judgement:
No. 46 of 1972.
S, K. Bagga, for the, petitioner.
Prodyot Kumar Chakravarty and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is a petition through jail under article 32 of the Constitution for issuing a writ of habeas cot pus by Kanu Biswas, who has been ordered by the District Magistrate 24Parganas to be detained under section 3 of the (Act 26 of 1971) "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
" The order of detention was made by the District Magistrate on November 13, 1971.
The petitioner was arrested in pursuance of the detention order on November 14, 1971 and was served the same day with the order as well as the grounds of detention together with vernacular translation thereof.
On November 18,1971 the District Magistrate sent report to the State Government about the passing of the detention order along with the grounds of detention and other necessary particulars.
The State Government considered the matter and approved the detention order on November 24, 1971.
Necessary report was also sent on that day by the State Government to the Central Government.
On December 13, 1971 the State Government placed the case of the petitioner before the Advisory Board.
In the meanwhile, on December 12, 1971 the State Government received a representation of the petitioner.
The representation was considered by the State Government and was rejected on January 11, 1972.
The representation was thereafter forwarded to the Advisory Board.
The Board, after considering the, material placed before it, including the petitioner 's representation, and after hearing the petitioner in person, sent its report to the State Government on January 14, 1972.
Opinion was expressed, by the Board that there was sufficient cause for the detention of the petitioner.
On February 2, 1972 the State Government confirmed the order for the detention of the petitioner.
Communication about the confirmation of the order was thereafter sent to the petitioner.
Affidavit of Shri B. Mukhopadhya, District Magistrate of 24 Parganas, who passed the impugned order, has been filed in opposition to the Petition.
Mr. Bagga has argued the case amicus curiae on behalf of the petitioner, while the State has been represented by Mr. Chakravarti.
548 It has been argued on behalf of the petitioner that the particular acts on account of which the order for the detention of the petitioner has been made were not germane to the maintenance of public order and, as such, the order for his detention could not be validly made for preventing him from acting in a manner prejudicial to the maintenance of public order.
In this respect we find that according to the grounds of detention, the order for the petitioner s detention was made on the ground that he had been acting in a manner prejudicial to the maintenance of public order as evidenced by the particulars given below; taken separately or collectively "That on 26 9 71 at about 18.30 hours while Baidyanath Bandopadhya of Champapukur, P.S. Basirhat, District 24 Parganas along with his wife were travelling ill a 3rd class compartment of Up Basirhat local train from Barasat, You along with your associates attacked him and his wife with open knives between Champapukur R/s and Basirhat R/S and robbed them of Wrist Watch, Gold Ornaments, Cash valued at Rs. 725// by putting them in fear of death.
By your such activities you created terror and panic among the travelling passengers and public order was disturbed thereby.
On 4 11 71.
at about 21.40 hours, you and your associates armed with bombs, daggers, knives and iron rods etc.
attacked police on the platform at Beliagliata railway station with a view to take their lives and to intimidate the public you charged two bombs which exploded with terrible sound endangering the on duty police.
Your such action was so violent that it created panic and confusion among the passengers there then.
YOU have thus action in a manner prejudicial to the maintenance of public order.
" It would appear from the above that the petitioner and his associates attacked a husband and wife with open knives in the, third class compartment of a running train and robbed them of valuable property, including wrist watch, gold ornaments and cash by putting them in fear of death.
The grounds of detention further show that the above act of the petitioner and his associates created terror and panic among the travelling passengers and thereby disturbed public order.
The second incident which took place at 9.40 p.m. on November 4, 1971 related to the attack by the petitioner and his associates on a police party on the platform of Belighata railway station with a view to kill them.
The petitioner and his associates are stated to have been then armed with bombs.
daggers, knives and iron rods and they exploded two bombs 549 with terrible sound.
It is further stated that the above act of the petitioner and his associates created panic and confusion among the passengers and thus disturbed public order.
Each one of the above two incidents of September 26, 1971 and November 4, 1971, in our opinion, affected public order and not merely law and order.
The distinction between the concept of public order and that of law and order has been adverted to by this Court in a number of cases.
In the case of Dr. Ram Manohar Lohia vs State of Bihar(1), Hidayatullah J. (as he then was) said that any contravention of law always affected order, but before it could be said to affect public order, it must affect the community at large.
He considered three concepts, law and order, public order and the security of the State, and observed that to appreciate the scope and extent of each one of them, one should imagine the concentric circles.
The largest of them represented law and order, next represented public order and the smallest represented the security order, just asan act might affect public order but not the security of the State.
In the subsequent case of Arun Ghosh vs State of West Bengal 2 the Court dealt with the matter in the following words: "Public order is the even tempo of the life of the community taking the country as a whole or even a specified locality.
Disturbance of public order is to be distinguished from acts directed against individuals which do not disturb the society to the extent of causing a general disturbance, of public tranquility.
It is the degree of disturbance and its effect upon the life of the community in a locality which determines whether thedisturbance amounts only to a breach of law and order.
Take for instance, a man stabs another.
People may be shocked and even disturbed, but the life of the community keeps moving at an even tempo, however much one may dislike the act.
Take another case of a town where there is communal tension.
A man stabs a member of ' the other community.
This is an act of a very different sort.
Its implications are deeper and it affects the even tempo of life and public order is jeopardized because the repercussions of the act embrace large sections of the community and incite them to make further breaches of the law and order and to subvert the public order.
An Act by itself is not determinant of its own gravity.
In its quality it may not differ from another but in its poten tiality it may be very different." (1)[1966] 1 S.C.R. 709. (2) 550 The question where a man has only committed a breach of law and order or has acted in a manner likely to cause a disturbance ,of the public order, according to the dictum laid down in the above case is a question of degree and the extent of the reach of the act upon the society.
Public order is what the French call "order publique" and is something more than ordinary maintenance of law and order.
The test to be adopted in determining whether an act affects law and order or public order, as laid down in the above ,,case, is : Does it lead to disturbance of the current of life of the community so as to amount to a disturbance of the public order ,or does it affect merely an individual leaving the tranquility of the society undisturbed ? The principle enunciated above has been followed by this Court in the case of Nagendra Nath Mondal V. State of West Bengal(1) and Nandlal Roy Ca, Nonda Dulal Roy @ Pagla vs State of West Bengal (WP No. 15 of 1972, decided on March II, 1972.) In the light of what has been observed above, we have no doubt that each one of the incidents of September 26, 1971 and November 4, 1971 was prejudicial to the maintenance of public order.
When two passengers are robbed at the point of knife while travelling in a third class compartment of a running train, the act of the miscreants affects not only the passengers who are deprived ,of their valuables but also the other passengers who watch tile whole thing in fear as helpless spectators.
There is bound to be consequent terror and panic amongst the travelling public.
Like wise, attack directed against a police party on the platform of railway station by exploring bombs is bound to create panic an.
confusion among the passengers at the railway station.
The act ' in question in the very nature of things would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquility.
Reference has been made on behalf of the petitioner to the ,case of Sudhir Kumar Saha vs Commissioner of Police, Calcutta & A nr.
The petitioner in that case along with others committed various acts on three occasions.
On the first occasion lie attached the people of a locality with a knife and by hurling bottles at them. ' On the other two.occasions he attacked the people of another locality by hurling bombs at them.
It was held that the incidents were not interlinked and could not have prejudiced tile maintenance of public order.
As against the above solitary decision, Mr. Chakravarti on behalf of the respondent State has referred to the principle laid down in the case of Arun Ghosh vs State of West Bengal (supra) as well as in the case of Nagendra Nath Mondal V. State of West ,Bengal (supra).
Apart from those two cases, we find that in the (2) ; (1) [1972] I S.C.R. 498.
551 case of Tapan Ku mat ' Mukherjee and Ors.
vs State of West Bengal(1) the allegation against the detenu was that he along with other associates committed robbery in respect of a fat, and a watch at the point of dagger in a running train, and this created disturbance of public order.
Contention was raised that the act of the detenu and his associates related only to law and order and not to public order.
This contention was repelled and it was observed that the innocent passengers would be terror stricken by the acts of the detenu and his associates.
Another incident which was referred to in that case related to throwing of bombs on a shop.
The bombs exploded and as a result of the panic so caused in the locality, all the shops and houses around the place were closed.
The above round was held by this Court to be germane to the disturbance of public order.
In case of Nandlal Roy (supra), the ground of detention recited that the detenu and his associates while committing theft of rice from a wagon threw bombs upon the members of the Railway Protection Force.
One member of the Railway Protection Force was injured.
The explosion of the bombs was stated to have created panic in the station, area and the adjoining locality.
It was held that the activity of the petitioner created not merely a question of the maintenance of law and order but created a disturbance which would be comprehended by the, expression " order publique".
The detention order was consequently upheld.
In section K. Kedar vs State of West Bengal (WP No. 35 of 1972 decided on May 2, 1972) the allegation against the detenu was that he and his associates while removing railway material charged bombs and ballast upon R.P.F. party as a consequence of which the members of R.P.F. party fired in self defence.
The activity of the petitioner was considered to be prejudicial to the maintenance of public order and the detention order was upheld.
The facts of the present case are much more akin to those of Tapan Kumar Mukherjee and Ors.
vs State of West Bengal (supra).
The past activities of the petitioner as revealed in the grounds of detention, in our opinion, showed a propensity to disturb public order.
The authority concerned, in the circumstances, could have validly made the order for the detention of the petitioner to prevent him from acting in a manner prejudicial to the maintenance of public order.
The petition consequently fails and is dismissed.
V.P.S. Petition dismissed.

