Karnataka High Court
Dharmappa Sabanna Madar vs Chief Secretary, Zilla Parishad on 19 September, 1991
Equivalent citations: ILR1991KAR3723, 1991(3)KARLJ163
JUDGMENT Mohan, C.J.
1. The appellants being aggrieved by the order dated 27-1-1988 passed by the Chief Secretary, Zilla Parishad, in and by which, they were disqualified from the membership of the Mandal Panchayat, Murnal, Bagalkot Taluk, Bijapur District, preferred Writ Petitions Nos. 2419 and 2420/1988 and not being successful before the learned Single Judge, they have come up before us.
2. The facts leadings to these Appeals are as under:
The appellants as Members of Mandal Panchayat, Murnal, Bagalkot Taluk, Bijapur District, were elected on Janatha Party Ticket. On 30-12-1987, an ordinary Meeting of the Mandal Panchayat was convened. In that Meeting the appellants participated and opposed the confirmation of the Resolution of the previous Meeting of the Panchayat, which was listed as Item 10. When the Resolution was put to vote, they opposed the Resolution, whereas 7 Members of the same party voted in favour of the Resolution. The appellants voted against the Resolution along with one Congress-I and B.J.P. Members besides two other independent Members.
3. It is not dented that they did vote against the resolution. However, it appears their voting against the Resolution was contrary to the Party whip issued on 24-12-1987. Therefore a question arose whether they were liable to be disqualified under Section 4 of the Karnataka Local Authorities (Prohibition of Defection) Act, 1987 (for short the Act), The Chief Secretary, Bijapur Zilla Parishad, by his order dated 27-1-1988, came to the conclusion, that they had acted in defiance of the party whip and therefore, they are liable to be disqualified. It was this order which was questioned by the appellants in W.P. Nos. 2419 and 2420 of 1988, The learned single Judge, by his Judgment dated 19-3-1990 dealt with two aspects of the matter, namely (1) that the appellants were not served with any notice relating to the Party whip said to have been issued nor were they intimated otherwise; (2) Section 4(2) uses the word 'Shall' in two places i.e., (1) requiring the Chief Executive Officer of the concerned local authority to refer the complaint to the Chief Secretary within 24 hours and (2) requiring the Chief Secretary to decide the question within 7 days after receipt of such reference, if there has been a disobedience thereof, the order is liable to fall to ground.
4. Both these contentions were negatived by the learned Single Judge on the ground that a perusal of the record shows that the Party whip was sent to the Members of the Janatha Party, including the appellants by Certificate of Posting, and if all other Members had received the same, it is rather strange that these appellants alone could say that they were not in receipt of the same. In such an event, presumption under Section 114 of the Indian Evidence Act would apply. In this regard, the learned Judge verified the original records and came to the right conclusion.
5. As regards the interpretation of Sub-section (2) of Section 4 of the Act, he was of the view that the word 'shall' though normally mandatory must be construed as 'May' in this case. In the result, Writ Petitions were dismissed. It is under these circumstances, the Writ Appeals have come to be preferred.
6. Mr. Raya Reddy, learned Counsel for the appellants, reiterates the same points before us. In support of the first point, he would rely on S. MANJUNATHA AND ANR. v. THE CHIEF SECRETARY AND ANR., (1988) 23 Reports (Karnataka) 492 where it was held that the Chief Secretary ought to follow the principles of natural justice before disqualifying the appellants. In so far as, in this case, proceedings notice has not been served with reference to the whip, but also there was no hearing by the Chief Secretary. Hence, the order is liable to be set aside.
7. Then, again, admittedly there is a clear violation in so far as the complaint had not been referred within 24 hours by the Chief Executive Officer to the Chief Secretary and in so far as the Chief Secretary had not passed the orders within 7 days from the date of receipt of complaint, Consequently, the Judgment of the learned Judge requires to be interfered with and the order dated 27-1-1988 passed by the Chief Secretary has to be quashed.
8. We have given our careful consideration to the above arguments. We are clearly of the view that neither of them could be held to be tenable. Our reasons are as under:
On a perusal of the records produced by the learned Government Advocate, it is clear that on 24-12-1987 a party whip was issued calling upon the Members belonging to Janatha Party not to vote against item 10 of the agenda. This party whip was sent by Certificate of Posting and the names of all the Members to whom Certificate of Posting was sent is found in the record. Therefore, it does not lie in the mouth of the appellants to say that they did not receive them by post, The presumption under Section 114 of the Indian Evidence Act could legitimately be invoked as is done by the learned Judge.
We may also refer to the Decision in MRS. ACHAMMA THOMAS v. E.R. FAIRMAN, AIR 1970 Mysore 77 wherein it has been held thus:
"(C) Evidence Act (1872), Section 114 - Notice of termination of tenancy - Notice sent under certificate of posting -Presumption arises that the notice has been duly delivered to addressee - [Transfer of Property Act (1882), Section 106] -[Mysore General Clauses Act (3 of 1899), Section 27] . Rel. on.
XXX XXX XXX Quite apart from what I have stated with regard to the service of registered notice or affixation of the notice on a conspicuous part of the premises, it is enough to hold that in this case, there has been due service of notice by virtue of the fact that the notice has been sent by post under "certificate of posting" and the presumption arises under Section 114(f) of the Indian Evidence Act that the letter has been duly delivered to the addressee as the letter has been addressed to the residential address of the respondent tenant."
