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Moulvi Lutfar Rahaman and anr. Vs. Moulvi Waliur Rahaman and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1943Cal59
AppellantMoulvi Lutfar Rahaman and anr.
RespondentMoulvi Waliur Rahaman and ors.
Cases ReferredVijaya Ragava v. Secy. Of State
Excerpt:
- .....appellants and respondents 2 to 29 for a declaration that his removal from the chairmanship of the district board of jessore by respondent 29 (the province of bengal) under the last part of section 28, local self-government act, was illegal and inoperative and for permanent injunction restraining the appellants and respondents 2 to 29 from interfering h with the works of respondent 1 as chairman of the district board. the material portion of section 28 is this:the provincial government may remove any chairman of the district board on the application of the board if he persistently neglects his duty as chairman.2. the case of the plaintiff respondent is that his removal from the chairmanship of the district board was illegal and inoperative inasmuch as there was no valid application by.....
Judgment:

Nasim Ali, J.

1. This appeal arises out of a suit instituted by respondent 1 against the appellants and respondents 2 to 29 for a declaration that his removal from the Chairmanship of the District Board of Jessore by respondent 29 (the Province of Bengal) under the last part of Section 28, Local Self-Government Act, was illegal and inoperative and for permanent injunction restraining the appellants and respondents 2 to 29 from interfering h with the works of respondent 1 as Chairman of the District Board. The material portion of Section 28 is this:

The Provincial Government may remove any Chairman of the District Board on the application of the Board if he persistently neglects his duty as Chairman.

2. The case of the plaintiff respondent is that his removal from the Chairmanship of the District Board was illegal and inoperative inasmuch as there was no valid application by the District Board to the Provincial Government and that he did not persistently neglect his duty as Chairman. The trial Court found that there was a valid application of the Board before the Provincial Government and that the plaintiff respondent persistently neglected his duty as Chairman. He accordingly dismissed the suit. The plaintiff respondent appealed to the lower appellate. Court. The Subordinate Judge who heard the appeal has come to a different conclusion. His findings are that there was no valid application of the Board before the Provincial Government and that there was no neglect of duty on the part of the plaintiff respondent as Chairman of the District Board. He accordingly decreed the suit. Hence this second appeal by the District Board of Jessore and a member of the said Board. The contention on behalf of the appellants is that the lower appellate Court was wrong in holding that there was no valid application of the District Board lief ore the Provincial Government.

3. The facts bearing on this point are these: Thirty members constitute the District Board of Jessore. On 17th December 1937, plaintiff respondent was elected Chairman of this Board. On 26th April 1939, 15 members of the Board sent a requisition under Section 30 (b), Local Self Government Act, for a special meeting for the removal of the plaintiff respondent from the office of the Chairman. Between 28th April 1939 and 18th May 1939, : seven out of the 15 requisitionists withdrew from the requisition. Plaintiff respondent did not call a special meeting within the prescribed period. Thereupon, 15 members who sent the requisition on 26th April 1939, called a special meeting for 30th June 1939. On 29th June 1939, the Munsif of Jhenada issued a temporary injunction restraining the members of the Board from attending the special meeting at the instance of one of the members of the Board. On 30th June 1939, the District Judge of Jessore vacated this order in appeal ex parte without issuing any notice on the respondent in the said appeal. On the d same day the special meeting was held. Plaintiff-respondent presided over this meeting. He, however, dissolved the meeting on the ground that there was no valid requisition under Section 30 (b) as seven out of 15 requisitionists withdrew from the requisition. After the dissolution of the special meeting by the plaintiff-respondent, 22 members of the Board held another meeting and passed a resolution asking the Provincial Government for removal of the plaintiff from chairmanship on the ground that he persistently neglected his duties as chairman of the District Board.

4. The lower appellate Court has found that the withdrawal of the requisition by six out of the seven requisitionists was genuine and bona fide and was intended to be acted upon, As regards the withdrawal of the requisition by the other member it is very difficult from the evidence in this case to say whether it was bona fide or was intended to be acted upon. Even if there was no valid withdrawal by this member, after the withdrawal by the six requisitionists, the number of the renaming requisitionists was less than the statutory number, viz., one-third. The contention of the appellants is that the withdrawal by the six requisitionists cannot affect the validity of the original requisition inasmuch as the original requisition was the joint act of all the requisitionists and some of the requisitionists under the law have no power without the consent of the other requisitionists to withdraw from the requisition. I am unable to accept this contention. The requisition was no doubt signed by the 15 requisitionists. But the signatures of the individual members on the requisition were] their individual acts and were not the result of any joint act of all the requisitionists.