summary/full:
The petitioner and his associates attacked a husband and wife with open knives in the third class compartment of a running train and robbed them of valuable property by putting them in fear of death on one occasion, and on another occasion, attacked a police party on the platform of a railway station with bombs.
dagger$, knives and iron rods and exploded bombs with a view to kill the police party.
The petitioner was detained by an order under section 3 of the with a view to preventing him from acting in any manner Prejudicial to the maintenance of public order, and the 'grounds of detention were that the two incidents created terror and panic among passengers and disturbed public order.
The, petitioner challenged the order of detention in this Court.
Dismissing the petition.
HELD : Both the incidents referred to in the order affected public order and not merely law and order.
[550 E F] The question whether a man only committed a breach of law and order or has act ad in a manner likely to cause disturbance of the public order, is a question of degree and the extent of the reach of the act upon the society.
The test to be adopted in determining whether an act affects law and order or public order is : Does it lead to disturbance of the current of life of the community so as to amount to a ,disturbance of the public order or does it affect merely an individual leaving the tranquillity of the society undisturbed ? When two passengers are robbed at the point of knives while travelling in a third class compartment of a running train the act affects riot only the passengers who are deprived of their valuables but also the other passengers who are watching in fear as helpless spectators.
Likewise, the attack against the police party on the platform of a railway station by exploding bombs is bound to create panic and confusion among the passengers at the railway station.
Consequently, there is bound to be terror and panic amongst the travelling public.
Therefore, the acts in question, in the very nature of things, would adversely affect the even tempo of life of the community and cause a general disturbance of public tranquillity.
[550 A F] Tapan Kumar Mukherjee and ors.
vs State of West Bengal, A.I.R. 1972 S.C. 840. followed.
Dr. Ram Manohar Lohia vs State of Bihar, [1966] 1 S.C.R. 709, .Arun
Ghosh vs State of West Bengal, [1970] 3 S.C.R. 288, Nagendra Nath Mondal vs State of West Bengal, ; , Nandlal Roy @ Nonda Dulal Roy @ Pagla vs State of West Bengal, W.P. No. 15 of 1972, decided on March 11, 1972.
Sudhir Kumar Saha vs Commissioner of Police Calcutta and Anr., ; and section K. Kader vs State of West Bengal, W.P. 35 of 1967 decided on May 2, 1972, referred to. 547


judgement:
Appeals Nos. 702 and 703 of 1967.
Appeals from the judgment and order dated September 28, 1960 of the Madhya Pradesh High Court in Misc.
First Appeals Nos. 12 and 16 of 1958.
M. C. Chagla, Rameshwar Nath and Swaranjit Ahuja, for the appellant (in both the appeals).
section T. Desai and D. N. Mukherjee, for respondent No. 1 (in both the appeals).
I. N. Shroff, for respondents Nos. 2 and 3 (in C.A. No. 703 of 1967) and respondent No. 2 (in C.A. No. 702 of 1967).
The Judgment of the Court was delivered by Grover, J.
These appeals which have been brought by cer tificates from a common judgment of the Madhya Pradesh High Court arise out of certain acquisition proceedings.
The facts may be stated.
Plots Nos. 670, 671 and 735 situate in Madan Mahal Extension area, Jabalpur were acquired by the State Government under the Land Acquisition Act 1894, hereinafter called the 'Act ', for constructing the Home Science College.
In the present appeals we are concerned mainly with Plot No. 670.
On August 31, 1940, a deed of lease had been executed on behalf of the Municipal Corporation granting a lease free of premium to the Hitkarini Sabha, Jabalpur, which is the appellant before us.
The laese was in respect of 10 Acres of land comprising Plot No. 670 and another strip of land measuring 0.621 Acres as described in the deed and delineated in the plan annexed thereto.
The period of the lease was 30 years and the purpose for which the land was to be used was for locating and running the Hitkarini City College.
Amongst other terms and conditions the, appellant was to pay a yearly rent of Rs. 5 / , for 1 0 acres and Re. 1 / for the other strip of land besides, paying, and discharging all rates and taxes etc.
The appellant, on the expiry of the lease, was entitled 495 to have the same renewed on , such terms and conditions as might be agreed between the parties.
The appellant had built a, college hostel on the aforesaid land and had also used the attached ground as playground for students.
The Collector of Jabalpur, by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and after disposing of certain preliminary objections he assessed the compensation for the lands in all the three plots at As.0/8/ per sq.
According to the Collector the appellant was not merely a lessee or tenant at will as contended by the Corporation but was a lessee for the term mentioned in the lease deed dated August 31, 1940, the lease having been made for a specific purpose, i.e. for locating and running a City College.
As regards Plot No. 670 the apportionment was made between the appellant The appellant and the Corporation were dissatisfied with the award of the Collector.
Applications for reference were made under section 18 (1) of the Act.
The Additional District Judge held that the price should be 10 As.
per sq.
and that the appellant and the Municipal Corporation were entitled to equal compensation for plot No. 670.
The Corporation and the appellant filed appeals to the High Court.
The decision of the Additional District Judge, fixing the price of the land at As.
0/8/ per sq.
ft. was affirmed.
As regards the dispute regarding apportionment the High Court held, following a decision of a Division Bench of the same court in Dagdulal vs Municipal Committee, Burhar(1), that the lease deed having been executed by the Administrator during the time when the Corporation stood superseded was ineffective to convey the lease hold interest to the appellant.
However, the appellant had been paving refit at the stipulated rate which had been accepted for a long time by the Corporation.
It amounted, therefore, to the creation of a tenancy by necessary implication and the relationship of landlord and tenant came into existence.
On the character of tenancy, whether it should be deemed to be from year to year or whether it should be on terms contained in the lease deed, the High Court held that the tenancy continued on the terms contained in the lease deed.
The High Court then proceeded to say : "The lease deed in this case was executed on 31 8 1940 and was for a period of thirty years.
It was, therefore to remain in force for 15 years more after the date of acquisition.
There is a renewal clause which has been already quoted above.
The lessee is entitled for renewal "on such terms and conditions as, may be agreed to between the parties".
It appears to.
us that the clause (1) 496 is uncertain and vague and does not form a valid contract for renewal of the lease.
Normally in a covenant for renewal there is an express agreement that the lease would be continued on the same terms and conditions subject to a reservation that the rent way be enhanced under certain circumstances.
In the instant, case, ill the terms and conditions have been left to the agreement of patties which may not take place at all.
Although a renewal is contemplated no terms on which it can be granted have been fixed between the parties.
Under section 29 of the Indian Contract Act such a contract cannot be enforced.
, It has been held in Ramaswami vs Rjajagopala (I.L.R. I I Mad. 260) that a lease whereby a tenant agreed to pay whatever rent the Landlord might fix was void for uncertainty".
The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.
Before us two matters have been sought to be raised.
One one relates to the quantum of compensation awarded by the learned Additional District Judge and the other to the apportionment between the appellant and the Corporation.
We shall first deal with apportionment.
It has been argued that since the High Court had held that the tenancy continued on the terms contained in the lease deed benefit should have been given of the renewal clause also.
The High Court had taken the view that that clause was uncertain and vague and did not form a valid contract for the renewal of the lease.
Our attention has been invited to a judgment of the Mysore High Court in H. V. Rajan vs C. N.Gopal & Others.(1) There the relevant portion of the renewal clause was "lessee shall have the option of five years but subject only to such terms and conditions as may be mutually agreed upon".
It was observed that ordinarily the renewal clause in a lease deed was an important term of the agreement and the courts would be reluctant to ignore that clause on the ground that it was vague unless on a reasonable construction no meaning could be attached to it.
An agreement to renew the lease, without more, must be deemed to be an agreement to renew as per the original terms.
Even if the renewal provided was dependent on the agreement between the parties the clause merely provided for an agreement on reasonable terms.
If the parties could not agree as to those terms the courts could step in.
In our judgment it is altogether unnecessary to decide the true scope and effect of the renewal clause contained in the deed executed on August 31, 1940.
At the time the lease was executed (1) A.I.R. 1961 Mys.
497 there used to be a Municipal Committee in Jabalpur Aparently it became a Corporation later.
The Committee was superseded in Charge of the Committee Jabalpur as also Secretary of the Municipal Committee had signed the lease on behalf of that Committee.
In the decision of the Madhya Pradesh High Court in Dagdulal 's(1) case the view had been expressed that so long as Municipal Committee was not reconstituted the ownership of the property stood transferred by operation of law to the State Government and therefore the Administrator had no power whatsoever to sell the property which had vested in the Government.
The Additional District Judge had observed that the lease deed had been executed in pursuance of a resolution which had already been passed by the Municipal Committee.
The High Court, however, found on the evidence produced before the Additional District Judge that the final resolution passed by the Municipal Committee was only for the grunt of a license and not a lease to the appellant.
The deed of lease, therefore, was, held to be ineffective for conveying any lease hold interest to it.
But still the High Court held that the tenancy was to last for a period of thirty years.
We are wholly unable to comprehend how any lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause which has already been mentioned.
If the officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void.
It is true that by acceptance of the rent from the appellant the relationship of landlord and tenant came into existence between the parties but Mr. Chagla for the appellant has not been able to show how a lease for a period of 30 years together with a renewal clause could be held to have been created or to have come into existence.
It may be mentioned that we are not concerned with the period of 30 years which has already been taken into consideration by the High Court because no appeal has beep filed on that point by the Corporation.
The only matter which requires determination is whether the High Court, while deciding the question of apportionment, should have given due affect to the renewal clause.
In our opinion the High Court could riot have done so.
