D.N. Sinha, J.
1. The petitioner in this case is ratepayer and a registered voter of the Corporation of Calcutta in its constituency No. 50. The petitioner No. 2 is a councillor of the Corporation. The respondent No. 4, as the Secretary to the Corporation, issued and circulated among the members of the Corporation of Calcutta, agenda No. 12 in respect of a meeting, being the 9th ordinary meeting, to be held on the 19th June, 1959. The said agenda included a notice of a proposed resolution to be moved by a councillor, Sri Biman Behari Mitra, being item No. 15. A copy of the proposed resolution has been annexed to the petition and marked with the letter 'A'. A translation of the said resolution is set out below:
'Every inhabitant of India is specially worried about the recent happenings in Kerala. It is highly regrettable that the Government of Kerala under the guise of public welfare has for the purposes of suppression of a peaceful mass movement, effected police firing on members of the public, as a result of which, 5 persons have been killed and 32 injured.
This meeting protests against the policy pursued by the Government in Kerala which is undemocratic, reactionary and is against the public 'interest, and requests the Government in Kerala to tender resignation and face a General Election.'
2. The said motion was not reached at the 9th ordinary meeting of the Corporation held on the 19th June, 1959 and was adjourned till the 26th June, 1959. The Secretary to the Corporation thereafter issued and circulated to the members an additional item of business, being item No. 29, to be taken up on the adjourned day, being a proposed resolution to be moved by Dr. K. P. Ghose and Sri B. L. Ghose, a copy whereof is included in annexure 'A' to the petition. A translation of it is set out below:
'The efficient way in which the elected Government in Kerala is carrying on the administration of the State within the frame-work of the Indian Constitution and the principles of democracy, is worthy of praiseworthy citation--particularly its progressive policy regarding agriculture, educational reforms and labour welfare.
This Corporation condemns the undemocratic and malicious- attempt to overthrow the Government of Kerala lawfully elected by the people, which is contrary to the traditions of the country.
The Corporation approves of the democratic steps and peaceful attempts taken by the Government of Kerala and calls upon the peace-loving and democratic citizens of India to uphold the dignity of the Constitution.'
3. These two motions were not reached at the adjourned meeting held on the 26th June, 1959 and the consideration thereof was adjourned till the adjourned meeting of the 29th June, 1959. On the 29th June, 1959 at the adjourned meeting of the Corporation Sri Biman Behari Mitra moved the motion referred to above which was seconded by Sri Panna Lal Das and Sri Satyananda Bhattacharjee. An amendment was moved by Sri Naren Sen, which was seconded by Sri Nil Ratan Sinha, and the same was accepted by Sri Biman Behari Mitra. Another amendment was moved by Sri Subrata Sen Sarma which was seconded by Sri Sachin Sen. These amendments have been set out in Schedule 'A' to the affidavit-in-opposition filed by the respondent No. 4. The second motion mentioned above was moved by Dr. K. P. Ghose and was seconded by Sri B. L. Ghose. On the 29th June, 1959 there was a long discussion, which was inconclusive and the meeting was adjourned to the 4th July, 1959. I shall have to deal with certain aspects of the discussion held on that day, particularly the decision of the Mayor on the point as to whether the subject matter of the motions were appropriate under the provisions of the Calcutta Municipal Act, 1951 (hereinafter referred to as the 'Act'). The relevant extracts from the proceedings of that day have been included in the Schedule 'A' annexed to the affidavit of the respondent No. 4. It will be sufficient here to say that at that meeting an objection was taken to the effect that it was an ordinary meeting, and under Rule 17 (d) of the 'Rules of Business' framed by the Corporation, under powers conferred by the Act, none of the resolutions mentioned above could be considered at such a meeting. That Rule is in the following terms:
'No motion which in the opinion of the Mayor or in his absence the Deputy Mayor does not relate to the ordinary work of the Corporation shall be considered at an ordinary meeting of the Corporation. Such motions shall be considered at meetings to be specially called for the purpose by the Mayor or in his absence the Deputy Mayor.'
Before me it is admitted that the meeting at which the deliberations took place was an ordinary meet-Ing of the Corporation. Under sub-s. (1) of Section 88 of the said Act, it has been provided that the Corporation shall meet not less than once a month for the transaction of business. This is an ordinary meeting and under Rule 1 of the Rules of Business it is ordinarily to meet once every week in the afternoon of Wednesday, except under the circumstances mentioned therein. Sub-section (2) of Section 88 lays down that the Mayor, or in his absence the Deputy Mayor, may, whenever he thinks fit, or upon a requisition made by any 20 councillors or aldermen, call a meeting of the Corporation. Rule 7 of the Rules of Business deals with a special meeting called by the Mayor or in his absence the Deputy Mayor, and Rule 8 deals with a requisition meeting. In other words, an ordinary meeting is a meeting which is called in the normal course and where ordinary business is transacted. A special meeting is a meeting specially called to discuss and deal with a special matter. The rule is that in an ordinary meeting only such matters may be considered as relate to the ordinary work of the Corporation. If any special matter is to be considered, then a special meeting has to be called and at that special meeting no other matters can be discussed. In this particular case, no special meeting was called, but at an ordinary meeting it was sought to move the aforesaid resolutions. The question is whether this was permissible according to the Rules. I have set out above the provisions of Sub-rule (d) of Rule 17. In this case the meeting was presided over by the Mayor and therefore, the point is as to whether, in the opinion of the Mayor, these resolutions did or did not relate to the ordinary work of the Corporation. It will appear from the minutes themselves that the Mayor repeatedly held in course of the meeting that these resolutions did not relate to the ordinary work of the Corporation. This will be apparent from the following extracts from the minutes of the proceedings dated 29th June, 1959:
'The Mayor: I agree with you fully that this Corporation should not ordinarily take up matters outside the scope of civic duties entrusted to it by the Act. But having regard to the convention that you have made, for which we are all responsible. I have allowed this motion to be printed and discussed by the House. It is upto you to accept or reject it...........Rightly or wrongly, the motion has found a place on the agenda and I have just only followed what I have seen for nearly 20 years of my experience. I am the man who opposed and still oppose that political matters should not be discussed in this House. I am not the man to allow anybody to convert this ball into an arena to fight out political battles..... Mr. Maitra, by putting it on the Agenda I have simply followed the convention. I have allowed you to do things as you like..........I still hold that the Corporation should not convert this hall into an arena to fight out political battles, because I think that that is detrimental to the interests of the rate-payers. That is my personal view, and I am not afraid to express it before anybody.'
