PETITIONER:
JAYANTBHAI MANUBHAI PATEL AND OTHERS
Vs.
RESPONDENT:
ARUN SUBODHBHAI MEHTA AND OTHERS
DATE OF JUDGMENT28/03/1989
BENCH:
KANIA, M.H.
SHARMA, L.M. (J)
CITATION:
1989 AIR 1289 1989 SCR (2) 110
1989 SCC (2) 484 JT 1989 (3) 156
1989 SCALE (1)701
ACT
Bombay Provincial Municipal Corporation Ac t,
1949--Sections 19, 453 and Schedule Chapter II Clau se
1(c)--Mayor of Municipal Corporation--Whether has power to
cancel the notice and postpone the meeting convened by h im
before meeting was held.
Bombay General Clauses Act, 1904--Section 21--Wheth er
Mayor has power to cancel the notice and postpone meeti ng
convened by him before the meeting is held.
HEADNOTE
Appellants Nos. 1 and 2 were elected on June 30, 1987 as
Mayor and Deputy Mayor respectively of the Municipal Corp o-
ration of Bhavnagar, Gujarat for a period of one year. On
May 21, 1988 a notice was issued by them for convening a
meeting of the members of the Corporation on June 1, 1988 to
elect a Mayor and Deputy Mayor and for certain other bus i-
ness mentioned in the Agenda circulated. Subsequently, on
May 31, 1988, appellant No. 1 gave instructions by a lett er
to the Deputy Secretary of the Corporation to postpone t he
meeting as he had to go to Gandhinagar for urgent work of
the Corporation. The said instructions were given by appe l-
lant No. 1 after consulting 32 members of the Corporatio n.
Pursuant to the said letter and the instructions contain ed
therein, appellant No. 3, the Secretary of the Corporatio n,
issued a letter addressed to all the members of the Corpor a-
tion informing them that the meeting scheduled for June 1,
1988 had been postponed. In spite of the aforesaid lett er
postponing the meeting, 19 members of the Corporatio n,
presumably belonging to the minority party or partie s;
assembled at the place indicated in the notice dated May 2 1,
1988 and elected respondent Nos. 1 and 2 as Mayor and Depu ty
Mayor. Neither the Commissioner of the Corporation nor i ts
Secretary or Deputy Secretary was present at the said mee t-
ing, and the minutes of that meeting were not recorded.
As the appellants Nos. 1 and 2 did not hand over t he
charge to respondents Nos. 1 and 2, the latter filed a wr it
petition in the High Court for being declared as legal ly
elected Mayor and Deputy Mayor and for an order that char ge
of the said posts should be handed over to them.
111
The Single Judge dismissed the Writ Petition taking t he
view that as the Mayor in exercise of the powers conferr ed
upon him under subclause (c) of clause (1) of Chapter II of
the Schedule (under s. 453) in the Bombay Provincial Munic i-
pal Corporations Act, 1949 can issue a notice for conveni ng
the meeting, he is also entitled to the power to cancel or
rescind the notice under the provisions of section 21 of t he
Bombay General Clauses Act, 1904.
Division Bench of the High Court, however, allowed t he
Letters Patent Appeal filed by respondents Nos. 1 and 2
taking the view that it was bound by the view taken by th is
Court in Chandrakant Khaire v. Dr. Shantaram Kale and ot h-
ers, [1988] 4 SCC 577 where it was observed that a proper ly
convened meeting could not be postponed. The proper cour se
to adopt is to hold the meeting as originally intended a nd
then and there adjourn it to a more suitable date.
In the appeal by special leave filed by the appellan ts
before this Court, it was contended on behalf of the appe l-
lants that the Division Bench had committed an error in
following the observations made in Chandrakant Khaire’s ca se
as that case could be distinguished on facts, that t he
question raised in this appeal was practically covered on
the basis of analogy, by the ratio of the decision of th is
Court in Mohd. Yunus Saleem v. Shiv Kumar Shastri and ot h-
ers, [1974] 3 SCR 738 which dealt with analogous provisio ns
of the Representation of the People Act, 1951 and that in
view of the provisions of Section 21 of the Bombay Gener al
Clauses Act, 1904, which were applicable to the case, sin ce
appellant No. 1 had the power to convene the meeting of t he
members of the Corporation, it must be held that he also h ad
the implied power to cancel or postpone the meeting.
Respondent No. 1 contested the appeal and submitted th at
the decision in Chandrakant Khaire’s case was direct ly
applicable to the case and it must be held that the appe l-
lant No. 1 had no power to cancel the notice convening t he
meeting and hence it must be held that the meeting at whi ch
the supporters of respondent No. 1 which met and elect ed
respondent No. 1 as Mayor was validly held and the resol u-
tion appointing respondent No. 1 was validly passed.
