15 January 1954
Supreme Court


Case number: Appeal (civil) 7 of 1952






DATE OF JUDGMENT: 15/01/1954


CITATION:  1954 AIR  217            1954 SCR  883

ACT:  Constitution  of  India,  art.  226-Mandamus   petition-High  Court-Whether  can  constitute itself as  court  of  appeal-  Resolutions  passed  by  University  Syndicate-Validity  of-  Notice  of meeting issued to all-Want of due notice  waived-  Substantial compliance with spirit of law.

HEADNOTE: In  the  present  case  there  were  two  meetings  of   the University Syndicate, consisting of twelve members.   Proper notices of both meetings were issued to all the members  but one member did not attend one meeting and another member did not  attend  the  other meeting.  The defeat  was  that  the subject  matter of the present case was not included in  the agenda of either meeting but one of the items in the  agenda of  both  the notices was " other matters, if  any.   "  The subject  matter consisted of leakage of  examination  papers and  the cancellation of results.  Those present passed  the resolution on both occasions unanimously The High Court held that  want  of  notice  in the  two  cases  invalidated  the resolutions 884 and issued a mandamus directing the syndicate to take  steps for the publication of the results Held, that want of due notice can be waived in given circum- stances.  In the present case the two absentees did in  fact attend  one  or other of the meetings  and  expressed  their views,  not individually but as members of a  meeting  which was  considering the matter and there was unanimity on  both occasions.   The substance is more important than  the  form and  if there is substantial compliance with the spirit  and substance of the law, an unessential defect- in form  should not  be  allowed to defeat what is otherwise  a  proper  and valid resolution.  As in the present case, there was  actual appearance  without objection at meetings properly  convened and  there was complete unanimity on both occasions the  two resolutions were not invalid because whatever may be thought about each taken separately, the defects, if any, are  cured when two are read together and regarded as a whole.



Held  further,  that in a mandamus petition the  High  Court cannot  constitute  itself into a court of appeal  from  the authority  against  which appeal is sought.  It is  not  the function  of  courts of law to substitute their  wisdom  and discretion  for  that of the persons to whose  judgment  the matter in question is entrusted. by the law. The  present  was not the sort of case in which  a  mandamus ought to issue. Radha  Kishan Jaikishan v. Municipal Committee, Khandwa  (61 I.A.  125)  and Young v. Ladies Imperial Club  (89  L.J.K.B. 563) referred to.

JUDGMENT: CIVIL APPFLLATE JURISDICTION Civil Appeal No. 7 of 1952. Appeal  by special leave from the Judgment and Order,  dated 9th  and 17th August, 1951, of the High Court of  Judicature at Orissa in Miscellaneous Judicial Case No. 80 of 1951, and Order- dated the 20th August. 1951, in Supreme Court  Appeal No. 15 of 1951, on the’ file of the said High Court. Dr.  Bakshi Tek Chand (G.  C. Mathur and H. Mohapatra,  with him) for the appellants. N.  C. Chatterjee (V.  S. Sawhney and R. Patnaik, with  him) for respondents Nos. 1-8, 10-16, 18-23 and 25-34. 1954.  January 15.  The Judgment of the Court was  delivered by BOSE J.-This appeal arises out of a petition made by certain students of the Utkal University of Orissa 885 to  the High Court of Orissa at Cuttack seeking  a  mandamus under  article  226 of the Constitution  against  the  Vice- Chancellor  of  the  University and  certain  other  persons connected with it. In  view of an undertaking given before us on behalf of  the University,  the  questions  at issue  lose  most  of  their practical  importance  and only two questions  of  principle remain.   Because  of this we do not intend to  examine  the matters which arise at any length. The facts are as follows.  The first M.B.B.S. Exa.  mination of  the University included Anatomy as one of its  subjects. This   examination  was  divided  into  three  parts.    The theoretical  portion, which was written, was fixed  for  the 9th  and 10th of April, 1951.  The practical was  fixed  for the 19th and the viva voce for the 20th. At  7  o’clock  on  the  morning  of  the  9th,  before  the examination  began,  a member of the Senate  was  told  that there had been a leakage of the questions and’ he was  given a  paper which was entitled "hints".  He at  once  contacted three other members of the Senate and handed over copies  of these  "hints" to them.  The three members were Mr.  Justice Jagannadhadas   Mr.   Pradhan,  the   Director   of   Public Instruction in Orissa, and Mr. Lingaraj Misra, the  Minister for Education.  The Vice-Chancellor was not informed at  the time  and  no  further action was  taken.   The  examination proceeded as scheduled on the date,, fixed. The  Vice-Chancellor was informed on the 19th.  He  at  once asked  Lt.   Col.   Papatla, the Principal  of  the  Medical College,  to  look into the matter.  This was done  and  Lt. Col.   Papatla submitted a report on the 20th.  He  compared the "hints" with the question paper and considered that  the similarity between them justified the conclusion that  there had been a leakage. It  so happened that an ordinary meeting of  the  University Syndicate had been called for the 21st to



