1. This is an appeal by the pltf. under Clasue 15 of the Letters Patent & is directed against a judgment of our learned brother R.P. Mookerjee J., in S. A. 504/1950.
2. The suit out of which this appeal arises was instituted by the pltf. for a declaration that the election of the deft. as President of the Shekhalipur Union Board at a meeting held as 8-2-1948 was illegal & ultra vires & for a permanent injunction restraining the deft. from taking over charge of the office from the pltf. The facts of the case which are undisputed, are that the pltf. was an elected member of the Shekhalipur Union Board & was duly elected President of the said Board prior to the partition of Bengal under the Village Self-Government Act (Bengal Act V  of 1919) & the Rules framed thereunder. After the partition of Bengal the West Bengal Legislature passed an Act, viz., the West Bengal Act X  of 1947 by which the oppointed or nominated members of the Board were to vacate their offices on the commencement of the Act & the elected members were deemed to constitute the Board. The Board thus reconstituted was required to elect their President & Vice-President from among the elected members & for this purpose the Act of 1947 provides that the Dist. Mag. shall order the Circle Officer or any other person (not being one of the members) directing him to convene a meeting for the purpose of electing a President. The Act further provides that the old President would continue in office till a new President was elected. The pltf. alleges that the Circle Officer convened the meeting under the order of the Dist. Mag. as required by West Bengal Act X  of 1947 & himself presided over the meeting at which the deft. was elected President. The pltf. challenges this election as illegal on the ground that the meeting at which the election was held was not legal inasmuch as it was presided over by the Circle Officer who had no authority under the law to preside over the said meeting. The pltf.'s case is that the vacancies caused by the retirement of appointed members under West Bengal Act X  of 1947 are casual vacancies & therefore the meeting convened on 8-2-1948 was governed by Rule 37 of the Statutory Rules framed under the Village Self. Government Act Bengal Act V  of 1919) under which the Circle Officer had no authority to preside.
3. The deft. contested the suit on the ground that the vacancies resulting from the retirement of appointed members were not casual vacancies & as such Rule 37 had no application & that in any event the pltf. having allowed the deft. to be elected President without any objection had no cause of action.
4. The learned Munsif who tried the suit held that the vacancies were casual vaoanices & as such the Circle Officer had no authority to preside ; but he dismissed the suit upon the finding that it was at best an irregularity which was covered by Section 17 C, Village Self-Government Act of 1919. On appeal by the pltf., the Dist. J. affirmed the decision of the trial Ct. on the finding that inasmuch as the merits of the case were not affected by the election the pltf. could not question it. The learned Dist. J. did not, however, express any opinion on the question as to whether the vacancies were casual vacancies & whether the case should be governed by Rule 37 of the Bules framed under the Village Self-Government Act of 1919. R. P. Mookerjee J. has affirmed the decision of the Dist. J. on very much the same ground; but he has held that the fresh election of the President under Section 9 (b) of the Act of 1947 is not for the purpose of filling up a casual vacancy & as such Rule 37 has no application & he has further held that it is doubtful whether the fresh election would be governed by Rules 29 to 33.
5. In the appeal before us it has been argued that the fresh election held under Section 9 (b) of the Act of 1947 is to be governed by Rule 37 because the President continues to be a member of the Union Board. But we cannot accept this contention. Rule 37 applies to a case where the President resigns or is removed from the Presidentship but continues to be a member of the Union Board. In the case before us, it cannot be said that the President has resigned or has been removed from Presidentship. On the other hand, the proviso to Clause (a) of Section 9 of the Act of 1947 lays down that the existing President shall continue in office till a new President is elected. We accordingly agree with our learned brother R. P. Mookerjee J. in holding that Rule 37 does not apply to the facts of the present case.