4. It is quite clear to me that in the opinion of the Mayor the motion did not relate to the ordinary work of the Corporation. He allowed it on the ground that although it did not relate to the ordinary work of the Corporation, such matters were considered by the Corporation in its ordinary meetings 'by convention'. The question is as to whether Sub-rule (d) of Rule 17 leaves any scope for introducing matters into ordinary meetings of the Corporation, which did not relate to the ordinary work of the Corporation, simply because such violation of Rules had taken place for a large number of years. In my opinion the answer must be in the negative. Since the rules are statutory rules, they cannot be violated on the ground of 'convention'. Coming back now to the enumeration of facts, I find that on the 1st July, 1959 the petitioner No. 1, through his solicitor, Messrs. Ganguli Sinha and Co. served a demand for justice upon the respondents, a copy whereof is annexed to the petition and included in Annexure 'A'. It was pointed out that the motions tabled as aforesaid, were outside the scope and jurisdiction of the Corporation of Calcutta, and that the consideration of the motions at an ordinary meeting of the Corporation was not in accordance with law and beyond the scope of the statutory duties of the Corporation, which has no power or authority to consider such matters. The petitioner called upon the Corporation to refrain from considering or passing any resolution in respect of the said motions. This rule was issued on the 2nd July, 1959 calling upon the respondent to show cause why a writ in the nature of mandamus, certiorari and prohibition should not be issued upon it to refrain from placing in any agenda or item of business relating to the affairs in Kerala in terms of the motion in annexure 'A' to the said petition, at any meeting or meetings of the Corporation to be held on 4th day of July, 1959 or on any other day, and for other reliefs. There was a limited interim order granted, but upon being served with the Rule, the Corporation, in deference to the Court, had adjourned the consideration of the motion pending disposal of this application.
5. Perhaps, as a result of the recent political developments in Kerala, the necessity for moving the motion no longer exists. But, it is a matter which involves principles that ought to be clarified. Jt is for this reason that the matter has been fully argued before me and the parties have called upon me to give an authoritative decision to serve as a guide on future occasions. I shall first of all deal with the merits of the case, and concern myself with the preliminary objections taken on behalf of the respondent, at the end of my judgment, rather than at the beginning. I will however indicate here, the preliminary objections that have been advanced. The first objection taken is that the petitioner No. 1 is merely a rate-payer and therefore, was not competent to take an objection regarding the deliberations of the Corporation, on any particular date. In other words, it is urged that although, as a member of the public he was allowed to observe or view the said deliberations from the public galleries, he was not permitted to sit in the House or take part in its deliberations, and consequently, he has no locus standi to object to any motion tabled by councillors, either in form or in substance. With regard to the petitioner No. 2, who is a councillor of the Corporation, two objections have been taken. The first is that he has not served a demand for justice upon the respondents before making the application and therefore, a writ in the nature of mandamus should not issue. The second point taken is that the said petitioner did not take any objection on the floor of the Corporation at any or the meetings as aforesaid, and had in fact, at previous meetings, himself introduced into his speeches, matters entirely foreign to the ordinary business of the Corporation. In short, it is alleged that the petitioner No. 2 is estopped from raising any objections or making (this application. As I have stated, I shall deal with these preliminary objections after I have dealt with the matter on its merits.
6. The Corporation of Calcutta is a statutory Corporation which has been brought into existence by statutes passed for that purpose. These statutes have been from time to time consolidated, repealed and/or amended. At the relevant time, the Corporation of Calcutta must be taken to be constituted under the Calcutta Municipal Act, 1951 (being West Bengal Act XXXIII of 1951). It is fortunate that counsel for both the parties have admitted before me that the legal position with regard to statutory corporations has been accurately summarised in paragraph 129, Vol. 9 of Halsbury's Laws of England, 3rd Edition page 62. The relevant portion thereof is as follows:
'The powers of a corporation created by statute are limited and circumscribed by the statutes which regulate it, and extend no further than is expressly stated therein, or is necessarily and properly required for carrying into effect the purposes of iis incorporation, or may be fairly regarded as incidental to, or consequential upon, those things which the legislature has authorised. What the statute does not expressly or impliedly authorise is to be taken to be prohibited.'
According to Mr. Dutta, appearing on behalf of the respondent, he was not going to argue that this summary did not represent the accurate position in law. He however sought to justify the motion within the framework of the principles enunciated above. In order however to understand the summary of the law mentioned above, it would be necessary to discuss some of the leading cases on the subject. The leading case on the subject is Ashbury Railway Carriage and Iron Co. Ltd. v. Eiche, (1875) 7 HL 653. A company was incorporated under the English Joint Stock Companies Act, 1862. Its objects, as stated in the Memorandum of Association were these -- 'to make, and sell, or lend on hire, railway carriages and wagons, and all kinds of railway plant, fittings, machinery atid rolling-stock; to carry on the business of mechanical engineers and general contractors; to purchase, lease, work, and sell mines, minerals land and buildings; to purchase and sell, as merchants, timber, coal, metals or other materials, and to buy and sell any such materials on commission or as agents'. The directors agreed to purchase a concession for making a railway in a foreign country. It was held that this contract, being of a nature not included in the Memorandum of Association was ultra vires, not only of the directors but of the whole company so that even the subsequent assent of the whole body of shareholders would have no power to ratify it. The principle underlying this statement of law has been succinctly put by Lord Cairns in the following words:
'Now, my Lords, if that is so--if that is the condition upon which the corporation is established --if that is the purpose for which the corporation is established--it is a mode of incorporation which contains in it both that which is affirmative and that which is negative. It states affirmatively the ambit and extent of vitality and power which by law are given to the corporation, and it states, if it is necessary so to state, negatively, that nothing shall be done beyond that ambit, and that no attempt shall be made to use the corporate life for any other purpose than that which is so specified.'
