Madras High Court
A. Santhalva vs Manjanna Shetty on 21 February, 1910
Equivalent citations: (1910)20MLJ814
JUDGMENT Arnold White, C.J.
1. The main question raised in this appeal is, no doubt, one of great importance, and, so far as we know, the question in this precise form has never come before the Courts for determination. But as we had the benefit of hearing the question fully argued by Mr. Sundara Aiyar, and as we have made up our minds with regard to it, we do not think any advantage is to be gained by further consideration of the point. The question is : Whether the appointment of a trustee of a temple which is made by two members of a Temple Committee appointed under Section 7 of the Act XX of 1863, there being only two members of the Committee at the time the appointment was made, who had, we may take it, purported to act as the Committee although, in fact, they were only two out of the three originally appointed--whether an appointment in such circumstances is good ? The learned District Judge has held that it is not, and I think that he is right.
2. Section 7 of the Act of 1863 provides that "the Local Government," in certain circumstances, is once for all to appoint a Committee to exercise the powers of the Board of Revenue and the local Agents under the Regulations which were repealed by the Act. The section goes on to enact that the Committee shall consist of three or more persons and, subject to an exception, shall perform all the duties imposed on the Board of Revenue and the local Agents.
3. Section 10 provides that whenever a vacancy occurs among the members of a Committee so appointed, a new member shall be elected to fill the vacancy by the persons interested. It enacts that the remaining members of the Committee shall, as soon as possible, give public notice of the vacancy and shall fix a day, which shall not be later than three months from the date of the vacancy, for the election of a new member by the persons interested. The section further provides that if a vacancy is not filled up by such election within three months after it has occurred, the Civil Court, on the application of any person whatever, may appoint a person to fill the vacancy, or may order that the vacancy be forthwith filled up by the remaining members of the Committee, and if the order be not complied with, the Civil Court may appoint a member to fill the said vacancy. The effect of these two provisions, therefore, is that the surviving members must act so that the date of the election shall be fixed not later than three months from the date of the vacancy. If they do not so act, their powers of election are gone, and then, unless the Civil Court takes proceedings on the application of somebody and appoints a person, there is no power to fill up the vacancy.
4. Now, the first point raised by Mr. Sundara Aiyar was this : The law required that the Original Committee appointed by the Local Government should consist of three members, and he did not contend that an appointment by the Local Government of a Committee which consisted of less than three members would be a good exercise of the powers given them by the Act or would be a good appointment of a Committee. But he argued, when once we have an original appointment of three by the Local Government, then the fact that a vacancy is not filled up in pursuance of the provisions of Section 10 does not incapacitate the surviving members from exercising the powers referred to in Section 7 of the Act. In other words, he contended that so long as the original appointment of the Committee consisted of three, the Committee consisting of two of the surviving members was a good Committee and could exercise the powers conferred by the Act, Now, the logical conclusion of that argument of course is, as Mr. Sundara Aiyar conceded, that a Committee which had been reduced in number to one would be a body capable of discharging the powers conferred by the Act, and that is a somewhat startling proposition. It seems to me the question whether provisions of this sort are obligatory and imperative or are merely directory must be determined with reference to the words of the particular enactment or the particular settlement in which they occur. Mr. Sundara Aiyar has contended that the provisions are directory. It seems to me, in construing the two sections of the Act together, that they must be read as imperative or obligatory.
