Rao Bahadur K.S. Venkatarama … vs Janab V. Hamid Sultan Maracayar … on 5 December, 1922

Madras High Court
Rao Bahadur K.S. Venkatarama … vs Janab V. Hamid Sultan Maracayar … on 5 December, 1922
Equivalent citations: (1923) 44 MLJ 161
Author: Spencer


Spencer, J.

1. This Civil Revision Petition is connected with an order made by the Subordinate Judge at Negapatam in reference to an election to the Taluk Board of Negapatam under the powers possessed by him as an enquiring authority under the rules in Appendix D to the Madras Local Boards Act.

2. An objection has been taken that we have no power to evise the order of the Subordinate Judge, which by Rule 12, Clause 3, of the rules for the conduct of inquiries and the decision of disputes relating to elections is declared to be final, after he has decided whether an election is void for non-compliance with the provisions of the Act or the rules made thereunder. This question has been fully considered by a Bench of this Court, on which my learned brother was one of the Judges, when it was decided that the High Court could revise an order of a Subordinate Judge on an election petition, if he had acted with material irregularity or illegality (see Ramaswami Goundan v. Muthu Velappa Goundan (1922) 44 M.L.J. 1. I agree with that decision in preference to the decision of Devadoss, J. sitting as a single Judge in Daiva-nayagam Pillai v. Mohideen Rowther (1922) 16 L.W. 827 and I do not think that anything useful can be added to the reasons given therein. As to the merits of this petition, it appears that originally there was one Taluk Board at Negapatam, which comprised the revenue taluks of Negapatam and Nannilam. When the revised Local Boards Act of 1920 came into force, the Government decided to bifurcate the existing taluk board and to provide a taluk board for each revenue taluk under Section 6 of the Act, which requires that there shall be a taluk board constituted for each taluk, the Government having the power under Section 4 to declare by notification any part of a district to be a taluk. In order to effect this bifurcation, the necessary notifications were published in the Fort St. George Gazette. In the Gazette of the 3rd January, 1922, the Government fixed under Rule 9 of schedule 10 of the Act the 1st of April, 1922 as the date for the first reconstituted taluk boards in the Tanjore district to come into existence. Rule 9 of Schedule 10 requires that the date fixed by notification should be not later than one year from the commencement of this Act, power being given to extend the period by six months for special reasons. The Act came into force on the 4th January, 1921 and the date fixed for the taluk board coming into existence was the 1st April, 1922. Thus this notification was quite in order.

3. Next by notification, No. 581, published in the Fort St. George Gazette of the 15th August, 1922, the Government acting under the powers, already referred to, of declaring by notification any part of a district to be a taluk and cancelling notifications previously issued, notified that the notification constituting the existing local fund taluk should be cancelled with effect from the 15th of August and that from that date the taluks of Negapatam and Nannilam should be taluks for the purpose of the Act, and that the properties vested in the old taluk board of Negapatam should vest in the new taluk boards of Negapatam and Nannilam, so far as they were situate within their respective jurisdictions.

