Arun Subodhbhai Mehta and Another vs Bhavnagar Municipal Corporation and Others

P.M. Chauhan, J.—Mr. K.G. Vakharia for respondents Nos. I to 4 and Shri Jayant Patel for respondents Nos. 5 and 6 waive service of

rule. By the request of the learned Advocates for the parties rule heard.

The petitioners claiming to have been elected President and Vice-President respectively of the Bhavnagar Municipal Corporation, by this

petition pray for the writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting

aside the action of the respondent-authorities, adjourning the meeting scheduled to be held on June 1, 1988 by, circular, being illegal and contrary

to the provisions of law and for the direction to the respondents to permit the petitioners to hold the office of Mayor and Deputy Mayor

respectively, of the Bhavnagar Municipal Corporation and further direction to the respondents Nos. 1 and 2 not to restrain the petitioners to hold

the office of the Mayor and Deputy Mayor respectively, and perform the duties and direction to respondents Nos. 3 and 4 to vacate the office of

Mayor and Deputy Mayor respectively of the said Corporation and hand-over the charge of the office immediately.

The dispute between the parties for the claim of the office of the Mayor and Deputy Mayor of Bhavnagar Municipal Corporation has arisen in

peculiar circumstances. Respondent No. 3-Shri Jayantbhai Nanubhai Patel is the Mayor and respondent No. 4-Shri Ishwarbhai Makwana is the

Deputy Mayor of the Corporation. The Mayor and Deputy Mayor of the Corporation can hold the office till the New Mayor and Deputy Mayor

respectively, are elected. As provided in Section 19 Bombay Provincial Municipal Corporations Act, 1949 (''B.P.M.C. Act'') the Mayor and

Deputy Mayor are required to be elected at the first meeting after the general election and at the first meeting of the Corporation in the same month

in each successive year from among the Councillors. The Mayor and Deputy Mayor, therefore, can hold the office for a period of one year and

until the election of the office of the Mayor and Deputy Mayor respectively is held. The term of the office of the Mayor-the respondent No. 3 and

of Deputy Mayor-the respondent No. 4, were to expire and, therefore, the respondent No. 3 in exercise of the powers vested in him under Sub-

clause (c) of Clause (1) Chapter II of the Schedule (A) of B.P.M.C. Act convened a meeting of the Corporation to be held at 5-00 p.m. on June

1, 1988. It transpires that the respondent No. 3 was required to go to Gandhinagar and Ahmedabad for purposes of securing loan and discussion

about the water shortage and for consulting the Advocates as some litigation was filed in the High Court, he by letter dated May 31, 1988,

informed the Deputy Secretary to instruct the Secretary Shri Acharya to postpone the meeting.

Accordingly, the Secretary of the Corporation Shri D.B. Acharya issued circular informing the postponement of the meeting scheduled to be

held on June 1, 1988 and the members were served either by personal delivery or by delivery at their residence and their signatures were secured.

Accordingly out of 51 Corporators 32 Corporators did not remain present and the Secretary and the Officers of the Corporation also did not

remain present but 19 Corporators of the opposition party remained present and held the election of the Mayor and Deputy Mayor in which the

petitioners were elected as the Mayor and Deputy Mayor respectively. They then asserted their right to hold the office as the Mayor and Deputy

Mayor respectively, but were not allowed to function as such by the respondents Nos. 1 and 2 and the respondents Nos. 3 and 4 also did not

hand-over the charge. Meanwhile the respondents Nos. 3 & 4 filed Regular Civil Suit No. 409 of 1988 in the Court of Civil Judge (S.D.),

Bhavnagar at and the Court restrained the petitioners from functioning as the Mayor and Deputy Mayor respectively. Petitioners have, therefore,

moved this Court for the above referred reliefs.

According to the petitioners the respondent No. 3 had no right to cancel the meeting of the Corporation for the election of the Mayor and

Deputy Mayor and once the meeting is called for that purpose it must be held and in the legally convened and held meeting they are legally elected

Mayor and Deputy Mayor of the Corporation and, therefore, they have right to hold the office and perform the function. It is also their contention

that the meeting was not adjourned bona fide and the respondent No. 3 had no such work as stated by him, but there were disputes as to who

should be the next Mayor and Deputy Mayor and because of that the members belonging to the Congress did not remain present and allowed the

opposition members to hold the meeting and election. Therefore, they have no right to function as the Mayor and Deputy Mayor. The rival

contention is that it is within the powers of the Mayor to postpone the meeting and accordingly he had adjourned the meeting and, therefore, the

Congress members and some other members did not remain present and the meeting by 19 members of the opposition was not legally and validly

held nor any such minutes were drawn by the Secretary of the Corporation and, therefore, they continued to be the Mayor and Deputy Mayor

respectively.

