# [1955] 1 S.C.R. 1268

- **Citation:** [1955] 1 S.C.R. 1268
- **Court:** Supreme Court of India
- **Decided:** 1955-07-09
- **Case number:** Civil Appeal No. 97 of 1952
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1955-1-s-c-r-1268-332
- **Pages:** 17

## Headnote

1955
The State of Bihar
.v.
Kumar Amar
Singh and others
Jagannadhadas J.
1955
Fe6ruary 22
1268
SUPREME COURT REPORTS
[1955]
"where
immediately
before
the
commencement
of this Ordinance (Act) any evacuee property in a
Province
has
vested in any person exercising the
power of Custodian under any law repealed hereby,
the evacuee property shall on the commencement of
the Ordinance (Act) be deemed to have been vested
in the Custodian appointed or deemed to have been
appointed for the Province under the Ordinance (Act)
and shall continue to so vest".
· , ·,
The definitions of the ·phrase "evacuee property"
m
the Central Ordinance and by the Central Act are
clear and unambiguous so as to include the interest
of an · evacuee in any property held as a trustee or
beneficiary. There is no reason to
think that "evacuee property" as defined in the Bihar Ordinance was
meant to be anything "different. The words used in
this definition are of sufficient amplitude and we ·are
of the opinion that the Bihar 'definition· comprised
also · wakj property and interest
therein~ We are also
of the opinion that the successive repeals of ·the Bihar
Ordinance by the Central Ordinance and the Central
Act and the continuance of the vesting · in the Custodian, places the matter beyond
any
doubt.
This
contention
must, therefore,
fail.
This
appeal
alw
must accordingly succe~d.
In the result both the appeals are allowed. The
appellant in the circumstances will get only the cost;
incurred before the High Court on remand in Civil
Appeal No. 97 of 1952.
Appeals allowed.
'
SHYABUDDINSAB MOHIDIN$AB, AKKI
tJ.
THE GADAG-BETGERI · MUNICIPAL BOROUGH
AND OTHERS.
rvrvrAN
BosE,
JAGANNADHADAS
and' B. P, SINHA JT.]
Bombay M~nicipal Boroughs Act, 1925 ·(Bombay Act XVlll
of 1925), s. 19 as amended by Bombay Act LIV _of 1954-;-Lc_gal effect
thereof-Validity of election-S. 35(3)(6)-Notice ,of meeting-Provisions of s. 35(3)'-Whether directory or mimdatory-S. 35(6)-Presence or absence of public-Whether affects the validity of meeting.
>--
-
f
I
1
..... ).,
I
1
:s.C.R.
SUPREME COURT REPORTS
126Y
The first respondent-Municipality-governed by the Municipal
Boroughs Act, 1925 (Bombay Act XVIII of 1925) consists of 32
·councillors, S, (the appellant) being one of them.
The last general
-election to the Municipality took place on the 7th May 1951.
The
term of the councillors was three years computed from the first
meeting held on 10th July 1951 after the general election. In that
'meeting the 4th and 5th respondents were elected President and
- Vice-President respectively for a term of three years. Act XVIII of
1925 was amended by Bombay Act XXXV of 1954 under which the
term of office of the councillors was extended from 3 to 4 years end-
-'ing on 9th July 1955.
As the term of respondents 4 and 5 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 XXXV of 1954 a fresh election of President and Vice-
-President was necessary to fill up the vacancies thus occurring. The
Collector called a special general meeting for the 30th July 1954 to
elect a President and Vice-President for the remaining period of the
quadrennium and nominated the Prant Official (the District Deputy
Collector) to preside over that meeting. On the 30th July 1954
the Prant Officer adjourned the meeting to the 3rd August 1954 under
·instructions from the Collector without transacting
any
business.
"The objection raised by respondent No. 3 against the adjournment
·was overruled by the presiding Officer. The special general meeting
was held on the 3rd August 1954.
An objection raised by S (the
:appellant) that under the provisions of the Act a President could not
-be elected for a term less than a year was overruled by the presiding
Officer. On this 13 councillors (including S) out of the 32 who were
present walked out on the ground that the President was to be
•elected for- a term less than a year contrary to the provisions of

## Text

_Characters 0–39,960 of 40,613. This is a partial read: ask again with offset=39960 for what follows._

1955
The State of Bihar
.v.
Kumar Amar
Singh and others
Jagannadhadas J.
1955
Fe6ruary 22
1268
SUPREME COURT REPORTS
[1955]
"where
immediately
before
the
commencement
of this Ordinance (Act) any evacuee property in a
Province
has
vested in any person exercising the
power of Custodian under any law repealed hereby,
the evacuee property shall on the commencement of
the Ordinance (Act) be deemed to have been vested
in the Custodian appointed or deemed to have been
appointed for the Province under the Ordinance (Act)
and shall continue to so vest".
