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IN THE HIGH COURT OF MADRAS
Alfred Henry Lionel Leach, C.J.
T. Sundara Rao Naidu
Versus
The Commissioner, Corporation of Madras and Anr.
Decided On : 28.10.1941
Election - Corporation of Madras - Madras City Municipal Act, 1919, Section 53(1)(i), Section 53(4), Section 55-A(2), Section 54 - The court discussed the provisions of the Madras City Municipal Act, 1919, including the conditions for ceasing to hold office as a councillor, the procedure for filling a casual vacancy, and the powers of the Chief Judge of the Small Cause Court in determining disqualification. The interpretation of these provisions influenced the court's decision to allow the appeal and vacate the order of the learned Judge.
Fact of the Case:
The second respondent, a councillor for the 26th Division of the Corporation of Madras, was convicted under the Defence of India Act, 1939, and sentenced to imprisonment, leading to her absence from council meetings. The Commissioner reported her absence, and a resolution refusing to restore her to office was passed. A bye-election was scheduled, but the second respondent applied to the Chief Judge of the Small Cause Court, challenging the vacancy and the election proceedings.
Finding of the Court:
The court found that the second respondent had ceased to hold office as a councillor and that the Commissioner was entitled to take steps to fill the vacancy. The order quashing the election proceedings was set aside, and the appeal was allowed.
Issues: The issues involved the second respondent's absence from council meetings, the procedure for filling a casual vacancy, the powers of the Chief Judge of the Small Cause Court in determining disqualification, and the appropriateness of issuing a writ of certiorari in the circumstances.
Ratio Decidendi: The court held that the second respondent had ceased to hold office, and the Commissioner was entitled to take steps to fill the vacancy. The order quashing the election proceedings was set aside, and the appeal was allowed. The court also emphasized that a writ of certiorari should not have been issued in this case.
Final Decision: The appeal was allowed, and the order of the learned Judge was vacated. The appellant was entitled to his costs as against the second respondent.
Alfred Henry Lionel Leach, C.J.
1. This is an appeal under Clause 15 of the Letters Patent against an order passed by Somayya, J., which had the effect of setting aside the election of a councillor to the Corporation of Madras for the 26th Division of the City. We consider that the appeal is well founded. *
2. In 1936, the second respondent was elected a councillor for this division. In the month of November, 1940, she was convicted under the Defence of India Act, 1939, and sentenced to imprisonment for one year.. The last meeting of the Council which she attended was held on the 20th November, 1940. Section 53 (I) (i) of the Madras City Municipal Act, 1919, states that subject to the. provisions of Section 54, a councillor or alderman shall cease to hold office if he fails to attend meetings of the Council for a period of three consecutive months beginning from the date of the commencement of his term of office or of the last meeting he attended as the case may be. The second respondent underwent the full term of imprisonment and therefore was not able to attend any of the meetings of the Council for a year. Sub-section (4) of Section 53 states that in the case of a person who has ceased to be a councillor or alderman in consequence of failure to attend meetings the matter shall be reported by the Commissioner to the Council which may restore the person to office. At the expiration of three months from the 20th November, 1940, the Commissioner reported to the Council that the second respondent had been absent from meetings for this period and on the receipt of the report the Council passed a resolution refusing to restore her to office.
3. Section 55-A (2) provides that a casual vacancy in the office of a councillor shall be filled at a casual election which will be fixed by the Commissioner to take place as soon as may be after the occurrence of the vacancy except in certain circumstances which do not apply here. On the 1st May, 1941, the Commissioner, issued a notice to the second respondent calling upon her to state within ten days whether she admitted that she had aceased to hold the office of councillor by reason of Section 53 (1) (i). On the 5th May, the second respondent replied admitting that she had ceased to hold the office by reason of the provisions of that section. It was then the duty of the Commissioner to take steps to fill the vacancy. On the 20th May, a notification was published intimating that election would take place on the 23rd June and that nominations would be received on the 23rd, 26th and 27th May. On the 23rd May, that is, three days after the notification had appeared, the second respondent wrote to the Commissioner stating that by her letter of the 5th May she meant to imply that she had not attended meetings of the Corporation for three consecutive months but she did not intend to admit as the legal consequence of her non-attendance that her seat had become vacant. If, however, the letter was to be construed otherwise, she withdrew her admission, as the letter had been written under a misapprehension of the legal position. The Commissioner replied on the 26th May, stating that she had admitted in unequivocal terms that she had ceased to hold office and as the result of that admission he had taken steps to hold a bye-election which would be held as arranged.
4. On the 29th May, the second respondent made an application to the Chief Judge of the Court of Small Causes under Section 54. That section reads as follows:
54 (1). Whenever it is alleged that any person who has been elected or appointed as a councillor (or elected as, an alderman) is disqualified under Section 52 or Section 53 (or Section 53A) and such person does not. admit the allegation or whenever any councillor (or alderman) is himself in doubt whether or not he has become disqualified for office, such councillor (or alderman) or any other councillor (or alderman) may, and the Commissioner, at the request of the council, (or on a d
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