SELVA ALIAS G. SARANGAPANI CHETTIAR Vs. C.L. ARAVAMUDHA IYENGAR AND ANR.
HIGH COURT OF MADRAS
Selva Alias G. Sarangapani Chettiar
C.L. Aravamudha Iyengar And Anr.
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Venkatarama Ayyar, J. -
(1.) THIS is an application for the issue? of a writ of certiorari for quashing the decision of the Subordinate Judge of Kumbakonam in O. P. No. 93 of 1952. On 16 -9 -1952 there was a general election of members to the Municipality of Kumbakonam and in that election both the petitioner and respondent 1 were returned as Councillors. The term of the now Councillors was to commence on 1 -11 -1952. On that date the office of both the Chairman and the Vice -Chairman of the Municipality was vacant and accordingly the Revenue Divisional Officer, acting under the provisions of Section 12(7), District Municipalities Act, issued a notice, Ex. A convening a meeting of the Councillors for election of Chairman at 4 p. m. on 12 -11 -1952. At the same time he issued another notice, Ex. A -2 convening a meeting of the Councillors at 6 p. m. on the same date for the election of Vice -Chairman. The Councillors duly met on 12 -11 -1952 at 4 p. m. and elected a Chairman. At 6 p.m. all of them again met and proceeded to elect a Vice -Chairman. This meeting was presided over by the Councillor who had been elected as Chairman at the meeting held at 4 p. m . There were two candidates for election to the office of Vice -Chairman, the petitioner and respondent 1. It must be mentioned that all the Municipal Councillors, 32 in number were present at this meeting, that the two candidates refrained from voting and that 4 other members did not record their votes. Out of the 26 who voted, 13 were in favour of the petitioner & 13 in favour of respondent 1. There being a tie, there was a drawing of lots & therein the petitioner was declared elected. Respondent l then filed O. P. No. 93 of 1952 for setting aside the election on the ground that the Revenue Divisional Officer had no authority to convene a meeting for the flection of Vice -Chairman and that the election held at 6 p. m. on 12 -11 -1952 was accordingly void. On an examination of the relevant provisions, the Subordinate Judge came to the conclusion that the Revenue Divisional Officer was not authorised to convene a meeting for the election of Vice -Chairman and he accordingly set aside the election. A question having been raised as to whether respondent 1 was not estopped by his conduct from disputing the validity of the election, he held that the provision of law relating to the convening of the meeting was mandatory, that there could be no estoppel against a statute and that the respondent was entitled to a declaration that there was no meeting in the eye of law and that there was no election. In the result, he set aside the election of the present petitioner as Vice -Chairman and ordered a fresh election. The present application has been taken out for quashing this order.
(2.) THE first question that arises for determination in this petition is whether the Revenue Divisional Officer had authority to convene a meeting for the election of Vice -Chairman. The statutory provisions bearing on the question are these : Section 12(7), District Municipalities Act runs as follows :
"When the office of Chairman is vacant or the - chairman has been continuously absent from jurisdiction for more than fifteen days or is incapacitated and there is either a vacancy in the office of vice -chairman or the vice -chairman has been continuously absent from jurisdiction for more than fifteen days or is incapacitated the revenue divisional officer shall, after giving notice of not less than seven clear days to the councillors, convene a meeting for the election of a chairman if there is a vacancy in that office and until a new chairman or vice -chairman is elected and assumes office or either the chairman or the vice -chairman returns to jurisdiction or recovers from his incapacity as the case may be, the Revenue Divisional Officer shall, notwithstanding anything contained in this Act or in the rules or notifications thereunder, be ex -officio member and chairman of the council."
Section 13(a) enacts that "The chairman of the municipal council shall make arrangements for the election of the vice -chairman". In exercise of the powers conferred by Section 303(2)(b), the Government have framed rules for the conduct of election of chairman and vice -chairman. Rule I of these Rules is as follows :
I. (i) The election of Chairman or vice -chairman shall be held in the municipal office by the councillors at a meeting specially convened for the purpose.
(ii) Such meeting shall be convened as soon as possible after the occurrence of the vacancy - - -
(a) in the case of the election of chairman - -(i) by the Revenue Divisional Officer, in cases falling under Sub -section (7) of Section12 of the Act; and (ii) by the Vice -Chairman in other cases; and
(b) in the case of the election of vice -chairman, by the chairman. Notice of the day and hour of meeting shall be given at least seven clear days previous to the day of meeting. (3) Such meeting shall be presided over - -
(a) If held for the election of Chairman, (i) in cases falling under Sub -section (7) of Section 12 of the Act, by Revenue Divisional Officer, and
(ii) in other cases, by the Vice -chairman, or if the vice -chairman himself intends to stand as a candidate at the election, or in his absence, by a councillor, not intending to stand as a candidate at the election, chosen by the meeting to preside for the occasion, and
(b) if held for the election of vice -chairman by the chairman or in his absence, by a councillor, not intending to stand as a candidate at the election chosen by the meeting to preside for the occasion."
Section 304(c) provides "that all the rules made under Section 303 shall be published in the official gazette and upon such publication shall have effect as if enacted in this Act". These are the material provisions bearing on the question.
The contention of Mr. M.K. Nambiar on behalf of the petitioner is that on 1 -11 -1052 there was a vacancy in the office of both the chairman and the Vice -chairman of the municipality, that Section 12(7) provides that in that event the Revenue Divisional Officer is to be the ex -officio chairman and that accordingly the notice issued by that officer on 1 -11 -1952 was in accordance with Section 13(a) which provides that the chairman shall make arrangements for the election of a vice -chairman. With reference to Rule I, he argued that Section 12(7) provides that the Revenue Divisional Officer shall be the chairman, notwithstanding anything con -tainsd in the rules and that therefore Rule I cannot prevail as against the positive provisions of Section 12(7).
(3.) THE contention of Mr. K. Rajah Aiyar for the respondent is that the power that is conferred on the Revenue Divisional Officer under Section 12(7) is only to convene a meeting for the election of a chairman; that where the election is of a vice -chairman, Section 12(7) has no operation; that under Rule I, the meeting for the election of a chairman is to be convened by the Revenue Divisional Officer when there is a vacancy in the office of both the chairman and vice -chairman under Section 12(7) and by the vice -chairman in other cases; and that the meeting for the election of a vice -chairman must be convened only by the chairman.;
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