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Judgment
S. Ramachandra Ayyar, C.J.—This appeal is filed under Clause 15 of the Letters Patent against the judgment of Veeraswami, J., rejecting
the Appellant''s application for the issue of a writ of certiorari to quash the order of the Government in Government Order Ms. No. 2268 (Rural
Development and Local Administration department), dated 18th October 1962, directing the Commissioner of the Corporation of Madras to
arrange for the convening of the meeting of the council of the Madras Corporation. The Corporation of Madras is a statutory body constituted by
the Madras City Municipal Act, 1919, for the purpose of carrying on the municipal administration of the city. The statute also creates certain other
authorities and defines the respective duties and powers of such authorities. Such of the duties that the Corporation Council has, and those form
the main part of the Government of the city, can be done only in a duly constituted meeting of the council. No meeting can obviously function
without a head: there should also be an agency to convene it. The City Municipal Act provides for the election of one of the members of the
council as Mayor who is to preside over every meeting of the council and who by virtue of his office is also given certain prerogatives and
incidental rights. But also as far as the council is concerned, his duties consist in facilitating the transaction of business by convening and conducting
of meetings and doing things incidental thereto.
The Appellant is a member of the council of the Corporation. Under Rule 2 of Schedule II of the Act, the Council of the Corporation should
meet in the municipal office for the transaction of business at least once in every month upon such day and at such hour as it may arrange and also
at other times as often as the Mayor convenes the meeting, he being given the power to fix the date and hour of the meeting. With the object of
enabling it to meet and for the due performance of its business, the Council has framed regulations under the powers vested in it by Section 31
fixing the minimum number of ordinary meetings of the council to be held in a month. Regulation No. 9 prescribes that the council should have two
ordinary meetings at the Corporation Buildings at 5-15 p.m., on the first and the third Tuesdays of every month. But this is only the minimum as
fixed by the council; the Mayor can always call for meetings of the council at other times as often as may be necessary. He is also to arrange for
special meetings, if so required by the members of the council. All meetings will have to be presided over by the Mayor, but if the Mayor is
unavailable or unable to preside for any reason it cannot be said that there should or could be no meeting of the council. Section 32 of the Act
says:
Every meeting of the council shall be presided over by the Mayor, in his absence by the Deputy Mayor and in the absence of both the Mayor and
Deputy Mayor, by a councillor or alderman chosen by the meeting to preside for the occasion.
Essentially, therefore, the office of a Mayor is one created for the benefit of the Corporation Council, to facilitate its transaction of business. In
the Madras Corporation, the Mayor who is himself a member of the council is elected once a year. On 28th November 1961, Sri Kuchelar, the
present Mayor was elected by the council. There was an ordinary meeting of the council of the Corporation on 21st August 1962. Nearly a week
thereafter, the Mayor (Sri Kuchelar) participated in an illegal picketing demonstration. He was convicted by the Chief Presidency Magistrate,
Madras, u/s 7(9) of the Criminal Law Amendment Act and sentenced to suffer simple imprisonment for three months. No meeting of the council
was thereafter convened. The business of the Corporation remained at a stand-still. The chief executive officer of the Corporation (the
commissioner) found himself unable to carry on the day-to-day administration with reference to certain matters without the necessary sanction of
the council. Suits which had to be filed after obtaining the sanction of the council--and there were several of them--could not be filed, although the
period of limitation prescribed for them was running out. The number of subjects which had to be disposed of by the council had accumulated,
nearly to one hundred, some of them requiring immediate decision. There was no move on the part of the Mayor who was undergoing
imprisonment to convene a meeting of the council, although it was obligatory on it to meet twice a month. The entire month of September went by
without a single meeting and it is said that there was no indication of any meeting being convened for the month of October as well. From the
arguments addressed to us we gathered the impression that the Mayor will be able to take steps to convene the meeting of the council, only after
his release which sounds as if public duties are subordinate to individual convenience. The commissioner duly apprised the Government of the
deadlock. In the purported exercise of the powers vested in it u/s 42 of the Act, the Government of Madras thereupon passed an order
[Government Order (Ms. ) 2268, dated 18th October 1962, Rural Development and Local Administration department] which after reciting some
of the facts set out above, directed the Commissioner of the Municipal Corporation of Madras to arrange for the convening of the council for
October 1962, and on such other subsequent days as the council may decide for the purpose of disposing of all urgent subjects brought before the
council. The order further directed the Commissioner to discharge the duties assigned to the Mayor by Rules 2 to 5 of Schedule II to the Act and
the regulations made thereunder for the purpose of convening the meeting of the council as aforesaid.
It will be apparent from the terms of the order that what the Commissioner was called upon to do, is purely the ministerial act of convening a
meeting of the council. The conduct and control of the proceedings and the decisions therein will undoubtedly rest with the councillors who meet.
For example the councillors will have to choose one among them to preside over the meeting as both the Mayor and the Deputy Mayor will be
absent.