Out of 51 Corporators, 30 are Congress(1) Corporators, 4 Independent, 8 Bharatiya Janta Party Corporators, 7 Janata Party Corporators and

2 C.P.M. Party Corporators. The Congress Party is in majority in the Corporation. Admittedly out of 51 Corporators only 19 remained present

and held the meeting and elected the Mayor and Deputy Mayor.

It is clearly established and as such cannot be disputed that by Notification dated May 21, 1988, the meeting of the general body of the

Corporation was convened at 5-00 p.m. on 1-6-1988 for election of the Mayor and Deputy Mayor, as provided in Sub-section (1) of Section 19

B.P.M.C. Act and also for transacting other business as specified in that Notification. The meetings of the general body were also held for other

businesses on 29th, 30th and 31st May, 1988. The respondent No. 3 in the affidavit has stated that on May 31, 1988 he was required to pursue

urgently the matter regarding the approval of the loan for water supply in the scarcity areas and also to take steps for vacating the interim injunction

granted by High Court in Spl. C.A. No. 2713 of 1988 because of which the Municipal Corporation was not in position to elect the representatives

of the Corporation to Bhavnagar University and, therefore, he decided so leave in the evening on May 31, 1988 and it was not be possible to

return to attend the meeting on June 1, 1988 and, therefore, decided to postpone the meeting scheduled to be held on June 1, 1988. Before giving

direction to postpone the meeting he consulted the Corporators of his party, he constitute the majority in the Municipal Corporation and they

agreed for postponement of the meeting. He then handed-over the notice dated May 31, 1988 to the Deputy Secretary Mr. Pandya and in which

he instructed to convey to Mr. Acharya, the Secretary of Municipal Corporation to postpone the meeting and Shri Acharya then issued the circular

in the morning on June 1, 1988 postponing the meeting and the information of the postponing of the meeting was communicated to the members.

The notice was also placed on the notice board of the Municipal Corporation and by that also the intimation was given. Respondent No. 5, who

was the Ex-Mayor has also supported this fact in his affidavit. This fact also stands corroborated and supported by the copy of the note handed-

over by respondent No. 3 to Deputy Secretary Shri Pandya, circular issued by Secretary Shri Acharya to ail the members, service of circular to

the members and the receipt by taking their signatures or delivery at residence of some of the members including the petitioners, the report by

Deputy Secretary to the Municipal Commissioner and the report by the Municipal Commissioner to the Government. As that contention is

supported by the documentary evidence it should be accepted that the respondent No. 3 had decided on May 31, 1988 to postpone the meeting

to be held on June 1, 1988 as he was required to go urgently out of Bhavnagar and could not have returned to attend the meeting on June 1, 1988.

Secretary Shri Acharya issued circular in the morning on June 1, 1988 and that circular was served to majority of the members personally and their

signatures were secured and those Corporators, who were not available, the circular was delivered at their residence. Merely because the copy of

the circular did not bear the signature of Secretary Shri Acharya that by itself is not sufficient to hold that such circular was subsequently created or

got up. As such the Municipal Officer has no reason to subsequently create a circular. Apart from that it is clear that the signatures are secured and

the xerox copy of the receipts are produced in the record. If at all the meeting would not have be postponed and the Corporators would not have

been informed, the majority of the members would have remained present as the meeting was for the purpose of electing the Mayor and Deputy

Mayor. The Deputy Secretary in the report dated June 1, 1988 to the Commissioner of the Municipal Corporation stated that under the

instructions of the Mayor, the Secretary of the Corporation had by circular informed the Corporators of the postponement of the meeting and,

therefore, the meeting was not fixed to be held on June 1, 1988 and inspite of that the Corporators belonging to the opposition came to the office

at 5.00 p.m. and decided to hold the meeting to which he informed that the meeting was not fixed and, therefore, the question of holding the

meeting did not arise and inspite of that they forcibly took the possession of the Meeting Hall and in absence of the Secretary and other Officers of

the Municipal Corporation held the meeting. The Municipal Commissioner in his letter dated, June 2, 1988 to the Secretary to the Government of

Gujarat also stated the same facts. It is, therefore, clear that the petitioners and other 17 Corporators knew that the meeting was postponed and

inspite of that they forcibly took the possession of the Meeting Hall and held the meeting.

