1954 Supreme(SC) 6

SUPREME COURT OF INDIA
15th January 1954
M.C. MAHAJAN, C.J.I., B.K. MUKHERJEA, S.R. DAS, BOSE AND GHULAM HASAN, JJ.
Vice Chancellor, Utkal University and others, Appellants
Versus
S. K. Ghosh and others, Respondents.
Civil Appeal No. 7 of 1952.
Advocates appeared
Dr. Bakshi Tek Chand, Senior Advocate (Shri G. C. Mathur and Shri H. Mohapatra, Advocates, with him), instructed by Shri Rajinder Narain, Agent, for Appellants; Shri N. C. Chatterjee, Senior Advocate (Shri V. S. Sawhney and Shri R. Patnaik, Advocates with him), instructed by Shri S. P. Varma, Agent, for Respondents (Nos. 1-8; 10-16; 18-23 and 25-34).

Headnote:Corporation-Resolution without proper notice. - Article 226- Writ of mandamus when can issue-Court will not examine facts as court of appeal.

       The petitioners were all students of the 2nd year of M.B.B.S. class of Shri Ramchandra Bhanj Medical College, Cuttack. The examinations Were conducted by a Board of Examiners which submitted the results to the Syndicate. The Syndicate, instead of approving and publishing the results, passed a resolution canceling the results in Anatomy on the ground of leakage of questions and to hold another examination instead. The petitioners applied to the High Court for the issue of a writ of mandamus directing the Syndicate to publish the results of the 1st M.B. B.S. Examination as reported by the Board of Examiners. The writ was allowed by the Orissa Court at Cuttack.

       The Syndicate consisted of twelve members. Of these, all but one were present at the meeting. The resolution was passed unanimously. It was admitted that the member not present was not told that this was one of the matters which would be considered at the meeting. The matter was not on the agenda and was taken up at the request of the Vice Chancellor under "other matters, if any". On the protest of successful candidates the matter was again considered by the Syndicate at another meeting but once again the matter was not on the agenda but the Vice Chancellor brought it suo motu as before. Again eleven members present passed a unanimous resolution refusing to review the previous resolution and this time the member absent was another person and the member absent at the previous meeting was present at the second meeting and approved the resolution.

       Held (allowing the appeal)!: Though incorporated body like a University is a legal entity it has neither a living mind nor voice. It can only express its will in a formal way by a formal resolution and so can only act in its corporate capacity by resolutions properly considered, carried and duly recorded in the manner laid down by its constitution. If its rules require such resolutions to be moved and passed in a meeting called for the purpose, then every member of the body entitled to take part in the meeting must be given notice so that he can attend and express Ms views. Individual assents given separately cannot be regarded as equivalent to the assent of a meeting because the incorporated body is different from the persons of which it is composed. Hence, an omission to give proper notice even to a single member in these circumstances would invalidate the meeting and that turn would invalidate resolutions which purport to have been passed at it. But this is only when such inflexible rigidity is imposed by the incorporating constitution. The position is different when, either by custom or by the nature of the body or by its constitution and rules, greater latitude and flexibility are permissible. Each case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same body certain things, such as routine matters, can be disposed of more easily and with less formality than others. It all depends on the nature of the body and its rules. The substance is more important than the form and if there is substantial compliances with the spirit and substance of the law, an unessential defect in form will not be allowed to defeat what is otherwise a proper and valid resolution.

       (2) "We, however, confine our remark& to the facts of this case where there was actual appearance without objection at meeting properly convened and where there was complete unanimity on both occasions. Whether it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say. In our opinion, the High Court was wrong in holding that the two resolutions were invalid. Whatever may be thought about each taken separately, the defects, if any, are, in our judgment, cured when the two are read together and regarded as a whole.

       "We also think the High Court was wrong on the second point. The learned Judges rightly hold that in a mandamus petition the High Court cannot constitute itself into a Court of appeal from the authority against which the appeal is sought, but having said that they went on to do just what they said they could not. The learned Judges appeared to consider that it is not enough to have facts established from which a leakage can legitimately be inferred by reasonable minds but that there must in addition be proof of its quantum and amplitude though they do not indicate what the yard-stick of measurement should be. That is a proposition to which we are not able to assent." (Per Bose J.)

       (3) "We are not prepared to perpetrate the error into which the learned High. Court Judges permitted themselves to be led and examine the facts for ourselves as a Court of appeal but in view of the strictures the High Court has made on the Vice-Chancellor and the Syndicate we are compelled to observe that we do not feel they are justified. The question was one of urgency and the Vice-Chancellor and the members of the Syndicate were well within their rights in exercising their discretion in the way they did. It may be that the matter could have been handled in some other way, as, for example, in the manner the learned Judges indicate, but it is not the function of Courts of law to substitute their wisdom and discretion for that of the persons to whose judgment the matter in question is entrusted by the law. The University authorities acted honestly as reasonable and responsible men confronted with an urgent situation are entitled to act." (Per Bose J.)

       (4) This was decidedly not the sort of case in which a mandamus ought to issue.