Soon after the Government issued the order the Appellant who claims to belong to the same political persuasion as the Mayor came forward
with an application to this Court under Article 226 of the constitution for the issue of a writ of certiorari to quash the order on the ground that it
was beyond the legitimate powers of the Government, it being his case that convening of the meetings of the council so long as there is a Mayor, is
his exclusive right and could not be taken over by any other authority.
Veeraswami, J., rejected the petition, holding that it was obligatory on the part of the councillors to meet in accordance with the rules and
regulations and as there was a failure to perform such a duty by the councillors, the Government were justified in issuing the directions.
In this appeal against the judgment of the learned Judge, Mr. Gokulakrishnan, appearing for the Appellant, has in a strenuous argument
reiterated the same point which he urged before the learned Judge, namely, that so long as there is the Mayor for the Corporation, it would be his
right and exclusive privilege to convene and arrange for the meetings of the council. Learned Counsel further contended that as the power
conferred on the Government u/s 42, is confined to issuing directions to a municipal authority alone, it cannot validly exercise such a power over a
person, the Mayor, who is not a municipal authority as defined by Section 4 of the Act. The argument proceeds on a misapprehension of the
position. As stated earlier the duties relating to municipal government are imposed by the Act on the council, which will have to perform them in its
corporate capacity. That can be done only at a meeting of the council. Failure to meet will be breach of duty on the part of the council. Section 42
provides a machinery for compelling the council or other municipal authority to perform its duty which it has defaulted. That section runs:
If, on receipt of any information or report obtained u/s 40 or 41, the Provincial Government are of opinion:
(a) that any duty imposed on any municipal authority by or under this Act has not been performed or has been performed in an imperfect inefficient
or unsuitable manner; or
(b) that adequate financial provision has not been made for the performance of any such duty; the State Government may, by an order, direct the
council or the Commissioner within a period to be specified in the order to make arrangements to their satisfaction for the proper performance of
the duty, or to make financial provision to their satisfaction for the performance of the duty, as the case may be: provided that, unless in the opinion
of the State Government, the immediate execution of such order is necessary, the State Government shall before making an order under this
section, give the council an opportunity of showing cause why such order should not be made.
We have already referred to the position of a Mayor. He is a councillor of the Corporation; he is elected by the council for the due performance
of its corporate acts. In the former capacity as a member of the council he has the statutory obligations to perform namely to meet with other
councillors for transaction of Corporation business. As Mayor (apart from what the statute has assigned to him) his obligations are to the council of
which he is the elected head. His failure to convene the meeting will amount to a failure to do his duty to the council; by his failure, the council itself
will commit a breach of its duty. Neither a refusal, nor unwillingness nor inability of the Mayor will absolve the council of its duty. A Mayor is
elected to facilitate the performance of the duty by the council and it will be the inverse of sound reason to say that the body cannot do its duty
unless he is willing that it should do it. When, therefore, the Mayor fails to convene a meeting, there arises a default on the part of the council, a
municipal authority, and the Government will have the right to step in and issue such directions as may be necessary for convening it. But it has
been contended that as an agenda is an essential for every meeting and as such agenda could be prepared only by the Mayor under Regulation 11
which prescribes that he is to cause notice to be served on the members of the business to be transacted at a meeting, it will not be open to any
other authority to prepare the agenda and consequently no valid meeting can take place. The regulation referred to is one framed by the
Corporation itself for the due performance of its business. It cannot obviously override the provisions of the statute which make it obligatory on the
council to meet. Again Regulation 11 contemplates a normal case where the Mayor performs his duties. It will obviously have no application to a
case where there is a failure on his part to do it. Further the preparation and forwarding of the agenda is a ministerial act which can always be done
by others. The Government while exercising its power u/s 42, can direct any person to convene a proper meeting of the council and perform all the
necessary and incidental preliminary acts therefore .
Two other objections have been raised to the validity of the Government order in question. The first is that as the Government did not obtain a
report u/s 40 or 41, its order is not competent. Secondly the Government should before passing the order it did, have given notice to the council
affording it an opportunity of showing cause why the order should not be passed.
From the terms of Section 42 , it will be seen that the power of the Government to direct the council to perform its duties is not dependant on
the receipt of any report under Sections 40 and 41; it can act on an enquiry on the basis of any information. The word information in Section 42 is
of wide import. It may be, as in this case merely a communication from the Commissioner of the Corporation or it may even be on receipt of
information from other sources, written or oral. The second aspect of the contention urged by Mr. Gokulakrishnan is equally without substance.
The proviso to the section which casts a duty on the Government to give the council an opportunity to show cause against its remissness, will apply
only to ordinary cases and not when there is an urgent need for the act to be done. The matters which we have referred to earlier as requiring the
attention of the council, required such attention immediately. Further the question of urgency for the exercise of the power vested in the
Government u/s 42 is one entirely for the Government to decide. No objective approach is required under the section; what all is necessary is that
there should be an urgency. We are, therefore, of the view that there was a failure on the part of the Corporation council to do its duty of meeting
together to dispose of the business for which it exists and there being the failure it will be competent to the Government to direct it to meet and also
to give directions to the Commissioner to arrange the essential preliminaries for a proper meeting of the council. The appeal fails and is dismissed.