Partly allowing the appeal and remanding the matter ba ck
to the High Court, this Court,
HELD: (1) Unless the object of the context or inqui ry
otherwise warrants the term ’adjournment’ in connection wi th
a meeting should
112
be applied only to the case of a meeting which has alrea dy
been convened and which is thereafter postponed and not to a
case where a notice convening a meeting is cancelled a nd
subsequentiy, a notice for holding the same meeting on a
later date is issued, as in the instant case. [120E-F]
(2) Mayor had the implied power to cancel a meeting or
postpone a meeting which was duly convened before the sa id
meeting commenced and to convene the same on a subseque nt
occasion. It is needless to say that this power must be
exercised by the Mayor bona fide and not for a collater al
purpose. The power must again be exercised for a prop er
purpose. If the Mayor is unable to show this, then t he
postponement of the meeting must he held to he bad. But it
is not possible to say that the Mayor had no power to canc el
a meeting duly convened and to direct that the same shou ld
he held on a later day provided that the power was exercis ed
bona fide and for a justified purpose. [122G-H; 123A]
Chandrakant Khaire v. Dr. Shantaram Kale and other s,
[1988] 4 SCC 577; AIR 1988 SC 1665, distinguished.
(3) The principles underlying section 21 of the Bomb ay
General Clauses Act would he clearly applicable in conside r-
ing the scope of the powers of the Mayor of a Municip al
Corporation set out in Clause 1 of Chapter II of the sa id
Schedule in the said Act and in particular, in sub-clau se
(c) of the said clause. The rules in the Schedule have be en
framed under the statutory provisions of the said Act a nd
section 453 of the said Act provides that the rules in t he
Schedule as amended from time to time shall he deemed to he
part of that Act. The power of the Mayor conferred und er
clause 1 of Chapter II of the said Schedule must be regard ed
as a statutory power as distinguished from the powers of
directors of a company which are derived strictly from t he
Articles of Association of the Company which are contractu al
in natore. [125A-C]
(4) There appears to be no reason to take the view th at
the principles underlying section 21 of the Bombay Gener al
Clauses Act would not apply to the said powers of the Mayo r.
In the instant case, appellant No. 1, the Mayor of respon d-
ent No. 5, Corporation, had the power to cancel the noti ce
convening the meeting before the commencement of the meeti ng
with a view to convene a meeting on a later date. [125D]
Smith v. Paringa Mines Ltd., [1906] 2 Ch. 103, disti n-
guished.
Mohd. Yunus Saleem v. Shiv Kumar Shastri and Ors .,
[1974] 3 SCR 738, relied on.
113
Babubhai Girdharbhai Patel v. Manibhai Ashabhai Patel
JUDGMENT
Others, [1975] 16 Gujarat Law Reporter, 566, referred to.
R.K. Jain v. Bar Council of U.P. & Ors., AIR (1974) 61
Allahabad 211, approved.
Although the Mayor had the power to cancel the nOti ce
convening the meeting and to direct the Secretary to issue a
notice to that effect, the said power could be exercis ed
only bona fide and for a purpose or purposes within t he
scope of the said Act. If the power was exercised mala fi de
or for a collateral purpose, the exercise of the power wou ld
certainly be bad. [125E-F] &
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1994 of
1989.
From the Judgment and Order dated 28.10.88 of the Guj a-
rat High Court in L.P.A. 236 of 1988.
G. Ramaswamy, Additional Solicitor General, P.H. Pare kh
and M .K. Pandit for the Appellants.
Respondent Nos. 1 and 3 in-person, Mukul Mudgal and G.
Venkateshwara Rao for the Respondents.
The Judgment of the Court was delivered by
KANIA, J. Leave granted.
As a substantial point of law is involved in this cas e,
we have granted special leave and the Appeal is being tak en
up to hearing with the consent of the parties. The Appeal is
directed against the judgment of a Division Bench of t he
Gujarat High Court, allowing the writ petition filed befor e
The facts of the case relevant for the disposal of th is
Appeal, briefly stated, are as follows.