· , ·,
The definitions of the ·phrase "evacuee property"
m
the Central Ordinance and by the Central Act are
clear and unambiguous so as to include the interest
of an · evacuee in any property held as a trustee or
beneficiary. There is no reason to
think that "evacuee property" as defined in the Bihar Ordinance was
meant to be anything "different. The words used in
this definition are of sufficient amplitude and we ·are
of the opinion that the Bihar 'definition· comprised
also · wakj property and interest
therein~ We are also
of the opinion that the successive repeals of ·the Bihar
Ordinance by the Central Ordinance and the Central
Act and the continuance of the vesting · in the Custodian, places the matter beyond
any
doubt.
This
contention
must, therefore,
fail.
This
appeal
alw
must accordingly succe~d.
In the result both the appeals are allowed. The
appellant in the circumstances will get only the cost;
incurred before the High Court on remand in Civil
Appeal No. 97 of 1952.
Appeals allowed.
'
SHYABUDDINSAB MOHIDIN$AB, AKKI
tJ.
THE GADAG-BETGERI · MUNICIPAL BOROUGH
AND OTHERS.
rvrvrAN
BosE,
JAGANNADHADAS
and' B. P, SINHA JT.]
Bombay M~nicipal Boroughs Act, 1925 ·(Bombay Act XVlll
of 1925), s. 19 as amended by Bombay Act LIV _of 1954-;-Lc_gal effect
thereof-Validity of election-S. 35(3)(6)-Notice ,of meeting-Provisions of s. 35(3)'-Whether directory or mimdatory-S. 35(6)-Presence or absence of public-Whether affects the validity of meeting.
>--
-
f
I
1
..... ).,
I
1
:s.C.R.
SUPREME COURT REPORTS
126Y
The first respondent-Municipality-governed by the Municipal
Boroughs Act, 1925 (Bombay Act XVIII of 1925) consists of 32
·councillors, S, (the appellant) being one of them.
The last general
-election to the Municipality took place on the 7th May 1951.
The
term of the councillors was three years computed from the first
meeting held on 10th July 1951 after the general election. In that
'meeting the 4th and 5th respondents were elected President and
- Vice-President respectively for a term of three years. Act XVIII of
1925 was amended by Bombay Act XXXV of 1954 under which the
term of office of the councillors was extended from 3 to 4 years end-
-'ing on 9th July 1955.
As the term of respondents 4 and 5 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 XXXV of 1954 a fresh election of President and Vice-
-President was necessary to fill up the vacancies thus occurring. The
Collector called a special general meeting for the 30th July 1954 to
elect a President and Vice-President for the remaining period of the
quadrennium and nominated the Prant Official (the District Deputy
Collector) to preside over that meeting. On the 30th July 1954
the Prant Officer adjourned the meeting to the 3rd August 1954 under
·instructions from the Collector without transacting
any
business.
"The objection raised by respondent No. 3 against the adjournment
·was overruled by the presiding Officer. The special general meeting
was held on the 3rd August 1954.
An objection raised by S (the
:appellant) that under the provisions of the Act a President could not
-be elected for a term less than a year was overruled by the presiding
Officer. On this 13 councillors (including S) out of the 32 who were
present walked out on the ground that the President was to be
•elected for- a term less than a year contrary to the provisions of the
Act.
The remaining 19 councillors elected the 2nd respondent as
·the President for the remaining period of the quadrennium. Immedi-
·.ately after that another me~ting presided over by the newly elected
President elected respondent No. 3 as Vice-President.
The same
point of order raised by S as in the case of the President was overruled, on which 6 councillors walked out and the meeting was held
"by the remaining councillors.
All the 32 councillors were
present
both on the 30th July 1954 and the 3rd August 1954. Ao application under Art. 226 of the Constitution presented by S questioning
·rhe validity of the meeting of the 3rd August, 1954, and consequently
·the validity of the election _of respondents Nos. 2 and 3 as President
and
Vice-President for the remaining period of the
quadrennium
was dismissed by the High Court.