5. Then Mr. Sundara Aiyar's second contention was, that in this case we have an original appointment of three which is good, and we have two surviving members and these two surviving members constitute the majority of the original three. He contended that inasmuch as, if there had been three members still forming the Committee, a quorum or a meeting of two could exercise the powers of the Committee, it followed that the two surviving members of the Committee, notwithstanding the fact that one is dead, could exercise the powers given to the Committee. I am not prepared to accept that contention. In support of it Mr. Sundara Aiyar referred to the principles of the law which governed the questions of the validity of the acts done by the members of a corporate body and he referred us to the case of The King v. Bellringer (1792) 4 T.R. 810 : 100 E.R. p. 135 In that case it was held that " where a charter required that the mayor and common clerk for the time being, and the common council for the time being, or the major part of them, should elect, and the common council was a definite body, consisting of 36, that a majority of the whole number must meet to form an elective assembly, and that if the corporation be so reduced that so many do not remain, 116 election can be had at all." All that was decided in that case was that in the case of a corporate body where the number of the corporators is so reduced that, having regard to the original number a majority is not available, the corporation cannot act as a corporate body. Mr. Sundara Aiyar's proposition is the converse proposition that so long as there is a sufficient number of the corporators to form a majority of the corporators having regard to the original number of the corporators, then the surviving members can act as a corporate body, and he says that for the purpose of determining the question raised in this appeal we must apply that principle to this case. He referred us to an observation made by the learned Judges who decided the case of Ananta Narayana Ayyar v. Kuthalam Pillai (1899) I.L.R. 22 M. 481. That was a case which arose under the Act now in question and the observation is as follows :" Though the committees constituted under the Act are not strictly corporations, there can be no doubt that, with reference to the matter in hand, such committees ought to be looked upon in the light of, and be governed by the rules applicable to, regular corporations." It is a guarded observation, and it was made with reference to the matter in hand. Now what was the matter in hand? In that case a committee had been validly constituted under the Act of 1863 consisting of seven. A meeting was held, the committee, at the time the meeting was held, being a full and complete committee. At the meeting five were present, and a resolution was unanimously passed that at future meetings three should form a quorum. A future meeting of the committee, of which due notice had been given to all the members of the committee, was held, and at that meeting three members of the committee attended and those three members duly passed a resolution, and that resolution was held by the Court in the case in Ananta Narayana Ayyar v. Kuthalam Pillai (1899) I.L.R. 22 M. 481 as binding on the committee. That was all that was decided in that case. It seems that there the learned Judges were dealing with a question of procedure and what they meant to lay down was that on questions of procedure, the statutory committee appointed under the Act of 1863 must be deemed to have the same powers as a corporate body. I do not think the learned Judges intended to go beyond that. I certainly cannot accede to the suggestion that the law governing corporate bodies with regard to the capacity of the members of the corporate bodies to act which is laid down, amongst other places, in a passage in Bacon's Abridgment, Vol. ii, p. 285, to which Mr. Sundara Aiyar referred, is applicable to the case of the statutory body appointed under the Act of 1863. With regard to this question I think the District Judge's decision is correct, and I would dismiss this appeal with costs. It is not necessary for us to consider the other points raised in the appeal.
Abdur Bahim, J.
6. I quite agree in the judgment proposed by the learned Chief Justice But as the question is one of importance and is not covered by any decision to which we have been referred, I think I ought to state my reasons.
7. It seems to me that, reading Sections 7 and 10 of the Religious Endowments Act together, there can be very little doubt that the Legislature requires that the Committee which is vested with the power formerly exercised by the Board of Revenue should consist of the same number as were originally appointed by the Local Government. The Government, it is conceded, cannot appoint a Committee consisting of less than three members That, I take it, is clear from Section 7. Then Section 10 says that whenever there is a vacancy in the Committee, it is to be filled by an appointment made by the remaining members of the Committee who are to take steps for this purpose within three months of the occurrence of the vacancy. If they fail to take such steps, the Civil Court is then empowered to make the appointment or to direct the Committee to make the appointment, There cannot, thus, be any doubt that the Legislature contemplated that the original number of members must exist for the purpose of exercising the powers of the Committee under the Act.
8. Great stress has been laid by Mr. Sundara Aiyar on the inconvenience that might be caused in the management of institutions if the surviving members of the Committee be held to be incompetent to act as the Committee during the pendency of the appointment. Supposing there would be some inconvenience . that, in itself, would not justify us in placing an interpretation upon the enacting provisions of the Act other than what is called for by their plain language. But it may be said that the Committee are merely a supervising authority and as there is always to be a trustee or Manager or Superintendent to carry on the business of the institution, the inconvenience caused, if any, would not be considerable. The fact that the remaining members of the Committee are required to act with promptitude, while it shows that the Legislature was alive to the possibility of inconvenience arising in the interval, also indicates the intention of the Legislature to be that the Committee shall not consist of less than the number originally appointed. We have been referred to the English rule relating to corporations. But it appears to me that, so far as the present question is concerned, we cannot derive much help from the analogy of corporations. The rule that has been referred to is that if the number of corporators does not fall below the majority of the original number of corporators, the corporation exists, and can exercise the powers conferred on it by its charter. Reliance has also been placed on the case in Ananta Narayana Ayyar v. Kuthalam Pillai (1899) I.L.R. 22 M. 481 where it was decided that a quorum of three members fixed by a resolution of the Committee can exercise the powers of the Committee. This decision relates to a mere rule of procedure or the mode in which the Committee, supposing it is constituted as required by the law, is to transact its business, but here the question is whether two members of a Committee which originally consisted of three membersthe least number required by lawbut the vacancy in which has not been filled, can validly exercise the powers of the Committee. The two remaining members, as I read Act XX of 1863, cannot be said to be the Committee at all, and the appointment by them of the plaintiff as Moktessor or trustee must, therefore, be held to be invalid. The suit has been rightly dismissed, and I agree that the appeal should be dismissed with costs.