JAYANTBHAI MANUBHAI PATEL AND OTHERS v. ARUN SUBODHBHAI MEHTA AND OTHERS

Citation: [1989] 2 S.C.R. 110

Court: Supreme Court of India

Bench: M.H. KANIA, L.M. SHARMA

Case summary

J Gujarat High Court the correctness of which is challenged before us that the Division Bench considered itself bound by the observations in • Chandrakant Khaire's case set out by us earlier. It was, however, held that section 30 of the D.

Judgment text

The Judgment of the Court was delivered by KANIA, J. Leave granted. As a substantial point of law is involved in this case, we have granted special leave and the Appeal is being taken up to hearing with the consent of the parties. The Appeal is directed against the judgment ~ of a Divi:sion Bench of the Gujarat Iligh Court, alloWing the writ petition filed before i.. The facts of the case relevant for the disposal of this Appeal, briefly stated, are as follows. ~-· Appellants Nos. 1 and 2 are persons elected in 1987 as Mayor and Deputy Mayor respectively of the Municipal Corporation of Bhavnagar, Respondent No. 5 herein (referred to in the judgment as "the Corporation"). Appellant No. 3 is the Secretary of the said Corporation. Respondents Nos. 1 and 2 are persons claiming to have {1989] 2 S. C. R. been elected as Mayor and Deputy Mayor of the Corporation at a --f meeting held on June 1, 1988, the validity of which is disputed before us. The Corporation came into existence in 1982.

The elections to the Corporation were duly held in 1985 and 51 members were elected. ,_ On June 30, 1987, appellants Nos. 1 and 2 were duly elected as Mayor and Deputy Mayor respectively of the Corporation for a period of one year. On May 21, 1988, a notice was issued by appellants Nos. 1 and 2 • to convene a meeting of the members of the Corporation at 5. 00 p. m. on June 1, 1988 to elect a Mayor and Deputy Mayor of the Corporation for the second term and for certain other business mentioned in the Agenda circulated. On May 31, 1988, appellant No. 1gave instruclions by a letter to the Deputy Secretary of the Corporation to post- + pone the meeting of the Corporation as appellant No. 1 had to go to Gandhinagar for a certain urgent work of the Corporation. It seems clear from the record that the said instructions were given by appellant No. 1 after consulting 32 members of the Corporation, presumably those belonging to his own party.

Pursuant to the said letter and the instructions contained therein appellant No. 3 issued a letter addressed to the members of the Corporation that the meeting scheduled for June l, 1988 had been postponed. The said letter was circulated to all the members of the Corporation. In spite of the said letter postponing the meeting, 19 members of the Corporation, presumably belonging to "" the minority party or parties assembled at the place indicated in the notice dated May 21, 1988 and elected respondents Nos. 1 and 2 as Mayor and Deputy Mayor of the Corporation respectively. At the said meeting neither the Commissioner of the Corporation nor the Secretary or Deputy Secretary was present and the minutes of the said meeting were not recorded by the Secretary of the Corporation. As ,t· appellants nos. 1 and 2 did not hand over the charge to respondents P-- Nos. 1 and~' the latter filed a writ petition, being Writ Petition No.

2772 of 1988 in the Gujarat High Court for being declared as legally elected Mayor and Deputy Mayor of the Corporation respectively and for an order that charge of the said post should be handed over to them. On June 9, 1988, the said writ petition was dismissed by a learned Single Judge of the Gujarat High Court. The learned Single -~~~ Judge, who dismissed the said writ petition, took the view that, as the Mayor in exercise of the powers conferred upon him under sub-clause ~ (c) of Clause 1 of Chapter II of the Schedule (under Section 453) in the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as "the said Act") can issue a notice for convening the meeting, he is also entitled to the power to cancel or rescind the notice ~under the provisions of Section 21 of the Bombay General Clauses , Act, 1904. It was held that appellant No.

1, as the Mayor, was exercising a statutory power vested in him and could, therefore, cancel the notice and postpone the meeting convened by him before the meeting was held. It was pointed out by him that in the history of the Corporation meetings had been postponed by the Mayor in the same manner. The learned Single Judge further took the view that even assuming ' r that appellant No. 1 had no right to postpone the meeting, even then l 1 the election of respondents Nos. 1 and 2 as Mayor and Deputy Mayor at the meeting held on June 1, 1988 could not be held legal and valid as the majority of the members of the Corporation had been deprived .. of the opportunity of exercising their right to elect a Mayor and Deputy Mayor by reason of the notice for postponing the meeting. A Letters Patent Appeal was preferred by respondents Nos. 1 and 2 against the ....... decision of the learned Single Judge to a Division Bench of the Gujarat High Court.

