Broomfield, J.
1. We are concerned in this case with a dispute between members of the Municipal Board of Bhivandi-Nizampur in the Thana District, as to whether plaintiff No. 5, who was elected President of the Municipality at a meeting held on November 6, 1934, was or was not validly elected. This depends on the construction of Section 23, Sub-section (7A)-, of the Bombay District Municipal Act, III of 1901, as amended by Act XXVI of 1930. This clause provides as follows :-
On the expiry of the term of office of a municipality the president and vice-president shall continue to carry on the current administrative duties of their offices until such time as a new president and vice-president shall have been appointed or elected and shall have taken over charge of their duties.
Provided that in the case of a new municipality constituted under this Act, a meeting for the election of a new president shall be called by the president of the retiring municipality. The president of the retiring municipality shall preside at such meeting and the new municipality shall then elect its own chairman for that meeting. In case of an equality of votes the result of the election of the chairman shall be decided by lot to be drawn in the presence of the president of the retiring municipality in such manner as he may determine. The meeting shall then proceed to elect the new president.
2. The facts so far as it is necessary to state them were as follows : There was a general election in 1934 and a new Municipal Board was elected. It then became necessary to elect a President in accordance with Section 23, Sub-section (7A). Acting under it, the retiring President, who was defendant No. 1 in the suit, called a meeting of the newly constituted Board for the purpose of electing a new President. He issued a circular, announcing that the meeting would be held on November 6, 1934. The members assembled in the Municipal hall on that date, but the retiring President did not appear. He had sent a note to the Municipal Secretary, stating that he was ill and intimating that the meeting should be held on November 13. However, the members assembled there, who formed a quorum, did not go away. They elected plaintiff No. 1 as Chairman of the meeting and then proceeded to elect plaintiff No. 5 as the new President. The retiring President did not recognise this election as it had taken place in his absence. He attempted to hold another meeting on November 13, 1934, but was restrained by an injunction obtained in a suit brought by plaintiff No. 5. That is not a suit with which we are concerned. As there was a deadlock, the Collector of Thana acting under Sub-section (10) of Section 23 called a meeting of the Municipality on January 25, 1935, at which defendant No. 2 was elected President. The suit from which the present appeal arises had been instituted on January 18, 1935. The reliefs prayed for were that the proceedings and resolutions of the meeting of November 6, 1934, should be declared to be valid and binding on the defendants, and that the latter should be restrained by injunction from acting contrary to those proceedings and resolutions. The trial Judge decided the suit in favour of the plaintiffs and that decision was confirmed in appeal by the District Judge. After the decision of the District Judge, which was given on September 10, 1935, defendant. No. 2, who had been elected President at the Collector's meeting and had been acting as such ever since, ceased to act, and plaintiff No. 5 took up office.
3. The case has been very elaborately argued both before the trial Judge and the District Judge. At the trial a number of points were taken which no longer concern us. The District Judge thought that the essential issue in the case might be narrowed down to this, viz., whether Section 23, Sub-section (7A), confers a statutory right on the retiring President to preside at the first meeting of a new Board until such time as a new Chairman is elected, so that if he does not preside, the election of a Chairman in his absence and consequent election of a President are illegal and null, or whether the clause in question merely lays down a rule of procedure for the guidance of the retiring President, breach of which does not invalidate the proceedings of the Board. These opposing views which have formed the basis of the arguments before us might also be put in this way : Is the presence of the retiring President in the Chair an essential part of the machinery for the election of a Chairman at the meeting at which the new President is to be elected? Or, on the other hand, does Clause (7A) merely mean that he is intended to preside, but, if he does not, it is only an irregularity which does not vitiate the proceedings, and the meeting may elect another Chairman and then proceed to elect the new President The learned Judge was quite obviously inclined to the former view. But like the trial Judge he thought he was bound by a contrary decision of this Court in Gopal v. Sanmukhappa : AIR1927Bom603 . He, therefore, dismissed the appeal, and a second appeal to this Court was summarily dismissed by Mr. Justice N. J. Wadia, so that we have not the advantage of any judgment from that learned Judge.
4. Gopal v. Sanmukhappa was a case dealing with Section 27 of the Bombay Local Boards Act, VI of 1923, which at the material time ran as follows :-
On the expiry of the term of office of a local board the president and vice-president shall continue to carry out the current administrative duties of their offices until such time as a new president and vice-president shall have been elected and shall have taken over charge of their duties : Provided that in the case of the new board constituted under this Act, a meeting for the election of a new president shall be called by the president of the retiring board.