7. The next case to be considered is a decision of the Court of Appeal, Queen v. Charles Reed, (1880) 5 QBD 483. The question in that case was whether a School Board had power, when the school fund proved insufficient, to contract a temporary loan for the purpose of meeting their current expenses, until they could obtain money out of the rates. The school board was constituted under Acts 33 and 34 Vict. C. 75, Sections 53 to 58. That Act directed how the expenses of the school board were to be provided for. There was no power provided for in the statute for taking such a loan. Cotton L. J. said as follows:
''It was conceded that there was no express power in the Act to raise the money borrowed in the present case. But it was said that every corporation, unless restricted by its act of incorporation, has the same power as an individual to enter into contracts, including that of borrowing money. In our opinion this contention on behalf of the school board cannot be maintained. In our opinion, the power of a corporation established for certain specified purposes must depend on what those purposes are, and except so far as it has express powers given to it, it will have such powers only as are necessary for the purpose of enabling it in a reasonable and proper way to discharge the duties or fulfil the purposes for which it was constituted.'
8. It was held that the school board had no such power. The next case cited is Tinkler v. Wansworth District Board of Works, (1858) 2 De G. N. and J. 261. A District Board of Works acting under the Metropolis Local Management Act made an order on the plaintiff to turn into water-closets certain privies and upon his failure to do so, proceeded to enter upon the premises for the purpose of doing it themselves. It was held that the Board was exceeding its statutory powers and ought to be restrained. Knight Bruce L. J. said as follows:
'I observe that Mr. Corsellis, in one of his affidavits speaks of carrying out the spirit of the Act. It may be as well therefore, to caution this defendant, that, entrusted as they are by this Act with very extensive power, it is their bounden duty to keep strictly within those powers and not to be guided by any fancied view of the spirit of the Act which confers them.'
9. The next case to be considered is Baroness Wenlock v. River Dee Co., (1885) 10 AC 354 at 362. This is a judgment of the House of Lords, which discussed the powers of a statutory corporation. Lord Watson said as follows:
'But I cannot assent to the doctrine which was contended for by Mr. Rigby. Whenever a corporation is created by an Act of Parliament, with reference to the purposes of the Act, ana solely with a view to carry on these purposes into execution, T am of opinion, not only that the objects which the Corporation may legitimately pursue must be ascertained from the Act itself, but that the powers which the corporation may lawfully use in furtherance of these objects must either be expressly conferred or derived by reasonable implication from its provisions.'
In the next case, Attorney-General v. Manchester Corporation, (1906) 1 Ch 643 an action was brought by the Attorney-General, on the relation of a firm of Manchester rate-payers, who carried on a large business as carriers in Manchester. The Manchester Corporation was a statutory corporation and had power to use all tramways belonging to or leased by, the corporation, for the purpose of carriage of goods. The question was whether it could carry on a general parcel-delivery business except as part of, or in connection with, the said tramways undertaking. Farwell J. said as follows:
'If however, the corporation by charter be (as are the defendants) a municipal corporation, then they are subject to the restrictions imposed by the Municipal Corporation Act, 1882, and will be restrained from applying their borough funds to purposes not authorised by that Act. If the defendants in this case had no statutory powers, it is plain that they could not apply their borough fund either for the purposes of the tramways or of the business of general delivery agents or common carriers.'
The learned Judge held upon an examination of the statute of its incorporation that the Manchester Corporation had not the power to act as common carriers, beyond carrying the goods on its tramways. Two points are of interest in this decision. The first is that the relator was a rate-payer. It was held that the proposed business which the Corporation was intending to carry on must entail expenses and the court will interfere to prevent the illegal expenditure of borough funds on such a venture at the instance of a rate-payer. Although no evidence had been given of the amount of the expenditure, it was held that the plaintiff was entitled to an account of all sums so expended. Secondly, it was the case of a 'municipal corporation' exceeding its statutory powers. Talking about a statutory corporation, Denning L. J. said in Tamlin v. Hannaford, (1950) 1 KB 18 at page 22, as follows:
''The Transport Act, 1947, brings into being the British Transport Commission, which is a statutory corporation of a kind comparatively new to English Law. It has many of the qualities which belong to corporation of other kinds to which we have been accustomed. It has for instance defined powers which it cannot exceed; and it is directed by a group of men whose duty it is to see that those powers are properly used. It may own property, carry on business, borrow and lend money, just as any other corporation may do, so long as it keeps within bounds which Parliament has set.'
10. Maxwell, in his 'Interpretation of Statutes' 9th Edition, 357 states as follows:
'An Act which simply creates a corporation, impliedly gives it the general legal attributes of one.....but speaking generally its powers are only those which are expressly conferred or which, by necessary implication are included in the express powers.'
11. I have cited the leading cases on the subject and the summary of the law as set out in Halsbury's Laws o England. It remains now to consider the provisions of the Calcutta Municipal Act, 1951. The Calcutta Municipal Act, 1951 (being West Bengal Act XXXXIII of 1951) is an Act to amend and consolidate the law relating to municipal affairs in Calcutta. It has repealed the Act of 1923, which in its turn repealed certain earlier Acts. For our purpose, the Calcutta Municipal Act, 1951 (hereinafter referred to as the 'Act') is the Act of incorporation of the Corporation of Calcutta. It follows, therefore, that its powers are strictly limited to that which is con-ferred by the Act, and which may be found within its four corners. Under Section 6 of the Act, the municipal authoritiets charged with the carrying out of the provisions of this Act are-- (a) the Corporation, (b) the Standing Committees, and (c) the Commissioner. In this case we are concerned with the first-named authority, in whom is vested the Municipal Government of Calcutta, subject to the provisions of the Act and the Rules, bye-laws and regulations made thereunder (Section 24). Under Section 41, any councillor or alderman may call the attention of the Commissioner to any neglect in the execution of municipal work, or to any waste of municipal property. Under Section 91, all matters required to be decided by the Corporation shall, save as in the Act otherwise provided, be determined by a majority o the councillors and aldermen voting at the meeting before which the matter is brought. Under Section 97, the Corporation may make rules for the conduct of business at its meetings. As I have stated above, such rules have been made. Section 14, which is in that part of the Act which deals with the 'Constitution and Government of the Corporation' deals with the constitution of the Standing Committees. It has been laid down that the Corporation shall at its first meeting after a general election, or as soon as may be at any meeting subsequent thereto, constitute the Standing Committee for dealing respectively with certain matters, one of which is 'Education'. I then come to Section 124 which is strongly relied upon by the respondents. It runs as follows:
'The corporation shall spend annually a sum of not less than five lakhs of rupees for the purpose of promoting primary education among boys and girls residing in Calcutta and whose age does not exceed twelve years.
