1. The plaintiff, Moulvi Cheraguddin, is a member of the Sylhet Local Board and he was a candidate for Vice-Chairmanship of that Board. On 28th April 1928, there was a meeting held for election of the Chairman and Vice Chairman of the Local Board. This meeting was presided over by a gentleman named Moulvi Israb Ali, Deputy Inspector of Schools, who had been appointed a supernumerary member under the provisions of Section 4, Sub-section (4), Assam Local Self-Government (Amendment) Act, 1926 (Assam Act 8 of 1926). At this meeting, defendant 1 was elected Chairman and defendant 2 Vice-Chairman of the South Sylhet Local Board. The plaintiff was present at this meeting of 28th April and the proceedings of this meeting were confirmed at a subsequent meeting held on 12th July 1928. On these allegations, the plaintiff instituted the suit that has given rise to the present appeal, for a declaration that the elections of the defendants as Chairman and Vice-Chairman are unauthorized, ultra vires and illegal and as such ab initio void and for setting aside the same. According to the plaintiff, Moulvi Israb Ali was not competent to preside at the meeting of 28th April 1928 and, that being so, all that was done at that meeting was illegal. The Court of first instance held that Moulvi Israb Ali was not competent to preside at that meeting. But finding that the irregularity was cured by the provisions of Section 17 (A) (1) of the Act, the trial Judge dismissed the plaintiff's suit. On an appeal to the District Court, the learned District Judge held concurrently with the Court of first instance that Moulvi Israb Ali was not competent. The learned District Judge held however in disagreement with the trial Judge, that the irregularity in Moulvi Israb Ali's not being a competent person to preside at that meeting could not be cured by Section 17 (A) (1) and, on these findings, the lower appellate Court gave a decree to the plaintiff. Defendants have appealed to this Court.
2. On behalf of the appellants, it was first of all contended that the lower appellate Court was wrong in holding that Moulvi Israb Ali was not competent to preside over that meeting of 28th April. Secondly, it was urged that, even if Moulvi Israb Ali was not competent, the provisions of Section 17 (A) (1) were sufficient to cure that irregularity. Both these contentions seem to me to be well founded. As regards the first, Moulvi Israb Ali was admittedly a supernumerary member appointed under the provisions of Section 4, Sub-section (4) of the Act. Sub-section (4), Section 4, lays down that a supernumerary member shall not be deemed to be a member for the purposes of Sub-sections (1), (2) and (3) of the section, implying thereby in my opinion, that, for all other purposes, he shall be deemed to be a member of the Board. The purpose of Section 9 of the Act, which deals with the appointment or election of Chairman, is neither the purpose of Sub-section (1), nor of Sub-section (2), nor of Sub-section (3), Section 4. That being so, Moulvi Israb Ali, who was a supernumerary member, was a member of the Board for the purpose of Section 9 and, if he was a member for the purpose of Section 9, it cannot be reasonably contended that his election as President of the meeting held under Section 8 was anything illegal. The learned advocate for the respondent contended that, as Section 4, Sub-section (1) of the Act lays down that the Local Board shall consist of not less than 16 members who shall be in part elected and in part appointed in accordance with the rules and also that the appointed members shall not be salaried servants of Government there could be no place on the Board for anyone who had neither been elected nor thus appointed. But to give effect to this contention would be to render the provisions of Sub-section (4), Section 4 wholly nugatory, which could never have been the intention of the legislature. If the intention of the legislature was that the Board for all purposes would consist only of the elected and appointed members as referred to in Sub-section (1), Section 4, Sub-section (4) of that section would have no place whatever in the Act. The fact that the provisions about the appointment of supernumerary members have found place in a subsection in Section 4, which deals with the constitution of the Board, is, in my opinion, an indication that the intention of the legislature was not that the Board would, for all purposes, be composed only of the elected and appointed members as referred to in sub-S, (1) and must not have anyone else on it, but that it might have on it supernumerary members as well appointed under the provisions of Sub-section (4). I must therefore hold, disagreeing with the learned District Judge, that Moulvi Israb Ali was a member of the Board for the purpose of Section 9 of the Act and, that being so, was a competent person to preside over the meeting that was held on 28th April 1928.
3. Even if it be admitted, for the sake of argument, that Moulvi Israb Ali was not qualified to preside over that meeting of 28th April, I am of opinion that the irregularity caused thereby was sufficiently cured by the provisions of Section 17 (A) (1). Section 17 (A) (1), when bereft of the clauses not relating to the present suit, will read thus:
No disqualification or defect in the election of a person acting as the President of a meeting of the Board shall be deemed to vitiate any act or proceeding of the Board, i the majority of the persons present at the time of the act being done or proceeding being taken were qualified and duly elected or appointed members of the Board.
4. There is no dispute, in the present case that the majority of the persons present at the time when the defendants were elected as Chairman, on 28th April 1928, were qualified and duly elected or appointed members of the Board. The learned District Judge was of opinion that Section 17 (A) (1) could not afford a cure, inasmuch as the term disqualification' mentioned in this section referred only to one of the disqualifications mentioned in Sub-section (3), Section 4. In the first place, it is to be observed that there is no reason why such a limited meaning should be given to the term 'disqualification' as it is to be found in Section 17 (A) (1). Then the disqualifications that are mentioned in Sub-section (3), Section 4 are the disqualifications of an elected member of the Board. The wording of Section 17 (A) (1) is, in my opinion, wide enough to cover a case like the present one. I would therefore hold, disagreeing with the learned District Judge, that the irregularity, if there was any, in Moulvi Israb All's not being competent to preside over that meeting of 28th April 1928, was sufficiently cured by the provisions of Section 17 (A) (1).
5. In view of the observations recorded above, the appeal must be allowed and the judgment and decree of the lower appellate Court set aside. Plaintiff's suit -will stand dismissed. The defendants will get their costs throughout.
6. And application for leave to appeal under the Letters Patent has bean made. I do not consider the case to be a fit one for such appeal.
7. The application is refused.