5. It was also contended on behalf of the appellant that as soon as the plaintiff received the requisition of the 15 members the chairman (plaintiff-respondent) was bound to call the meeting in law and this obligation of the chairman to call the meeting once created cannot be put an end to by any of the requisitionists. This contention has no force inasmuch as the chairman is not bound to call a meeting before the prescribed period and the withdrawal took place before the prescribed period expired. If the withdrawal had taken place after the prescribed period had expired the position might have been different. In that case it might be said that after the refusal by the chairman to call the meeting within the prescribed period the requisitionists themselves acquired a right to call the meeting and consequently that right could not be touched by subsequent withdrawals. I am therefore of opinion that on the date of the meeting at which the resolution in question was passed there was no requisition as required by Section 30 (b). Plaintiff was therefore right in dissolving the meeting and that the meeting held thereafter was not sanctioned by law. There was, therefore, no valid resolution by the Board for sending an application to the Provincial Government for the removal of the plaintiff respondent from the Chairmanship of the Board.

6. It was contended on behalf of the appellant that the civil Court has no jurisdiction to question the order of removal made by the Provincial Government under Section 28, Local Self-Government Act. The jurisdiction of the civil Court to try all suits of a civil nature (this being a suit of civil nature) can be taken away only by express words of a statute or by necessary implications. We do not find anything in the Local Self Government Act which takes away the jurisdiction of the civil Court to try this matter either expressly^ or by necessary implication. The very foundation of the exercise of the power by the Local Government under the last part of Section 28 of the removal of the Chairman of a District Board for persistent neglect of duty as Chairman is the application of the Board. If there was no valid application by the Board to the Provincial Government the foundation of the order is gone. We do not see any reason why the civil Court cannot declare the order of removal under Section 28 as inoperative on the ground that there was no foundation for such order. The lower appellate Court has found that the plaintiff did not neglect his duty as Chairman. This is a finding of fact. The contention on behalf of the appellants is that the civil Courts have no power to question the decision of the Provincial Government that the Chairman persistently neglected his duty. The condition precedent to removal of the Chairman is the existence of the neglect of his duty. Section 28 does not say that if the Provincial Government is satisfied that the Chairman persistently neglected his duty the Provincial Government can remove him. Even assuming that the contention of the appellant on this point is correct it is of no assistance to them inasmuch as the foundation of the exercise of the power under the last part of Section 28 is a valid application by the Board and this was wanting in this case. For the reasons given above, I am of opinion that the decision of the Bower appellate Court is right. The appeal is accordingly dismissed with costs to be paid by appellant 2, the District Board of Jessore, to plaintiff respondent 1 including the costs of the paper-book incurred by him and as taxed by the office.

Pal, J.

7. I agree. The relief prayed for by the plaintiff in the present suit relates to an order of the removal of the plaintiff from his office as Chairman of the District Board made by the Provincial Government under the last part of Section 28, Bengal Local Self-Government Act, on the application of the Board. The relevant portion of Section 28 runs as follows:

The Provincial Government may remove any Chairman of a District Board...from his office...on the application of the Board, if he persistently neglects his duty as Chairman.

8. By Section 28 the Legislature confers upon the Provincial Government power to remove a Chairman, but the power is made dependent on the existence of a certain state of facts. In exercising the power, no doubt, the Government shall have to decide whether or not that state of facts exists. But the jurisdiction of the Government is made dependent, not upon its own decision of the question whether or not the requisite facts exist, but upon the existence of those facts. It is certainly open to the Legislature to say that if a certain state of facts exist then and then only you will have jurisdiction to do what we will empower you to do, but you shall not have jurisdiction otherwise. In such a case the existence of such facts is not for the person conferred with the jurisdiction to decide conclusively, and if he exercises the jurisdiction which is given without the actual existence of those preliminary facts, the exercise of the jurisdiction may certainly be questioned and it may be held that he had no jurisdiction to do what he did.

