Allahabad High Court
Rama Devi vs State Of Up Thru. Prin. Secy. Panchayat ... on 2 February, 2018
Bench: Vikram Nath, Abdul Moin
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Court No. - 1 Case :- MISC. BENCH No. - 3098 of 2018 Petitioner :- Rama Devi Respondent :- State Of Up Thru. Prin. Secy. Panchayat Raj And Ors. Counsel for Petitioner :- Virendra Kumar Dubey,Anupriya Srivastava,Preeti Kashyap Counsel for Respondent :- C.S.C. Hon'ble Vikram Nath,J.
Hon'ble Abdul Moin,J.
(Per Hon'ble Abdul Moin, J)
1. Heard Sri O.P. Srivastava, learned Senior Advocate assisted by Shri Virendra Kumar Dubey, learned counsel for the petitioner and Sri H.P. Srivastava, learned Additional Chief Standing Counsel for the State-respondents.
2. By means of the present petition, the petitioner has prayed for the following reliefs:-
"(i) to issue a writ order or direction in the nature of mandamus directing and commanding the opposite parties not to hold any meeting of the Kshetra Panchayat Machhreta, Sitapur on 09.02.2018 to consider No Confidence Motion under the orders of the District Magistrate, Sitapur which may be summoned and quashed by issuing appropriate writ, order or direction in accordance with law.
(ii) to issue any other writ order or direction which this Hon'ble court may deem just fit and proper under the circumstances of the case.
(iii) to allow the cost of the writ petition."
3. The case set forth by the petitioner is that the petitioner contested the election of Kshetra Panchayat, Machhreta and was declared elected as Member, Kshetra Panchyat in November, 2015. Thereafter he was elected as Pramukh, Kshetra Panchayat, Machhreta on 7.2.2016 and since then is continuing in the said capacity. It is contended by the petitioner that the total strength of the members of the Kshetra Panchayat Machhreta is 95 out of which one member resigned and two members died and accordingly the actual strength of members of the concerned Panchayat is presently 92. The concerned Kshetra Panchayat was functioning smoothly when a local M.L.A. started interfering in the functioning of the said Kshetra Panchayat and also started manipulating and threatened the other members of the concerned Panchayat which could not be resisted by the said members in particular who belong to poor families and consequently were threatened to sign on a written notice to bring no confidence motion.
4. The petitioner contends that certain members of the concerned Kshetra Panchayat moved an application and affidavit before the District Magistrate, Sitapur alleging about the threats of the said M.L.A. The petitioner thereafter came to know that a no confidence motion against her was got signed by some of the members of the Kshetra Panchayat under force by the concerned M.L.A. and the proposed motion also contained several fake signatures to show that the strength of members seeking no confidence is more than half of the total strength and a written notice of intention to make no confidence motion along with the proposed motion and the affidavit was ''physically' handed over to the Chief Development Officer, Sitapur on 18.1.2018. Copy of one of the notices dated 25.1.2018 along with proposed motion of no confidence dated 18.1.2018 signed by the members of the Kshetra Panchayat, Machhreta, District Sitapur is Annexure-1 to the petition. The petitioner further contends that the District Magistrate is not taking steps to verify the signatures on the written notice of no confidence motion and by abusing the process of law contained in Section 15 of the U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 1961 Act), the date of considering the no confidence motion in the meeting was fixed as 9.2.2018. The petitioner has further contended that as Section 15 of the 1961 Act was flagrantly violated by the District Magistrate/Collector by firstly not verifying the signatures of the members who had given the said notice and secondly as notice of intention to make the motion was given to the Chief Development Officer and not the Collector, as prescribed in the rules, as such the notice would become vitiated in the eyes of law and consequently the respondent No.1 be restrained from proceeding with the meeting of the Kshetra Panchayat on 9.2.2018 to consider the said no confidence motion.
