Case: Shyabuddinsab Mohidinsab Akki Vs. The Gadag-Betgeri Municipal Boroughand Others

The 1st respondent is a municipality governed by the provisions of the Municipal Boroughs Act (Bombay Act XVIII of 1925) which 7 hereinafter shall be referred to as the Act for the sake of brevity. The appellant is one of the 32 councillors constituting the municipality. The last general election to the municipality took place on the 7th MayThe term of the councillors was three years computed from the date of the first general meetinog held after the general election aforesaid-in this case the 10th JulyIn that meeting the 4th and 5th respondents were elected President and Vice-President respectively of the municipality for a term of three years. The Act was amended by Bombay Act XXXV of 1954, under which the term of office of the councillors was extended from 3 to 4 years ending on the 9th JulyAs the term of respondents 4 and 5 aforesaid was to expire at the end of three years from the 10th July 1951 and as the term of the municipality was extended by one year under the amending Act aforesaid, the vacancies thus occurring bad to be filled up by a fresh election of President and Vice-President. The Collector therefore called a special general meeting of the municipality to be held on the 30th July 1954 to elect a President and Vice-President for the remaining period of the quadrennium. The Collector had nominated the Prant Officer (the District Deputy Collector) to preside over that special general meeting. On the 30th July 1954 the Prant Officer under instructions from the Collector adjourned the meeting to the 3rd August 1954 without transacting any business, the only item on the agenda being the election of the President and Vice-President. The 3rd respondent raised a point of order against the adjournment but the presiding officer aforesaid overruled that objection. Hence the special general meeting was held on the 3rd August 1954. At that meeting the appellant raised a point of order that under the provisions of the " Act a President could not be elected for a term less than a year and that therefore the proposed election would be in the teeth of those provisions. The presiding officer who was the same person who had adjourned the meeting on the 30th July 1954 overruled that objection too. Thereupon 13 out of the 32 councillors who were present walked out on the ground that they did not propose to participate in a meeting in which the proposal was to elect a President for less than a year contrary to the provisions of the Act. The appellant was one of those 13 councillors who walked out. It may be added that the full strength of the municipality is 32 councillors all of whom were present both on the 30th July 1954 and the 3rd August 1954. The remaining 19 councillors proceeded to transact business and elected the 2nd respondent as the President, the proposal being that he "should be President of the municipality for the remaining period of the quadrennium" and that was the proposal which was carried. Immediately after the election of the President another meeting was held for the election of the Vice-President under the presidency of the newly elected President (the 2nd respondent). The appellant raised the same point of order as he had done in the case of the election of the President and that was also overruled. Thereupon six of the councillors present including the appellant walked out and the remaining councillors elected the 3rd respondent as the Vice- President.The appellant moved the High Court of Bombay under art. 226 of the Constitution for a writ of quo warranto or any other appropriate writ or order or direction against the 2nd and 3rd respondents "restraining them from usurping the office of the President and Vice-President respectively of the opponent No. I Municipality and restraining them from performing any duties and from exercising any powers as President and Vice-President respectively". The High Court held that the election of the 2nd and 3rd respondents was not illegal and dismissed the application. It held that on a proper construction of the relevant provisions of the Act it was not correct to say that the term of office of the councillors or of the newly elected President and Vice-President shall end with the 9th July 1955; that the intention was to elect the President and the Vice-President for the remaining term of the municipality which was not only a period of four years certain but an additional period up to 7 the date when new President and Vice-President A would be elected and take over after a fresh general election; that the adjournment of the meeting of the 30th July was not beyond the powers of the presiding officer; and that consequently the meeting of the 3rd August was not vitiated by any illegality. It was also pointed out by the High Court that all the councillors constituting the municipality had notice of the adjourned meeting and did as a matter of fact attend that meeting and that even if there was any irregularity in the adjournment on the 30th July 1954 that did not affect the illegality of the adjourned meeting and the business transactedappellant moved the High Court for leave to appeal to this court but that application was rejected. The appellant then applied to this court for special leave to appeal which was granted on the 3rd September 1954

Reasoning: In our opinion, it is unnecessary for the purpose of this case to pronounce upon the merits of that controversy in the view we take of the meeting of the 3rd August, 1954, assuming that the meeting of the 30th July, 1954 had been adjourned without authority.It is common ground that it was the Collector who called the meeting of the 30th July 1954 and that it was under instructions from the Collector that meeting was adjourned. Under the provisions of section 23(1) (A), on the expiry of the term of office of the president or vice-president as determined by the municipality under section 19(1) of the Act, a new president or vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for calling a meeting of a newly constituted municipality for the election of a president and vice-president have been made applicable to the calling of a meeting and the procedure to be followed at such meeting for the election of a president. Section 19-A requires the Collector to call a meeting for holding such an election. Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf. The Collector or his nominee, when presiding over such a meeting, shall have the same powers as the president of a municipalit by when presiding over a meeting of the municipality has, but shall not have the right towould thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president. Under section 35(3) of the Act, for such a special general meeting three clear days notice has to be given "specifying the time and place at -which such meeting is to be held and the business to be transacted thereat shall be served upon the councillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published in a local vernacular newspaper having a large circulation if such exists".It has been contended on behalf of the appellant that the notice required by section 35 (3) contemplates a written notice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 could not be said to have been held after complying with the terms of sub-section (3) of sectionis evident from the provisions of that sub-section that though the presence of the public at such meetings may be desirable, it is not obligatory. The presence at or the absence from such a meeting of the members of the public has no legal consequence so far as the validity of the election is concerned. It must therefore be held that the meeting of the 3rd August, 1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was not invalid, assuming, as already said, that the order of the presiding authority adjourning the meeting of the 30th July, 1954 was not authorized. It has to be remembered in this connection that such a special general meeting can be presided over only by the Collector or the person authorized by him and if either the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect their own chairman for presiding over such a meeting. Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president. Hence, rightly or wrongly, if the meeting called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy. In this case, as a result of the expiry of the original term of office of the president and vice-president, another meeting giving the required three days statutory notice had to be held. The meeting held on the 3rd August 1954 was such a meeting. Indeed, there were some omissions in the manner of publication or service of the notice but those in law were mere irregularities which do not have the effect of vitiating the election held at that meeting. The election of the president therefore, if not otherwise invalid, could not be assailed on the ground of the irregularity in the service or publication of the notice, in the special circum- stances of this case. If all the councillors had not been present on the 30th July or had not been informed of the proposed meeting of the 3rd August 1954, other considerations may have arisen but in this case it is clear that there was absolutely no prejudice to any party or individual or the municipality as a whole. But it was further contended that the walking out of the 13 councillors rendered the meeting infructuous. In our opinion, such a result does not follow from the voluntary act of the 13 councillors who chose to walk out. It was not even suggested that there was no quorum for the special general meeting after the 13 councillors walked out.The next question is whether the provisions of section 19 (1) as they stood on the 3rd August 1954 render the election of the president and the vice-president on the 3rd August 1954 invalid as it was "for the remaining period of the quadrennium". The High Court has taken the view that the remaining period of the quadrennium would not necessarily end on the 9th July 1955, in view of the proviso to section 19(1)"that the term of office of such president or vice- president shall be deemed to extend to and expire with the date on which his successor is elected". In view of the events that have happened it is not necessary for us to pronounce on the correctness or otherwise of that decision.