'Held, (1) that the meeting' of the 3rd Artgust 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. The notice to the coun-
<:illors required under s. 35(3) of the Act satisfied the requirements
•of three cleat days, that the provisions: of s. 35(3) regarding the ser1955
Shyab11ddinsab
Mohid;nsab-Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
c•1955
'Shyab1Uidinsab
'Mohidinsab ~Akki
"'T-he' Gadat-Be_tgen
Municipal Borough
aM otliers
., 1270
SUPREME' COURT''REPORTS
[1955)
... vice ·Of n6tice·· are .. fOirecto:ry:··aridi-not'1rn-a.rld!i.toty;i::andnthavH1ny omis~ > r
··sions in· the manner'·bf service-·of the··nOtice are 'mere irregularities
"".rhich 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 the 30th July 1954 arid the •3rd 'August 1954 and thus had
ample notice of the meeting to be held· on the 3rd August 1954, ·the
·'time ·arid ·plate· 6£ the meeting and the busint:ss to be transacted,
"'?-
~
That under the provisions of s. · 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;
(2) that as s. 19 of ·the Bombay-Borough,.Act, (Bombay Act
XVIII of 1925) had been
amended · by
the
Bombay Municipal
Boroughs Act, •1954· (Bombay Act• LIV of 1954) .and· was retrospective in its operation, .it had 1 the •effect .of curing any illegality or
irregt.ilarity·-in the· election with reference to .. the provisions of s. 19
of the Act and therefore respondents· Nos .. 2 and 3. had been validly
elected as ·President •and Vice-President, respectively.
King v .. The .General Commission-ers of" Income-tax rfor ··souihampton, Ex pane W. ;M. Singer ([1916] 2 K.B.'249)·and Mukerjee,
.Qfficial ."Receiver v. Ramratan Kuer ([1935] L. R. 63 ·I. A.· 47),
referred tO.
· CrvrL APPELLATE
JuRISDICTION : ·Civil Appeal 'No.
: 215 of 1954.
Appeal ·hy '·Special Leave' from ·the Judgment arid
Order 'dated . the 23rd day of 'August 1954 of the High
Court of Judicature .at Bomb;iy in Special Civil. Appli-
. cation No. 1665· of 1954 under Ar~icle . .226 of the Con-
. stitution ·of India.
R . . :B. 'Kotwi:tl, I '.B. Dadachanji _and , Rajinder
Narain, for·the appellant.
•
•
Naunit:Lal,. for respondents Nos. 1 to 3.
.).. i
1955.
Eebruary 22. .The Juc.lgment .of .the .Court
was delivered by
.SINHA • J.-This is ·an·.appeal-by. special.leave ·against
t the judgment and •order <'dated 'the 23rd August 1954
of the "High 'Court of I Judicature at 'Bombay, dismissing . the appellant's .petition for a writ of quo warrantr>
or any other appropriate writ "directed , against the
,election of tihe •2rid .and 3rd •respondents ·as .President
~"-
.,and ·Mice,Presi'dent respectively of ·.the • Gadag-Berger?
..
:S.C.R.
.,SUPREME. COURT,REPORTS
1271
·-«,
.-MuniJ:ipal (8or-ough, .. the 1st , respondent tin this, ,appeal.
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 Munici-
•rpal Boroqghs -Act (Bombay Act XVIII of 1925) which
, hert;inafter . shall be referred .to as the Act for the, sake
'1 • of brevity. The appellant is one of the 32 councillors
~ constituting
the
municipality.
The
last
general
election to the municipality took place on the 7th May
· 1951. ·The term , of ·the _councillors
1 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-Presi-
. .i...
. dent 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 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 munici-
~pality was extended by one year under the amending
t-,
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 the 30th
July 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 . the 30th July 1954 the Prant Officer
-~-
under instructions from the Collector adjourned the
meeting to the 3rd August 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 the 3rd August 1954. At that meeting the
appellant raised a point of order that _under the , provi_ _,
sions of the _Act a -president could not be elected for
1955
S Shyabuddinsab
. . Mohidinrab Akki
v
The Gadag-Betgeri
· Munricipal Borougho
, and otherr
·Sinha].
1955
Sll)'abuddinsab
Mohidinsab Akki
v.
Tht Gadag-Betgeri
· Municipal Borough
and others
Sinha J
1272
SUPREME COURT REPORTS
(1955]
a ·term less than a year and that therefore the · pre>·
posed election would be in the teeth of those provisions. The presiding officer who was the same person
who had adjourned the
meeting on the 30th July
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 the 30th July 1954
and the 3rd August 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.
Thereupon six of. the councillors present including the appellant
walked out and the remaining
councillors
elected the 3rd respondent as the Vice-President:
The appellant moved. the High cOur.t o~ ·Bombay
under art. 226 of the Constitution for a writ .of quo
warranto or any other appropriate writ or order or
_>.-
directioi: against ,the 2nd af\d 3r.d respondents. "restrain.ing them from usur.ping the office of ,the President . il"d .Vice' President . respectivelY. .· of the opponent
No. 1 Muni,cipality and restraining them from perform-
..
ing · any d.uties and from . exercising any powers 1s
Pr~sident and V,ice-President, respectively". The High
Court held that the election of the 2nd and 3rd respoI\dents. ~as '1\ot illegal . and disII).issed · tfi.e . application.