Explanation--For the purpose of this section, primary education includes kindergarten, nursery training and such other primary stages of education as may from time to time be approved by the Corporation on the recommendation of the Standing Education Committee dealing with Education.'
12. Chapter XXXIII of the said Act deals with the 'special powers of the Corporation'. 'Section 526 lays down that in addition to the other powers, duties and functions, conferred or 'imposed on it by or under the Act, or any other Act for the time being in force, the Corporation may, in its discretion, provide from time to time, either wholly or partly, for all or any of certain matters enumerated therein. The particular matters to which my attention has been drawn are to be found in Subsection (vii) which deals with the payment of contributions to the cost of industrial schools; Sub-section (xiii) which deals with the promotion of technical and industrial education; Sub-section (xiv) which empowers the giving of assistance to schools in which persons employed on manual labour above the age specified in Section 124, receive primary education, and to tols, madrassahs and maktabs; Subsection (xv) which empowers it to provide free libraries; Sub-section (xvi) which enables it to make payment of, or the payment of a contribution to, the cost incurred on the occasion of any public Ceremony or entertainment or any exhibition for the purpose of instruction or education, held in Calcutta; Sub-section (xviii) which enables it to make the presentation of addresses to persons of distinction. Under Sub-section (xxi) it can undertake any other matter likely to promote public health, safety or convenience of persons resident in Calcutta, upon a declaration made by the State Government in that behalf. No such contingency has arisen in this case and no declaration has been made in that behalf.
13. These being the relevant provisions of the Act, the question is whether it is possible to find within the limits of such provisions a power to discuss and pass a resolution upon a matter such as has been tabled by way of a motion in the present case. Naturally, before deciding the question it will have to be considered as to what is the nature and subject matter of the resolution which is sought to be passed. It is not denied, and in my opinion, it would be idle to deny, that it is wholly confined to a political issue, entirely unrelated to the municipal affairs of the City of Calcutta. The first motion charges the Government of Kerala of suppressing a peaceful mass-movement under the guise of public welfare. It condemns the police-firing on members of the public and calls upon the Government of Kerala to tender its resignation and face a general election. The Government of Kerala is not a municipal body. The mass-movement referred to in the motion has nothing to do with the municipal affairs of Kerala or any town or principality situate therein. The action of the Government of Kerala, or the police-firing, has nothing to do with municipal affairs. The subject matter of the first motion relates to a political body, namely the Government of Kerala constituted by law, and its actions in relation to a mass-movement, which is again a political movement, the object of which is to achieve a change in the Government o the State. The counter-motion deals with the other side of the picture. It offers praise for the Government of Kerala, and declares its ways to be efficient, and its policy progressive. It seeks to condemn the action of certain members of the public in attempting to overthrow the Government of Kerala lawfully elected by the people, and calls upon them to uphold the dignity of the Constitution. It will be found, therefore, that neither of these motions, in their language, subject-matter, texture or tenor contains the faintest allusion to any matter municipal. In short, the entire attempt is to discuss and pass a resolution upon a matter which is purely political, and in relation to which the Corporation of Calcutta, as such, has not the least concern, and which has no relation to any of its own activities.
14. Perhaps, in full realisation of this, a frantic attempt has been made in the affidavit-in-opposition filed on behalf of the Corporation, to bring the matter within the ambit and scope of the said Act, which is the statute of its incorporation. It is firstly said that the councillors have a fundamental right of freedom of speech and expression under the Constitution, and therefore, the councillors are entitled to consider and discuss anything that may be brought before them. It is even said that the 'Rules of Business', in so far as it may be said to exclude such operation, are ultra vires and as such void and inoperative. It is next said that councillors have a statutory right to discuss all matters relating to the municipal government of Calcutta, and all matters relating to the 'education' of the rate-payers and citizens of Calcutta. 'The consideration and discussion of the said motions' it is said, 'and the passing of any resolution with regard to the same, will have an impact on the minds of the rate-payers and the citizens of Calcutta, and will have an influence on their instruction and education'. Having made these general observations, the deponent chooses to be a little more specific. It is stated that under the said Act, the Corporation is entitled to set up a Standing Committee for dealing with education and could spend a sum of not less than five lakhs of rupees for the purpose of promoting primary education amongst boys and gins residing in Calcutta. Reference is also made to the powers granted to the Corporation to promote technical and industrial education and other matters referred to in Section 526 of the said Act. Lastly, the argument is advanced that the Corporation of Calcutta and the councillors thereof, have always in the past debated subjects involving international affairs, the policy of the Government of India, the operation of democracy in India and such other matters, which, it is claimed, have influenced the education of the citizens of Calcutta and moulded their character. This solicitude displayed by the Secretary to the Corporation regarding the education of the rate-payers of Calcutta is most touching. I must admit that the picture drawn, of the city-fathers solemnly deliberating over affairs of State, and through such deliberations helping to educate the ignorant rate-payers of Calcutta and adding to their knowledge and culture, is most fascinating. It is even said that the results of such deliberations can be exhibited in the free libraries, which will help to educate the citizens of Calcutta. Again, tbe picture of the ignorant citizen of Calcutta avidly pouring over the records of the meetings of the Corporation, for the purpose of increasing his meagre store of knowledge, is one, which is certainly attractive. I have before me. however, an extract from the proceedings of the Corporation relating to the eventful day when the deliberations commenced. There are before me 13 pages of it. Having perused it, I am constrained to say, that its educative value and its potentiality for spreading knowledge and culture amongst the citizens of Calcutta, seems to me to be absolutely nil. It contains strong words of abuse and vituperation. Taken as a faithful record of men fighting one another tooth and claw, it may be of passing interest to a certain class of people with sporting instincts. It contains invectives like 'fratricide', 'homicide' and barbarian'. It contains the unedifying spectacle of one city-father calling another 'worthless and without shame'. As I shall presently show, the only liability of the Corporation, or its power, if we look at it from that point of view, is to make some financial provision for the purpose of promoting primary education among boys and girls residing in Calcutta, whose ages do not exceed 12 years. I must say that if these deliberations are intended for the education of the young, then for them it is strong meat. Even for those who have attained years of discretion, assuming that it was any part of the duties of the Corporation to undertake their education, I honestly think that these deliberations have only one educative value, namely, to teach people what education should never consist of.