If the so called deed of lease dated August 31, 1940 was wholly ineffective and void for the purpose of demising the land for a period of 30 years one could only look at the provisions of the Transfer of Property Act for determining the term for which the tenancy came into existence.
Under section 106 of that Act the ,tenancy, in the present case, could be only from month to month because the immovable property had not been leased out (1) 498 for agricultural or manufacturing purpose in which case the lease would have been from year to year.
We are therefore unable to accede to the contention that the renewal clause in the lease deed dated August 31, 1940 was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation.
The next question relating to quantum can be disposed of shortly.
The sole criticism of Mr. Chagla is that the potential value of the plot in question was not taken into consideration.
It is true, as pointed out in Raja Vyrigherla Marayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam(1) that where the land to be valued possesses some unusual or unique features as regards its position or its potentialities the court determining the market value will have to ascertain as best as it can from the materials before it what a willing vendor might reasonably expect to obtain from a willing purchaser for the land in that particular position and with those particular potentialities.
It has been urged that Plot No. 670 had a special situation or position in view of its size, locality, nearness to business centre and the Madan Mahal Station.
But the value which was fixed by the Additional District Judge and the High Court was fixed by reference to sales of plots of comparable nature.
The following portion of the judgment of the High Court shows how the matter was dealt with "We may observe that the two witnesses relied upon by the appellants purchased small plots at the rate of Re. 1/ per sq.
As the map of the Wright Town Madan Mahal Extension area produced by the Corporation before us shows, these plots are in a fully developed lay out having roads and drains round about.
We had asked the Corporation to calculate how much area out of the acquired sites would be required to be left open for roads and drains and they have calculated that about 70,000 sq.
ft. would have to be left open for this pur pose.
Obviously, therefore, it is only the remaining plot which would have value as building sites.
Besides leaving so much area open, costs will have to be incurred in developing the roads, and drains for which the Corporation has estimated the cost to be Rs. 8,500/ .
Considering all these factors and also calculating the built up area in the lay outs surroundings the acquired land, we find that it is only eighty per cent of the land which can be sold as building site.
On these calculations if the average price of the plots sold in the locality is taken to be /12/ per sq.
the (1)66 I.A. 104.
499 overall price of the acquired land without roads and drains would work out to a little less than / 9/ per sq.
To put the matter, in a different way, the value of / 10/ per sq.
found by the Additional Judge would work out to a little over /12/ per sq.
ft., if only the area which could be built upon is considered saleable as building site.
We,therefore, find that the price at /10/per sq.
allowed by the Additional District judge, is not unreasonable; if anything it errs on the generous side".
We have no manner of doubt that the High Court had taken all the factors into consideration while assessing the value.
In the result the appeals fail and are dismissed.
There will be no order as to costs.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
The Municipal Corporation of Jabalpur purporated to grant a leave of certain land to the appellant Sabha.
According to the document the period of lease was 30 years.
The appellant was entitled on the expiry of the lease to, have the same renewed on such terms and conditions as might be agreed between the parties, The appellant made a college hostel on the aforesaid land and had also used the attached ground as playground for students.
A portion of the said land was sought to be acquired by the State Government under the Land Acquisition Act, 1894 for constructing the Home Science College.
The Collector of Jabbulpur by his award dated July 18, 1955 dealt with the claims filed by the appellant and the Municipal Corporation and assessed the compensation at As.
/8/ per sq.
Apportionment was made between the appellant and the Corporation on the footing that the appellant was not merely a tenant at will as contended by the Corporation but was a lessee for the terms mentioned in lease.
The appellant and the Corporation made applications for reference under section 18(1) of the Act.
The Additional District Judge held that the price should be As. /10/ per.
sq ft.
and that the appellant and ' the Municipal Corporation were entitled to equal compensation.
The Corporation and the appellant filed appeals to the High Court.
The decision of the Addl.
District Judge fixing the price of the land As. /10/ per sq.
ft. was affirmed.
As regards the dispute regarding apportionment the High Court held that the lease deed having been exempted by the Administrator during the time when the Corporation stood superseded was ineffective to convey the leasehold interest to the appellant.
However, the appellant was paying the rent which had been accepted for a long time by the Corporation.
there was thus a tenancy by necessary implication.
The High Court further held that the lease was to continue for the period of 30 years mentioned in the deed but there was no valid contract for renewal of least because the clause relating to that was vague and uncertain.
The apportionment was made on acturial basis between the appellant and the Corporation in the ratio of 1038 : 962.In appeal before the Court the quest ions relating to quantum of compensation and the apportionment between the appellant and the Corporationfell for consideration.
HELD : (1) No lease could be spelt out of the deed dated August 31, 1940 for a period of 30 years containing the renewal clause.
If th officer who executed the lease deed had no power to lease out the property in question the grant of the lease was wholly null and void.
It is true that by the acceptance of rent from the appellant the relationship of landlord and tennant came into xistence.
But that did not show that a lease deed for a period of 30 years with a renewal clause had come into existence.
[497E] Since the lease deed was ineffective the lease could be under the provisions of section 106 of the 'transfer of 'Pro@y Act, only from.
mouth 494 to month because the immovable property had not been leased out for agricultural or manufacturing purpose in which case it would have been from year 'Lo year.
Therefore the :contention that the renewal clause was effective and should have been taken into consideration while making the apportionment between the appellant and the Corporation could not be accepted.
(The question whether the High Court was right in holding that the period of lease was 30 years was not gone into because the Corporation had filed no appeal against that portion of the decision.
[497H] Dagdulal vs Municipal Committee, Burhar, (19 '60) M.P.L.J. 627 and H. V. Ranan vs G. N. Gopat & Ors.
A. I. R. 1961 Mys. 29, referred to.
(2) The value which was fixed by the Addl.
District Judge and the High Court was fixed by reference to sales of plots of comparable nature.
There was no doubt that the High Court had taken all the factors into consideration while as essing the value and there was no reason to interfere in this regard.
[499A C] Raja Vyigheria Narayana Gajapatiraju vs The Revenue Divisional Officer Vizagapatam, 66 I.A. 104, referred to.


judgement:
Appeal No. 1063 of 1971.
Appeal by special leave from the judgment and order dated June 25, 1971 of the Court of Judicial Commissioner for Tripura in Civil Matter No. 2 of 1970.
A. K. Sen and D. N. Mukherjee, for the appellant.
Govind Das and section P. Nayar, for the respondents.
The Judgment of the Court was delivered by Dua, J.
This appeal is by special leave.
The appellant assails the order of the Judicial Commissioner, Tripura dated June 25, 1971 dismissing his petition under article 226 of the Constitution challenging the order of the Collector of Excise, Tripura, dated July 5, 1970.
The appellant was granted licence for the period April 1, 1963 to March 31, 1966 for running a warehouse for supply of country liquor to excise vendors in the territory of Tripura.
The Bengal Excise Act, 1909 (hereinafter called the Act) had been extended to that territory on August 1, 1962.
The appellant 's licence was subsequently extended for a further period of two years ending March 31,,1968.
On November 6, 1967 the appellant applied to the Excise Collector praying that he should be permitted to continue the supply of country liquor for a period of five years commencing April 1, 1968.
The Collector recommended the appellant 's case to the Government on November 18, 1967 for extension of his licence for a further period of only two years.
On 536 December 22 1967 the Collector of Excise, Tripura, Agartala wrote to the appellant that he had been appointed by the Chief Commissioner a contractor for the supply of country liquor to the excise vendors for the territory of Tripura for five years i.e., from 1 4 68 to 31 3 73 at the existing rate i.e., Rs. 2.25 only being the cost of one L.P. litre of country liquor of 40 U.P. strength for sale to the excise vendors" of that territory from the Central Warehouse at Agartala.
On 'January 13, 1963 the appellant was asked by the Collector of Excise to deposit Rs. 1,000/as security and Rs. 2,500/ as licence fee for five years at the rate of Rs. 5001 per year.
On March 13, 1968 the appellant was accordingly granted a licence to establish a warehouse for the storage in bond and wholesale vend of country spirit by import and for supply to the excise vendors in the territory of Tripura for five years commencing April 1, 1968 and ending March 31, 1973.
It was granted by the Excise Collector.
The Committee of Estimates in their Fifth Report about the working of Excise Department in the territory of Tripura in general and about the procedure adopted in giving contract to the appellant for a period of five years from 1968 to.
1973 in particular made some adverse observations critic sing the method of appointment by means of selection because this method according to the report, left loopholes for corruption.
As a result of this report the Lt. Governor of Tripura on July 2, 1970 inserted r. 164 A in the Tripura Excise Rules of 1962 in exercise of the power conferred by section 86 of the Act.
According to the now rule, fees for licence for the wholesale vend of country spirit were required to be fixed by tender cum auction.
On July 6, 1970 the Excise Collector issued the following order to the appellant : "GOVERNMENT OF TRIPURA OFFICE OF THE COLLECTOR OF EXCISE No. 810/DM/EX/5(19)/70 71 dated, Agartala the 6 7 1970 Whereas it has been decided by the Government of Tripura that the licenses for the wholesale of country spirit shall hence forwards be granted by the method of tender cum auction and to different persons for different specified areas as far as practicable, instead of the present system of selection of one licensee for the whole territory of Tripura, in the interests of excise revenue.
And whereas 1, Sri Omesh Saigal, Collector of Excise, Tripura consider that for the aforesaid reason the license No. 1 dated the 13th March, 1968 issued to Sri Amar Chandra Chakraborty for the wholesale vend 537 of Country spirit in the Union Territory of Tripura for the, period from the 1St April, 1968 to 31 St March, 1973 should be withdrawn.