886 consider  certain other matters.  This question was  not  on the agenda but the last item was, "other matters, if any."    The  Vice-Chancellor  presided and he  told  the  members present  what had happened.  He had already prepared a  note about  this  on the 21st before the  meeting  began.   After setting out the facts the note concluded- "  I request the syndicate to discuss the matter as it is an important and urgent one before taking up the publication of the  M.B.B.S.  results  which are  also  ready,  though  the subject is not in the agenda. The report of the Board of Examiners setting out the results of the examination was received on the ,morning of the  21st some  time before the meeting.  It showed that thirty  seven students  had appeared for the examination in question.   Of these,  twenty  seven passed and ten failed in  the  written examination  and   the  same ten,  plus  one  other  (making eleven),  failed in the practical and viva voce  tests.   In the result, eleven of the thirty seven failed and twenty six passed.   The petition for mandamus was made by  the  twenty six who had passed and eight who failed: thirty four in all. The  syndicate heard Lt.  Col.  Papatla at length  and  also examined  three other persons, namely, Mr.  Bhairab  Chandra Mahanty, who first gave the information, Dr. R. K.  Mahanty, the  internal  examiner  for  the M.B.B.S.  and  Dr.  8.  M. Banerjee, President of the Board of Examiners. (Two  members of  the syndicate were experts in Anatomy, namely Lt.   Col. Papatla and Dr. S. N. Acharya, the Civil Surgeon). After carefully considering the question for some six hours, the members present passed the following resolution : "  That after enquiry, the syndicate is satisfied that there has been leakage of questions in Anatomy and that the result in  Anatomy  examination  be  cancelled  and  that   another examination  in the subject be held commencing from the  7th May, 1951." The syndicate consists of twelve members. these, all but one Mr.  Pradhan,  the  Director  of  Public  Instruction,  were present at the meeting.  Those present passed the resolution unanimously.   It is admitted that Mr. Pradhan was not  told that  this was one of the matters which would be  considered at  the  meeting.  This is one of the grounds on  which  the validity of this resolution is attacked. The  successful  candidates entered a  protest  against  the resolution  and  asked  the  syndicate  to  reconsider   its decision.   This was on the 26th.  The  Vice-Chancellor  had already called another meeting of the syndicate for the 28th to consider other matters.  Once again, this was not  placed on the agenda but the Vice-Chancellor brought it up suo moto "as  before.  Again, eleven of the twelve were  present  but this time the absentee was Dr. M. Mansinha who had  approved of  the  previous  resolution.   The  former  absentee,  Mr. Pradhan, was present at this meeting.  For a second time the decision was unanimous and all eleven refused to review  the former resolution.  It is admitted that Dr.Manasinha who was not  there  did  not  know  that  this  question  would   be considered again. The  learned High Court Judges held that the want of  notice in the two cases invalidated the resolutions,, They examined the  facts  for themselves and concluded that  even  if  the evidence  is sufficient to indicate a a possibility of  some leakage,  there was "no justification for the  syndicate  to pass  such a drastic resolution in the absence of  proof  of the  quantum and the amplitude of leakage." They  held  that the  syndicate had acted unreasonably and without due  care. They therefore issued a mandamus directing the syndicate  to



