BHAILAL MOHANLAL PATEL Vs. JADURAI R VYAS

JUDGEMENT

(1.) The Godhra Borough Municipality is a municipality constituted under the provisions of the Bombay Municipal Boroughs Act XVIII of 1925 (hereinafter referred to as the Act). The councilors of this municipality were elected at the general election held in 1958. For the year 1958-59 the fifth petitioner was elected as the president whereas for the year 1959-60 the third petitioner was elected as the president of the municipality. For the year 1960-61 the first petitioner was elected as president of the municipality. The term of office for which the first petitioner was elected as president of the municipality having expired the Collector of Panchmahals pursuant to the provisions of section 19A of the Act issued a notice dated June 26 1961 to the councilors of the municipality informing teem that a meeting of the councilors of the municipality would be held on July 13 1969 for the purpose of electing the president for the year 1961-62. It was also stated in the notice that the meeting to be held for the purpose of electing the president would be presided over by the Personal Assistant to the Collector.

(2.) On July 13 1961 a meeting of the councilors of the municipality was held pursuant to the notice given by the Collector. This meeting was presided over by one G. C. Mankad the Personal Assistant to the Collector of Panchmahals as already indicated in the notice given by the Collector. The meeting was attended by the 26 councilors of the municipality. As to what transpired at that meeting has been recorded in the minutes of the meeting in the records of the municipality and an office translation of these minutes is annexed to the petition. For the present it is sufficient to state that one Jadurai Ramshanker Vyas the first respondent herein was duty proposed and seconded for the post of the president of the municipality. It appears that thereafter amendment was duly proposed and seconded to the motion whereby one Sakalchand Mohanlal Mehta the third petitioner herein was proposed for election as the president of the municipality. A second amendment was also moved to the original motion and by the second amendment it was proposed that one Arjandas Jodharam the second petitioner herein should be elected as the president of the municipality. Following the procedure laid down in rule 38 of the Rules of the Godhra Borough Municipality framed under the provisions of the Act (to which rule we will presently refer) the two amendments were put to vote against each other and on votes being cast the first amendment was lost and the second was carried. Thus under the amendment thus carried the house voted that the second petitioner should be elected as the president of the municipality in preference to the third petitioner. Thereafter the second amendment viz. the one proposing the second petitioner for being elected as the president of the municipality and the original motion proposing the first respondent for being elected as the president of the municipality were put to vote as against one another and the original motion was carried and the amendment was lost by a vote of 14 as against 12. Thereafter the Presiding Officer declared the first respondent as having been elected as the president of the municipality. It may be noted that the original motion proposing the first respondent for being elected as the president of the municipality was not put to the house as a substantive resolution at all before the Presiding Officer declared the first respondent as having been duly elected as the president of the municipality for the remaining term of the office of the municipality.

(3.) Immediately after his election on the very day the first respondent as the elected president issued a notice to all the councilors of the municipality calling a Special General Meeting of the municipality on July 18 1961 The first respondent also as the elected president proceeded to act as the president of the municipality. On these facts the petitioners who are nine of the councilors of the municipality filed a petition under article 226 of the Constitution of India on July 17 1961 against the first respondent who was elected as the president of the municipality at the election mentioned above against the presiding officer who was impleaded as the second respondent against the Collector of Panchmahals who was impleaded as the third respondent and the Godhra Borough Municipality which was impleaded as the fourth respondent in the petition. The petitioners prayed for reliefs for issue of a writ of quo warranto or writ in the nature of quo warranto or a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ direction or order and in particular prayed for the following reliefs :