SHYABUDDINSAB MOHIDINSAB AKKI Vs. GADAG BETGERI MUNICIPAL BOROUGH

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and order dated 23-8-1954 of the High Court of Judicature at Bombay, dismissing the appellant's petition for a writ of 'quo warrant' or any other appropriate writ directed against the election of the 2nd and 3rd respondents as President and Vice-President respectively of the Gadag-Betgeri Municipal Borough, the 1st respondent in this appeal.

(2.) The facts of this case are not in dispute and may shortly be stated as follows:The 1st respondent is a municipality governed by the provisions of the Municipal Boroughs Act (Bombay Act XVIII of 1925)Which 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 7-5-1951. The term of the councillors was three years computed from the date of the first general meeting held after the general election aforesaid -in this case 10-7-1951. In 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 of1954, under which the term of office of the councillors was extended from 3 to 4 year ending on 9-7-1955. As the term of respondents 4 and 5 aforesaid was to expire at the end of three years from 10-7-1951 and as the term of the municipality was extended by one year under the amending Act aforesaid, the vacancies thus occurring had 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 30-7-1954 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 30-7-1954 the Prant Officer under instructions from the Collector adjourned the meeting to 3-8-1954 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 3-8-1954. 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 30-7-1954 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 30-7-1954 and 3-8-1954. 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. There upon six of the councillors present including the appellant walked out and the remaining councillors elected the 3rd respondent as the Vice-President.

(3.) 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. 1 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 9-7-1955; 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 the date when new President and Vice-President 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 30-7-1954 that did not affect the legality of the adjourned meeting and the business transacted therein.