Shri Y.N. Oza, learned Advocate for the petitioners submits that once the meeting is called it must be held and Mayor has no right to cancel the

meeting and only the majority of the members present at the meeting can adjourn it. Shri Oza seeks support from the provisions of Sub-clause (m)

of Clause (1), Chapter II, Schedule (A) B.M.P.C. Act and also from the fact that there is no specific provision in the Act or the Rule enabling the

Mayor to postpone the meeting, which is convened by him. As against that Shri K.G. Vakharia for respondents Nos. 1 to 4 and Shri Jayant Patel

for respondents Nos. 5 and 6 submit that the Mayor has powers to postpone the meeting and not only that but that was the convention with the

Bhavnagar Municipal Corporation and in past the meetings were postponed by the Mayor. For ascertaining the rival contentions some provisions

of B.P.M.C. Act may be referred.

After the general election the first meeting is required to be called for the purpose of electing the Mayor and Deputy Mayor u/s 19 B.P.M.C.

Act. The Commissioner has to convene the first meeting and fix the day, time and place for that meeting as provided in Sub-clause (b) Clause (1),

Chapter II Schedule (A) B.P.M.C. Act. As provided in Sub-clause (c) of Clause (1), the day, time and place of the meeting in every other case

shall be fixed by the Mayor or in his absence by the Deputy Mayor. The Statute, therefore, clearly empowers the Mayor to call the meetings for

transacting the business including the business of electing the Mayor and Deputy Mayor subsequently after the first meeting was held. It is also

within the right of Mayor to call the meeting. As provided in Sub-clause (g) the meeting shall be presided by the Mayor and in his absence by the

Deputy Mayor. The notice of the meeting, should specify the day, time and place at which the meeting is to be held and the business is to be

transacted there at and that notice is required to be given by the Municipal Secretary in the manner provided in Sub-clause (i), Clause (1), Chapter

JJ, Schedule (A) B.P.M.C. Act. The meeting once called can be postponed by the majority of the Councillors present in the meeting as provided

in Sub-clause (m) Clause (1) Chapter IL Schedule (A) B.P.M.C. Act. The Municipal Secretary has to draw and keep the minute book of the

meeting. Shri Y.N. Oza, the learned Advocate for the petitioners referring to Sub-clause (m) Clause (1), Chapter II Schedule (A) has asserted that

the meeting can be adjourned only by the majority of the Corporators present and not by the Mayor. That submission is required to be referred

only for the purpose of rejecting it. In Chapter II Schedule (A) provisions for regulating the proceedings of the Corporation are made. The entire

procedure of calling the meetings, the manner of calling the meetings, the postponement of the meetings, the transaction of the business in the

meetings and drawing of the, minute-book are provided in it. The said provisions of Sub-clause (m) therefore, provide only for the proceedings at

the meetings which are convened and held and not for any other purpose prior to the holding of the meeting. Once the meeting is held it can be

adjourned under Clause (m) by the majority of the Corporators present at the meeting. That provision, therefore, can not be resorted to by

petitioners for supporting their contention.

The Mayor has right to convence the meeting of the general body of the Corporation on the day, time and place to be fixed by him.

Accordingly the respondent No. 3 the Mayor had convened the meeting, but cancelled it. It is true that there is no specific provision in the Act

empowering the Mayor to cancel the meeting convened by him before the meeting is held at the scheduled time and place, but that does not

necessarily mean that he has no powers to postpone it. Apart from the fact that such was the convention, it is within the statutory power u/s 21

Bombay General Clauses Act, 1904, of the Mayor to postpone the meeting. u/s 21 Bombay General Clauses Act the power to issue notification,

order, rule or by-laws, conferred by the Bombay Act or the Gujarat Act includes the power to add, to amend, vary or rescind any notification,

order, rule or by-laws, issued exercise of the said power. The Mayor in exercise of the power under Sub-clause (c) Clause (1), Chapter II

Schedule (A) B.P.M.C. Act can issue the notice for convening the meeting and can cancel or rescind the notice in exercise of the power u/s 21 of

the Bombay General Clauses Act. The Mayor has such power to postpone or cancel the meeting.

In Mohd. Yunus Saleem Vs. Shiv Kumar Shastri and Others, analogus provisions of Section 21 of the General Clauses Act are considered by

the Supreme Court in an election matter. It is observed in terms that the Election Commission exercising powers u/s 30 of the Representation of

the People Act, 1951 can issue notification for appointment of various dates for nominations and therefore, the Commission in exercise of the

power u/s 21 of the General Clauses Act can amend or alter the date of the election. In the instant case the Mayor was exercising to the statutory

power vested in him and, therefore, could cancel the notice and postpone the meeting convened by him before the meeting was held. Similar view

is expressed by Allahabad High Court in Ravi Kiran Jain Vs. Bar Council of U.P. and Others, . As the statute vests power in the Mayor to

convene the meeting of the general body of the Corporation, the power to postpone or cancel the meeting also is vested in him. It, therefore,

cannot be said that the Mayor had cancelled the meeting without the authority or illegality.

Mayor of the Bhavnagar Corporation used to postpone the meetings in past in same manner and that was convention with the Corporation.