The president. . .shall preside at such meeting and the new board shall then elect its own chairman for that meeting and then the meeting shall proceed to elect the new president.
The facts in that case were these. The retiring President called the meeting and attended it and took the chair. He then dissolved the meeting on the ground that one member had not received the notice. Seven members accepted his ruling and left. The others declined to accept his ruling and elected a new Chairman, after which the meeting proceeded to elect a new President. The issues before this Court in the appeal, as stated in Chief Justice Marten's judgment, were whether the meeting was validly convened, whether the retiring President had power to dissolve the meeting, and whether the fact that seven members left after he had pronounced the meeting dissolved affected the subsequent proceedings. The point that the election of the Chairman was illegal, because the retiring President was not in the chair when he was elected, was not taken. It is always unsafe to presume that a point not argued or considered has been decided by the Court by implication. If this point had been taken, the answer would probably have been that the retiring President was in the chair, or at any rate the requirements of the section had been substantially complied with. Marten C. J.'s statement of the facts on which this Court decided the appeal is this (p. 1329) :
As I read the learned Judge's judgment, the chairman never in fact left his chair, or at any rate left the meeting until some time after a new chairman was elected. Consequently, the seven members proceeded to leave this meeting before it had really broken up and before at any rate the chairman had properly left his chair.
5. The retiring President's right under Section 27 is to convene the meeting and to be present and preside till the election of a Chairman. In this case he had convened the meeting; he was present; he had not ' properly left the chair' until after the Chairman was elected. Under the circumstances it cannot be suggested in my opinion that this Court took the view that it was immaterial whether the retiring President was in the chair or not. I do not, therefore, consider that this case can be regarded as an authority on the question which has to be decided in this appeal.
6. It is a rather curious fact that Clause (7A) of Section 23 of the District Municipal Act was inserted by Act XXVI of 1930. It substantially reproduces Section 27 of the Local Boards Act as it originally stood. The latter section was amended by Act IV of 1930, and in its amended form it allows the retiring Vice-President or the Chief Officer to preside in the absence of the retiring President. But the old form of the section was retained when it was incorporated in the Municipal Act. It must be presumed, I think, that this was intentional, and that appears to show that it was the intention of the Legislature that the retiring President only and no one else should have the right to preside.
7. The contention of the learned counsel for the appellants here is that the clause in question confers on the retiring President the exclusive right and privilege of convening the meeting and presiding until a new Chairman is elected for the meeting. In my opinion this contention is right. It appears to me to be the natural meaning of the language used in Clause (7A). The meaning appears to be that the retiring President is an integral part, or that his presence in the chair is an integral part of the machinery for the election of a Chairman at the meeting at which the new President has to be elected. I cannot regard it as a reasonable construction of this provision to hold that it is a mere matter of procedure which can be disregarded without affecting the validity of the proceedings.
8. I propose to refer only very briefly to the cases which have been cited in argument, because it is primarily a matter of construction of the language used by the Legislature, and cases which do not deal with the same or precisely similar language are not really of very great assistance.
9. In The King v. Butter (1807) 8 East 389 it was held that if a presiding officer, who by the constitution of the Borough forms an integral part of an elective assembly, departs from it after the meeting has been regularly formed and the election entered upon, but before it is completed, an election made after his departure is void. A fortiori it would seem to be so if he is not present at the election at all.
10. The King v. Williams (1813) 2 M. & S. 141 followed this case and is to the same effect. It was held there that where the presence of any party is required at an election, he must be personally present at the time when the election is declared.
11. Then in Machell v. Nevinson (1724) (Foot note at p. 87 of 11 East 77) 2 Ld. Raym. 1355 Fortescue J. in the course of his judgment said (p. 87) :.the Mayor) is the person who is to preside, and as the Mayor has a power to refuse to meet, it is as illegal to proceed after he breaks up and leaves them, as if they should proceed without being assembled by him...
12. These are clear authorities in support of the proposition argued for by the appellants, at any rate if the retiring President is to be regarded as an integral part of the machinery for the election of the Chairman, as in my opinion he must be.