Now, therefore, in exercise of the powers conferred on me under Section 43 of the Bengal Excise, Act, 1909, as extended to the Union Territory of Tripura, remit a sum of Rs. 20.84 equal to the amount of the fees payable in respect of the said license for 15 days and hereby give the licensee 15 days ' notice of my intention to withdraw the said license and order that the said license be withdrawn with effect from 1st September, 1970.
Any fee paid in advance or deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount, if any due to the Government.
Sd/ Omesh Saigal 5 7 70 Collector of Excise.
" Feeling aggrieved the appellant challenged this order in the court of the Judicial Commissioner by means of a writ petition under article 226 of the Constitution which was dismissed by the impugned order.
The order of the Collector dated July 6, 1970 was challenged by the appellant on a number of grounds, including invalidity of section 43 of the Act and r. 164A of the Rules framed thereunder.
The learned Judicial Commissioner in an exhaustive order came to the conclusion that the appellant had been given a contract for five years on the basis of his application dated November 6, 1967 without issuing a public notice as required by the proviso to section 22(1) of the Act.
This violation of the statutory provision invalidated the contract or the privilege of selling country liquor secured by the appellant.
According to the Judicial Commissioner this ground by itself was enough for throwing out of the appellant 's writ petition.
The contention that section 43 of the Act does not envisage withdrawal by the Collector of the licence pertaining to, the privilege granted by the Chief Commissioner of Tripura under section 22 of the Act was also negatived by the Judicial Commissioner as in his opinion the Collector who had issued the licence was fully competent to withdraw the same.
Similarly challenge to the cons titutionality of section 43 of the Act was repelled and it was held that this section merely imposes reasonable restrictions in the matter of trade in liquor.
The argument that 15 days ' notice as contemplated by section 43 of the Act had not been given was also rejected because in the Judicial Commissioner 's opinion notice had actually been given to the appellant but he had not cared to avail of it as 538, he never approached against the action withdrawing the licence.
Rule 164A was held to be intra vires and within the terms of section 86 of the Act.
In this Court the principal contention raised by Shri A. K. Sen, on behalf of the appellant, is that section 43 of the Act contemplates a show cause notice which has not been given and that in any event this section clothes the authority granting the licence with unguided and uncanalised power to withdraw the licence and is, therefore, violative of article 14 and also article 19 of the Constitution as it encroaches on the appellant 's fundamental right of carrying on trade or business.
Shri Sen further submitted that the authority granting the licence was the Chief Commissioner but the order dated July 6, 1970 was issued by the Collector of Excise.
The order withdrawing the licence, according to the learned counsel could only be made by the authority granting the licence and that too after the expiry of 15 days.
The counsel added that withdrawal of licence virtually amounts to its forfeiture with the result that the provisions dealing with such withdrawal calls for a strict construction.
The contention that the authority granting the licence was the Chief Commissioner and, therefore, the notice issued by the Collector of Excise is bad, cannot be accepted.
The licence dated March 13, 1968 was issued from the office of the Collector of Excise, Agartala and was signed by that officer.
Even in the appellant 's writ petition in para 15 there is an express averment that the licence dated March 13, 1968 had been issued under the signatures of the Collector of Excise, Tripura.
No doubt, it is added in the same paragraph that the Collector is not the authority to exercise power under section 43 of the Act but this submission has not been substantiated at the bar and is contrary to the statutory provisions.
Under section 22, sub section
(1), the Chief Commissioner is no doubt given the power of granting the exclusive privilege of manufacturing and selling country liquor or intoxicating drugs as mentioned in cls.
(a) to (e) but sub section
(2) of this section in express terms provides that no grantee of any privilege under sub section
(1) shall exercise the same unless or until he has received a licence in that behalf from the Collector or the Excise Commis sioner.
In view of this provision it is obvious that it is the Collector who grants the licence within the contemplation of section 43 and, therefore, it was this very officer who rightly granted the licence to the appellant and is empowered to withdraw the licence under section 43.
As sec.
43 provides for withdrawal of a licence for any cause other than those specified in section 42 of the Act we consider it proper to reproduce both these sections.
They read 539 "42.
Power to cancel or suspend license, permit or pass.
(1) ' Subject to such restrictions as the Chief Commissioner may prescribe, the authority who granted any license, permit or pass under this Act may cancel or suspend it (a) if it is transferred or sublet by the holder thereof without the permission of the said authority; or (b) if any duty or fee payable by the holder thereof be not duly paid; or (c) in the event of any breach by the holder thereof, or by any of his servants, or by any one acting on his behalf with his express or implied permission, of any of the terms or conditions thereof; or (d) if the holder thereof is convicted of any offence punishable under this Act or any other law for the time being in force relating to revenue, or of any cognizable and.
non bailable offence, or of any offence punishable under the Dangerous Drugs Act, 1930, (II of 1930), or under the (43 of 1958), or under any section which has been introduced into the Indian Penal Code by Section 3 of that Act (Act XLV of 1860); or (e) if the holder thereof is punished for any offence referred to in clause 8 of section 167 of the (VIII of 1878); or (f) where a licence, permit or pass has been granted on the application of the holder of an exclusive privilege granted under section 22, on the requisition in writing of such holder; or (g) if the conditions of the license, permit or pass:,.
provide for such cancellation or suspension at Will.
(2), When a license permit or pass held by any person Is cancelled under clause (.a), clause (b), clauser (c), clause ' (d) or clause (e) of sub section (1) the authority aforesaid may cancel any other licence, permit or pass granted to such person by, or by the authority of" the Chief Commissioner under this Act, or 'under the Opium Act, 1878 (1 of 1878).
,1286Sup.
Cl/72 540 (3)The holder of a license, permit or pass shall not be entitled to any compensation for its cancellation or suspension under this section, or to the refund of any fee paid or deposit made in respect thereof.
43.Power to withdraw licenses. (1) Whenever the authority who granted any license under this Act considers that the license should be withdrawn for any cause other than those specified in section 42, it shall remit a sum equal to the amount of the fees payable in respect thereof for fifteen days, and may withdraw the license either (a) on the expiration of fifteen days ' notice in writing of its intention to do so, or (b) forthwith, without notice.
(2) If any license be withdrawn under clause (b) of sub section (1), the said authority shall, in addition to remitting such sum as aforesaid, pay to the licensee such further sum (if any), by way of compensation, as the Excise Commissioner may direct.
(3)When a license is withdrawn under sub section (1), any fee paid in advance, or deposit made by the licensee in respect thereof shall be refunded to him after deducting the amount (if any) due to the Government.
" Before dealing with the contention relating to article 19 we consider it proper to dispose of the argument founded on the ejusdem generis rule and article 14 of the Constitution.
It was contended by Shri Sen that the only way in which section 43 can be saved from the challenge of arbitrariness is to construe the expression "any cause other than" in s, 43(1) ejusdem generis with the causes specified in cll.
(a) to (g) of section 42 (1).
We do not agree with this submission.
The ejusdem generis rule,strives to reconcile the incompatibility between specific and general words.
This doctrine applies when (i) the statute contains an enumeration of specific words; (ii) the subjects of the enumeration constitute a class or category , (iii) that class or category is not exhausted by the enumeration; (iv) the general term follows the enumeration and (v) there is no indication of a different legislative intent.
In the present case.
it is not easy to construe the various clauses of section 42 as constituting one category or class.
But that apart, the very language of the two sections and the objects intended respectively to be achieved by them also negative any intention of the legislature to attract the rule of ejusdem generis.
Trade or business in country liquor has from its inherent nature been treated by the State and the society as a special category 541 requiring legislative control which has been in force in the whole of India since several decades.
In view of the injurious effect of excessive consumption of liquor on health this trade or business must be treated as a class by itself and it cannot be treated on the same basis as other trades while considering article 14.
this classification is founded on an intelligible differentia having a rational relation to the object to be achieved by the control imposed on the trade or business in country liquor.
article 14, it may be pointed out, only forbids class legislation but reasonable classification does not come within the prohibition.
Nothing convincing was urged at the bar to attract the prohibition embodied in article 14.
The submission that a separate order withdrawing the licence after the expiry of 15 days ' period from the order dated July 6, 1970 was necessary has also not appealed to us.
Section 43 does not provide any such procedure.
All that this section contemplates is that whenever the authority concerned considers that the licence should be withdrawn for any cause other than those specified in section 43 it may withdraw the same but to do so it must remit a sum equal to the amount of fees payable in respect of the licence for 15 days.
It is not complained that this amount was not remitted as required.
Now if the licence is withdrawn under section 43 (1 ) (a) on the expiration of 15 days ' written notice of the authority 's intention to do so then nothing further need be done.
It is only when the licence is desired to be withdrawn forthwith without notice as contemplated by section 43 (1 ) (b) that the authority is under a further obligation to pay compensation as may be directed by the Excise Commissioner.
Here the licence stood withdrawn on September 1, 1970 as stated in the intimation contained in the order dated July 6, 1970.
That intimation fully complies with the provisions of section 4 3.
The argument that no show cause notice was given to the appellant before withdrawing the licence is equally.
unacceptable for reasons just stated.
The section does not contemplate two separate notices.
The order dated July 6, 1970 also clearly state, that 15 days ' notice was being given to, 'the licensee regarding the intention of the Collector of Excise to withdraw his licence and it is also specifically mentioned in the order that the said licence would be withdrawn with effect from September 1, 1970.
The fact that tinder the notice the licence was to be withdrawn more than 15 days after the date of the notice did not cause the appellant any prejudice and indeed no objection was raised on this score.