Appellants Nos. 1 and 2 are persons elected in 1987 as
Mayor and Deputy Mayor respectively of the Municipal Corp o-
ration of Bhavnagar, Respondent No. 5 herein (referred to in
the judgment as "the Corporation"). Appellant No. 3 is t he
Secretary of the said Corporation. Respondents Nos. 1 and 2
are persons claiming to have
114
been elected as Mayor and Deputy Mayor of the Corporation at
a meeting held on June 1, 1988, the validity of which is
disputed before
The Corporation came into existence in 1982. The ele c-
tions to the Corporation were duly held in 1985 and 51
members were elected. On June 30, 1987, appellants Nos. 1
and 2 were duly elected as Mayor and Deputy Mayor respe c-
tively of the Corporation for a period of one year. On M ay
21, 1988, a notice was issued by appellants Nos. 1 and 2 to
convene a meeting of the members of the Corporation at 5. 00
p.m. on June 1, 1988 to elect a Mayor and Deputy Mayor of
the Corporation for the second term and for certain oth er
business mentioned in the Agenda circulated. On May 3 1,
1988, appellant No. 1 gave instructions by a letter to t he
Deputy Secretary of the Corporation to postpone the meeti ng
of the Corporation as appellant No. 1 had to go to Gandhin a-
gar for a certain urgent work of the Corporation. It see ms
clear from the record that the said instructions were giv en
by appellant No. 1 after consulting 32 members of the Corp o-
ration, presumably those belonging to his own party. Purs u-
ant to the said letter and the instructions contained ther e-
in appellant No. 3 issued a letter addressed to the membe rs
of the Corporation that the meeting scheduled for June 1,
1988 had been postponed. The said letter was circulated to
all the members of the Corporation. In spite of the sa id
letter postponing the meeting, 19 members of the Corpor a-
tion, presumably belonging to the minority party or parti es
assembled at the place indicated in the notice dated May 2 1,
1988 and elected respondents Nos. 1 and 2 as Mayor a nd
Deputy Mayor of the Corporation respectively. At the sa id
meeting neither the Commissioner of the Corporation nor t he
Secretary or Deputy Secretary was present and the minutes of
the said meeting were not recorded by the Secretary of t he
Corporation. As appellants nos. 1 and 2 did not hand ov er
the charge to respondents Nos. 1 and 2, the latter filed a
writ petition, being Writ Petition No. 2772 of 1988 in t he
Gujarat High Court for being declared as legally elect ed
Mayor and Deputy Mayor of the Corporation respectively a nd
for an order that charge of the said post should be hand ed
over to them. On June 9, 1988, the said writ petition w as
dismissed by a learned Single Judge of the Gujarat Hi gh
Court. The learned Single Judge, who dismissed the said wr it
petition, took the view that, as the Mayor in exercise of
the powers conferred upon him under sub-clause (c) of Clau se
1 of Chapter II of the Schedule (under Section 453) in t he
Bombay Provincial Municipal Corporations Act, 1949 (herei n-
after referred to as "the said Act") can issue a notice f or
convening the meeting, he is also entitled to the power to
cancel or rescind the notice
115
under the provisions of Section 21 of the Bombay Gener al
Clauses Act, 1904. It was held that appellant No. 1, as t he
Mayor, was exercising a statutory power vested in him a nd
could, therefore, cancel the notice and postpone the meeti ng
convened by him before the meeting was held. It was point ed
out by him that in the history of the Corporation meetin gs
had been postponed by the Mayor in the same manner. T he
learned Single Judge further took the view that even assu m-
ing that appellant No. 1 had no right to postpone the mee t-
ing, even then the election of respondents Nos. 1 and 2 as
Mayor and Deputy Mayor at the meeting held on June 1, 19 88
could not be held legal and valid as the majority of t he
members of the Corporation had been deprived of the opport u-
nity of exercising their right to elect a Mayor and Depu ty
Mayor by reason of the notice for postponing the meeting. A
Letters Patent Appeal was preferred by respondents Nos. 1
and 2 against the decision of the learned Single Judge to a
Division Bench of the Gujarat High Court. The Division Ben ch
of the said High Court took the view that it was bound by
the view taken by a Division Bench of this Court in Chandr a-
kant Khaire v. Dr. Shantaram Kale and others, [1988] 4 S CC
577; AIR (1988) S.C 1665 where it was observed as follows:
"A properly convened meeting cannot be postponed. The prop er
course to adopt is to hold the meeting as originally inten d-
ed and then and there adjourn it to a more suitable date. If
this course be not adopted, members will be entitled to
ignore the notice of postponement, and, if sufficient to
form a quorum, hold the meeting as originally convened a nd
validly transact the business thereat."
The Division Bench pointed out that the number of membe rs
present at the said meeting on June 1, 1988 was sufficie nt
to constitute the quorum prescribed and hence, the meeti ng
must be held to be valid and respondents Nos. 1 and 2 du ly
elected as Mayor and Deputy Mayor respectively. The Divisi on
Bench took the view that even if the aforesaid observatio ns
made by this Court constituted only an obiter dictum of th is
Court and not the ratio of the case, they were neverthele ss
binding as a precedent on the Division Bench. The learn ed
Judges constituting the Bench did note that the result a nd
the conclusion arrived at by them would be a little sta r-
tling inasmuch as the party which is in the majority in t he
Corporation would not be having a Mayor or Deputy Mayor fr om
its own party but would have to suffer as Mayor and Depu ty
Mayor persons belonging to the minority party but observ ed
that such a result could not be helped because the majori ty
of the councillors who had consented to the postponement of
the said
116
meeting to be held on June 1, 1988 had acted illegally a nd
had thereby invited the result. It is this decision which is
sought to be assailed before us.