13. The case of The King v. Gaborian (1809) 11 East 77 has, in my opinion, very little application to the facts of this case. The ratio decidendi there was that the Mayor had left without objection after dissolving the assembly; no notice was given in any way that the rest of the assembly would proceed to elect a Mayor; and so, in the language of Lord Ellenborough (p. 90) :
This silence and acquiescence, at the time, of those who afterwards proceeded to make an election, operated as a surprise and fraud upon the other electors; and. therefore the election made by them under such circumstances cannot be borne out by the statute.
No such question as that arises in the present case. There was also a point as to the competence of the presiding officer. As to that Lord Ellenborough said (p. 90) :
Assuming it to be clear, (though the point has never been judicially decided,) that an election begun under one presiding officer, as by the nomination of the two persons out of whom the burgesses were to choose one, could be completed by such choice made under another, after the departure of the first, and the breaking up of the meeting, as far as depended upon the act of the first presiding officer; the question still remains whether the election of the defendant, under the circumstances which took place, on this occasion, can be supported.
He then went on to deal with the other facts which were entirely different from those in the present case. But Bayley J. made some observations on this point, to which Mr. O'Gorman for the respondents has drawn our attention. He said (p. 92) :
I think it is extremely probable that the intention of the Legislature in this statute was that in case of the mayor's absenting himself during the election, the next in place and order to him might preside and go on with it, and that the wrongful act of the mayor in going away pending the proceeding would not defeat an election afterwards made by the body.
Now that was a perfectly natural view to take on the language of the statute which had to be construed in that case, for the statute there expressly provided that if the Mayor absented himself, the person next in place and office to him should hold the Court or preside in the meeting and have the same power and authority in all respects as belongs to the Mayor. The King v. Gaborian is no authority for the view that the election of plaintiff No. 5 was a valid election, having regard to the language, of the statute applicable to our case.
14. Mr. O'Gorrnan has distinguished these English cases or suggests a distinction, on the ground that in them or most of them the Mayor or other person concerned was under the statute a part of the elective body, and the result of the procedure followed was that the officer was deprived of his vote. Under Section 23, Sub-section (7A), of the Bombay District Municipal Act, the retiring President has no vote. His right is only to preside, and in the case of an equality of votes to determine the manner in which lots are to be drawn. The distinction is not in my opinion material. I think the principle must be the same whether the person concerned is by statute made a member of an elective assembly or body, or whether the statute makes him an integral part of the machinery for an election.
15. Basaya v. Murgaya : (1926)28BOMLR1184 has been relied on for the respondents. That was a case under Section 26, Sub-section (5), of the Bombay District Municipal Act. There had been no breach of any provision of the statute and nothing was decided which bears upon the present issue. The Court held that Section 38 of the Act covered the case of the irregularity, if any, in continuing the Chairman as the Chairman of a general meeting after the President was elected. Mr. O'Gorman has argued that the provisions of Section 38 might be applied to this case also. That section says this :
No disqualification of, or defect in the election or appointment of, any person acting as councillor, or as the president or presiding authority of a general meeting or as chairman of a committee appointed under this Act, shall be deemed to vitiate any act or proceeding of the Municipality or of any such committee, as the case may be, in which such person has taken part, whenever the majority of persons, parties to such act or proceeding, were entitled to act.
16. This section comes in Chapter III of the Act which deals with the conduct of business. It is conceded that it will ordinarily only apply in the case of proceedings of a duly constituted Municipal Board after the election of its President and other officers. The section, in my opinion, cannot apply to a case like the present. So far as it is relevant to the present case, the only defect which would be cured by it would be a defect in the election or appointment of the presiding authority of a general meeting or Chairman of a committee appointed under the Act. Now the meeting at which plaintiff No. 5 was elected President was not a general meeting. Section 26 of the Act shows what are general meetings of the Municipality. Four ordinary general meetings are provided, and special general meetings may be summoned by the President whenever he thinks fit, and must be summoned by him upon the written request of not less than one-fourth of the Councillors. But the meeting of November 6, 1934, was neither an ordinary nor a special general meeting within the terms of Section 26. Obviously it was not a meeting of a committee. In my opinion the provisions of Section 38 cannot be applied in the case of a preliminary meeting which is held before the Municipality is properly speaking constituted at all. That case must be governed by the express provisions contained in Section 23 (7A), and having regard to those provisions it could not be said that apart from the defect in the election of the Chairman, the majority of persons were entitled to act as they did.