It held that on a proper cons.tfl!ction 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 J
...
S.C.R.
SUPREME COURT REPORTS
1273
" "elected President and Vice-President shall 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. It was
also pointed out by the High Court ·that all the councillors constituting the municipality had nofr:;:: 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 the 30th July 1954 that
did not affect the illegality of the adjourned meeting
and the business transacted therein.
The appellant moved the High Court for leave to
appeal to this court but that application . was rejected. The appellant then applied to this court for special leave to appeal which was granted on the 3rd
t' September_ 1954.
It has been argued on behalf of the appellant that
the meeting held on 3rd August 1954 as aforesaid was
invalid for the reasons :
1. that it was not an adjourned
meeting inas-
•
much as the meeting of the 30th July 1954 had not
been validly adjourned,
2. that it had not been called by the Collector,
and
--<-
3. that
the written notice required
by
section
35(3) had not been given and in any event, had not
been served and published as required by law.
Secondly it was urged that the meeting of the 3rd
August being thus invalid, the business transacted at
that meeting, namely, the election of the President
was equally invalid. Thirdly it was urged that the
election of the President being invalid, the meeting
held that very day under the presidency of the Presi-
-~~ dent thus elected was also invalid and the election of
the Vice-President consequently was illegal. It was
1955
Shyabuddinsab
Mohidinsab Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J.
19·55)\
ShjabulfdinSab_
Mohidinsabr Akki b.
v •.
The; Gadag-Beigm \
Municipal Borough.A.
amt.others·~
Siriha~.J.:
1274
SUPREME COURT REPORTS ·
[1955] i
further argued' that the .election •1 of the President· and
the· V:ice~President being.: in . violation of section 19 of
the·· Act:. was invalid. on that ground also; and finally,
that · the amendment of section 19 by· the amending .
Act LIV · of. 1954 ' after leave to appeal had been
granted· by·· this court could.· not affect;. the
present
proceedings ·which were· then pending even· though the
amending.•Act purported to .make. it:·retrospective~.
On behalf of· respondents l," 2 and '.3 who only have
appeared. in this' court, it has been urged that a President and · Vice-President could be elected for a term
of less than one year as section 19 of . the Act was .
subject to section 23 ( 1) (A) ; that in any view of the
matter, , section 19 as amended by the amending Act ·
LIV of . 1954 rendered the election beyond question as
the Act in terms was meant to validate .all' elections
held between the passing of. the amending Act XXXV
of 1954 and the amending Act LIV of 1954; that the
presiding officer· had inherent, if not statutory power
to adjourn the meeting of· the 30th July 1954 and that '
in any· event·: the· meeting held on the 3rd August
1954 could be treated ·as a fresh meeting . called by the
Collector and
that any
irregularity in serving· the
notice or in· the appointment of· the presiding officer
was· cured by the provisions · of section 57' of the Act.
It was also argued that the appellant was · not the
councillor who had' objected to the adjournment of the
meeting of the 30th July and-' could·· not' therefore
object to it at a later stage. Finally: it·· was argued
that' the appellant· had" no right to a•· writ or order
prayed for as he had not been injured in any sense.
It • would thus- appear that there
are· two main'
questions in controversy .. between the, parties, namely,
(1) whether· the- meeting-of the· 3rd August, 1954
had been validly held; ·and
(2) whether the president and, the vice-president
having been· elected. "for; the remaining period of. the
quadrennium" had;been validly elected,
There are a · number ·of subsidiary · questions bearing
upon· these- two' main· questions which h:\ve been canvassed before"'us:·
)·
t'
S.G.Ri.
SUPREME~COUR'f· REPOlliTS•
1275
A good deal!ofrargument was addressed to us contending that the presiding. officer had no power to .. ad-·
journ the meeting• of the 30th July, 1954 in view of·
the provisions of section .35 ( 11) of the Act. In this ~
connection reference was" also made. to .• the proviso,. to ..
section
19-A(2).
Those provisions, it was, argμed,'.,
point to the conclusion that the powers of the presiding officer . are• the same as . those of the ·president ·of a.
municipality when presiding, over an ordinary meeting
of the municipality except that section,. 35(11)
relat-:
ing to adjournments had been qualified only to this
extent by the proviso aforesaid, that the Collector ·or '.
the officer presiding over · the meeting for the purpose .
of holding an. election of the president or r vice-preside.rJ.t: may refuse to 1 adjourn such a , meeting, in. spite
of the wishes · of the · majority. of the members present
to- the contrary. It was also argued that· the High
court had wrongly taken the view that the. presiding.
officer had the inherent right to adjourn the meeting.