It was contended by Mr. G. Ramaswamy, learned Addition al
Solicitor General who appeared for the appellants, that t he
Division Bench had committed an error in following t he
observations made in Chandrakant Khaire’s case which we ha ve
already set out above as that case could be distinguished on
facts. It was submitted by him that, on the other hand, t he
question raised in this Appeal was practically covered, on
the basis of analogy, by the ratio of the decision of th is
Court in Mohd. Yunus Saleem v. Shiv Kumar Shastri and ot h-
ers, [1974] 3 SCR 738 which dealt with analogous provisio ns
of the Representation of the People Act, 1951. It was fu r-
ther submitted by him that in view of the provisions of
Section 21 of the Bombay General Clauses Act, 1904, whi ch
were applicable to the case, since appellant No. 1, Mayo r,
had the power to convene the meeting of the members of t he
Corporation, it must be held that he also had the impli ed
power to cancel or postpone the meeting.
In order to appreciate these contentions, it is nece s-
sary to refer to certain provisions of the said Act.
The relevant clauses of Section 19 of the said Act runs as
follows:
"19. Mayor and Deputy Mayor
(1) The Corporation shall at its first meeti ng
after general elections and at its first meeting in the sa me
month in each succeeding year elect from amongst the cou n-
cillors one of its members to be the Mayor and another to be
the Deputy Mayor.
(2) The Mayor and the Deputy Mayor shall ho ld
office until a new Mayor and a new Deputy Mayor have be en
elected under sub-section (1) and, in a year in which gene r-
al elections have been held, shall do so notwithstandi ng
that they have not been returned as councillors on t he
results of the elections
X X X
X X"
Chapter XXIX of the said Act which deals with the subjec ts
of rules,
117
by-laws, regulations and standing orders. Section 453 in t he
said Chapter provides that the rules as amended from time to
time shall be deemed to be part of the said Act.
Chapter II of the Schedule (under section 453) of t he
said Act deals with the proceedings of the Corporatio n,
Transport Committee, Standing Committee, etc. Sub-claus es
(a) to (c) of Clause 1 of the said Chapter are as follows:
"1. Provisions regulating Corporation proceedings.
(a) There shall be in each month at least o ne
ordinary meeting of the Corporation which shall be held n ot
later than the twentieth day of the month;
(b) the first meeting of the Corporation aft er
general elections shall be held as early as conveniently m ay
be on a day and at a time and place to be fixed by t he
Commissioner, and if not held on that day shall be held on
some subsequent date to be fixed by the Commissioner;
(c) the day, time and place of meeting shall in
every other case be fixed by the Mayor or in the event of
the office of Mayor being vacant, or of the death or resi g-
nation of the Mayor or of his ceasing to be a councillor, or
of his being incapable of acting, by the Deputy Mayor, or
failing both the Mayor and the Deputy Mayor, by the Chairm an
of the Standing Committee."
Sub-clause (f) of Clause 1, briefly put, provides th at
one-third of the whole number of councillors constitutes t he
quorum. Sub-clause (h) provides that at least seven cle ar
days’ notice shall ordinarily be given of every meetin g,
other than an adjourned meeting, but in cases of urgency a ny
such meeting may be called on a shorter notice except f or
certain other purposes with which we are not concerned her e.
Section 21 of the Bombay General Clauses Act, 1904 ru ns
as follows:
"21. Power to make to include power to add to, amend, va ry
or rescind, orders, etc.
Where, by any Bombay Act, or Maharashtra Act, a
118
power to issue notifications, orders, rules or by-laws is
conferred, then that power includes a power, exercisable in
the like manner and subject to the like sanction and cond i-
tions, if any, to add to, amend, vary or rescind any notif i-
cations, orders, rules or by-laws, so issued."
It is clear from the judgment of the Division Bench of
the Gujarat High Court the correctness of which is cha l-
lenged before us that the Division Bench considered itse lf
bound by the observations in Chandrakant Khaire’s case s et
out by us earlier. The facts of that case were that t he
first meeting of the Municipal Corporation of Aurangab ad
after election was held on May 6, 1988 at 2.00 p.m. as
scheduled. The Municipal Commissioner presided over the sa id
meeting. At the said meeting, not only the councillors b ut
many outsiders were also present in the hall when the mee t-
ing was being held. There were also a large number of su p-
porters of the rival parties, spectators and journalist s.