15. In my opinion, however, this special plea of the deliberations being of an educative value, and intended for the enlightenment of the citizen, has been advanced only to meet an emergent situation, which never occurred to those who partook in the deliberations. I am certain that nobody would be more astonished than the city fathers themselves to hear that the records of their deliberations were intended to illumine the tender minds of the young. It is quite clear how this argument came to be advanced, and Mr. Dutt appearing on behalf of the respondents made no secret of it. Having accepted the position that the extract given above from Halsbury's Laws of England (Supra) rightly laid down the law on the subject, he was faced with the problem that in order to succeed he must show that the deliberations of the Corporation of Calcutta, the motions tabled, and the resolutions that were sought to be passed, had some connection with the municipal affairs of Calcutta. The only argument, therefore, which he could possibly advance, was on the lines of a recent Bombay High Court decision, Bombay Municipal Corporation v. Ramchandra Laxman Belosay, Bombay, (unreported judgment of the High Court of Bombay in Appeal No. 67 of 1958. D/-3-4-1959; (since reported in AIR 1960 Bom 58. The facts of that case were as follows: A councillor of the Bombay Municipal Corporation moved a motion at a meeting of the said Corporation held on the 10th July, 1958. It related to the execution of Mr. Imre Nagy, a former Prime Minister of Hungary and his three associates. The proposed resolution went on to say that the Municipal Corporation of greater Bombay had learnt with deep regret about the said execution and expressed their horror at the execution, under peculiar conditions of those fighters for freedom of their motherland, who, by displaying great courage and steadfastness, even at the cost of their lives, in the cause of their country's freedom, have upheld the dignity of man and rendered great service to the highest value of life, viz., 'Freedom'. The Mayor was requested to forward the resolution through the State Government to the Union Government with a request to communicate the same to the Government of Hungary, through the proper channel. A point of order was raised, to the effect that the Corporation had no power to discuss the resolution as it was of a political nature, and related to International affairs and had nothing to do with civil duty, which, it was said, must necessarily relate to the life and welfare of the citizens of Bombay. The Mayor ruled that the resolution was in order, but the meeting of the Corporation was adjourned. A councillor of the Corporation thereupon filed a petition in which he contended that the action of the Corporation in discussing and passing the above resolution would be ultra 'vires the powers of the Corporation. He therefore prayed for the issue of a writ of mandamus or prohibition restraining the Corporation from discussing or endorsing the said resolution. The petition was opposed by the appellant who contended that the Corporation had the right and power to discuss and pass the said resolution, under Clause (k) of Section 36, and Clause (k) of Section 63 of the Bombay Municipal Corporation Act. This contention was not accepted oy Mr. Justice K. T. Desai. He came to the conclusion that the resolution proposed was beyond the ambit and power of the Corporation, and issued a writ of mandamus restraining the Corporation from discussing the said resolution or passing the same. Against this order, there was an appeal to a Division Bench of the Bombay High Court, presided over by Chainani C. J. The learned Chief Justice pointed out that Section 61 of the Bombay Municipal Corporation Act gave a list of the obligatory duties of the Corporation, for which it was incumbent on the Corporation to make adequate provisions by any means or measure, which it was lawfully competent to have, to use, or to take. One of these duties referred to in Clause (q) of that section was to maintain, aid, and suitably accommodate, schools for primary education. Section 63 of the said Act specifies what have been described as discretionary duties of the Corporation. That section runs as follows: 'The Corporation may, in their discretion, provide from time to time, either wholly or partly, for all or any of the following matters, namely:
X X X X(b) the furtherance of educational objects other than those mentioned in Clause (q) of Section 61: x x x
(k) any measure, not hereinbefore specifically named, likely to promote public safety, health, convenience or instruction,'
16. It was argued by the learned Solicitor-General, on behalf of the appellant, that two different phrases were used in the said Act, namely. 'the municipal government' and, 'the administration of the Act'. It was urged that the words, 'municipal government', for the carrying of which the Corporation had been created, were very wide and that the Corporation was therefore concerned, not only with the task of providing physical comforts, such as sanitation, light and water, but all such matters as affected the life and welfare of citizens residing in greater Bombay. He contended that by the resolution it was intended to place before the people of Greater Bombay, the example of a great fighter for freedom, and that by itself could be 'education' and 'instruction' within the meaning of Clauses (b) and (k) of Section 63 of the said Act. This argument was accepted and it was held that one of the recognised ways of educating the people, was to place before them, examples or persons who have achieved fame and distinction in life, and that such education may be imparted through public debates. It was further held that the authority competent to decide whether the resolution proposed to be moved was likely to impart 'public instruction', was firstly the Mayor who had to determine whether the resolution was in order, and thereafter the Corporation, which might pass or reject the resolution. It was held that the ultimate decision in the matter was entrusted by the legislature to the Corporation and the Corporation was therefore the oest judge of what was likely to promote public instruction. As no appeal was provided against such a decision, the Court should therefore not interfere, merely because it took a view different from that taken by the Corporation. The learned Chief Justice said as follows:
'If the question is arguable or if two views are possible, the Court will decline to exercise its powers, for it cannot then be definitely stated that the Corporation is transgressing the limits of its powers. The Court will interfere only when it is shown that the resolution, which the Corporation proposes to discuss or pass, cannot reasonably be said to be within the scope and ambit of the Act.
In this case it is at least arguable that the resolution and the debate on it are likely to educate or instruct the public to love their country and to be ready to fight for its freedom. The learned Judge has also observed in his judgment that the debate on the resolution may be educative. He however took the view that the resolution was outside the ambit of the Corporation's powers, as its object was political and not educational. With respect, it seems to me that the object or motive, which led the author of the resolution to propose it, is entirely immaterial. The Corporation consists of 131 councillors and different councillors may support the resolution for different reasons. What one is really concerned with is the effect of the resolution, whether it is or is not likely to promote public instruction. If it cannot even reasonably be said that the resolution might promote public instruction, it would be outside the scope of the Act. But, as I have already stated, I do not think I can say that the argument that the resolution is likely to promote public instruction, is without substance. Consequently, the resolution cannot be said to be beyond the scope and ambit of the Act, or one which the Corporation cannot discuss. The order passed by Mr. Justice Desai cannot therefore be upheld.'