9. We are to construe Section 28, Local Self-Government Act and it is a cardinal rule of construction that for this purpose we should primarily look to the language of the section and give effect to it when it is clear and unambiguous, unless the result of such construction is manifastly absurd, in which case we have to look to the probable intention of the Legislature and to place such construction as will fairly execute that intention. It may be that from the view point of administrative convenience it might have been desirable to make the Government the final arbiter of the question whether or not the facts existed which made the removal of the Chairman legitimate. It may also be otherwise as in that case the Local Self-Government itself may be reduced to a mere shadow. But we cannot speculate as to what was intended when the language of the section is clear and it makes the power dependent on the existence of a certain state of facts and not on Government's own decision of its existence. This becomes still more significant when we compare the two parts of the section itself. In the first part the opinion of the Government is expressly made a factor, while in the second, the power is made dependent in unqualified manner on the existence of two facts, namely : (1) That there must be an application of the Board for the removal of the Chairman; (2rthat the Chairman must have been persistently negligent of his duty as Chairman. The decision neither of the Board nor of the Government finding that the Chairman persistently neglects his duty as Chairman is made conclusive in this respect. Their decision may entitle them to act under the section so as not to render tkfem liable to any damages. But so far as the removal itself is concerned, that decision will not be conclusive and will remain liable to be questioned in a Court of law.

10. Dr. Sen Gupta appearing in support of the appeal relied on (1908) 1 K.B. 170 (1908) 1 K.B. 170 : 77 L.J.K.B. 51 : 97 L.T. 705 : 71 J.P. 513 : 5 L.G.R. 1229 : 51 S.J. 823 : 24 T.L.R. 11 Davis v. Mayor and Co., of the Brough of Bromley; : AIR1926All538 , Municipal Board of Benares v. Bihari Lal and Bros.; 7 Mad. 466 (84) 7 Mad. 466 (F.B.), Vijaya Ragava v. Secy. Of State; 36 Mad. 120 (13) 36. Mad. 120 : 12 I.C. 311 : 21 M.L.J. 878, Nataraja mudaliar v. Municipal Council of Mayavaram The case in (1908) 1 K.B. 170 (1908) 1 K.B. 170 : 77 L.J.K.B. 51 : 97 L.T. 705 : 71 J.P. 513 : 5 L.G.R. 1229 : 51 S.J. 823 : 24 T.L.R. 11 Davis v. Mayor and Co., of the Brough of Bromley was one for damages. The case in : AIR1926All538 , Municipal Board of Benares v. Bihari Lal and Bros. simply followed this authority. The ease in 7 Mad. 466 (84) 7 Mad. 466 (F.B.), Vijaya Ragava v. Secy. Of State supports the view we take. In the case in 36 Mad. 120 (13) 36. Mad. 120 : 12 I.C. 311 : 21 M.L.J. 878, Nataraja mudaliar v. Municipal Council of Mayavaram the order in question was that of a Collector declaring the invalidity of an election of a candidate to a seat in a Municipal Council. The order was made under Rule 36 of the Election Rules prevailing in that Province and it seems that the power conferred upon the Collector by that rule was dependent on his own decision of the condition of facts affecting the election. The decision proceeded upon the footing that the legal character claimed there could not come into existence till the election became final. The election which was alleged by the plaintiff in that case to give him a vested status was, according to the learned Judges, only held conditionally on its being liable to be declared invalid. The election did not become final and consequently the plaintiff did not as yet acquire the status claimed. We need not proceed to examine whether or not the view of the law taken on this view of the facts was correct. All that is necessary for us to say is that the position under consideration in that case was materially different from the one now under consideration and the very judgment shows that at least in cases of status already vesting a different consideration will prevail.

11. A Chairman of a District Board as such has a legal character and is prima facie entitled to a relief from a Civil Court from any interference with his right in that character unless and until that relief is taken away by any express provision of law or by the necessary implication of any provision, of law., Section 9, Civil P.C., ensures this relief and nothing could be pointed out in any way affecting this relief given him by this Section 9, Civil P.C. It thus becomes pertinent to see whether the requisite state of facts existed in this case justifying the exercise of the power by the Board and by the Government under Section 28 of the Act. In my judgment the special meeting held on 30th June 1939, was not a legal meeting of the Board at all inasmuch as it was not requisitioned by the requisite number of members as required by Section 30B. In my opinion the withdrawal by the seven members of the requisitionists was perfectly valid and effective and after this withdrawal the number of requisitionists stood at 8 only. There was no obligation on the part of the members to requisition the meeting. It was their own respective voluntary acts when they signed the requisition and if it was within the competence of a member to be a party to the requisition it remained equally competent for him to withdraw from it unless and until action was taken on the requisition. In this view, there was no meeting of the Board on 30th June 1939 and consequently the application presented to the Government under the authority of the resolution passed at that meeting was no application of the Board. The very first requisite of the exercise of power under Section 28 therefore was wanting in this case and the learned Court of appeal below was right in holding that the action taken by the Government was ultra vires and ineffective.


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