5. In support of his arguments Sri O.P. Srivastava, learned Senior Advocate, has contended that law is well settled that where a thing is to be done in a particular manner it is to be done in that manner or not at all and accordingly when Section 15 of the 1961 Act prescribes that the written notice of intention to make the motion is to be delivered in person to the Collector having jurisdiction over the Kshetra Panchayat then delivery of the said notice to the Chief Development Officer of which cognizance was subsequently taken by the District Magistrate, would thus vitiate the said notice and thereby whatever action taken in pursuance thereof would also become vitiated.
6. On the other hand Sri H.P. Srivastava, learned Additional Chief Standing Counsel along with Sri Manish Mishra, learned Standing Counsel submit, on the basis of written instructions, that written notice of intention to make the motion which was signed by more than half (i.e. 60 out of 95 members) was delivered in person to the officiating District Magistrate, Sitapur namely Dr. Arvind Kumar Chaurasia, Chief Development Officer. Dr. Chaurasia was officiating as District Magistrate as on that date the District Magistrate, Sitapur had been directed to appear in person in another writ petition before this Court namely in Writ Petition (M/B) No.1061 of 2018 with the result that the District Magistrate, Sitapur was present in the High Court on that date. Thereafter when she returned back to Sitapur she received the notice of no confidence motion from Dr. Chaurasia and after taking cognizance of the same fixed a date of 9.2.2018 for considering the said motion of no confidence after following due procedure.
7. Sri Manish Mishra, contends that keeping in view the law laid down by the Full Bench in the case of Vikash Trivedi vs. State of U.P. and others reported in (2013)2 UPLBEC 1193, the provisions of Section 15 of the 1961 Act pertaining to the written notice of intention along with copy of the proposed motion being delivered in person to the Collector is not mandatory, rather is directory and as the Collector was not in station on 18.1.2018, the notice which was received by the officiating Collector on that date, would not vitiate the same as is sought to be contended by the learned counsel for the petitioner. In this regard Sri Mishra has also taken us through the provisions of Section 2(5) of the 1961 Act where the Collector has been defined as including an Additional Collector to whom the Collector may, by order in writing, delegate any office function under this Act. Thus contention of Sri Mishra that receiving of notice by the officiating Collector namely Dr. Chaurasia, Chief Development Officer was not wrong and it is the Collector who in fact has taken cognizance as per the provisions of Section 15 of the 1961 Act and thereafter fixed a date of 9.2.2018 for convening the meeting of the Kshetra Panchayat for consideration of the motion.
8. So far as the argument raised on behalf of the petitioner is concerned that signatures were not verified by the Collector prior to fixing a date for convening the meeting on 9.2.2018, Sri Mishra submits that even this aspect of the matter is clearly covered by the Full Bench judgment of this Court in the case of Smt. Sheela Devi vs. State reported in 2015(2) UPLBEC 1176.
9. As regard the person officiating as Collector exercising the power of the Collector, though the said power is already contained under Section 2(5) of the 1961 Act, yet to further clarify the same, Sri H.P. Srivastava has placed reliance over the judgment of this Court in the case of Shiv Dayal vs. State of U.P. and others reported in A.I.R. 1953 Alld. 664.
10. We have heard the learned counsels appearing for the respective parties and have perused the record,
11. The procedure of moving of motion of no confidence in the case of Pramukh is set out in Section 15 of the 1961 Act which, for the sake of convenience, is being reproduced below:-
"15. Motion of non-confidence in Pramukh-(1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.
(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.
(3) The Collector shall thereupon :-
(i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and
(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.
Explanation. - In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded.
(4) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting :
Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub-divisional officer cannot for any reason preside, any stipendiary additional or assistant Collector named by the Collector shall preside at the meeting.
(4A) If within an hour from the time appointed for the meeting such officer is not present to preside at the meeting, the meeting shall stand adjourned to the date and time to be appointed by him under sub-section (4B).
(4B) If the Officer mentioned in sub-section (4) is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting under sub-section (3). He shall without delay inform the Collector in writing of the adjournment of the meeting. The Collector shall give to the members at least ten days' notice of the next meeting in the manner prescribed under sub-section 3.