Reference was made to certain passages in · "The Law
of Meetings"
by Head, "The Law . on the Practice of
Meetings"
by· Shackleton, and "Company. Meetings'1
by Talbot. In our opinion, it is unnecessary. for the·
purpose of. this case to pronounce upon the merits of
that controversy in the view we• take of the meeting
of the 3rd August, 1954, assuming that the meeting of1
the
30th July,
1954 had been
adjourned without
authority.
It is common ground that it was the Collector who
called the meeting of the 30th July 1954 and that it•
was under instructions from the Collector that that·
meetjng
was
adjourned. Under the· provisions
of
section 23 ( 1 )(A), on the expiry of· the term of office .
of the president. or vice-president as determined by
the municipality under section 19(1) of. the Act,
a
new president- or vice-president shall be elected within 25 days from the date of such expiry. The provisions of section 19-A which relate to the procedure for,
calling a meeting of a, newly constituted municipality
for the election of a president and. vice-president have··
been made applicable to the calling. of a meeting and·
the procedure to be followed · at such' meeting. for
the ·
1955,,.
Shyabuddinsnb ,,
Mohidinsab·-Akki •
v.
Th£ Gadag-Betgeri-.
Munifipal Bnrough •
and. othtrs .
Sinha,].
1955
Shjabuddinsab
Mohidinsab Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J. ·
1276
SUPREME COURT REPORTS.
[1955f
election of a president. Section
19-A
requires the
Collector to call a meeting for holding such an election. ·Such a meeting shall be presided over by the
Collector or such officer as the Collector may by order
in writing appoint in this behalf. The Collector or
his nominee, when presiding over such a meeting,
shall have the same powers as the president of a
municipality when presiding over a meeting of the
municipality has, but shall not have the right to vote.
On the 30th July, 1954 a special general meeting had
been called by the Collector for the election of the
President; In the proceedings of that meeting it has
been recorded that "Under instructions from the Collector of Dharwar the presiding authority
adjourns
the meeting to i 3rd August 1954 at 3 P.M.". At that
meeting all the 32 councillors were present and admittedly in their presence the presiding officer declared
openly that the meeting will be held on the 3rd
August
1954 under instructions from the Collector
concerne<l. When the meeting was held on the 3rd
August 1954 at 3 P.M. as previously notified, again the
32
councillors were present. The proceedings show
that the same Prant Officer "occupied the chair
as
authorised by the Collector".
The presiding authority read out and explained to the members present
the following telegraphic message from the Collector :
"Government have directed
to hold election
of
President of Gadag Municipality on 3rd August as
already
arranged.
Hold
election accordingly
today
without fail".
At this meeting the appellant raised two points of
order, (1) that the election of the president for . the
remaining period of the quadrennium as mentioned in
the agenda was illegal, and (2)
that the meeting
was not an adjourned meeting of the municipalitv
and was also illegal because it was under the instructions of the Collector that the adjourned meeting was
being held and that the Collector had no such power.
The minutes of the proceedings further show that
"the presiding authority ruled out the points of order
on the ground' that this was a special meeting called
by the Collector for the election of the President and
..• .
~.
} ...
c
r.
O<
,
• .
•
I
_ ...
•
...
-
"'S.C.R.
SUPREME COURT REPORTS.
1277
· the election has to be held as already fixed". After
the ruling given by the presiding authority, 13 mem-·
bers including the appellant expressed a desire ·to
walk out and walked out with the permission of the
presiding· authority. The remammg members, as already. indicated, continued the business of the meeting and the proposal that the 2nd respondent should
be elected president of the municipality for the remaining ·period of the quadrennium after having been
duly made and seconded was carried unanimously and
the meeting terminated.
It would thus appear that the meeting of the 3rd
August 1954 for the election of the president had been
called by the Collector who had authorized the Prant
Officer to preside over that meeting and that the 2nd
respondent was duly elected president. Under section
35(3) of the Act, for such a special general meeting
three clear days' notice has to be gwen "specifying
the time and place at which such meeting is to be
held and the business to be transacted thereat shall
be served upon the councillors, and posted up at the
municipal office or the kacheri or some other public
building in the municipal borough and also published
m a local vernacular newspaper having a large circulation if such exists".