Respondent No. 5, who was the Mayor has stated in his affidavit that he had postponed the meetings previously even without consulting the

majority of the members of the Corporation. Respondent No. 3 has stated in his affidavit that apart from the statutory power, which he exercised,

the meetings were postponed and adjourned by the Mayor previously. Copies of three such notices postponing or adjourning the meeting of the

general body of the Corporation are produced. As that was the convention it was quite natural that the majority of the members who did not attend

the meeting would be guided by the notice and it is natural that they would not attend the meeting. Respondents Nos. 3 to 6 have, therefore,

established that such was the convention for postponing the meeting of the general body of the Municipal Corporation.

Admittedly only 19 out of 51 Corporators attended the meeting and 32 of them did not attend. It should be, therefore, held that because of the

circular they accepted that the meeting was postponed. Their right to vote and elect the Mayor and Deputy Mayor should not be scuttled because

of such circular. Even if it is held, for sake of argument, that the Mayor had no right to postpone the meeting even then the election of the Mayor

and Deputy Mayor should not be held legal and valid as the majority of the members were deprived of exercising their right to elect Mayor and

Deputy Mayor. In a democratic institution the will of the majority should be respected and given due weight rather than to the legal and procedural

technicalities. For that reason also the directions should not be given to allow the petitioners to hold the office as the Mayor and Deputy Mayor. By

this I do not mean to observe that the petitioners have right to hold the office of the Mayor and Deputy Mayor, respectively.

Referring to the provisions of Section 35 of B.P.M.C. Act it is submitted that whatever is stated in the minute book is deemed to be correct

statement of the proceedings which took place in the meeting and until the contrary is proved it should be held that the election of the Mayor and

Deputy Mayor were legally held. Section 35 B.P.M.C. Act provides that until the contrary is proved, every meeting of the Corporation, in respect

of the proceedings whereof a minute book has been made and signed in accordance with the Act or the Rules, shall be deemed to have been duly

convened and held, and all the members of the meeting shall be deemed to have been duly qualified. For raising the statutory presumption it must

be established that the minute of the meeting is made and signed in accordance with the provisions of the Act and Rules. The Municipal Secretary

is appointed under the provisions of Section 45 B.P.M.C. Act and his powers and duties are specified in Section 48 of the Act. The Municipal

Secretary is the Secretary of the Corporation and entitled to custody of all the papers and documents connected with the proceedings of the

Corporation. As provided in Sub-clause (n) Clause (1), Chapter II Schedule (A) B.P.M.C. Act the minute of the names of the Councillors present

and of the proceedings at every meeting shall, on the day following the meeting, or as soon thereafter as may be, be drawn up and kept by the

Municipal Secretary in a book to be provided for this purpose and shall be signed at, and by the presiding authority of at the next ensuing meeting.

It is, therefore, the statutory duty of the Municipal Secretary to draw the minute. It is clearly established that the Secretary, Deputy Secretary or

any of the Officer of the Municipal Corporation were not present at the meeting as that meeting was postponed and no such minute is drawn by the

Secretary. From the copy of the minute produced by the petititoners, it is clear that somebody out of the members present had drawn the minutes.

The minute was, therefore, not drawn as provided in Section 35 B.P.M.C. Act and, therefore, no statutory presumption can be drawn. Apart from

that, the presumption is not the absolute, but is rebuttable and may be drawn, until the contrary is proved. From the evidence discussed above, it is

clear that the meeting was postponed and, therefore, the meeting was not held under the provisions of the Act and, therefore, the contents of the

minutes of the meeting can not be accepted.

The contention that respondent No. 3 had not gone to Ahmedabad and was at Bhavnagar can not be accepted. The respondent No. 3 in his

affidavit categorically stated that he had left Bhavnagar at about 6-30 p.m. on May 31, 1988 and reached Ahmedabad at 10-15 p.m., he was

required to attend the work at Ahmedabad and Gandhinagar after 9-30 a.m. on June 1, 1988 and, therefore, he could not have returned to

Bhavnagar before 5-00 p.m. on June 1, 1988. Except the bare allegation no reliable evidence is produced by the petitioners.

Till the Mayor and the Deputy Mayor are elected in accordance with the provisions of the Act and specifically Section 19 B.P.M.C Act the

Mayor and Deputy Mayor holding office have right to continue to hold the office. The election of the Mayor and the Deputy Mayor is not held in

accordance with the provisions of the statute and, therefore, respondents Nos. 3 and 4 continue to be Mayor and Deputy Mayor respectively. The

petitioners, therefore, can not assert their right to hold office as the Mayor and Deputy Mayor respectively.

Petition dismissed. Rule discharged. No order as to costs.