Then the next question would be, whether the failure to hear by the Chief Secretary would invalidate his order? Certainly, the Courts have repeatedly held that the observance of principles of natural justice is not a mere formality and ritual, but it must be for a useful purpose. Now, what is it the appellants could have done if they had been heard by the Chief Secretary before the final order on 27-1-1988? The facts are admitted that there was a party whip that the appellants did vote against the resolution in defiance of the party whip. If that is the admitted fact where is the need for hearing at all. We do not consider that principles of natural justice must be applied in vaccum. Therefore, we not think that there is any scope for the application of principles laid down by the learned Judge in (1988) 23 Reports (Karnataka) 492. In that case it also requires to be noticed, that there were clear denial of voting against. Therefore it became a dominant issue. That is not so here.
9. With this, we pass on to the scope of Sub-section (2) of Section 4 of the Act. We will do well to extract the particular Sub-section:
"(2) Where a complaint under Sub-section (1) is received by the Chief Executive Officer of the concerned local authority, he shall, within twenty-four hours from the receipt of such complaint, refer the same for decision to -
(i) in the case of Zilla Parishad, to the Chief Secretary to Government;
(ii) in the case of Municipal Corporation, to the Divisional Commissioner;
(iii) in the case of a City or Town Municipal Council, to the Deputy Commissioner;
(iv) in the case of a Mandal Panchayat, to the Chief Secretary of the Zilla Parishad;
He shall decide the question within seven days after the receipt by him of the reference and his decision shall be final."
No doubt, in two places, the word 'shall' is used. It cannot be denied that 'shall' normally should be construed as mandatory. But what requires to be carefully observed is the Act nowhere prescribes the consequence of not following the procedure. In other words, where the Legislature has thought fit not to penalise the non-observance of either referring the complaint within 24 hours by the Chief Executive Officer to the Chief Secretary or the Chief Secretary passing the order within 7 days after the receipt of the said reference, we should think it cannot be regarded as mandatory. In other words, the Legislature was anxious to see that the action is taken in a case of a complaint on the ground of defiance with utmost expedition. To our mind it means emphasising the obligation on the statutory authorities to determine the matter speedily. Therefore, it cannot, strainghtaway lead to the conclusion that because there is violation of Sub-section (2) of Section 4 of the Act, the order passed by the Chief Secretary is rendered void. The Court may well conceive of such a situation where a Chief Secretary is otherwise pre-occupied on an important work relating to Zilla Parishad - for example flood relief and if there is a delay of one day, does it mean that the order rendered by him is ab initio void! We feel we should not interpret so unless of course the Statute itself has prescribed the consequence to follow in the event of non-observation;
10. It is not denied nor can it be denied that the Act nowhere prescribed a consequence, penalty or otherwise, failure to follow this. Therefore, it stands to reason that it must be construed as directory. We may refer to the leading Decision of the Supreme Court in STATE OF U.P. v. MANBODHAN LAL, . That related to the interpretation of Article 320(3)(c). It is enough if we extract Head-notes (b) & (c) and Para-11 of the Judgment:
"(b) Constitution of India, Article 320(3)(c) - "Memorials or petitions" (Words and phrases) According to the strict construction of the words of Article 320(3)(c), an application for review would be covered by the words "Memories or petitions".
(c) Interpretation of Statutes - Statute whether mandatory or directory - Use of "Shall" and "may" [(Civil P.C. (1908) Pre] -(Words and Phrases) - Constitution of India, pre].
The use of the word "shall" in a statute, does not necessarily taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid. On the other hand, it is not always correct to say that where the word "may" has been used, the statute is only permissible or directory in the sense that non-compliance with those provisions will not render the proceeding invalid (1917) AC 170 & AIR 1945 FC 67 rel. on.
(11) An examination of the terms of Article 320 shows that the word "shall" appears in almost every paragraph and every clause or sub-clauses of that article. If it were held that the provisions of Article 320(3)(c) are mandatory in terms, the other clauses or sub-clauses of that article, will have to be equally held to be mandatory.
If they are so held, any appointments made to the public services of the Union or a State, without observing strictly, the terms of these sub-clauses in Clause (3) of Article 320, would adversely affect the person so appointed to a public service, without any fault on his part and without his having any say in the matter.
This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word "shall" in a statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding or the outcome of the proceeding, would be invalid.
On the other hand, it is not always correct to say that where the word "May" has been used, the statute is only permissible or directory in the sense that non-compliance with these provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on 'Statutory Construction' -Article 261 at page 516 is pertinent:
"The question as to whether a statute is mandatory or directory depends upon the intent of the Legislature and not upon the language in which the intent is clothed. The meaning and the intention of the Legislature must govern, and these are to be ascertained, not only from the phraseology of the provision, but also by considering its nature, its design, and the consequences which would follow from construing it the one way or the other..."
Para-11 puts the matter beyond doubt.
11. In DALCHAND v. MUNICIPAL CORPORATION, BHOPAL AND ANR., it was observed thus:
"(A) Interpretation of Statutes - Question whether a particular provision is mandatory or directory - Determination of Criteria for.
There are no ready tests of invariable formualae to determine whether a particular provision in a Statute is mandatory or directory. The broad purpose of the Statute is important. The objection of the particular provision must be considered. The link between the two is most important. The weighing of the consequence of holding a provision as mandatory or directory is vital and, more often than not, determinative of the very question whether the provisions is mandatory or directory. Where the design of the statute is the avoidance or prevention of public mischief, but the enforcement of a particular provision literally to its letter will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-compliance of the provision is necessary to invalidate the act complained of."
We do not think in every case the word "shall" must be held to be mandatory. Accordingly, concurring with the learned Single Judge, we dismiss the Writ Appeals.
After we pronounced Judgment in open Court, an oral prayer was made for leave to appeal to Supreme Court. We do not find that this is a fit case involving substantial question of Law of general importance which requires to be decided by the Supreme Court since we have merely applied the Dictum laid down by the Supreme Court. Hence, the prayer is rejected.