Blackwell, Officiating C. J. -
(1.) . This is an appeal from a decision of Mr. Justice B. J. Wadia on a petition under Section 45 of the Specific Relief Act, calling upon the respondents, who are the Municipal Corporation of Bombay and the Municipal Commissioner, to show cause why they should not be restrained by an injunction from proceeding at a meeting of the Corporation to fill up one of two vacancies in the Corporation for B Ward in the circumstances set out in the petition, and why the 2nd respondent should not be directed to hold a bye-election for the purpose of filling up that vacancy. The facts are fully set out in the judgment of the learned Judge, and I do not think it necessary to detail them at length. It is sufficient to set out a few salient facts for the purpose of the decision of this appeal.
(2.) ELECTIONS to the Corporation of Bombay are held once every three years. At the election held in 1932, sixteen persons were elected to represent the B Ward, with which this appeal is concerned. One of these sixteen Councillors was Mr. Ramji Bharmal. He resigned his seat by his letter of November 15, 1934, addressed to the Municipal Commissioner. It appears that that letter was received on November 29, 1934, and that it was not considered by the Corporation until January 10, 1935, and was then recorded.
By virtue of Section 9 of the City of Bombay Municipal Act of 1888, in the event, among other things, of the resignation of a Councillor, there shall be deemed to be a casual vacancy in the office, and such vacancy shall be filled up as soon as it conveniently may be by election or appointment, as the case may be of a person thereto, and that person is to hold office so long only as the Councillor in whose place he is elected or appointed would have been entitled to hold it, if the vacancy had not occurred. That section is imperative, and reading it with Section 22 (3) it is incumbent upon the Commissioner to fill up a casual vacancy by fixing a day for an election as soon as conveniently may be after the occurrence of the vacancy. In fact, that casual vacancy was not filled up, and the reason given therefor is that as the resignation was in November, "and an election was to be held in January or February, it was not considered desirable to incur the expense of a bye-election. It is, however, to be borne -in mind that councillors do not retire till April 1, and that there was a vacancy from November till that date. The statute confers no discretion upon the Commissioner in such an event, and the failure of the Commissioner to comply with the statutory requirement in that behalf has, in my opinion, involved the Corporation in the difficulty which has arisen in the present case, as I shall later point out.
It was the duty of the Councillors for B Ward, who had' been elected at the 1932 election, to retire on April 1. There were only fifteen existing Councillors at that date by reason of the resignation of Ramji Bharmal, and they duly retired.
(3.) IN clue course, a General Election was held on January 22, 1935, and sixteen Councillors were elected for B Ward. Thereafter, in accordance with the provisions of Section 33 (2) of the Municipal Act, the validity of their election was called in question. An enquiry was held by my learned brother Chitre, as Chief Judge of the Small Causes Court, as he then was, and pursuant to that inquiry, he found that the election was not a valid election, and he set that election aside.
Section 33, Sub-section (4), provides for what is to happen in the event of an election being set aside. That Sub-section (4) is as follows : If lie sets aside an election or if, when he declares a person who has been declared elected disqualified for being a councillor, there is no other candidate who can be deemed to have been elected, proceedings for filling the vacancy or vacancies shall be taken under Section 34.;