The Municipal Commissioner was surrounded by some 20- 25
persons apart from the councillors belonging to the riv al
parties, one group, comprising of the supporters of Sh iv
Sena, insisted upon the meeting being adjourned for the d ay
while the other group consisting of the supporters of t he
Congress (I) party demanded that the meeting should be
continued. There was total confusion inside the hall. T he
Municipal Commissioner informed the Collector, who w as
present in the hall, that he could not hold the meeting in
the unruly and disorderly situation prevailing and co m-
plained that his repeated requests to the councillors to
maintain peace, had no effect and they kept on shoutin g,
raising slogans and fighting amongst themselves. The Commi s-
sioner announced that the polling for the offices of Mayo r,
Deputy Mayor and Members of the .Standing Committee wou ld
commence from 2.30 p.m. onwards. Some members belonging to
Shiv Sena Party sat on the ballot boxes and others belongi ng
to that party and its supporters surrounded the Municip al
Commissioner demanding the meeting be adjourned to a subs e-
quent date. Thereupon, the councillors belonging to a
Party-in-Power, namely, Congress (I), started shouting at
him that the meeting should be held later on that day. Th is
was followed by shouting of slogans, hurling of abuses a nd
thumping of tables and even throwing of chairs. It appea rs
that the Superintendent of Police and the Collector ask ed
the outsiders to clear out of the hall and requested t he
councillors to take their places to enable the Municip al
Commissioner to transact the business for the day a nd
brought the situation under control. The affidavit filed by
the said officers, namely, the Superintendent of Police a nd
the Collector, showed that the atmosphere then calmed do wn
and the
119
order was restored and they left the hall. It was thereaft er
that the Municipal Commissioner announced on the mike th at
the meeting would continue and the elections would be he ld
at 4.30 p.m. It was at this election, that respondents no s.
1 and 2, namely, Dr. Shantaram Kale and Takiqui Hassan, we re
declared elected as Mayor and Deputy Mayor respectivel y.
This election which was challenged in Court and it is in t he
context of these facts that the observations set out earli er
were made. The contention of the appellant was that t he
meeting was adjourned for the day or sine die by the Munic i-
pal Commissioner and hence the holding of the adjourn ed
meeting later on the same day without fresh notice was b ad
in law.
It was submitted by the learned Additional Solicit or
General of India, counsel for the appellants, that t he
Division Bench which delivered the impugned judgment, err ed
in taking the view that it was bound by the observations s et
out earlier by us in the judgment in Chandrakant Khaire ’s
case. It was submitted by him that in that case the meeti ng
of the Aurangabad Municipal Corporation had already co m-
menced and the question was as to whether the Municip al
Commissioner could on his own adjourn the meeting for t he
day or sine die or whether this could be done only by a
resolution passed at the meeting. It was submitted by h im
that that was a case which dealt with the question of a d-
journment of a meeting which had commenced whereas in t he
present case, a meeting which had been convened was ca n-
called and, later on, another meeting was fixed on a diffe r-
ent date. The question in Chandrakant Khaire’s case w as
relating to an adjournment of a meeting whereas in t he
present case the question related to the cancellation of a
notice convening the meeting. It was urged by him that in
view of the provisions of Section 21 of the Bombay Gener al
Clauses Act and sub-clause (c) of Clause 1 of the sa id
Schedule set out earlier, the Mayor who had the power to
convene the meeting must be held to have the implied pow er
to cancel the meeting which was convened. It was, on t he
other hand, submitted by respondent No. 1, who appeared in
person, that the decision in Chandrakant Khaire’s case is
directly applicable to the case before us and in view of t he
same, it must be held that the Mayor, namely, appellant N o.
1, had no power to cancel the notice convening the meeti ng
and hence it must be held that the meeting at which t he
supporters of respondent No. 1 which met and elected r e-
spondent No. 1 as aforesaid was validly held and the resol u-
tion appointing respondent No. 1 was validly passed.
As we have pointed out earlier in Chandrakant Khaire ’s
case, the meeting which was convened had already commenc ed
and the conten-
120
tion of the appellant was that in view of the riotous beh a-
viour of the councillors as well as the outsiders who h ad
got into the meeting, the Commissioner had adjourned t he
meeting sine die. It was common ground that no resoluti on
was passed at the meeting regarding its adjournment. It w as
in those circumstances that the aforesaid observations ha ve
been made by the Division Bench of this Court which decid ed
the case. The Bench in that case was not really concern ed
with a situation where a meeting had not commenced at a ll
and the notice convening the meeting had been cancelled by
the person authorised to issue the notice convening t he
meeting. In this connection, we may refer to the meaning of
the term ’adjournment’ given in certain dictionaries. It h as
been observed in Stroud’s Judicial Dictionary, Fifth Ed i-
tion, Volume I at page 61 that the word ’adjournment’ mu st
be construed with reference to the object of the contex t,
and with reference to the object of the enquiry. In We b-
ster’s Comprehensive Dictionary, International Edition, at
page 18 the term ’adjournment’ has, inter alia, been defin ed
as "(1) To put off to another day or place, as a meeting or
session; postpone (2) To put off to the next session, as t he
decision of a council (3) To postpone or suspend proceedin gs
for a specified time.". In Concise Oxford Dictionary, Six th
Edition, the word ’adjournment’ has been defined, int er
alia, as "(1) Put off, postpone; break off for later resum p-
tion". The definitions of the aforesaid term ’adjournmen t’
in Chambers Twentieth Century Dictionary, Revised Editi on
(1964) and Collins English Dictionary are more or le ss
similar so the aforestated definition of the said term in
Webster Comprehensive Dictionary, International Edition. It
appears to us that strictly speaking, unless the object of
the context or inquiry otherwise warrants the term ’adjour n-
ment’ in connection with a meeting should be applied only to
the case of a meeting which has already convened and whi ch
is thereafter postponed and not to a case where a noti ce
convening a meeting is cancelled and subsequently, a noti ce
for holding the same meeting on a later date is issued, as
in the case before us.