The contents of this order also quite clearly show that the appellant had ample opportunity of showing cause against the intention of the Collector to withdraw the licence with effect from September 1, 1970.
Rules of natural justice on which the appellant 's counsel relied for his grievance vary with the varying consti 5 4 2 tutions of statutory bodies and the rules prescribed by the legislature under which they have to act and the question whether in a particular case the rules of natural justice have been contravened must be judged not by any preconceived opinion of what they may be but in the light of the relevant statutory provisions : Gullapalli Nageswara Rao vs A. P. State Road Transport Corporation(1).
Applying this test to the present case the order dated July 6, 1970 cannot be, considered to violate any rule of natural justice.
According to Shri Sen the business of selling liquor is protected by article 19 of the Constitution as a fundamental right and reliance for this submission has been placed on K. K. Narula vs The State of J & K(2).
This fundamental right has been illegally infringed, said the counsel.
It is no doubt true that this Court in the case cited held that dealing in liquor is business and a citizen has a right to do business in that commodity but it was added that the State can make a law imposing reasonable restrictions on the said right in public interest.
In dealing with reasonable restrictions no abstract standard or general pat tern is possible to lay down.
In each case, regard has to be had to the nature of trade or business, the conditions prevailing in such trade or business, the nature of the infringement alleged, and the underlying purpose of the restrictions the imposition of which is alleged to constitute ant infringement.
According to Shri Sen the licence was granted to the appellant for five years and withdrawal of this licence before 'die expiry of five years has caused him immense financial loss.
The licence was withdrawn without any fault on his part,.
Unreasonableness of ' the provision contained in section 43, according to him, is manifest because it permits the licensing authority to withdraw the licence for any reason whatsover not falling under section 42.
This wide and arbitrary power being unreasonable, is, violative of the appellant 's fundamental right under article 19.
Let us see if this submission is, well founded.
Section 42 empowers the authority granting a licence, permit or pass under the Act to cancel or suspend it subject to such restrictions as may be imposed by the Chief Commissioner.
The grounds oh which the order of cancellation or suspension may be based are contained in cll.(a) to (g) of sub section
Except for cll.
(f) and (g) all other clauses suggest ' some impropriety or default on the part of the licensee.
Clause (f) speaks of cancellation or suspension on the written.
requisition by the holder of the exclusive privilege under section 22 and cancellation or suspension under cl.
(g) is in accordance with the conditions of the licence,, pen nit or pass in question.
Sub section (3) expressly negatives 1) [1959] SUPP.
1 S.C.R. 319.
(2) [1967] 3 S.C.R. 50. 5 4 3 the right to, compensation and also to refund of fee and deposit.authority granting a licence under the Act to withdraw the same for anycause other than those specified in section 42 on remitting a sum ,equal to the amount of fee payable for 15 days.
It is no doubt true that in s, 43 there, is no express mention of the precise grounds on which the licence can be withdrawn.
But in our opinion keeping in view the nature of the trade or business for which the grant of licence under the Act is provided the cause contemplated by section 43 must be such as may have reasonable nexus with the object of regulating this trade or business in the general interest of the public.
In the determination of reasonableness of restrictions on trade or business regard must be had to its nature, the conditions prevailing in it and its impact on the societ as a whole.
These factors must inevitably differ from trade to trade and not general rule governing all trades or businesses is possible to lay down.
The right to carry on lawful trade or business is subject to such reasonable conditions as may be considered essentials by the appro priate authority for the safety, health, peace, order and morals of the society.
Article 47 of our Constitution directs the State to endeavour to prohibit consumption intoxicating drinks of drugs which are injurious to health except for medicinal purposes.
In the case of country liquor, therefore, the question of determining reasonableness of the restriction may appropriately be considered by giving due weight to the increasing evils of excessive consumption of country liquor in the interests of health and social welfare.
Principles applicable to trades which all persons carry on free from regulatory, controls do not apply to trade or business in country liquor : this is so because of the impact of this trade on society due to its inherent nature.
In the present case, according to the counter affidavit after the Committee of Estimates had in their Fifth Report criticised the working of the Excise Department in the territory of Tripura in general and the procedure adopted in granting five years licence to the appellant in particular, the Council of Minister,,,, as a consequence of this criticism, resolved that the exclusive privilege of supplying countery liquor by wholesale should be allowed to three persons and not to one and that also by tender cum auction.
Pursuant to this decision r. 164A was inserted in the Tripura Excise Rules on July 2, 1970.
The Union Territory of Tripura was accordingly divided into three districts for the purpose of licence for wholesale supply of country liquor with effect from September 1, 1970.
.,It was for implementing this policy decision of the State Government that on july 6, 1970 the Collector of Excise informed the appellant by the impugned order that his licence would be withdrawn on september 1, 1970, at the same time remitting to him 15 days licence fee as required by statute.
544 The Government then took steps to invite tenders and fix a date for auction of.
wholesale supply of country liquor.
The cause for withdrawing the appellant 's licence is in terms of the major policy decision taken by the Tripura Government and this, in our opinion, is a cause which, keeping in view the purpose and object of granting such exclusive privileges and licences, cannot be considered to be either irrelevant or collateral to that purpose and object.
The appellant had, it may be recalled, secured his licence for the maximum period of five years as provided by r. 22(4) of the Tripura Excise Rules, 1962 for a nominal annual sum.
On the withdrawal of the licence, fee for 15 days was remitted to him and the fee paid in advance and the deposit made were also directed to be refunded as provided by section 43(3).
But this apart, the learned Judicial Commissioner has also held in the judgment under appeal that since the contract for five years had been given to the appellant in complete violation of the statutory provision enacted in the proviso to section 22(1) of the Act he could not claim to be a holder of any valid contract or of.
a valid conclusion.
Shri Mukherjee, however, did make a faint attempt the conclusions of the learned Judicial Commissioner by submitting that the appellant was not aware of non compliance with the proviso to, section 22 (1 ) of the Act and that he could not be penalised for any such non compliance.
We are not impressed by this submission.
Section 22 contemplates the grant of exclusive privilege which amounts to a virtual monopoly for manufacturing supplying and selling at wholesale or retail country liquor or intoxicating drugs within a specified local area.
Keeping in view the nature of this trade or business particularly the unhealthy effects of intoxicants on certain important sections of the society it cannot be denied that the residents of the local area concerned would be vitally interested in the matter of grant of exclusive privileges and licences for sale of liquor as unless appropriately regulated such trade or business may prove a source of nuisance and annoyance to the persons presiding in the vicinity.
It is apparently in recognition of this vital interest of the residents of the locality that public notice of the intention to grant such exelusive privilege is provided so that objections thereto,, if any, may be preferred before the exclusive privilege is actually granted.
The, public notice 'is thus a condition precedent to the grant of exclusive privilege.
The underlying policy of section 22 seems to be not to allow such an important matter to be decided in the secrecy of office without giving it proper publicity.
All the conditions of the proposed grant including its duration are expected to be notified.
Such notification would serve also to eliminate chances of favouritism, nepotism and corruption.
Section 22 seems also to have its roots in these deeper considera 545 tions.
Failure to give such public notice was, therefore, in our opinion, rightly considered by the learned Judicial Commissioner to be fatal to the grant, of the exclusive privilege to the appellant.
Nothing convincing has been said at the bar against this view.
If non compliance with the proviso to section 22 ( 1 ) is by itself fatal to the grant of exclusive privilege than the impugned order dated July 6, 1970 is sustainable on this ground alone and the writ petition was thus rightly dismissed.
In any event, this ground, along with the others already noticed, would, in our opinion, constitute, a good cause for withdrawing the licence under section 43 of the Act.
On this view the impugned judgment of the learned Judicial Commissioner does not seem to us to be open to challenge particularly under article 136 of the Constitution.
This appeal accordingly fails and is dismissed with costs.

summary/full:
The appellant was granted a licence on March 13, 1968 by the Excise Collector to establish a warehouse for ' the storage in bond and wholesale vend of country spirit by import and for supply to the excise vendors in the territory of Tripura for five years commencing April 1, 1968 and ending March 31, 1973.
The mode of granting the licence was criticised by the Committee of Estimates.
As a result the Governor of Tripura on July 2, 1970 inserted r. 164 A in the Tripura Excise Rules of 1962 whereby fees for licence for the wholesale vend of country spirit were required to be fixed by tender cum auction.
On July 6, 1970 the Excise Collector exercising his power under section 43 of the Bengal Excise, Act 1909 as extended to the Union Territory of Tripura withdrew the licence granted to the appellant after 15 days ' notice and remission of 15 days fee.
The appellant challenged the Excise Collector 's order in a petition under article 226 of the Constitution.
The Judicial Commissioner dismissed the petition.
Intr alia the Judicial Commissioner held that the licence granted to the appellant was invalid because it was granted without public notice as required by the proviso to section 22(1) of the Act.
In appeal by special leave it was contended by the appellant that (i) the Collector had no power to pass the impugned order; (ii) the words "any cause other than" in section 43 must be read ejusdem generis with the causes in mentioned in section 42; (iii) section 43 was arbitrary and violative of article 14 of the Constitution; (iv)the terms of section 43 had not been complied with; (v) the impugned order was passed without a show cause notice and was against natural justice; (vi) section 43 being arbitrary imposed unreasonable restrictions on the appellant 's right to carry on business.
HELD : (i) Under section 22, Sub section
(1) the Chief Commissioner is no doubt given the power of granting the: exclusive privilege of manufacturing and selling country liquor or 'intoxicating drugs as mentioned in clauses (a) to (e) but subs.