17. Then Mr. O'Gorman argued that the retiring President has, merely ministerial functions to perform. He has to convene the meeting, but the moment he has convened it the members summoned become seized of all power. The powers of the retiring President are at an end. No doubt the clause says that he has to preside, but if he does so he is absolutely in the hands of the members. Therefore the argument is that the words ' shall preside' are not to be taken as mandatory. I think, however, that this argument ignores the plain language of the section. It is apparently conceded, and at any rate it is I think clearly the case, that the retiring President must convene the meeting. No other person has power to do that, and I can see no reason why the words ' shall preside at such meeting' should be given any less mandatory effect than the preceding words 'shall be called by the President.'
18. Then lastly reliance was placed on a passage in Maxwell's Interpretation of Statutes, 7th edn., p. 321 :
On the other hand, where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty without promoting the essential aims of the Legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only.
Mr. O'Gorman suggested that very serious consequences might ensue if the election of plaintiff No. 5 were held not to be valid. I see no reason to suppose that that will be so, and it seems to me that that is precisely the difficulty which Section 38 of the Act is intended to meet and does meet. I have already pointed out that defendant No. 2, who was elected President at the meeting called by the Collector, acted as such until the decision of the appeal by the District Judge, when he was displaced by plaintiff No. 5.
19. For all these reasons I hold that the plaintiffs have failed to show that plaintiff No. 5 was validly elected, and that they are not entitled to the reliefs claimed by them in the suit. The result is that the appeal must be allowed and the suit dismissed with costs throughout.
Tyabji, J.
20. The question in this appeal is whether the election of the fifth plaintiff as the President of the Municipality of Bhiwandi-Nizampur, alleged to have taken place on November 6, 1934, was valid and binding on the defendants.
21. The election is said to be invalid on the ground that the procedure followed at the time of the election was in contravention of Section 23, Sub-section (7A), of the Bombay District Municipal Act, III of 1901. That sub-section provides that on the expiry of the term of office of a Municipality, in case a new Municipality is constituted under the Act, a meeting shall be held for the election of a new President. Three duties are cast by the proviso to the sub-section upon the President of the retiring Municipality : (1) to call a meeting for the election of a new President, (2) to preside at such meeting until such meeting elects its own Chairman for that meeting, and (3) in case of an equality of votes in regard to the election of such Chairman, the result of his election has to be decided by lot,-in which event the retiring President has to be present while this is being so decided, and he has to determine the manner in which the lot shall be drawn.
22. The provision of this sub-section that has not been given effect to, is the second provision, which requires that the retiring President shall preside at the meeting called for the election of a new President for the short time taken by the new Municipality in electing its own Chairman for that meeting. That this is an extremely small and unimportant part of the business to be transacted, seems clear. In a great number of meetings the Chairman or President is elected without anybody being in the chair while the election takes place. That seems to have happened in the present case. I also observe that in the powers given and the duty cast upon the Collector under Sub-section (10) of Section 23, no reference is made to the second of the three functions cast under Sub-section (7A) upon the retiring President : Sub-section (10) provides that the Collector may exercise the powers of the President for the purpose of calling such meeting, but does not provide that the Collector shall preside over the meeting while the meeting elects its own Chairman.
23. While it must be admitted that the second of the three functions of the retiring President may in many cases be extremely unimportant, that the absence of the President may be overlooked (as it was in the present case), and that the new Municipality may consider that it can elect its Chairman for that meeting without any Chairman presiding over the meeting while it elects its own Chairman, yet I cannot overlook the fact that Section 23, subs. (7A), in terms makes it necessary for the meeting to have a Chairman while it elects its Chairman for the ensuing meeting, that the retiring President is required to preside over the meeting for the time being, and that the three functions to which I have referred (which taken together cannot be considered to be unimportant) are stated as though they all stood together. They are apparently placed on a common footing.
24. The terms of the sub-section are mandatory. That the provision that the retiring President shall preside while the meeting elects its own Chairman, has been violated in the present case, cannot be denied. The question then arises whether there is anything in the Act by which the disregard of this, provision may be condoned.