take steps for the publication of the results. The Vice-Chancellor and the others appeal. The  right of the syndicate to control the examinations,  to scrutinise  the  results, to invalidate an  examination  for proper   reasons  and  to  order  a   re-examination,   when necessary,  was  not disputed.  In view of  the  undertaking given the only points argued were the 888 two which the High Court decided against the University. Several  English authorities were cited about the effect  of an  omission  to give notice to even one member  of  a  body entitled  to  receive it, in particular a  decision  of  the Privy  Council  in  Radha  Kishan  Jaikishan  v.   Municipal Committee,  Khandwa(1).   We do not think  it  necessary  to examine the general principle at any length because, in  our opinion,  this  case is governed by its own facts.   It  may well  be  that when there is a statutory  requirement  about notice  the  provisions of the statute cannot be  evaded  or ignored.   It may also be, though we do not stop to  enquire whether it is, that when the constitution of a  nonstatutory body requires notice to be given, then also there cannot  be any relaxation of the rule. The  reason  for the stricter rule laid down  in  the  cases cited before us is that though an incorporated body like  an University is a legal entity it has neither living mind  nor voice.   It  can only express its will in formal  way  by  a formal  resolution  and. so can only act  in  its  corporate capacity  by  resolutions properly considered,  carried  and duly  recorded in the manner laid down by its  constitution. If its rules require such resolutions to be moved and passed in  a meeting called for the purpose, then every  member  of the body entitled to take part in the meeting must be  given notice  so  that  he  can  attend  and  express  his  views. Individual  assents given separately cannot be  regarded  as equivalent   to  the  assent  of  a  meeting   because   the incorporated body is different from the persons of which  it is composed.  Hence, an omission to give proper notice  even to  a single member in these circumstances would  invalidate the  meeting and that in turn would  invalidate  resolutions which  purport to have been passed at it.  But this is  only when   such   inflexible   rigidity  is   imposed   by   the incorporating constitution.  The position is different when, either  by  custom or by the nature of the body  or  by  its constitution and rules, greater latitude and flexibility are permissible.  Each (1)  61 I.A. 125. 889 case must be governed by its own facts and no universal rule can be laid down; also it may well be that in the same  body certain things, such as routine matters, can be disposed  of more  easily  and with less formality than others.   It  all depends on the nature of the body and its rules. In  the present case, there were not one but  two  meetings. Proper  notices  of  both meetings were issued  to  all  the members  including  the two absentees.  The only  defect  is that  the matter we are concerned with was not  included  in the  agenda  of  either meeting.  We need  not  decide  here whether  this  must always be done-there are  English  cases which indicate that is not always necessary, see for example The  King  v.  Pulsford(1),  La  Compagnie  De  Mayville  v. Whitley(1), and Parker and Cooper Ltd. v. Reading(1);  also, in  the present case one of the items in the agenda of  both notices  was  "  other matters, if any.  "  But  it  is  not necessary to go into that because in this case these members did  in  fact  attend  one or  other  of  the  meetings  and