(2) of this section in express terms provides that no, grantee of any privilege under sub section
(1) shall exercise the same unless or until he has received a licence in that be half from the Collector or the Excise Commissioner.
In view of this provision it is obvious that it is the Collector who grants the licence 534 within the contemplation of section 43 and therefore it was this very officer who rightly granted the licence to the appellant and is empowered to withdraw the licence under section 43.
[538 F G] (ii)The ejusdem generis rule strives to reconcile the incompatibility between specific and general words.
This doctrine applies when (1) the statute contains an enumeration of specific words; (2) the subjects ,of the enumeration constitute a class or category; (3) that class or ,category is not exhausted by the enumeration; (4) the general term follows the enumeration and (5) there is no indication of a different legislative intent.
In the present case it was not easy to construe the various clauses of section 42 as constituting one category or class.
But that . apart the very language of the two sections 42 and 43 and the object intended to be achieved by them also, negative any intention of the legislature to attract the rule of ejusdem generis.
Therefore the expression 'any cause other than ' in section 43(1) could not be considered ejusdem generis with the causes specified in clauses (a) to (g) of 42(1).
[540 F H] (iii)Trade or business in country liquor has from its inherent nature, been treated by the State and the society as a special category requiring legislative control which has been in force in the whole of India since several decades.
In view of the injurious effect of excessive .consumption of liquor on health this trade or business must be treated as a class by itself and it cannot be treated on the same basis as other 'trades while considering article 14.
[541 A B] (iv)The submission that a separate order withdrawing the licence after the expiry of 15 days period from the order dated July 6, 1970 was necessary could not be accepted.
Section 43 does not provide for ,any such procedure.
All that this section contemplates is that ever the authority concerned considers that the licence should be withdrawn for any cause other than those specified in section 42 it may withdraw the same but to do so it must remit a sum equal to the amount of fees payable in respect of the licence for 15 days.
It was not complained that this amount was not remitted in the present case.
[541 C D] (v)The order dated July 6, 1970 could not be attacked on the ground that a show cause notice was not given.
The contents of this order show that the appellant had ample opportunity of showing cause against the intention of the Collector to withdraw the licence from September 1, 1970.
Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the legislature ,under which they have to act and the question whether in a particular case the rules of natural justice have been contravened must be judged not by any preconceived opinion of what they may be but in the light ,of the relevant statutory provisions.
Applying this test the impugned order could not be considered to violate any principle of natural justice.
Gullapalli Nageswara Rao vs A.P. State Road Transport Corporation, [1959] Supp. 1 S.C.R. 319 and K. K. Narula vs State of J. & K., ; referred to.
(vi)It is no doubt true that in section 43 there is no express mention of the precise grounds on which a licence may be withdrawn.
But keeping in view 'the nature of the trade or business for which the grant of licence under 'the Act is provided the cause contemplated by section 43 must be such as may have reasonable nexus with the object of regulating this trade or business in the general interest of the Public.
In 535 the determination of reasonableness of restrictions on trade or business regard must be had to its nature, the conditions prevailing in it and its, impact on the society as a Whole.
article 47 of our Constitution directs the State to endeavour to prohibit consumption of intoxicating drinks, and of drugs which are injurious to health except for medicinal purpose.
The cause for withdrawing the appellant 's licence was in terms of a major policy decision of the Tripura Government and this was a cause which while keeping in view the purpose and object of granting such.
exclusive privileges and licences could not be considered to be either irrelevant or collateral to that purpose and object.
[543 B E] K.K. Narula vs The State of J. & K. , referred to.
(vii)The public notice under section 22(1) is a condition precedent to the grant of the exclusive privilege of selling liquor.
The underlying policy of section 22 seems to be not to allow such an important matter to.
be decided in the secrecy of office without giving it publicity.
Failure to give such public notice was therefore rightly considered by the Judicial Commissioner to be fatal to the grant of the exclusive privilege to the appellant.
[544 G 545 A] The appeal must accordingly be dismissed.


judgement:
Appeal No. 215 of 1954.
Appeal by Special Leave from the Judgment and Order dated the 23rd day of August 1954 of the High Court of Judicature at Bombay in Special Civil Application No. 1665 of 1954 under Article 226 of the Constitution of India.
R. B. Kotwal, J. B. Dadachanji and Rajinder Narain, for the appellant.
Naunit Lal, for respondents Nos. 1 to 3. 1955.
February 22.
The Judgment of the Court was delivered by SINHA J.
This is an appeal by special leave against the judgment and order dated the 23rd August 1954 of the High Court of Judicature at Bombay, dismissing the appellant 's petition for a writ of quo warranto or any other appropriate writ directed against the election of the 2nd and 3rd respondents as President and Vice President respectively of the Gadag Betgeri 1271 The facts of this case are not in dispute and may shortly be stated as follows: The 1st respondent is a municipality governed by the provisions of the Municipal Boroughs Act (Bombay Act XVIII of 1925) which 7 hereinafter shall be referred to as the Act for the sake of brevity.
The appellant is one of the 32 councillors constituting the municipality.
The last general election to the municipality took place on the 7th May 1951.
The term of the councillors was three years computed from the date of the first general meetinog held after the general election aforesaid in this case the 10th July 1951.
In that meeting the 4th and 5th respondents were elected President and Vice President respectively of the municipality for a term of three years.
The Act was amended by Bombay Act XXXV of 1954, under which the term of office of the councillors was extended from 3 to 4 years ending on the 9th July 1955.
As the term of respondents 4 and 5 aforesaid was to expire at the end of three years from the 10th July 1951 and as the term of the municipality was extended by one year under the amending Act aforesaid, the vacancies thus occurring bad to be filled up by a fresh election of President and Vice President.
The Collector therefore called a special general meeting of the municipality to be held on the 30th July 1954 to elect a President and Vice President for the remaining period of the quadrennium.
The Collector had nominated the Prant Officer (the District Deputy Collector) to preside over that special general meeting.
On the 30th July 1954 the Prant Officer under instructions from the Collector adjourned the meeting to the 3rd August 1954 without transacting any business, the only item on the agenda being the election of the President and Vice President.
The 3rd respondent raised a point of order against the adjournment but the presiding officer aforesaid overruled that objection.
Hence the special general meeting was held on the 3rd August 1954.
At that meeting the appellant raised a point of order that under the provisions of the " Act a President could not be elected for 163 1272 a term less than a year and that therefore the proposed election would be in the teeth of those provisions.
The presiding officer who was the same person who had adjourned the meeting on the 30th July 1954 overruled that objection too.
Thereupon 13 out of the 32 councillors who were present walked out on the ground that they did not propose to participate in a meeting in which the proposal was to elect a President for less than a year contrary to the provisions of the Act.
The appellant was one of those 13 councillors who walked out.
It may be added that the full strength of the municipality is 32 councillors all of whom were present both on the 30th July 1954 and the 3rd August 1954.
The remaining 19 councillors proceeded to transact business and elected the 2nd respondent as the President, the proposal being that he "should be President of the municipality for the remaining period of the quadrennium" and that was the proposal which was carried.
Immediately after the election of the President another meeting was held for the election of the Vice President under the presidency of the newly elected President (the 2nd respondent).
The appellant raised the same point of order as he had done in the case of the election of the President and that was also overruled.
Thereupon six of the councillors present including the appellant walked out and the remaining councillors elected the 3rd respondent as the Vice President.
The appellant moved the High Court of Bombay under article 226 of the Constitution for a writ of quo warranto or any other appropriate writ or order or direction against the 2nd and 3rd respondents "restraining them from usurping the office of the President and Vice President respectively of the opponent No. I Municipality and restraining them from performing any duties and from exercising any powers as President and Vice President respectively".
The High Court held that the election of the 2nd and 3rd respondents was not illegal and dismissed the application.
It held that on a proper construction of the relevant provisions of the Act it was not correct to say that the term of office of the councillors or of the newly 1273 elected President and Vice President shall end with the 9th July 1955; that the intention was to elect the President and the Vice President for the remaining term of the municipality which was not only a period of four years certain but an additional period up to 7 the date when new President and Vice President A would be elected and take over after a fresh general election; that the adjournment of the meeting of the 30th July was not beyond the powers of the presiding officer; and that consequently the meeting of the 3rd August was not vitiated by any illegality.
It was also pointed out by the High Court that all the councillors constituting the municipality had notice of the adjourned meeting and did as a matter of fact attend that meeting and that even if there was any irregularity in the adjournment on the 30th July 1954 that did not affect the illegality of the adjourned meeting and the business transacted therein.
The appellant moved the High Court for leave to appeal to this court but that application was rejected.
The appellant then applied to this court for special leave to appeal which was granted on the 3rd September 1954.
It has been argued on behalf of the appellant that the meeting held on 3rd August 1954 as aforesaid was invalid for the reasons: 1. that it was not an adjourned meeting inasmuch as the meeting of the 30th July 1954 had not been validly adjourned, 2.
that it had not been called by the Collector, and 3.
that the written notice required by section 35(3) had not been given and in any event, had not been served and published as required by law.
Secondly it was urged that the meeting of the 3rd August being thus invalid.
, the business transacted at that meeting, namely, the election of the President was equally invalid.
Thirdly it was urged that the election of the President being invalid, the meeting held that very day under the presidency of the President thus elected was also invalid and the election of the Vice President consequently was illegal.
It was 1274 further argued that the election of the President and the Vice President being in violation of section 19 of the Act was invalid on that ground also; and finally, that the amendment of section 19 by the amending Act LIV of 1954 after leave to appeal had been granted by this court could not affect the present proceedings which were then pending even though the amending Act purported to make it retrospective.
