1955 Supreme(SC) 13

SUPREME COURT OF INDIA
22nd February 1955
BOSE, JAGANNADHA DAS AND SINHA JJ.
Shyabuddinsab Mohidinsab Akki, Appellant
Versus
Gadag-Betgeri Municipal Borough and others, Respondents.
Civil Appeal No. 215 of 1954.
Advocates appeared
Messrs. R. B. Kotwal, J. B. Dadachanji and Rajinder Narain, Advocates, for Appellant; Mr. Naunit Lal, Advocate, for respondents (Nos. 1 to 3).

Headnote:Statutes-Bombay Municipal Boroughs Act, Section 19 - Bombay Municipal Boroughs (Amendment) Act, (54 of 1954), Section 3 - Effect on pending litigation. - (134) Bombay Municipal Boroughs Act 1925, (Bombay Act XVIII of 1925), Section 19 as amended by Bombay Act XXXV of 1954, Act LIV of 1 954-Legal effect of-Section 35 (3)-Provisions are directory and not mandatory-Section 35 (6)-Scope.

       Election of President and Vice-President challenged-Challenge proceedings pending in Court-Effect of Section 3 of the Bombay Municipal Boroughs (Amendment) Act (LIV of 1954).

       The last general election to the municipality of the Gadag-Betgeri Municipal Borough, governed by the provisions of the Municipal Boroughs Act, 1925 (Bombay Act XVIII of 1925) took place on the 7th May, 1951. The term of the councilors was three years computed from the date of the first general meeting held after the general election aforesaid, in this case the 10th July 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 of 1954, under which the term of the office of the councillors was extended from 3 to 4 years ending on the 9th July 1955.

       As 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 Collector, in order to fill up the vacancies thus accruing, 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 and appointed the Prant Officer 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 wit-bout transacting any business, the only item on the agenda being the election of the President and the 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 objection was overruled by the presiding officer who was the same person as before. Thereupon 13 out of the 32 councillors, including the appellant, walked out. The remaining 19 councillors elected the 2nd respondent as the President, the proposal carried out being that he should be President of the municipality for the remaining period of the quadrennium." 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 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.

       In an application by the appellant for a writ of guo warranto or any other appropriate writ or order or direction, the High Court of Bombay held that the election of the 2nd and 3rd respondents was not illegal and dismissed the application. It was held that on a proper construction of the relevant provisions of the Act it was not correct to say that the term of the office of the councillors or of the newly elected President and Vice-President would 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 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.

       Held (dismissing the appeal): (1) 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 meeting and, therefore, the meeting was not invalid because the record of proceedings would show that whatever had been done on the 30th July 1954 and the 3rd August, 1954 had been done under the orders of the Collector.

       (2) It is true that the notice of the meeting of the 3rd August 1954 had not been given in writing but had only been intimated to all the councillors who were present at the meeting of the 30th July, 1954. The notice amply satisfied the requirement of three days notice, though it was not in writing. It had indicated the time of the meeting and the business to be transacted. Under section 35 (4) the ordinary venue of a meeting is the municipal office unless otherwise indicated in the notice. It is also true that the notice was not served in the manner indicated in subsection (3) of section 35 of the Act. But these omissions do not render the notice ineffectual in law, as these provisions of section 35 (3) are directory and not mandatory, and that any omissions in the manner of service of the notice are mere irregularities which would not vitiate the proceedings unless it is shown that those irregularities had prejudicially affected the proceedings which had not been alleged or proved in the present case. All the councillors constituting the municipality were present on both the occasions, namely, 30th July .and 3rd August, 1954, and had thus ample notice of the meeting to be held on the 3rd August, 1954, the time and place of the meeting and the business to be transacted. Under the provisions of section 35 (3) of the Act the presence at or the absence from the meeting of the members of the public has no legal consequence so far as the validity of the election is concerned. Similarly, the fact that some of the members walked out did not affect the election.

       (3) The Municipal• Boroughs (Amendment) Act, 1954 (Bombay Act LIV of 1954) was published in the Bombay Gazette on the 14th October 1954. Section 3 of the Amending Act in terms declares that all elections to the office of President and Vice-President held on or after the 11th May 1954 (on which date the Amending Act XXXV of 1954came into force) and before the coming into force of the amending Act LIV of 1954, shall be deemed to have been valid as if the said Act had been in force on that date. That section is clearly retrospective and intended by the• legislature to apply to all cases of election of president or vice president whether or not the matter had been taken in Court. The amending Act had the effect of curing any illegality or irregularity in the election in question with reference to the provisions of section 19 of the Act.1 - Section 68-Proof of attestation.

       Held: "It was next contended that exhibit A was not .properly -attested, and that it was consequently void. The case of the defendant was that he executed it at Berhampur on 3rd April, 1923, that the attesting witnesses did not see him execute the deed, that the attestations must have been taken subsequently at Cuttack, and therefore exhibit A was not duly attested. P Ws. 1 and 2 deposed that the defendant executed the deed .at Cuttack, and that they and other witnesses witnessed the execution, Both the Courts below have accepted this evidence."