf of the petitioner that the order of the Minister was a mala fide one, inasmuch as he bad acted in a partisan spirit and had assumed jurisdiction where he had none. It was also contended in this connection that the Minister should not have taken upon himself to decide this dispute when the petitioner had already made his writ application to this Court on the 2nd January, 1959. We consider it sufficient to say to dispose of this contention that we see no ground for coming to the conclusion that there was any bad faith on the part of the Minister in acting in the manner be did,
We have already held above that he had jurisdiction to decide the dispute as to who of the two claimants to the chairmanship of the Ajmer Municipal Committee was a duly elected one, and in fact both parties had represented to him that he should decide the matter speedily one way or the other. As to whether the Minister should have continued to deal with the matter after the writ application had been filed by the petitioner in this Court, we do not propose to express any opinion, for the Minister may have acted in good faith, even though it may be that when the matter bad been brought up before this Court, it should have perhaps been more expedient to have left the parties to such remedy or relief as should have been available to them at the hands of this Court; but we would say no more than that.
82. The net result is that for the foregoing reasons the order of the Minister dated the 21st January, 1959, is a quasi-judicial order which is vitiated by errors of law which are patent on the face of the record, and, therefore, this order cannot be sustained and has to be set aside. It must also be held on our findings above that the petitioner was duly elected as the Chairman of the Ajmer Municipal Committee at the resumed meeting held on the 17th December, 1958. It must follow from the aforesaid premises that as the petitioner stood already duly elected as Chairman, there was no vacancy left in that office on the 19th December and, therefore, the election of respondent No. 5 Pratapchand Jain as Chairman of the said Committee must fall asunder and cannot be upheld as valid in the eye of law. We hold accordingly,
83. We, therefore, allow this application and quash the aforesaid order of the Minister dated the 21st January, 1959, and bold that the petitioner was lawfully elected as the Chairman of the Ajmer Municipal Committee at the resumed meeting held on the 17th December, 1958, and we, therefore, direct that the opposite parties shall- admit the petitioner as the lawfully elected Chairman of the Ajmer Municipal Committee in the vacancy caused by the resignation of the outgoing Chairman Jwalaprasad.
We further hold that the election of respondent No. 5 Pratapchand Jain as Chairman of the said Committee cannot be upheld as valid and must be set aside and we consequently order him to vacate this office forthwith. As to costs we think that a good deal of the trouble and the complications which have arisen in this case have been occasioned by the capricious attitude adopted by the respondent No. 1 Zahoor Ahmed Zaid and therefore, we consider it just (hat he should be made to pay the costs of the petitioner in this Court. We order accordingly.