17. S. T. Desai J., agreed that the appeal should succeed but he founded his judgment on the meaning of the expression 'likely to promote public instruction' in Section 63(k) of the Bombay Municipal Corporation Act. The learned Judge proceeded to state as follows:
'The contention pressed before us by learned counsel for the respondent was that powers of a statutory corporation cannot be merely a matter of inference and must be gathered from the provisions of the statute creating it and that the powers must bear a fair relation to municipal government. Then it was said that even in matters of discussion there must be a reasonable exercise of the same; it must not be arbitrary or capricious. I agree that such is the undoubted legal position......
With regard to the effect of a statute which gives powers to carry out some object or objects such for instance as municipal government which it is assumed will benefit the public at large. One of the most important rules indubitably is that the Municipality or Corporation must not exercise that power otherwise than for the purposes of the Act. It is its bounden duty to keep within those powers and not to be guided by any fanciful or capricious views of its own. The principle is sound and it is firmly established, as emerges from the decisions cited under the statement of the law in Halsbury's Laws of England to which I have already made reference.'
18. The learned Judge then discusses the meaning and range of public instruction' or 'education' of today, which he rightly considers to be as wide as the interests of mankind. Finally, he held that the imparting of knowledge or information pertaining to the cause of freedom or liberty by any appropriate method was likely to promote public instruction. The proposed resolution was therefore held to be in order. I cannot however resist the temptation of quoting an extract from the judgment of Desai J., relating to the validity of the discussions, and the scope thereof, particularly as it closely resembles my own view on the subject. The learned Judge said as follows:
'In the course of his arguments the learned Solicitor-General stated that it was also one of the appellant's contentions that the Corporation had the power to discuss anything and everything under the sun and that he did not abandon that contention. He also stated that in the present case it was not necessary for him to go as far as that. I do not, therefore, feel called upon to repel that contention since no argument has been urged before us in support of the claim for such unlimited and unbridled powers. On the other hand it was said on behalf of the respondents that to give a wide interpretation to Section 63(k), such as I am inclined to do, would permit the Corporation to discuss anything under the guise of public instruction and intermeddle in affairs of the State and matters of foreign relations of our country. I am unable to share this apprehension because the act said to be likely to promote public instruction can only be upheld if it is not outside the matrix of municipal government. I need not repeat what I have already said on this aspect of the matter. Of course, I do not intend to be understood to say that the Corporation can under the guise of public instruction discuss matters, such for instance, as affairs of the State or of the Union or the foreign policy of the Union Government. It cannot encroach upon matters of this nature nor matters affecting the political foundations of the country. True, the ambit of Section 63(k) permits of discussion about many matters under the head 'likely to promote public instruction'. Nemo constat there are many matters which would clearly lie outside the scope of that provision, on the ground that they do not bear a fair and reasonable relation to municipal government and the purposes of the Act.'
19. It will be seen that the Bombay decision turned on the provisions of the Bombay Municipal Act, particularly that of Section 63(k). It was held that the Bombay Municipal Corporation had the power to introduce any measure likely to promote public instruction', and that the particular resolution that was tabled could be considered as such a measure. Applying the tests laid down in the said judgment, it may at once be pointed out that the Calcutta Municipal Act, 1951 does not contain any parallel provision. I have already pointed out that the only powers that can be invoked for this purpose are contained in Section 124 and Section 526 of the Act. Coming to Section 124, which I have quoted above, it merely gives power to the Corporation to spend a certain sum annually for the purpose of promoting primary education among boys and girls residing in Calcutta, whose ages do not exceed 12 years. It reliance is put on this section, then indeed it would have to be shown that the resolutions in question come within the ambit of Section 124. Firstly, it will be seen that Section 124 merely empowers the Corporation to speed a certain sum of money for primary education. Assuming however that the power to incur this expenditure confers upon the Corporation the duty or power to promote primary education, then it would have to be shown that these resolutions could be said to contribute to that purpose. Even the petitioner's counsel has not attempted to argue that they do. Even in respect of the much wider powers that are contained in the Bombay Municipal Corporation Act, S. T. Desai, J. was constrained to hold that the Corporation could not under the guise of public instruction, discuss matters such for instance as affairs of State, or of the Union, nor matters affecting the political foundation of the country, since these are matters which clearly lie outside the scope of the powers conferred, and could not be said to bear a fair and reasonable relation to municipal affairs. It would be hopeless to argue that such matters could possibly be related to the cause of promoting primary education among boys and girls of less than 12 years of age. Coming now to the special powers enumerated in Section 526, the learned counsel on behalf of the petitioner was unable to show any particular provision which would cover the resolutions in question. All that could be pointed out is that the Corporation had special powers to promote technical and industrial education, and also to render assistance to schools in which persons employed on manual labour receive primary education. Again, it is almost self-evident that the resolutions in question had nothing to do with technical or industrial education. As I have already stated, they are not suited for primary education, and would be least suited for persons employed for performing manual labour. The result is that the Calcutta Municipal Act, 1951, as distinguished from the Bombay Municipal Corporation Act, contains no general heading of 'education' or 'public instruction', under which the impugned resolutions could find support. Realising this, Mr. Dutt referred me to the provisions of Section 14 of the Act. This Section speaks1 of the constitution of the Standing Committees It lays down that the Corporation should constitute Standing Committees for dealing with certain matters including 'education'. Mr. Dutt argues that this Section empowers the Corporation through its Standing Committees to impart 'education' to the citizens of Calcutta, and that this is in general terms. In my opinion, this argument is of no substance. Section 14 appears under Part II of the said Act which deals with 'constitution and government'. It merely lays down the constitution of the Corporation, the Standing Committees and the method of appointment of the Commissioner. Therefore, the word 'education' in Section 14 must be read in the context of the powers and duties enumerated in the body of the Act. The same argument was advanced in the case of London County Council v. Attorney General, (1902) AC 165. The question that arose there was whether the London County Council, incorporated under Section 79 of the Local Government Act, 1888 had the power to work omnibuses as incidental to a tramway business which it was empowered to carry on under the said Act. It was held that there was no such authority, because the one was not incidental to the other. Lord Macnaghten said as follows ;
'As regards the argument that the County Council have all the powers of a common law in corporation, that I think is disposed of at once if you turn to the Act of Parliament. The sentence on which the learned counsel for the appellant relied is contained in the first chapter of the Act which deals with the constitution of the Council. A separate chapter with a separate heading defines the powers of the County Council in that chapter. I can find nothing to warrant the contention of the appellant.'