25. Our attention was drawn in this connection to Section 38. That section does not however excuse the disregard of the second of the three provisions to-which I have referred. Section 38 provides for the condonation of certain disqualifications or defects that may otherwise vitiate any act or proceeding of the Municipality or of any committee appointed under the Act. Its provisions are restricted in several ways : first, the disqualification or defect must have reference to some act or proceeding of the Municipality (a) at a general meeting or (b) at a proceeding of a committee appointed under the Act. The expression ' general meeting' is explained in Section 38, and there is no doubt that the meeting for the election of the President does not fall within the terms of that definition. Nor can it be said that this was a meeting of a committee appointed under the Act. Secondly, what Section 38 cures is something that arises out of persons taking part in such meetings, notwithstanding that the election or appointment of such persons is subject to some disqualification or defect. Here it is not objected that some person has taken part in the meeting who was disqualified or whose election or appointment was defective : what is objected to is that a person did not preside who is required to preside over the meeting-no doubt for a very short time and while a very formal act is being done. But for the time being no one acted as Chairman. Thirdly, the operation of Section 38 is restricted to cases in which the majority of the persons who are parties to-such acts or proceedings are entitled to act. Here the new Municipality did an act-elected their Chairman for the meeting-without having the person presiding over their deliberations who is required by Section 23 (7 A) to preside over them. The majority are not entitled to act in this respect : they were not entitled to decide whether they should proceed to elect their Chairman without having the retiring President or any one else in the Chair. If the terms of Sub-section (7A) are considered strictly, then the meeting was not properly constituted for the purpose of electing its Chairman in the absence of the retiring President. The meeting becomes entitled to elect its Chairman only when the retiring President presides at such meeting. Section 38 does not deal with such a case as is under consideration.
26. Section 22, Sub-section (5) was not cited to us in argument. It provides for irregularities and informalities relating to elections. There is no similar provision relating to irregularities and informalities in the proceedings at the meeting called for the election of a new President of a new Municipality, nor any other provision whose aid may be taken for -curing the omission to follow the procedure laid down in Sub-section (7A) of Section 23.
27. We have then two sections in the Act intended to cover cases in which irregularities may be condoned, and this particular irregularity with which we are concerned is not included in either. To this I would add that the retiring Vice-President is expressly mentioned in the paragraph of Sub-section (7A) immediately preceding the provision which has been disregarded; the omission to refer to the retiring Vice-President in the paragraph with which we are concerned, would imply that the retiring President's function was deliberately excluded even from the competence of the retiring Vice-President who would otherwise naturally undertake its performance. Then again the action of the Legislature in respect of the amendments made in the District Municipal Act and the Local Boards Act, is noticeable. Both Acts were amended in 1930. The Local Boards Act was the first to be amended by Act IV of 1930. That amending Act was published on April 28, 1930. The amendment had the effect of permitting the retiring Vice-President or the Chief Officer to preside in the absence of the retiring President on the occasion in question. Then, five months later, the District Municipal Act was amended. The latter amendment was published on September 23, 1930. It introduced in the District Municipal Act the provision of the District Local Boards Act, not as it became after its amendment five months before, but as it stood before that amendment, i.e., without authority to the retiring Vice-President or any other person to take the Chair in the absence of the retiring President.
28. While, therefore, there is no provision by which the infringement of Sub-section (7A) of Section 23 may be condoned, there is considerable material for holding that the Legislature deliberately omitted to make such a provision.
29. The cases that were cited to us have been dealt with by my learned brother. It seems unnecessary for me to refer to them in detail. I will only say that the English cases cited seem to me to be inapplicable. They do not deal with facts and conditions similar to those with which we are concerned. They either refer to provisions for the election of the Mayor or other functionaries, in cases in which the elective body is not complete without the presence of the person who was absent, or are based on legislative provisions or ancient customs or Charters which make the position materially different. Under the District Municipal Act the retiring President is not necessarily entitled to vote at the election of the new President. The retiring President may not be a member of the newly elected Municipality which is about to elect its President.
30. In Gopal v. Sanmukhappa : AIR1927Bom603 the question whether the election of the Chairman of the meeting called to elect the President for the ensuing three years could be held in the absence of the retiring President in the Chair, was not directly considered. The point that was considered was whether the retiring President had the power of dissolving the meeting. It seems to me, therefore, that the question we have to decide has not been covered by the decision in Gopal v. Sanmukhappa, nor in any of the cases that have been cited to us.
31. My conclusion is that the provisions of Section 23(7A) that the President of the retiring Municipality shall preside at the meeting called for the election of a new President while the meeting elects its own Chairman for that meeting, has not been given effect to, and that there is nothing in the Act empowering that defect being cured or overlooked, and the proceedings being held good in spite of its contravention.
32. For these reasons I agree with the order proposed by my learned brother.