On behalf of respondents 1, 2 and 3 who only have appeared in this court, it has been urged that a President and Vice President could be elected for a term of less than one year as section 19 of the Act was subject to section 23 (1) (A); that in any view of the matter, section 19 as amended by the amending Act LIV of 1954 rendered the election beyond question as the Act in terms was meant to validate all elections held between the passing of the amending Act XXXV of 1954 and the amending Act LIV of 1954; that the presiding officer had inherent, if not statutory power to adjourn the meeting of the 30th July 1954 and that in any event the meeting held on the 3rd August 1954 could be treated as a fresh meeting called by the Collector and that any irregularity in serving the notice or in the appointment of the presiding officer was cured by the provisions of section 57 of the Act.
It was also argued that the appellant was not the councillor who had objected to the adjournment of the meeting of the 30th July and could not therefore object to it at a later stage.
Finally it was argued that the appellant had no right to a writ or order prayed for as he had not been injured in any sense.
It would thus appear that there are two main questions in controversy between the parties, namely, (1) whether the meeting of the 3rd August, 1954 had been validly held; and (2) whether the president and the vice president having been elected "for the remaining period of the quadrennium" had been validly elected.
There are a number of subsidiary questions bearing upon these two main questions which have been canvassed before us, 1275 A good deal of argument was addressed to us contending that the presiding officer had no power to adjourn the meeting of the 30th July 1954 in view of the provisions of section 35(11) of the Act.
In this connection reference was also made to the proviso to section 19 A(2).
Those provisions, it was argued,, point to the conclusion that the powers of the presiding officer are the same as those of the president of a municipality when presiding over an ordinary meeting of the municipality except that section 35(11) relating to adjournments had been qualified only to this extent by the proviso aforesaid, that the Collector or the officer presiding over the meeting for the purpose of holding an election of the president or vice president may refuse to adjourn such a meeting in spite of the wishes of the majority of the members present to the contrary.
It was also argued that the High Court had wrongly taken the view that the presiding officer had the inherent right to adjourn the meeting.
Reference was made to certain passages in "The Law of Meetings" by Head, "The Law on the Practice of Meetings" by Shackleton, and "Company Meetings" by Talbot.
In our opinion, it is unnecessary for the purpose of this case to pronounce upon the merits of that controversy in the view we take of the meeting of the 3rd August, 1954, assuming that the meeting of the 30th July, 1954 had been adjourned without authority.
It is common ground that it was the Collector who called the meeting of the 30th July 1954 and that it was under instructions from the Collector that meeting was adjourned.
Under the provisions of section 23(1) (A), on the expiry of the term of office of the president or vice president as determined by the municipality under section 19(1) of the Act, a new president or vice president shall be elected within 25 days from the date of such expiry.
The provisions of section 19 A which relate to the procedure for calling a meeting of a newly constituted municipality for the election of a president and vice president have been made applicable to the calling of a meeting and the procedure to be followed at such meeting for the 1276 election of a president.
Section 19 A requires the Collector to call a meeting for holding such an election.
Such a meeting shall be presided over by the Collector or such officer as the Collector may by order in writing appoint in this behalf.
The Collector or his nominee, when presiding over such a meeting, shall have the same powers as the president of a municipalit by when presiding over a meeting of the municipality has, but shall not have the right to vote.
On the 30th July, 1954 a special general meeting had been called by the Collector for the election of the President.
In the proceedings of that meeting it has been recorded that "Under instructions from the Collector of Dharwar the presiding authority adjourns the meeting to 3rd August 1954 at 3 P.m.".
At that meeting all the 32 councillors were present and admittedly in their presence the presiding officer declared openly that the meeting will be held on the 3rd August 1954 under instructions from the Collector concerned.
When the meeting was held on the 3rd August 1954 at 3 P.m.
as previously notified, again the 32 councillors were present.
The proceedings show that the same Prant Officer "occupied the chair as authorised by the Collector".
The presiding authority read out and explained to the members present the following telegraphic message from the Collector: "Government have directed to bold election of President of Gadag Municipality on 3rd August as already arranged.
Hold election accordingly today without fail".
At this meeting the appellant raised two points of order, (1) that the election of the president for the remaining period of the quadrennium as mentioned in the agenda was illegal, and (2) that the meeting was not an adjourned meeting of the municipality and was also illegal because it was under the instructions of the Collector that the adjourned meeting was being held and that the Collector had no such power.
The minutes of the proceedings further show that "the presiding authority ruled out the points of order on the ground that this was a special meeting called by the Collector for the election of the President and 1277 the election has to be held as already fixed".
After the ruling given by the presiding authority, 13 members including the appellant expressed a desire to walk out and walked out with the permission of the presiding authority.
The remaining members, as already indicated, continued the business of the meeting and the proposal that the 2nd respondent should be elected president of the municipality for the remaining period of the quadrennium after having been duly made and seconded was carried unanimously and the meeting terminated.
It would thus appear that the meeting of the 3rd August 1954 for the election of the president had been called by the Collector who had authorized the Prant Officer to preside over that meeting and that the 2nd respondent was duly elected president.
Under section 35(3) of the Act, for such a special general meeting three clear days ' notice has to be given "specifying the time and place at which such meeting is to be held and the business to be transacted thereat shall be served upon the councillors, and posted up at the municipal office or the kacheri or some other public building in the municipal borough and also published in a local vernacular newspaper having a large circulation if such exists".
It has been contended on behalf of the appellant that the notice required by section 35 (3) contemplates a written notice to be served and published in the manner specified, and that the meeting of the 3rd August 1954 could not be said to have been held after complying with the terms of sub section (3) of section 35.
It was also contended that the requirements of section 19 A(1) and (2) have also not been complied with because there is no evidence that the Collector had called that meeting or that he had made an order in writing that the presiding authority had been authorized to preside over that meeting.
In our opinion, there is no substance in any one of these contentions.
From the record of the proceedings of the proposed meeting of the 30th July 1954 and the actual meeting on the 3rd August 1954 it is clear that whatever had been done had been done under the orders of 1278 the Collector.
He had called the meeting of the 30th July as also of the 3rd August 1954.
It was he who had appointed the Prant Officer as the presiding officer for both those meetings.
It is true that the notice of the meeting of the 3rd August 1954 had not been given in writing but had only been intimated to all the councillors who were present at the meeting of the 30th July 1954.
The notice amply satisfies the requirement of three days ' clear notice, though it was not in writing.
It had indicated the time of the meeting and the business to be transacted.
Under section 35(4) the ordinary venue of a meeting is the municipal office unless otherwise indicated in the notice.
It is also true that the notice was not served in the manner indicated in sub section (3) of section 35 of the Act.
There is no evidence that there existed a local vernacular newspaper with large circulation, in which the notice of the meeting could be published.
The question is, do those omissions render the notice ineffective in law.
That could only be so if those provisions were held to be mandatory.
The following provisions (omitting the words not material to this case) would show that those provisions of section 35(3) are directory and not mandatory and that any omissions in the manner of service of the notice are mere irregularities which would not vitiate the proceedings unless it was shown that those irregularities bad prejudicially affected the proceedings: "No resolution of a municipality deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipality . . . were not prejudicially affected by such irregularity".
Fortunately for the respondents, all the councillors constituting the municipality were present on both the occasions, namely, 30th July and 3rd August, 1954.
Hence they had ample notice of the meeting to be held on the 3rd August, 1954, the time and place of the meeting and the business to be transacted.
It has not been either alleged or proved that the irregularities in the service of the notice or the omissions com 1279 plained of had prejudicially affected the proceedings.
But it was contended that as the notice had not been posted up at the municipal office or the local kacheri or some other public building and had also not been published in a local vernacular newspaper, if there were one, though all the councillors were present on 3rd August, 1954, the members of the public had no such notice and naturally therefore could not be present at that meeting.
In this connection it was pointed out that sub section (6) of section 35 provides that every such meeting shall be open to the public, unless the presiding authority directs to the contrary.
It is evident from the provisions of that sub section that though the presence of the public at such meetings may be desirable, it is not obligatory.
The presence at or the absence from such a meeting of the members of the public has no legal consequence so far as the validity of the election is concerned.
It must therefore be held that the meeting of the 3rd August, 1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that therefore that meeting was not invalid, assuming, as already said, that the order of the presiding authority adjourning the meeting of the 30th July, 1954 was not authorized.
It has to be remembered in this connection that such a special general meeting can be presided over only by the Collector or the person authorized by him and if either the Collector or his nominee does not hold the meeting, it is not competent for councillors present to elect their own chairman for presiding over such a meeting.
Therefore if the presiding authority admittedly under instructions from the Collector refused to proceed with the elections on the 30th July 1954, the councillors present could not hold a meeting of their own with a president of their own choice and transact the only business on the agenda, namely, the election of president.
Hence, rightly or wrongly, if the meeting called for the 30th July was not held, another meeting had to be held for the purpose within 25 days of the occurrence of the vacancy.
In this case, as a 164 1280 result of the expiry of the original term of office of the president and vice president, another meeting giving the required three days statutory notice had to be held.
The meeting held on the 3rd August 1954 was such a meeting.
Indeed, there were some omissions in the manner of publication or service of the notice but those in law were mere irregularities which do not have the effect of vitiating the election held at that meeting.
The election of the president therefore, if not otherwise invalid, could not be assailed on the ground of the irregularity in the service or publication of the notice, in the special circum stances of this case.
If all the councillors had not been present on the 30th July or had not been informed of the proposed meeting of the 3rd August 1954, other considerations may have arisen but in this case it is clear that there was absolutely no prejudice to any party or individual or the municipality as a whole.
