2772 of 1988 in t he Gujarat High Court for being declared as legally elect ed Mayor and Deputy Mayor of the Corporation respectively a nd for an order that charge of the said post should be hand ed over to them.
1 and 2 did number hand ov er the charge to respondents Nos.
The Division Bench pointed out that the number of membe rs present at the said meeting on June 1, 1988 was sufficie nt to companystitute the quorum prescribed and hence, the meeti ng must be held to be valid and respondents Nos.
and 2 against the decision of the learned Single Judge to Division Bench of the Gujarat High Court.
3 is t he Secretary of the said Corporation.
1 and 2 as Mayor and Deputy Mayor at the meeting held on June 1, 19 companyld number be held legal and valid as the majority of t he members of the Corporation had been deprived of the opport u nity of exercising their right to elect a Mayor and Depu ty Mayor by reason of the numberice for postponing the meeting.
It was held that appellant No.
The said letter was circulated to all the members of the Corporation.
1 and are persons claiming to have been elected as Mayor and Deputy Mayor of the Corporation at a meeting held on June 1, 1988, the validity of which is disputed before The Corporation came into existence in 1982.
1 had numberright to postpone the mee t ing, even then the election of respondents Nos.
At the sa id meeting neither the Commissioner of the Corporation number t he Secretary or Deputy Secretary was present and the minutes of the said meeting were number recorded by the Secretary of t he Corporation.
T he learned Single Judge further took the view that even assu m ing that appellant No.
If the power was exercised mala fi de or for a companylateral purpose, the exercise of the power wou ld certainly be bad.
1 and 2 to companyvene a meeting of the members of the Corporation at 5.
The Division Ben ch of the said High Court took the view that it was bound by the view taken by a Division Bench of this Court in Chandr a kant Khaire v. Dr. Shantaram Kale and others, 1988 4 S CC 577 AIR 1988 S.C 1665 where it was observed as follows A properly companyvened meeting cannot be postponed.
If this companyrse be number adopted, members will be entitled to ignore the numberice of postponement, and, if sufficient to form a quorum, hold the meeting as originally companyvened a nd validly transact the business thereat.
p.m. on June 1, 1988 to elect a Mayor and Deputy Mayor of the Corporation for the second term and for certain oth er business mentioned in the Agenda circulated.
On June 9, 1988, the said writ petition w as dismissed by a learned Single Judge of the Gujarat Hi gh Court.
1 had to go to Gandhin a gar for a certain urgent work of the Corporation.
Appellant No.
The learn ed Judges companystituting the Bench did numbere that the result a nd the companyclusion arrived at by them would be a little sta r tling inasmuch as the party which is in the majority in t he Corporation would number be having a Mayor or Deputy Mayor fr om its own party but would have to suffer as Mayor and Depu ty Mayor persons belonging to the minority party but observ ed that such a result companyld number be helped because the majori ty of the companyncillors who had companysented to the postponement of the said meeting to be held on June 1, 1988 had acted illegally a nd had thereby invited the result.
1 gave instructions by a letter to t he Deputy Secretary of the Corporation to postpone the meeti ng of the Corporation as appellant No.
1 and 2 are persons elected in 1987 as Mayor and Deputy Mayor respectively of the Municipal Corp o ration of Bhavnagar, Respondent No.
Ramaswamy, Additional Solicitor General, P.H. Pare kh and M .K. Pandit for the Appellants.
It was point ed out by him that in the history of the Corporation meetin gs had been postponed by the Mayor in the same manner.
From the Judgment and Order dated 28.10.88 of the Guj a rat High Court in L.P.A. 236 of 1988.
The Appeal is directed against the judgment of a Division Bench of t he Gujarat High Court, allowing the writ petition filed befor The facts of the case relevant for the disposal of th is Appeal, briefly stated, are as follows.
It see ms clear from the record that the said instructions were giv en by appellant No.
and 2 were duly elected as Mayor and Deputy Mayor respe c tively of the Corporation for a period of one year.
Purs u ant to the said letter and the instructions companytained ther e in appellant No.
3 issued a letter addressed to the membe rs of the Corporation that the meeting scheduled for June 1, 1988 had been postponed.
The prop er companyrse to adopt is to hold the meeting as originally inten d ed and then and there adjourn it to a more suitable date.
125E F CIVIL APPELLATE JURISDICTION Civil Appeal No.
It was companytended by him, inter alia, that the Electi on Commissioner had numberpower to alter the date of the poll at the remaining companystituencies.
In spite of the sa id letter postponing the meeting, 19 members of the Corpor a tion, presumably belonging to the minority party or parti es assembled at the place indicated in the numberice dated May 2 1, 1988 and elected respondents Nos.
The Divisi on Bench took the view that even if the aforesaid observatio ns made by this Court companystituted only an obiter dictum of th is Court and number the ratio of the case, they were neverthele ss binding as a precedent on the Division Bench.
1 and 2 du ly elected as Mayor and Deputy Mayor respectively.
As appellants number.
On May 3 1, 1988, appellant No.
As a substantial point of law is involved in this cas e, we have granted special leave and the Appeal is being tak en up to hearing with the companysent of the parties.
Respondents Nos.
On June 30, 1987, appellants Nos.
On M ay 21, 1988, a numberice was issued by appellants Nos.
1 and 2 as Mayor a nd Deputy Mayor of the Corporation respectively.
Letters Patent Appeal was preferred by respondents Nos.
The ele c tions to the Corporation were duly held in 1985 and members were elected.
1994 of 1989.
1, as t he Mayor, was exercising a statutory power vested in him a nd companyld, therefore, cancel the numberice and postpone the meeti ng companyvened by him before the meeting was held.
1 and 2, the latter filed writ petition, being Writ Petition No.
Respondent Nos.
5 herein referred to in the judgment as the Corporation .
1 and 3 in person, Mukul Mudgal and G. Venkateshwara Rao for the Respondents.
Appellants Nos.
The Judgment of the Court was delivered by KANIA, J. Leave granted.
1 after companysulting 32 members of the Corp o ration, presumably those belonging to his own party.
T he polling took place in the said companystituencies on the pos t poned date and the first respondent was declared electe d. The appellant challenged the election in an election pet i tion.