20. In my opinion, Section 14 merely lays down the constitution of the Standing Committees and docs not deal with the powers, duties and functions of the Corporation, which are to be found in other parts of the Act. I might also point out that Section 124 appears in Part III which relates to 'Finance', and enables the Corporation to spend a certain sum on primary education. Mr. Dutt has admitted that beyond these provisions he was unable to place before the Court any other provision contained in the said Act, which empowers the Corporation to be in charge of public education or instruction. I think that I am now in a position to summarise the legal position, which may be enumerated as follows ;
1. The powers of a Corporation created by statute are based upon the statute of its incorporation.
2. The powers of such a Corporation must be found within the four corners of the Act of its incorporation.
3. Its powers extend no further than as expressly stated therein or as is necessarily and properly required for carrying into effect the purposes of its incorporation.
4. If such powers can be spelt out, either from its express terms, or by necessary intendment, then everything which may fairly be regarded as incidental to, or consequential thereupon, is within the permissible limits of the exercise of the power.
5. In considering what is incidental or consequential upon such powers, the Court must take a generous view and show liberality in upholding the exercise of such powers and would confine its interference to cases where the act complained of, clearly and manifestly transcends those powers.
6. Where two views are possible on the question as to whether a statutory Corporation was transgressing the limits of its powers, a writ of mandamus should not be issued.
7. Where however, the statute does not expressly or impliedly authorise a particular thing, it must be taken to have been prohibited. A statutory Corporation cannot go beyond the ambit and extent of the vitality and power, which by law are given to the Corporation. There must be no attempt made to use the corporate life of such an institution for any other purposes than what may be reasonably gathered from the statute of its incorporation.
8. Such a Corporation cannot, under the guise of the exercise of its powers, discuss matters, much less deal with or take any action in respect of, affairs of State, the foreign policy of the Government, or matters which affect the political foundation of the country.
21. In the present case, the problem that arises may be divided into two sections. The first is as to whether the proposed resolutions are such as come within the ambit and scope of the powers of the Corporation of Calcutta. The second is, as to whether, if they do not, the discussions relating to them could be permitted. Coming to the proposed resolutions which have been tabled, it is obvious that they represent the two sides of a question, namely the political events in Kerala. These events have not the remotest connection with the municipal affairs of any city or principality, either direct or indirect. I have already pointed out that in deciding this question, the Court must be liberal. It must not take a pedantic view. If any reasonable person can possibly take the view that the subject matter of the resolutions might relate to municipal affairs or be within the matrix of municipal affairs, then the Court should not interfere. In this particular case, however, nobody has argued that the subject matter of the resolutions relate to municipal affairs as commonly understood. An effort however, has been made to bring the matter within the mischief of the Bombay decision by arguing that the resolutions come within the heading, 'education', which is claimed to be within the powers and duties of the Corporation. As I have shown, the statute, so far as the Corporation of Calcutta is concerned, does not provide for a general power or duty, on the subject of 'education', but there is only a restricted power, namely the power to spend money on primary education of boys and girls under trie age of 12 years or over that age where it relates to persons engaged in manual labour. Therefore, if it is sought to bring the matter within this heading, it will have to be shown that the resolutions in question affect the education of boys and girls below 12 years of age, or the 'primary education' of persons employed for manual labour. Even the learned counsel for the petitioners has not attempted to argue that the resolutions come under this heading. Undiluted politics, and especially politics relating to a highly controversial matter, cannot be an appropriate subject matter for the education of the young. In fact, the education of the young urgently requires that they should be kept out of the contagion of such matters during their most impressionable years. It is therefore safe to conclude that the subject matters of the resolutions are beyond the competence of the Corporation of Calcutta. If that be so, it seems to me that it logically follows that a prolonged discussion, or indeed any discussion upon such matters, must be ruled out. It has been seriously put forward in the affidavit in opposition that this would affect the fundamental right of the petitioners, namely, their freedom of speech and expression guaranteed under the Constitution. This argument must at once be repelled. Freedom of speech and expression does not mean that a citizen is free to speak whatever he likes, whenever he likes and wherever he likes. Such freedom must necessarily have its restrictions and cannot be unlicensed. It must be subject to laws which have been promulgated to make it possible for men to live together in civilised societies. Neither the 'municipal government' of the city, nor the 'administration of the Act' requires that the Corporation, or its councillors, should discuss anything or everything under the sun. The deliberations of a municipal corporation must be directed towards the fulfilment of the purposes for which it has been created. It must therefore relate to matters which lie within the matrix of municipal affairs. It is easy to see that the line must be drawn somewhere. If the matters to be discussed by the councillors at the meetings of the Corporation have no restriction, there is no reason why they should not, for example, hold a seven-day symposium on philosophy, metaphysics or the fine Arts. However edifying such a spectacle might happen to be, the law clearly does not permit it. Every meeting of the councillors of the Corporation causes expense. It is not open to the councillors of a Corporation to waste public time and money upon things which are unauthorised and outside the scope of municipal affairs. If it is plain to the Court that the deliberations are directed to a goal which is beyond the scope and competency of the Corporation, it has the power to control and prohibit the same. In this connection, I should like to refer to a decision of the Sind High Court which has been cited -- Daily Gazette Press Ltd. v. Karachi Municipality, AIR 1930 Sind 287, where Bilaram A J. C. observed as follows:
'There is no doubt in my mind that thei main object for which powers of local self-government are transferred to Municipal Corporations under this Act is that the City fathers should look after the health of the City and the comfort and well-being of its residents. But I am not prepared to hold that for the attainment of public objects it may not in certain instances be necessary or in any case bo not proper for them to discuss political subjects or that the discussion on such subjects is ultra vires.'