expressed their views, not individually, but as members of a meeting  which  was considering the matter;  and  there  was unanimity on both occasions Even on the stricter view  taken in  the  cases relied on by counsel it is pointed  out  that want  of  due notice can be waived in  given  circumstances. Thus, if a person who was not noticed appears at the meeting and  waives the irregularity, the defect is cured;  so  also when  a  person  is too far away to be reached  in  time  to enable  him  to communicate with the  Committee  before  the meeting: the sending of a notice is then excused.  See Radha Kishan  Jaikihsan  v. Municipal  Committee,  Khandwa(4)  and Young  v.  Ladies Imperial Club, Lim.(1). The  substance  is more  important  than the form and if there  is  substantial compliance with the spirit and substance of the law, we  are not  prepared  to let an unessential defect in  form  defeat what  is  otherwise  a proper  and  valid  resolution.   We, however, confine our (1)  108 E.R. 1073. (2)  [1896] 1 Ch. 788. (3)  [1926] 1 Ch. 975. (4)  61 I.A. 125. (5)  89 L.J.K.B. 563. 890 remarks  to  the facts of this case where there  was  actual appearance  without objection at meetings properly  convened and  where there was complete unanimity on  both  occasions. Whether it would be proper to reach the same conclusion when there is a dissentient voice we are not prepared to say.  In our  opinion, the High Court was wrong in holding  that  the two resolutions were invalid.  Whatever may be thought about each  taken  separately, the defects, if any,  are,  in  our judgment, cured when the two are read together and  regarded as a whole. We also think the High Court was wrong on the second  point. The learned Judges rightly hold that in a mandamus  petition the  High  Court cannot constitute itself into  a  court  of appeal  from  the  authority against  which  the  appeal  is sought,  but having said that they went on to do  just  what they  said they could not.  The learned Judges  appeared  to consider  that  it is not enough to have  facts  established from  which  a  leakage  can  legitimately  be  inferred  by reasonable minds but that there must in addition be proof of its  quantum and amplitude though they do not indicate  what the  yard-stick  of measurement should be.  That is  a  pro- position to which we are not able to assent. We  are not prepared to perpetrate the error into which  the learned High Court Judges permitted themselves to be led and examine the facts for ourselves as a court of appeal but  in view of the strictures the High Court has made on the  Vice- Chancellor  and  the syndicate we are compelled  to  observe that  we do not feel they are justified.  The  question  was one  of urgency and the Vice-Chancellor and the  members  of the  syndicate were well within their rights  in  exercising their  discretion in the way they did.  It may be  that  the matter  could have been handled in some other way,  as,  for example,  in the manner the learned Judges indicate, but  it is  not  the function of courts of law to  substitute  their wisdom  and  discretion  for that of the  persons  to  whose judgment  the  matter in question is entrusted by  the  law. The University authorities acted honestly as reasonable  and responsible 891 men confronted with an urgent situation are entitled to act. They had experts of their own on their body.  They  examined others  who  in  their opinion, might  throw  light  on  the



incident.   They  themselves compared the  two  papers  and, after  a  deliberation  of some six  hours,  arrived  at  an unanimous decision and then they reviewed the matter  afresh at  a  second meeting with the assistance of  one  of  their number  who  was not present on the first occasion.   It  is inaccurate   to  describe  that  as  haste  and  unjust   to characterise  their action as unreasonable and  lacking  due care.   This  is decidedly not the sort of case in  which  a mandamus8  ought  to issue.  We accordingly  set  aside  the order of the High Court. We now come to the undertaking given on behalf of the  Vice- Chancellor.  As we have observed, the syndicate reached  the conclusion  that there had been a leakage and  so  cancelled the examinations and ordered fresh ones.  Had the High Court not  stepped  in, those examinations would  have  been  held nearly two and a half years ago and it is possible that  all the  students  who were successful then  would  have  passed again,  or at any rate many of them would.  But  because  of the  High Court’s order the examinations could not  be  held and  the  University was virtually directed  to  regard  the examinations  already held and the results already  declared as  good.  The result has been that the students who  passed have  been  studying  and sitting for  examinations  in  the higher  classes  for  some two and a half  ’years.   If  the status quo which would result from our setting aside of  the High  Court’s  order were to be resumed it would  mean  that those students would be put back to where they were two  and a  half years ago and would be compelled to do  the  courses which they have already covered all over again.  In order to avoid  such injustice we were told at the outset by  counsel on behalf of the Vice-Chancellor that the University did not want  to  penalise  them  and  so  gave  us  the   following undertaking drafted by the appellants’ counsel: "  The  students who are declared to have passed  the  first M.B.B.S. Examination of the Utkal University 892 held  in  April, 1951, shall be deemed to have  duly  passed that  examination and shall not be required to appear  again in Anatomy.  " The appeal is allowed.  The High Court’s order is set  aside and the petition for mandamus filed before it is  dismissed, but  without costs.  There will be no order about  costs  in this court either. Appeal allowed. Agent for the appellants: Rajinder Narain. Agent for the respondents Nos. 1-8, 10-16, 18-23 and  25-34: S. P. Varma.