The Division Bench of the said High Court took the view that it was bound by the view taken by a Division Bench of this Court in Chandrakant Khaire v. Dr. Shantaram Kale and others, [1988] 4 SCC 577; AIR (1988) S. C 1665 where it was observed as follows: "A properly convened meeting cannot be postponed. The proper course to adopt is to hold the meeting as originally intended and then and there adjourn it to a more suitable date. If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat. " - The Division Bench pointed out that the number of members present at the said meeting on June I, 1988 was sufficient to constitute the -~ quorum prescribed and hence, the meeting must be held to be valid and respondents Nos. 1 and 2 duly elected as Mayor and Deputy Mayor respectively.

The Division Bench took the view that even if the aforesaid observations made by this Court constituted only an obiter , dictum of this Court and not the ratio of the case, they were never- :::::;:- theless binding as a precedent on the Division Bench. The learned -, Judges constituting the Bench did note that the result and the conclu- 1 sion arrived at by them would be a little •tartling inasmuch as the party /I ::>. which is in the majority in the Corporation would not be having a Mayor or Deputy Mayor from its own party but would have to suffer as Mayor and Deputy Mayor persons belonging to the minority party but observed that such a result could not be helped because the majority of the councillors who had consented to the postponement of the said [1989) 2 S. C. R. meeting to be held on June 1, 1988 had acted illegally and had thereby mvtted the result. It is this decision which is sought to be assailed before us. It was contended by Mr. G.

Ramaswamy, learned Additional Solicitor General who appeared for the appellants, that the Division Bench had committed an error in following the observations made in i Chandrakant Khaire's case which we have already set out above as that I case could be distinguished on facts. It was submitted by him that, on ~ the other hand, the question raised in this Appeal was practically covered, on the basis of analogy, by the ratio of the decision of this Court in Mohd. Yunus Saleem v. Shiv Kumar Shastri and others, I1974I 3 SCR 738 which dealt with analogous provisions of the Representation of the People Act, 1951. It was further submitted by him that in view of the provisions of Section 21 of the Bombay General Clauses + Act, 1904, which were applicable to the case, since appellant No. 1, Mayor, had the power to convene the meeting of the members of the Corporation, it must be held that he also had the implied power to cancel or postpone the meeting.

In order to appreciate these contentions, it is necessary to refer to certain provisions of the said Act. f The relevant clauses of Section 19 of the said Act runs as follows: "19. Mayor and Deputy Mayor (1) The Corporation shall at its first meeting after general elections and at its first meeting in the same month in each succeeding year elect from amongst the councillors one of its members to be the Mayor and another to be the Deputy Mayor. (2) The Mayor and the Deputy Mayor shall hold office until a new Mayor and a new Deputy Mayor have been elected under sub-section (1) and, in a year in which general elections have been held, shall do so notwithstanding that they have not been returned as councillors on the results of the elections xxxxx" Chapter XXIX of the said Act which deals with the subjects of rules, + by-laws, regulations and standing orders. Section 453 in the said Chapter provides that the rules as amended from time to time shall be deemed to be part of the said Act.

Chapter II of the Schedule (under section 453) of the said Act deals with the proceedings of the Corporation, Transport Committee, Standing Committee, etc. Sub-clauses (a) to (c) of Clause lofthe said Chapter are as follows: "l. Provisions regulating Corporation proceedings.

- (a) There shall be in each month at least one ordinary meeting of the Corporation which shall be held not later than the twentieth day of the month; +- (b) the first meeting of the Corporation after general elections shall be held as early as conveniently may be on a day and at a time and place to be fixed by the Commissioner, and if not held on that day shall be held on some subsequent date to be fixed by the Commissioner; (c) the day, time and place of meeting shall in every other case be fixed by the Mayor or in the event of the office of Mayor being vacant, or of the death or resignation of the Mayor or of his ceasing to be a councillor, or of his being incapable of acting, by the Deputy Mayor, or failing both the Mayor and the Deputy Mayor, by the Chairman of the Standing Committee. " Sub-clause (f) of Clause 1, briefly put, provides that one-third of the whole number of councillors constitutes the quorum.

Sub-clause (h) provides that at least seven clear days' notice shall ordinarily be given of every meeting, other than an adjourned meeting, but in cases of urgency any such meeting may be called on a shorter notice except for certain other purposes with which we are not concerned here. Section 21 of the Bombay General Clauses Act, 1904 runs as \ follows: "21. Power to make to include power to add to, amend, vary or rescind, orders, etc. Where, by any Bombay Act, or Maharashtra Act, a 118 SUPREME -- he cannot utilise this power to adjourn a meeting which has once been notified. Taking into account all the facts and circumstances of the case, it was held that the adjournment of the meeting of the municipality by the President was not warranted in law and was, therefore, invalid. We may, however, point out that neither the learned Single Judge who delivered the judgment in Babubhai Girdharbhai Patel v. Manibhai Ashabhai Patel & Ors.