It seems that the passage in the judgment in Chandraka nt
Khaire’s Case which has been strongly relied upon by t he
respondent No. 1 has been taken substantially from t he
observations at page 156 in Shackleton on the Law and Pra c-
tice of Meetings (Seventh Edition). Shackleton has bas ed
those observations on the decision of a single case, namel y,
Smith v. Paringa Mines Ltd., [1906] 2 Ch. 103. In that cas e,
a company had two directors and there was disagreement amo ng
them regarding the appointment of an additional directo r.
The aggrieved director commenced an action and after this a
notice was
121
issued postponing a general meeting already called but, in
the belief that the attempted postponement was illegal, t he
aggrieved director advertised the meeting in the press f or
the same day as previously arranged. On that day, he wi th
certain other shareholders attended the meeting and at th at
meeting resolutions were approved re-electing himself as a
director and refusing to re-appoint the other director. It
was held that the resolutions were valid, for, in the a b-
sence of express authority in the articles, the directors of
a company have no power to postpone a general meeting pro p-
erly convened. It appears, therefore, that these observ a-
tions are based on a decision which dealt with the powers of
the directors of a company which are derived from the art i-
cles of association of the company which essentially are in
the nature of a compact or an agreement. The only powe rs
which the directors of a company have, are such as have be en
conferred upon them by articles of association of the comp a-
ny. The powers of the Mayor of the Corporation, on the oth er
hand, are statutory in nature and they are derived from t he
Bombay Municipal Corporation Act. As set out by us earlie r,
sub-section (1) of Section 19 of the said Act provides f or
the election of a Mayor of a Municipal Corporation. T he
Mayor has various powers conferred under the said Act. Su b-
clause (c) of Clause 1 in Chapter II of the said Schedule in
the Municipal Corporation Act provides that except for t he
first meeting for a new Corporation which has been du ly
elected, the time, day and place of meeting shall be fix ed
by the Mayor. The powers of the Mayor regarding the holdi ng
of meetings of the Corporation, therefore, are not deriv ed
from any compact as in the case of directors of a compa ny
but are essentially statutory in nature. We do not thin k,
with respect, that, in these circumstances, it would be
proper to apply the aforestated observatioins of Shacklet on
to the present case. Moreover, as we have already point ed
out, the case before this Court in Chandrakant Khaire v. D r.
Shantaram Kale and Ors., was not a case where a noti ce
convening a meeting was cancelled and later a notice conve n-
ing another meeting was issued but it was a case where a
meeting duly convened had commenced and it was alleged th at
the Municipal Commissioner had adjourned it without the re
being any resolution to that effect. We are, therfore, of
the view that the aforesaid observations in the decision of
Chandrakant Khaire’s case are not applicable to the ca se
before us.
We can derive some support to our view from a decisi on
of this Court in Mohd. Yunus Saleem v. Shiv Kumar Shast ri
and Ors. In that case, the facts were that a parliamenta ry
constituency from which election to Lok Sabha took place in
1971 consisted of five assembly constituencies. The polli ng
at two of these was scheduled to take place
122
on March 1 and at the other three on March 3, 1971. T he
polling at the first two constituencies took place as sche d-
uled but on March 2 there was a communal riot, as a resu lt
of which the Election Commissioner postponed the poll at t he
other three constituencies from March 3 to March 9. T he
polling took place in the said constituencies on the pos t-
poned date and the first respondent was declared electe d.