It has been contended on behalf of the appellant
that the notice required by section 35(3) contemplates
a written notice to be served and published in the
manner specified, and that the meeting of the 3rd
August 1954 could not be said to have been held after
complying with the terms of sub-section
(3) of section
35, It 1 was also contended that the requirements of
section 19-A(l) and (2) have also not been complied
with because there is no evidence that the Collector
had called that meeting or that he had made an order
in writing that the presiding authority
had
been
authorized to preside over that meeting. In our opinion, there is no substance in any one of these contentions. From the record of the proceedings of the proposed meeting of the 30th July 1954 and the actual
meeting on the 3rd August 1954 it is clear that whatever had ·been done had been done under the orders of
• 7-90 S.C. In1ia/59
1955
Shyabutidinsab
Mohidinsab Akki.
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J.
1955·
Shyabuddi'ISab
Mbhidinsab Akki·
v.
TM- Gadag-BUgen·
Municipal BorougN
and others
Sinlia ].
1278
SUPREME COURT REPORTS
[1955]
the Collector. He: had called the meeting of the 30th
July as also of the 3rd · August 1954. It was he who
had appointed the Prant Officer as the presiding officer
for both those meetings. It is true that the notice
of the meeting of the 3rd August 1954 had not been
given in writing but had only beerr intimated· to all
the councillors who were present at the meeting of
the 30th July
1954. The notice amply satisfies the
requirement of three days' clear 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 sub-section. (3) of section 35 of the Act
There is no evidence· that there existed a local vernacular newspaper with large circulation, in which the
notice of the meeting could be published. The question is, do those omissions render the notice ineffective in law. That could only be so if those provisions
were held to be mandatory. The following provisions
(omitting the words not material to this case) would
show that those provisions of section 35(3) are directory and not mandatory. and that any omissions
in·
the manner of service of the notice are mere irregu-·
larities which would not vitiate the proceedings unless
it was shown that those irregularities had prejudicially
affected the proceedings :-
"No resolution of a municipality .......... shall be
<kerned im,alid on account of any irregularity in the
service of notice upon any councillor or member provided that the proceedings of the municipality ..... .
. . . . . . . . were , not prejudicially affected by such irregularity''.
Fortunately
for the respondents, all the councillors
constituting the municipality were present on both
the occasions, namely, 30th July and 3rd August, 1954.
Hence they had 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.
It has
not been either alleged or proved that the irregularities in the service of the notice or the omissions com-
..
-
-
s.c.R.
SUPREME COURT REPORTS
1279
"""\ • plained' of had prejudicially affected the proceedings.
But it was contended that as the notice had. not been
posted up at the municipal office or the_ local kacheri
or some other public building and had also not been
published in a local vernacular newspaper, if there
were one, though all the councillors were present on
3rd August, 1954, the members of the public had no
• 1
such notice and naturally therefore could not be pre-
,.
sent at that meeting.
In this connection
it
was
pointed out that sub-section ( 6) of section 35 provides
that every such meeting shall be open
t~ the public,
unless the presiding authority directs to. the contrary.
It is evident from the provisions of that sub-section
that though the presence of the public at such meet~
ings may be desirable, it is not obligatory. The presence at or the absence from such a meeting of the
members of the public has no legal consequence so far
as the validity of the election is concerned. It must
therefore be held that 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
general meeting and that therefore that meeting was
not invalid, assuming, as already said, that the order
r"
of the presiding authority adjourning the meeting of
the 30th July, 1954 was not authorized. It has to be
remembered in this connection that such a special
general meeting can be presided over only by the
Collector or the person author.ized by him and if either
the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect
their own chairman for presiding over such a meeting.
Therefore if the presiding authority admittedly under
instructions
from the Collector refused
to
proceed
with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own
with a president of their own choice and transact· the
only business on the agenda, namely, the election of
president. Hence, rightly or wrongly, if the meeting
called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of
the occurrence of
the
vacancy.
In this case, as a
1955
Shyabuddinsab
Mohidinsab Akkf
v.
The Gadag-Betgeri.
Municipal Borough
and others
Sinha J.
1955
Shyabuddinsab,
Mohidinsab Akkf -
v,
The Gadag-Betgeri
Municipal Borough ·
and othe'rs·
Sinha J.
1280
SUPREME.COURT REPORTS
[1955],
result of the 1 expiry of the original term of office
~f
the
president
and
vice-president,
another
meeting
giving the 'required
three days
statutory
notice had
to be held.
The meeting held on the 3rd August.
1954 was such a meeting. Indeed, there were some.
omissions in the manner of publication or service of
the notice but those in law were mere irregularities
which do not have the effect of vitiating the election
held at that meeting.
The election of the president
therefore,
if · not
otherwise invalid,
could
not
be
assailed on the ground of the irregularity · in the service or publication of the notice, in the special· circumstances of this case.