But it was further contended that the walking out of the 13 councillors rendered the meeting infructuous.
In our opinion, such a result does not follow from the voluntary act of the 13 councillors who chose to walk out.
It was not even suggested that there was no quorum for the special general meeting after the 13 councillors walked out.
The next question is whether the provisions of section 19 (1) as they stood on the 3rd August 1954 render the election of the president and the vice president on the 3rd August 1954 invalid as it was "for the remaining period of the quadrennium".
The High Court has taken the view that the remaining period of the quadrennium would not necessarily end on the 9th July 1955, in view of the proviso to section 19(1) "that the term of office of such president or vice president shall be deemed to extend to and expire with the date on which his successor is elected".
In view of the events that have happened it is not necessary for us to pronounce on the correctness or otherwise of that decision.
After the judgment of the High Court and after the grant of special leave by this court, the Bombay Legislature enacted Act LIV of 1954 which was published in the Bombay Gazette on the 14th 1281 October 1954.
Sections 2 and 3 of the amending Act are in these terms: "2.
In section 19 of the Bombay Municipal Boroughs Act, 1925, in sub section (I), (1)after the words 'not less than one year ' the words 'or not less than the residue of the term of office of the municipality, whichever is less ' shall be inserted; (2)for the words 'three years ' the words 'four years ' shall be substituted.
3.(1) The amendments made by this Act shall be deemed to have come into force on the date on which the Bombay District Muncipal and Municipal Boroughs (Amendment) Act, 1954, came into force (hereinafter in this section referred to as 'the said date ') and all elections to the office of the president or vice president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid as if this Act bad been in force on the said date; and any person elected to the office of the president or vice president at any of such elections shall not be deemed to have been illegally elected merely on the ground that the residue of the term of office of the municipality being less than one year at the time of such election, he would hold his office for a term less than one year in contravention of section 19 of the Bombay Municipal Boroughs Act, 1925, as it was in operation before the coming into force of this Act.
(2)Nothing contained in this section shall affect the judgment, decree or order of any competent court, passed before the coming into force of this Act, holding any of such elections invalid on the ground specified in sub section (1)".
It has not been contended that section 19 as amended by Act LIV of 1954 does not in terms cover the elections now impugned, nor that section 3 of the amending Act quoted above is not retrospective; but it has been urged on behalf of the appellant that it is not retrospective to the extent of affecting pending proceedings.
In terms the amendment in question is deemed to have come into force on the II the May 1954 1282 on which date the amending Act XXXV of 1954 had come into force.
Section 3 in terms also declares that all elections to the office of president and vice president held on or after the 11th May 1954 and before the coming into force of the amending Act shall be deemed to have been valid.
The section also declares in unequivocal terms that such an election shall not be questioned simply on the ground of contravention of section 19 on which the election of the 2nd and 3rd respondents bad been questioned before the High Court.
The legislature apparently thought fit to declare beyond all controversy that an election of president or vice president for the unexpired portion of the term of a municipality could not be questioned on the ground that the provisions of section 19 as it stood before the amendment had been contravened.
But it was argued on behalf of the appellant that in terms the amendment had not been made applicable to pending litigation and that therefore this court should hold that the amendment did not have the effect of validating the elections which were already under challenge in a court.
No authority has been cited before us in support of the contention that unless there are express words in the amending statute to the effect that the amendment shall apply to pending proceedings also, it cannot affect such proceedings.
There is clear authority to the contrary in the following dictum of Lord Reading, C.J. in the case of The King vs The General Commissioners of Income tax for Southampton; Ex parte W. M. Singer (1), "I cannot accept the contention of the applicant that an enactment can only take away vested rights of action for which legal proceedings have been commenced if there are in the enactment express words to that effect.
There is no authority for this proposition, and I do not see why in principle it should be the law.
But it is necessary that clear language should be used to make the retrospective effect applicable to proceedings commenced before the passing of the statute".
That was a case in which the Act in question had (1) , 259, 1283 validated assessments made by commissioners for wrong parishes.
It was held by the court that the retrospective effect of the relevant section extended to proceedings for a prohibition commenced before the Act came into force and the rule nisi for a prohibition was therefore discharged.
In every case the language of the amending statute has to be examined to find out whether the legislature clearly intended even pending proceedings to be affected by such statute.
A number of authorities were cited before us but it is only necessary to refer to the decision of their Lord ships of the Judicial Committee in Mukerjee, Official Receiver vs Ramratan Kuer(1), which is clearly in point.
In that case while an appeal had been pending before the Judicial Committee the amending Act had been passed clearly showing that the Act was retrospective in the sense that it applied to all cases of a particular description, without reference to pending litigation.
In those circumstances their Lordships pointed out that if any saving were to be implied in favour of pending proceedings, then the provisions of the statute would largely be rendered nugatory.
Those observations apply with full force to the present case, inasmuch as if any saving were to be implied in favour of cases pending on the date of the amendment, the words "all elections to the office of the president or vice president, held on or after the said date and before the coming into force of this Act, shall be deemed to be valid" could not be given their full effect.
As there are no such saving clauses in express or implied terms, it must be held that the amendment was clearly intended by the legislature to apply to all cases of election of president or vice president, whether or not the matter had been taken to court.
it is the duty of courts to give full effect to the intentions of the legislature as expressed in a statute.
That being so, it must be held that the amending Act had the effect of curing any illegality or irregularity in the elections in question with reference to the provisions of section 19 of the Act.
For the reasons aforesaid it must be held that the (1) [1935] L.R. 63 I.A. 47.
1284 meeting of the 3rd August 1954 had been validly held and that there is no illegality in the election of the 2nd and 3rd respondents as president and vice president respectively.
We accordingly affirm the orders of the High Court, though not for the same reasons.
The appeal fails and is dismissed with costs.
Appeal dismissed.

summary/full:
The first respondent Municipality governed by the Municipal Boroughs Act, 1925 (Bombay Act XVIII of 1925) consists of 32 councillors, S, (the appellant) being one of them.
The last general election to the Municipality took place on the 7th May 1951.
The term of the councillors was three years computed from the first meeting held on 10th July 1951 after the general election.
In that meeting the 4th and 5th respondents were elected President and Vice President respectively for a term of three years.
Act XVIII of 1925 was amended by Bombay Act XXXV of 1954 under which the term of office of the councillors was extended from 3 to 4 years ending on 9th July 1955.
As the term of respondents 4 and 5 was to expire at the end of three years from the 10th July 1951 and as the term of the Municipality was extended by one year under the Amending Act XXXV of 1954 a fresh election of President and VicePresident was necessary to fill up the vacancies thus occurring.
The Collector called a special general meeting for the 30th July 1954 to elect a President and Vice President for the remaining period of the quadrennium and nominated the Prant Official (the District Deputy Collector) to preside over that meeting.
On the 30th July 1954 the Prant Officer adjourned the meeting to the 3rd August 1954 under instructions from the Collector without transacting any business.
The objection raised by respondent No. 3 against the adjournment was overruled by the presiding Officer.
The special general meeting was held on the 3rd August 1954.
An objection raised by S (the appellant) that under the provisions of the Act a President could not be elected for a term less than a year was overruled by the presiding Officer.
On this 13 councillors (including S) out of the 32 who were present walked out on the ground that the President was to be elected for a term less than a year contrary to the provisions of the Act.
The remaining 19 councillors elected the 2nd respondent as the President for the remaining period of the quadrennium.
Immediately after that another meeting presided over by the newly elected President elected respondent No. 3 as Vice President.
The same point of order raised by S as in the case of the President was overruled, on which 6 councillors walked out and the meeting was held by the remaining councillors.
All the 32 councillors were present both on the 30th July 1954 and the 3rd August 1954.
An application under article 226 of the Constitution presented by S questioning the validity of the meeting of the 3rd August, 1954, and consequently the validity of the election of respondents Nos. 2 and 3 as President and Vice President for the remaining period of the quadrennium was dismissed by the High Court.
Held, (1) that the meeting of the 3rd August 1954, in substance though not in form, complied with the requirements of the law for holding a valid special meeting and therefore the meeting was not invalid because the record of proceedings would show that whatever had been done on the 30th July 1954 and the 3rd August 1954 had been done under the orders of the Collector.
The notice to the councillors required under section 35(3) of the Act satisfied the requirements of three clear days, that the provisions of section 35(3) regarding the ser 1270 vice of notice are directory and not mandatory; and that any omissions in the manner of service of the notice are more irregularities which would not vitiate the proceedings unless it is shown that those irregularities had prejudicially affected the proceedings which had not been alleged or proved in the present case.
All the councillors constituting the Municipality were present on both the occasions namely the 30th July 1954 and the 3rd August 1954 and thus had ample notice of the meeting to be held on the 3rd August 1954, the time and place of the meeting and the business to be transacted.
That under the provisions of section 35(3) of the Act the presence at or the absence from the meeting of the members of the public has no legal consequence so far as the validity of the election is concerned; (2) that as section 19 of the Bombay Boroughs Act, (Bombay Act XVIII of 1925) had been amended by the Bombay Municipal Boroughs Act, 1954 (Bombay Act LIV of 1954) and was retrospective in its operation, it had the effect of curing any illegality or irregularity in the election with reference to the provisions of section 19 of the Act and therefore respondents Nos. 2 and 3 had been validly elected as President and, Vice President respectively.
King vs The General Commissioners of Income tax for South ampton, Ex parte W.M. Singer ([1916] 2 K.B. 249) and Mukerjee, Offcial Receiver vs Ramratan Kuer ([1935] L. R. 63 I. A. 47), referred to.