4. Under Section 10 of Act XIV of 1920 the District Board is empowered to fix the total number of the members of the taluk boards within its jurisdiction subject to the maximum of 24 and the minimum of 12 laid down in Section 7. In the present case, the District Board of Tanjore resolved that the number of members of the Negapatam taluk board should be twenty. Under the extraordinary powers vested in Government by Section 240 of appointing all the members of new taluk boards for a period not exceeding one year from their constitution, the Government by notification, No. 577 of the 15th August, 1922 appointed 19 gentlemen to be members of the taluk board of Negapatam (N.B. A twentieth member was not appointed till November 21st, 1922, see Fort St. George Gazette No. 47 dated 21-11-22). As soon as the notificationof the 15th August, No. 581, was published, a meeting was fixed for electing a President of the new Taluk Board on the 21st August, 1922, and the petitioner in this Court was elected. It is his election that the Subordinate Judge has held to be invalid for the reason that there were only nineteen members in the reconstituted taluk board of Negapatam at the time of the election. The Subordinate Judge has expressed an opinion that there was no legally reconstituted taluk board in existence on the date of the election. His reasons for coming to this extraordinary conclusion are rather difficult to understand. He seems to think that because under Section 10 of Act XIV of 1920 the district board should declare what should be the total number of members of a taluk board, it is. a sine qua non for the effective constitution of the board that the full number should be appointed or elected. He points out that ‘the total number’ ‘does not mean’ the maximum number, ‘and that the words are,’ what shall be the total number, ‘not what may the total number.’ One short answer to this argument would be to observe that ‘the total number’ does not mean ‘the minimum number.’ If his opinion is that a corporation is incompetent to do business so long as there is a vacancy among its members, I can only say that he has given no reason for his supposition. He seems to think that it is the appointment of members that constitutes the board, and to forget that its constitution is created by the Act and the notifications. Rule 6 of Shcoudle II states that ‘no business shall be transacted at a meeting of any local board unless there be present at least one-third of the number of members then on the local board.’ This shows that the eventuality occurring at some time or another of all the seats not being filled is contemplated by the Act. Dr. Swaminathan, for the Respondents was not prepared to argue that the act of a taluk board would be illegal, if a vacancy, occurring after its formation, remained unfilled; but, he contended that every seat should be filled at the first constitution of the board in order to make it a legally constituted body. Even this theory is not maintainable. Lord Halsbury in his Laws of England Vol. VIII at page 313 says: “A corporation may exist by common law, by Royal Charter, by authority of Parliament, by prescription, or by custom, and not otherwise.” 705. “A corporation is not invalid merely because at the moment of its creation it does not in fact exist, so long as it is capable of coming into existence.” “Where the corporation consists of a head and members, they may be appointed after the foundation.” 708. So, In the case of Sutton’s Hospital (3), it was made clear that a corporation is created by Letters Patent immediately upon the issue of the Letters Patent. It is then a corporation in abstract and becomes a corporation in concrete when the master is named. In Lal Singh v. Ghansham Singh (1887) I.L.R. 9 All. 625 the instance is cited of the Calcutta High Court, in which a Letters Patent ordained that it should consist of a Chief Justice and 13 Judges, but only a Chief Justice and 12 judges were appointed. The argument that Court was not properly constituted until a 13th Judge was appointed was proved to be unsound and ridiculous. (See the. Judgment of Mr. Justice Brodhurst at pages 633 to 635). In Santhalva v. Manjanna Shetty (1910) I.L.R. 34 M. I. it was held by Abdur Rahim J. that a committee appointed under Act XX of 1863 could not exercise its powers unless the original number of members continued to belong to it. This view was discredited in Sithara-ma Chetty v. Sir S. Subramania Aiyar (1915) I.L.R. 39 M. 700, 705 and in Raghunandan Ramanuja Das v. Bibhuti Bhushan Mukherjee (1912) I.L.R. 39 Cal. 304 where it was held that the powers of a committee were not suspended by the occurrence of a vacancy among themselves.

5. As it is the Charter Act and the Letters Patent that constitute a High Court and not the appointment of the Judges who compose the Court, so it is the Local Boards Act and the notifications of Government that constitute a taluk board and not not the appointment of members. This is the point which the Subordinate Judge has failed to appreciate with the consequence that he has fallen into the error of supposing that there Was never any legally constituted taluk board of Negapatam under the new Act. His decision upon this point must be overruled, and he will be directed to take the petition again on his file and to dispose of the other objections to the election referred to in paragraph 8 of his order, andlto make the necessary declaration and order under Rule 12 of Appendix D to the Act. Costs in this Court will abide and follow the result. Vakil’s fees in this Court are fixed at Rs. 100.

Venkatasubba Rao, J.

6. I agree.

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