If all the councillors had not
been present on the 30th July or had · not been informed of the proposed meeting of the 3rd August
1954, other
considerations may
have arisen
but in
this case
it is clear that there was absolutely no prejudice to any, party or · individual or the municipality
as a whole.
But it was further contended that the
walking out of the .13 councillors rendered the meeting infructuous. In our oprmon, such a result does
not follow from the voluntary act of the 13 councillors
who chose to walk out. It was not even suggested
that there was no
quorum for the
special. general
meeting· after the 13 councillors walked out.
The next question is whether the provisions of section 19(1) as they stood on the 3rd August 1954 render
the election of · the president and
the
vice-president
on the 3rd August 1954 invalid as it was "for the
remaining period
of the quadrennium".
The High
Court has taken the view .that the remaining period of
the quadrennium would not necessarily end on the 9th
July 1955, in view of the proviso to section 19( 1) "that
the term of office of such president or vice-president
shall be deemed to extend to and expire with of
the
on which his successor is elected". In view of the
events that have happened it is not necessary for us
to pronounce on the correctness or otherwise of that
decision. After the judgment of the High Court and
after the grant of special
leave by this· court,
the
Bombay Legislature enacted Act LIV of
1954
which
was published in the Bombay Gazette on the 14th
' -
"
.• '*
-
S.C.R.
~
i I
SUPREME COURT REPORTS
1281
October 1954. Sections 2 and 3 of the amending Act
are in · these terms :
"2. In section
19
of the
Bombay
Municipal
Boroughs Act, 1925, in sub-section (1),-
(1) after the
words 'not less
than
one
year'
the words 'or not less than the residue of the term of
office of the ·municipality, whichever is less' shall be
inserted;
(2) for the words 'three years' the words 'four
years' shall be substituted.
·
3. (1) The amendments made by this Act ·shall
be· deemed to have come into force on the date on
which the Bombay District Municipal arid Municipal
Boroughs (Amendment) Act, 1954, came into force
(hereinafter in this section referred to as 'the said
date') and all elections to the office of the president
or vice-president, held on or after the said date· and
before the coming into force of this Act, shall be
deemed to be valid as if this Act had been in force on
the said date; and any person elected to the office of
the president or vice-president at any of such · elec-
- tions shall not be deemed to have been illegally elected
merely on the ground that the residue of the term of
office of the municipality being less than _one year at
the time of such election, he would hold his · office for
a term less than one year in contravention of section
19 of the Bombay Municipal Boroughs Act, 1925, as
it was in operation- before the coming into force of
th~A~
-
(2) Nothing contained in this section shall affect
the judgment; decree
or order of any competent
court, passed before the coming into force of this Act,
holding any of such elections invalid on the ground
specified in sub-section (l)"..
_
- It has not been contended that section 19 as amended
by Act_ LIV of 1954 does ·not in terms cover the elections now impugned; nor that section · 3 of the amending Act quoted above is not retrospective; but ·it has
been urged on behalf of the appellant that it is not
. retrospective to the extent of affecting
pending proceedings. In terms the amendment ip question
is
deemed to have come into force on the 11th May 1954
1955
.. Shyabuddinsab
Mohidinsab Akki
. v •
. The Gailag-Betgeri
Municijal Borough
and others
Sinha J.
·1955
.S/rJtibuddinsab
'Mohidinstib Aiki
:v.
·rhe ~Gadag.!_Bttgtri
'Munitipal Boroirgh
and others
Sinha J.
1.'282
'StJP.REME COURT .RrEPORTS
[t955]
·on which date the .amending Act · XXXV ·of 1954 had
come into force. Section 3 in terms .also declares that
.all .eleations to .the office of president and vice-president held on or .after the llih May .1954 ·and before
.the coming into force of the amending Act shall be
.deemed to 'have been valid. The section also declares
in unequivocal terms that such an. election .shall · riot
be questioned simply on the ground of contravention
of section 19 on which the election. of the 2nd and 3rd
respondents had been questioned before ·the
High
Court.,· The
legislature . apparently
thought
fit
to
declare 'beyond all controversy that an election
of
president or vice-president . for the unexpired portion
of -the term of a municipality .could not b.e questioned
on the ground that the provisions of section 19 as it
stood before the amendment had been contravened.