, nor the Division Bench, which -+ reversed this decision to the extent set out by us have taken into account the provisions of section 21 of the Bombay General Clauses Act, which we have already referred to. That section fortifies the view taken by the Division Bench. We may now refer to the decision of the Allahabad High Court in R. K. Jain v. Bar Council of U. P. & Ors. , AIR (1974) 61 Allahabad r 211. In that case, the Bar Council of U. P. in exercise of its power • under section 15(2) of the Advocates Act, 1961, framed rules which regulate the manner and procedure of holding the election of the members to the Bar Council. These rules are known as Bar Council of Uttar Pradesh Election Rules, 1968. Rule 4 lays down that the election of members to the Bar Council shall be held at such place or places, on such date or dates, and during such hour or hours as the Council may + appoint.

Rule 6 provides that notice of the time and place of election shall be given by publication in the manner prescribed under. the rules. The learned Single Judge (K. N. Singh, J. , as he then was) who decided the case held that the principles laid down in section 21 of the General Clauses Act are fully applicable in construing Rules 4 and 6 of the said Election Rules, 1968. On the facts of the case it was held that the Bar Council had the full jurisdiction to change the date of an election and to postpone the election or to fix dates for holding the election afresh till the elections were completed. 7- In our view, the learned Judges of the Gujarat High Court who delivered the judgment under consideration before us need not have considered themselves bound by the aforesaid observations in Chandrakant Khaire's case, as they have done. In the first place, these observations do not constitute the ratio of the judgment in that case.

The question in that case was whether a meeting which was duly con- t vened and had commenced could have been adjourned by the Munici- ~ pal Commissioner and not whether a notice convening a meeting issued by the Municipal Corporation could be cancelled by him before the commencement of the meeting with a view to 'have the meeting held on a subsequent date. We are of the view that the Division Bench was not really called upon to consider the situation in such a case, as we have pointed out earlier. Moreover, it appears that the Division Bench i has not taken into account the provisions of section 21 of the Bombay General Clauses Act or the principles underlying that section. No argument was advanced before the Division Bench on the basis of that section at all. The attention of the Division Bench was not drawn to the judgment of this Court in Mohd. Yunus Saleem's case.

Had that been done, we feel that the Division Bench which decided the Chandrakant Khaire's case, might not have made the aforestated observations at all. In our view, the principles underlying section 21 of the Bombay General Clauses Act would be clearly applicable in considering the scope of the powers of the Mayor of a Municipal Corporation set out in Clause 1 of Chapter II of the said Schedule in the said Act and in particular, in sub-clause (c) of the said clause. We may point out that the rules in the Schedule have been framed under the statutory provisions of the said Act and section 453 of the said Act provides that the rules in the schedule as amended from time to time shall be deemed to be part of that Act. In our view, the power of the ...

Mayor conferred under Clause 1 of Chapter II of the said Schedule must be regarded as a statutory power as distinguished from the powers of directors of a company which are derived strictly from the Articles of Association of the Company which are contractual in nature. There appears to be no reason to take the view that the principles underlying section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor. In our view, appellant No. 1, the Mayor of respondent No. 5, Corporation, had the power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on a later date. The question, however, whether he has exercised the power within its true ambit is a different question altogether.

In this regard, in our opinion, although the Mayor had the power to cancel the notice convening the meeting and to direct the secretary to issue a notice to that effect, the said powe"r could be exercised only bona fide and for a purpose or purposes within the scope of the said Act. If the power was exercised ma/a fide or for a collateral purp6se, the exercise of the powet would certainly be bad. In the present case, there is considerable factual controversy as to whether, even on the footing that appellant No. 1 had the power to cancel the notice convening the meeting, that power was exercised bona fide for a purpose within the scope of the said Act or whether it was exercised for collateral or impermissible purposes. We remand the matter to the Gujarat High Court for the determination of that question. In view of the urgency of the matter, we would request the Gujarat High Court to dispose of the writ petition latest by 30th April, 1989 as far as possible.

The interim order granted by this Court on November 16, 1988 shall continue upto 5th May, 1989, subject to any orders which may be passed hereafter by the Gujarat High Court. From that date, it will be for the parties to apply for appropriate interim orders to the Gujarat High Court till the case is finally disposed of by that Court. A The Appeal is allowed to the extent aforesaid. Taking into account the facts and circumstances of the case, the parties shall bear and pay their own costs. R. P. D. Appeal allowed. - , + - '