22. With respect, I am unable to agree with these observations. If the learned Chief Justice meant by the expression 'attainment of public objects', such objects as were within the matrix of municipal affairs or within the four corners of the statute of its incorporation, then I would have no objection. But if he meant the attainment of any or every public object, whether it be of such a nature or not, I am unable to agree. The meeting-hall of the Corporation, where the city fathers gather in solemn conclave to conduct the municipal affairs of the city, cannot be considered as a political forum where political speeches can be delivered, or where everything under the sun can be discussed. Universality is seldom one of the attributes of a statutotry Corporation, which enjoins definitiveness. For political discussion which do not relate to the affairs of the Corporation, there are other venues. Apart from other institutions, there is our Parliament and the State Legislatures, where the accredited representatives of the people meet together to conduct the government of the country. That is the legitimate place for discussions on affairs of State, foreign policy and the political foundations of the country. There is no reason, nor is it constitutional, for municipal bodies to trespass into these spheres. It would contribute greatly to the proper administration of our affairs as a nation, if everyone did his own duty and did not waste public time and money in seeking to do that which does not concern him.
23. I shall now deal with the preliminary objections that have been raised in this application. The first preliminary objection is that the petitioner No. 1, who is a rate-payer and a member of the public, has not the right to ask for the issue of a writ to control the deliberations of the Corporation, in which he cannot take part, although as a member of the public he can be present in the public galleries. Reliance has been placed upon the case of Jatindra Mohan Sen Gupta v. H. E. A. Cotton : AIR1925Cal48 . In that case, Mr. Sen Gupta a member of the Bengal Legislative Council, moved this High Court for an order under Section 45 of the Specific Relief Act, directing Mr. Cotton, President of the Council, to disallow a motion relating to the grant of the salaries of ministers, which on a previous occasion, had been disallowed by the Council. The applicant stated that he paid Government revenue and the money paid by him constituted a part of the fund out of which the salaries of the ministers were to be paid, and therefore, he was a person interested in seeing, that the fund was properly expended. According. to Ghosh, J. the applicant paid Government revenue along with thousands of other people, and therefore, that fact by itself did not entitle him to maintain the petition, which was accordingly rejected. Almost immediately thereafter, a suit was brought by Kumud Sanker Roy, J. M. Sengupta and ors., suing in a representative capacity. In K. Shankar Roy v. H. E.A. Cotton : AIR1925Cal373 , Ghose, J. held that the plaintiffs had sufficient interest to maintain the suit and Mr. Cotton was restrained from allowing the motion to be moved. These two decisions, were considered by a Division Bench of the Bombay High Court in The Municipal Corporation for the City of Bombay v. Govind Laxman Savant, AIR 1949 Bom. 229. In that case, a rate-payer of the Bombay Municipal Corporation made an application for restraining the Bombay Municipal Corporation from concluding and executing a contract with the Hindusthan Construction Co. Ltd., which according to the applicant was in violation of the provisions of the said Act. The objection was taken, namely, that a rate-payer was not entitled to maintain such an application. The learned Judges dissented from the Calcutta view & held that a rate-payer had sufficient interest to maintain such an application. Chagla, CJ. pointed out the inconsistency between the two judgments cited above, of Ghosh. J. which cannot be reconciled. The learned Chief Justice pointed out that a rate-payer's interest in such matters may be small, but it was none-the-less real. Reference was made to Vaman v. Municipality of Sholapur, I.L.R. 22 Bom. 646. where Tyabji, J. summed up the position as follows:
'These authorities seem to me to show very clearly, first that the plaintiffs can sue in their individual capacity if they are sufficiently interested in the municipal fund, and secondly, that any interest however small is sufficient to entitle them to do so.'
It was held that a rate-payer is not a mere stranger, and he can be said to be directly interested in the proper application of the municipal fund, and as such, was entitled to question the misapplication of it. With great respect to Ghose, J. I am inclined to agree with the Bombay decisions. The only question in this case is as to whether the proceedings before the Corporation, which are impugned in this case, have anything to do with the municipal fund. There is undoubtedly a connection. Under Section 115 of the Act, there is only one municipal fund held by the Corporation, in trust' for the purposes of the Act, to which all moneys realised or realisable under the Act are credited. Under Section 117, all moneys paid out must be paid out of this fund. The meetings of the Corporation must necessarily cost money in establishment expenses, the cost of printing, the cost of correspondence and in various other ways. Apart from this direct expenditure, the waste of time involved necessarily causes financial loss to the Corporation indirectly. Urgent financial matters which are thus put off must necessarily cause loss to the Corporation, and inconvenience to the rate-payers. White urgent matters relating to their welfare are held up, the time of the Corporation is wasted in futile discussions which lead nowhere, because the Corporation has no political objective and cannot accomplish anything in that sphere. Apart from the expenditure of money, a rate-payer who pays rates and taxes, is entitled to demand that the Corporation should render prompt service in return of such payment. In so far as the Corporation expends its time in pursuits not within its competence, it postpones the consideration by the councillors, of problems that concern the rate-payer, and the efficiency of the services rendered y the Corporation suffer in consequence. In such a case, the rate-payer has a right to complain. Since it is a statutory Corporation, it is as if a track has been laid by the statute of its incorporation, and the vehicle of the Corporation must travel along the track. When it goes off the rails those who are entitled to use the vehicle, and those who contribute for its upkeep, are entitled to go to Court and demand that the vehicle be put on the rails again. In such matters of public importance, the Court should not be too technical, but should readily interfere, although, as I have stated above, as long as the statutory Corporation keeps within the bounds of its own jurisdiction and minds its own business, it must be treated as master of its own house. This preliminary objection is overruled.
24. The next preliminary objection taken is that the petitioner No. 2, who is certainly a councillor of the Corporation, did not submit a demand for justice before making this application. That he did not do so is admitted. It is however argued that under the facts and circumstances of this case, it would have been useless for the petitioner No. 2 to send in a demand for justice. In spite of several objections made on the floor of the House, the motions tabled were allowed to be tabled, and discussions were allowed on the motions although the meeting was an ordinary meeting of t