But it .was argued on behalf of the appellant that in
terms the amendment had not .been. made applicable
to pending litigation and that therefore this court
should hold that the amendment did not have the
effect .of validating the elections which . were already
under challenge in a court. Np authority. has been
cited . before us in support . .of the contention that unless there are express words in the . amendi'ng statute
to ihe effect that the amendment shall apply to ·pending proceedirgs _also, it cannot affect such proceedings. There • is . clear. : a11thority . to , the contrary in the
following dittum of. Lord Read.ing, C.J. in the case of
The King v. The General Commissioners of. lncometax for .Southampton; Ex .. parte. W. M. $inger(• );-
·"I -.cannot accept· the contention of the· applicant
that·· an enactment 'can · only take away · vested rights
of .action for which .legal proceedings· have been .commenced if
there are in the enactment · express words
to that •effect. '.Phere is' no authority for this proposition,· and 'I -do .not see . why in principle it .should. be
the law: But it is necessary that dear . language should
be used -to .make the retrospective . ·effect aP.plicable to
proceedings . commenced .. before . the : passing . of ' . the
statute'!, · ·
'Tfuif '·was a" case ·fo ·w1Uch the Act in '·queStion· had
(I),
1Cl91GjzicJi.249,25g;'"
'.•: . '"·'' .,. :·o;,
'
' .
) ....
\ ...
SUPREME COURT REPORTS
128j
validated
assessments
made
by
commissioners
for
wrong parishes. It was held by the court that the
retrospective effect of the· relevant section extended
to proceedings for a prohibition commenced before the
Act came into force and the rule nisi for a prohibition
was therefore discharged. In every case the language
of the amending statute has to be examined to find
out whether
the
legislature clearly intended
even
pending proceedings to be affected by such statute.
A number of authorities were cited before us but it is
only necessary to refer to the decision of their Lordships of the Judicial Committee in Mukerjee, Official
Receiver v. Ramratan Kuer (1), which is clearly in .point.
In that case while an appeal had been pending before
the Judicial Committee the amending Act had been
passed clearly showing that the Act was retrospective
in the sense that it applied to all cases of a particular
·description,
without reference to pending litigation.
In those circumstances their Lordships pointed out
that if any saving were to be implied in favour of
pending proceedings, then the provisions of the statute
would largely be rendered nugatory. Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of
cases pending on the date of
the amendment,
the
words "all elections to the office of the president or
vice-president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid" could not be given their full effect. As
there are no such saving clauses in express or implied
terms, it must be held that the amendment was
dearly intended by the legislature to apply to all
cases of election of president or vice-president, whether or not the matter had been taken to court. It
is the duty of courts to give full effect to the intentions of the legislature as expressed in a statute. That
being so, it must be held that the amending Act had
the effect of curing any illegality or irregularity · in
the elections in question with reference to the provisions of section 19 of the Act.
For the reasons afores;i.id it must ·be 'held that the
'
.
'
.
' ·.
(I)' [1935] t.R. 63·!.A. 47,
•955
Shyabuddinsab
Mohidinsab Ak(<i
v.
The Gadag-Betgeri
Municipal Borough
anil others
Sinha J.
1955
Shyabuddinsab
Mohidin.Jab Akki
v.
The Gadag-Betgeri
Municipal Borough
and others
Sinha J.
1955
February 23
1284
SUPREME COURT REPORTS
[1955]
meeting of the ~rd August 1954 had. been validly held
and that there is no illegality in the election. of the
2nd and 3rd respondents as president and vice-president respectively. We accordingly affirm the orders
of the High Court, though not for the same reasons.
The appeal fails ·and is dismissed with costs.
Appeal dismissed.
HANS MULLER OF NURENBURG .
tJ.
SUPERINTENDENT, PRESIDENCY JAIL,
CALCUTTA AND OTHERS.
[MuKHERJEA C.J., S. R. DAs, VIVIAN
BosE,
.
BHAGWATI and }AGANNADHADAS JJ.)
Constitution of India, Arts. 14, 21 and 22-Entry 9 and entry
10 in Union list of Seventh Schedule to Constitution-Preventive Detention Act 1950 (Act V of 1950), s. 3(1)(b)-Whether ultra vires
Constitution-Foreigners Act 1946 (Act XXXI of 1946), s. 3(2)(c)-
Whether ultra vires ,Constitution-Extradition Act 1870 and Foreigners Act, 1946--Distinction between.
The petitioner, a West German subject, was placed un<;Ier preventive detention by an order of the West Bengal Government under
'· 3( 1) (b) of the Preventive Detention Act 1950 on the ground that
he was a foreigner within the meaning of the Foreigners Act 1946
and that it had becoine necessary to make arrangements for his expulsion from India ahd tht;refore he was required to be detained until
the issue of an appropriate order from the Central Government.
The questions for determination in the case· were :-
(i) whether s. 3(1)(b) of the Preventive Detention Act was
ultra vires the Constitution inasmuch as it contravenes Arts.