6. The next question is whether the case is to be governed by Rules 29 to 33. Rule 29 provides that within a week after the names of the members have been notified in the Calcutta Gazette the Dist. Magistrate shall send a copy of the notification to the Circle Officer with an order directing him to convene a meeting of the members for the purpose of electing a President from among them and Rule 31 provides that this meeting shall be presided over by the Circle Officer. Upon a plain construction of Rule 29 we have no doubt in our mind that that Rule and the Rules which follow upto Rule 33 apply to the election of the first President after a general election of the Union Board. In the present case the election of the President is to be held from among the members of the Union Board reconstituted under the provisions of the Act of 1947 and it cannot be said that the President is to be elected after a general election of the members of the Union Board. We accordingly hold that Rules 29 to 33 also do not apply to the facts and circumstances of the present case.
7. The result, therefore, is that neither Rules 35 to 37B nor Rules 29 to 33 apply to the facts of the present case. It is quite clear that the contingency brought about by the enactment of the Act; of 1947 was not contemplated by the framers of the Rules under Section 101 of the Act of 1919. If that be so the meeting held under Section 9 (b) of the Act of 1947 is to be governed by general principles. Section 9 (b) of the Act of 1947 provides that the meeting for the Presidential election is to be convened by the Circle Officer, but it contains no provision as to who would preside over such a meeting. In the case before us the meeting that was held under Section 9 (b) of the Act of 1947 was presided over by the Circle Officer who was not a member of the Board. The question is whether this fact rendered that meeting illegal or whether it was a mere irregularity cured by Section 17C, Village Self-Government Act of 1919. That section provides that no act done or proceeding taken under the Act shall be questioned merely on the ground of any defect or irregularity not affecting the merits of the case. R.P. Mookerjee J. has held that the defect in the present case was an irregularity cured by Section 17C because the Circle Officer who presided over the meeting had no occasion to take any active part in the meeting, as the deft. was elected in the presence of the pltf. without any contest. In coming to this conclusion, R.P. Mookerjee J., has relied upon the decision of Roxburgh J. in the case of Ashutosh Chakravarty v. Md. Yad Hussain, : AIR1950Cal430 . In the case of Ashutosh Chakravarty, Roxburgh J., did not give any specific reason for applying the provisions of Section 17C of the Act of 1919; but in the case before us R.P. Mookerjee J., has held that the fact that the Circle Officer who presided over the meeting held under Section 9 (b) of the Act of 1947 did not take part in the voting nor determine by his casting vote what the view of the Board was to be, was sufficient to attract the operation of Section 17C. After giving the matter our careful consideration we have come to the conclusion that the view taken by R.P. Mookerjee J., is right. It has been concurrently found by the Courts below that at the meeting held on 8-2-1948, all the elected members of the Board were present and the deft. was unanimously elected President without any contest by the pltf. In these circumstances we cannot hold that the act of presiding over the meeting by the Circle Officer in any way affected the pltf. The position would have been different if the pltf., had contested the election of the deft. by setting himself up as a rival candidate. The election of the President is in our view a 'proceeding taken under the Act' & the act of presiding over the meeting by the Circle Officer is a 'defect' within the meaning of Section 17C of the Act of 1919. As we are of the opinion that the defect complained of did not affect the merits of the pltf.'s case we must hold that the election of the deft. cannot be questioned by the plaintiff.
8. The learned advocate for the applt. relied upon the case of The King v. Rowlands; Ex parte Beesley, (1910) 2 K. B. 930 : (80 L. J. K. B. 123) where it was held that every Corporation has prima facie an inherent right to elect a Chairman. In that case it was found that the person who presided over the meeting not only had no right to act as the Chairman but further that he had taken an active part at the meeting by using his casting vote and thereby determined the decision of the Council. Upon these facts, there can be no doubt that the Chairman who presided over the meeting without any authority acted in a manner which affected the merits of the Case. The principle laid down in this case, therefore, has no application to the facts of the case before us.
9. In the result we must hold that the decision of R.P. Mookerjee J., should be affirmed & this appeal must be dismissed. In the circumstances of the case we direct that the parties should bear their own costs in all the Courts.
10. The applt. obtained an order of ad interim injunction during the pendency of this appeal in C. Rule No. 325 (S) of 1951. As that Rule has spent its force with the decision of this appeal no separate order is necessary.
G.N. Das, J.
11. I agree.