The appellant challenged the election in an election pet i-
tion. It was contended by him, inter alia, that the Electi on
Commissioner had no power to alter the date of the poll at
the remaining constituencies. The election petition w as
dismissed by the High Court. On appeal to this Court, th is
Court took the view that Section 153 of the Representati on
of the People Act, 1951 on which reliance had been placed by
the High Court in taking the view that the Election Commi s-
sioner had power to postpone the poll was not applicab le
because it dealt only with the question of extending ti me
for completion of the election and not for altering the da te
of the poll; Sections 57 and 58 of the Representation of t he
People Act, 1951 could not be invoked by the Election Co m-
missioner for this purpose. It was, however, held th at
section 30 of the Representation of the People Act read wi th
Section 21 of General Clauses Act gives necessary powers to
the Election Commissioner to alter the date of the poll. We
may point out that we do not propose to set out the prov i-
sions of Section 30 of the Representation of the People A ct
because it is not necessary to do so. Suffice it to no te
that the said section provides that the Election Commissio n-
er shall by notification in the official gazette appoi nt
inter alia the date or dates on which a poll shall, if
necessary, be taken and also the date before which t he
election shall be completed. Section 153 confers upon t he
Election Commissioner the power to extend the time for t he
completion of election. Section 21 of the Central Gener al
Clauses Act is in pari materia with Section 21 of the Bomb ay
General Clauses Act which was applicable in the case befo re
us and which we have already set out earlier. It is tr ue
that the ratio of this case is not directly applicable to
the case before us. However, it does appear to us that, on a
parity of reasoning, it must be held that the Mayor had t he
implied power to cancel a meeting or ’postpone a meeti ng
which was duly convened before the said meeting commenc ed
and to convene the same on a subsequent occasion. It is
needless to say that this power must be exercised by t he
Mayor bona fide and not for a collateral purpose. The pow er
must again be exercised for a proper purpose. If the May or
is unable to show this, then the postponement of the meeti ng
must be held to be bad. But it is not possible to say th at
the Mayor had no power to cancel a meeting duly convened a nd
to direct that the same should be held on a later day pr o-
vided that the power was exercised
123
bona fide and for a justified purpose.
We may now refer to certain other decisions which a re
cited before us. Our attention was drawn by respondent No. 1
to the decision of a learned Single Judge of the Gujar at
High Court in Babubhai Girdharbhai Patel v. Manibhai Asha b-
hai Patel & Others, [1975] 16 Gujarat Law Reporter, 566. In
that case, the facts were in pari materia with the fac ts
before us. It was held by the learned Single Judge of th at
Court that on a plain reading of sub-section (11) of Secti on
51 of the Gujarat Municipality Act it is clear that a mee t-
ing can be adjourned only provided a majority of the cou n-
cillors accord their consent to such adjournment. It w as
also held that it is not open to the President to cancel or
adjourn the meeting if he personally considers it necessa ry
or desirable to do so before the councillors assemble. It
was observed that the President of the Municipality does n ot
have unrestricted power to cancel or adjourn a meeting at
his humour or pleasure or caprice. No assistance can be
arrived at by respondent No. 1 from this judgment becau se
that decision has been reversed in respect of the aforesta t-
ed conclusions by a Division Bench of the Gujarat High Cou rt
in Letters Patent Appeal No. 183 of 1974 decided on Novemb er
20, 1974 by B.J. Divan, C.J., and T.U. Mehta, J., the jud g-
ment having been delivered by Divan, C.J. In that case, it
was held that it is obvious that the President of the muni c-
ipality in whom the power to call a meeting of the munic i-
pality had been vested by section 51(1) of the Gujar at
Municipalities Act, 1963 must also be conferred the power to
adjourn the meeting if, because of certain extraordina ry
circumstances like civil commotion or act of God or a ny
other unusual event, it becomes necessary to adjourn t he
holding of the meeting. The learned Judges constituting t he
Division Bench held that they were unable to agree with t he
view of the learned Single Judge to the effect that t he
doctrine that he who has such power to convene a meeting h as
also the power to adjourn the meeting, if the circumstanc es
so demand, cannot be read into the provisions of the Gujar at
Municipalites Act. The learned Judges, however, agreed wi th
the learned Single Judge that the President of the Munic i-
pality had no power to adjourn the meeting at his !will or
caprice. They also pointed out that unless unusual circu m-
stances beyond the control of the President of the Munic i-
pality prevail, he cannot utilise this power to adjourn a
meeting which has once been notified. Taking into accou nt
all the facts and circumstances of the case, it was he ld
that the adjournment of the meeting of the municipality by
the President was not warranted in law and was, therefor e,
invalid. We may, however, point out that neither the learn ed
Single Judge who delivered the judgment in Babubhai Gir d-
harbhai Patel v.
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Manibhai Ashabhai Patel & Ors., nor the Division Benc h,
which reversed this decision to the extent set out by us
have taken into account the provisions of section 21 of t he
Bombay General Clauses Act, which we have already referr ed
to. That section fortifies the view taken by the Divisi on
Bench.
We may now refer to the decision of the Allahabad Hi gh
Court in R.K. Jain v. Bar Council of U.P. & Ors., AIR (197 4)
61 Allahabad 211. In that case, the Bar Council ofUPin
exercise of its power under section 15(2) of theAdvocates
Act, 1961, framed rules which regulate the manner and proc e-
dure of holding the election of the members to the B ar
Council. These rules are known as Bar Council of Utt ar
Pradesh Election Rules, 1968. Rule 4 lays down that t he
election of members to the Bar Council shall be held at su ch
place or places, on such date or dates, and during such ho ur
or hours as the Council may appoint. Rule 6 provides th at
notice of the time and place of election shall be given by
publication in the manner prescribed under the rules. T he
learned Single Judge (K.N. Singh, J., as he then was) w ho
decided the case held that the principles laid down in
section 21 of the General Clauses Act are fully applicab le
in construing Rules 4 and 6 of the said Election Rule s,
1968. On the facts of the case it was held that the B ar
Council had the full jurisdiction to change the date of an
election and to postpone the election or to fix dates f or
holding the election afresh till the elections were comple t-
ed.
In our view, the learned Judges of the Gujarat Hi gh
Court who delivered the judgment under consideration befo re
us need not have considered themselves bound by the afor e-
said observations in Chandrakant Khaire’s case, as they ha ve
done. In the first place, these observations do not const i-
tute the ratio of the judgment in that case. The question in
that case was whether a meeting which was duly convened a nd
had commenced could have been adjourned by the Municip al
Commissioner and not whether a notice convening a meeti ng
issued by the Municipal Corporation could be cancelled by
him before the commencement of the meeting with a view to
have the meeting held on a subsequent date. We are of t he
view that the Division Bench was not really called upon to
consider the situation in such a case, as we have point ed
out earlier. Moreover, it appears that the Division Ben ch
has not taken into account the provisions of section 21 of
the Bombay General Clauses Act or the principles underlyi ng
that section. No argument was advanced before the Divisi on
Bench on the basis of that section at all. The attention of
the Division Bench was not drawn to the judgment of th is
Court in Mohd. Yunus Saleem’s case. Had that
125
been done, we feel that the Division Bench which decided t he
Chandrakant Khaire’s case, might not have made the afor e-
stated observations at all. In our view, the principl es
underlying section 21 of the Bombay General Clauses A ct
would be clearly applicable in considering the scope of t he
powers of the Mayor of a Municipal Corporation set out in
Clause 1 of Chapter II of the said Schedule in the said A ct
and in particular, in sub-clause (c) of the said clause. We
may point out that the rules in the Schedule have be en
framed under the statutory provisions of the said Act a nd
section 453 of the said Act provides that the rules in t he
schedule as amended from time to time shall be deemed to be
part of that Act. In our view, the power of the Mayor co n-
ferred under Clause 1 of Chapter II of the said Schedu le
must be regarded as a statutory power as distinguished fr om
the powers of directors of a company which are deriv ed
strictly from the Articles of Association of the Compa ny
which are contractual in nature. There appears to be no
reason to take the view that the principles underlyi ng
section 21 of the Bombay General Clauses Act would not app ly
to the said powers of the Mayor. In our view, appellant N o.
1, the Mayor of respondent No. 5, Corporation, had the pow er
to cancel the notice convening the meeting before the co m-
mencement of the meeting with a view to convene the meeti ng
on a later date. The question, however, whether he h as
exercised the power within its true ambit is a differe nt
question altogether. In this regard, in our opinion, a l-
though the Mayor had the power to cancel the notice conve n-
ing the meeting and to direct the secretary to issue a
notice to that effect, the said power could be exercis ed
only bona fide and for a purpose or purposes within t he
scope of the said Act. If the power was exercised mala fi de
or for a collateral purpose, the exercise of the power wou ld
certainly be bad. In the present case, there is considerab le
factual controversy as to whether, even on the footing th at
appellant No. 1 had the power to cancel the notice conveni ng
the meeting, that power was exercised bona fide for a pu r-
pose within the scope of the said Act or whether it w as
exercised for collateral or impermissible purposes. We
remand the matter to the Gujarat High Court for the determ i-
nation of that question. In view of the urgency of t he
matter, we would request the Gujarat High Court to dispo se
of the writ petition latest by 30th April, 1989 as far as
possible. The interim order granted by this Court on Nove m-
ber 16, 1988 shall continue upto 5th May, 1989, subject to
any orders which may be passed hereafter by the Gujarat Hi gh
Court. From that date, it will be for the parties to app ly
for appropriate interim orders to the Gujarat High Cou rt
till the case is finally disposed of by that Court.
126
The Appeal is allowed to the extent aforesaid. Taki ng
into account the facts and circumstances of the case, t he
parties shall bear and pay their own costs.
R.P.D. Appeal allowed.
127