(5) Save as provided in sub-sections (4-A) and (4-B), a meeting convened for the purpose of considering a motion under this section, shall not be adjourned.
(6) As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate.
(7) No debate on the motion under this section shall be adjourned.
(8) Such debate shall automatically terminate on the expiration of two hours from the time appointed for the commencement of the meeting, if it is not concluded earlier. On the conclusion of the debate or on the expiration of the said period of two hours, whichever is earlier, the motion shall be put to vote which shall be held in the prescribed manner by secret ballot.
(9) The Presiding Officer shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Zila Panchayat having jurisdiction.
(11) If the motion is carried with the support of more than half of the total number of elected members of the Kshettra Panchayat for the time being -
(a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette; and
(b) the Pramukh or, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat.
(12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or shall be received until after the expiration of [one year] from the date of such meeting.
(13) No notice of a motion under this section shall be received within two years of the assumption of office by a Pramukh or, as the case may be."
12. In terms of the aforesaid provisions, it is clear that a motion expressing no confidence in the Pramukh has to be made and proceeded with in accordance with the procedure prescribed under Section 15 of the 1961.
13. The learned counsel for the petitioner has contended that because Section 15(2) of the 1961 Act provides that written notice of intention to make the motion along with a copy of the proposed motion shall be delivered in person to the Collector, as such the same is mandatory and accordingly no other authority except the Collector could have received the said notice and in the instant case the notice having admittedly been received by the Chief Development Officer, as such the mandatory provision, as set out in Section 15(2) of the 1961 Act, has been violated and accordingly any such action taken on the basis of such notice would be vitiated in the eyes of law. Thus, as per Sri Srivastava, once the mandatory provision of delivering the notice to the Collector has not been adhered to consequently all the action would become vitiated in the eyes of law.
14. Whether the use of the word "shall" as used in Section 15(2) of the 1961 Act would be mandatory and its non compliance would render the entire notice of intention to make the motion and the consequent action taken thereon liable to be rendered bad in the eyes of law is the basic question which is to be decided by us.
15. In this regard we may, at the outset, refer to Maxwell On the Interpretation of Statutes while considering "Imperative And Directory Enactments". In this regard Maxwell reads as under:-
"The first such question is: when a statute requires that something shall be done, or done in a particular manner or form, without expressly declaring what shall be the consequence of non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive)? In some cases the conditions or forms prescribed by the Statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell, L.C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.'"
16. The Hon'ble Supreme Court in the case of State of U.P. and others vs. Babu Ram Upadhyaya reported in A.I.R. 1961 SC 751 held as under:-
""The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."
17. Further the Hon'ble Supreme Court in the Constitution Bench judgment of Raja Buland Sugar Company Ltd. Rampur vs. The Municipal Board, Rampur reported in A.I.R. 1965 SC 895 held as follows:-
"This brings us to the examination of the facts and circumstances of the present statute in the light of what we have said above as to the criteria for determining whether a provision in a statute is mandatory or directory. The provision with which we are concerned, namely, S. 131(3), can be divided into two parts. The first part lays down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from, the publication of the notice (see Sch. III). The second part provides for the manner of publication and that manner is according to s' 94(3). We shall first deal with what we have called the first part of S. 131(3). This provision deals with taxation. The object of providing for publication of proposals and draft rules is to invite objections from the inhabitants of the municipality, who have to pay the tax. The purpose of such publication obviously is to further the democratic process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax before imposing it on them.
In the circumstances if we are to hold that this part of s. 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in ss. 131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed nugatory. We are therefore of opinion that this part of s. 131(3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed.
....We therefore hold that this part of S. 131(3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to tax-payers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131(3) is mandatory."
18. Thereafter the Hon'ble Supreme Court in the case of Sharif-ud-Din vs. Abdul Gani Lone reported in A.I.R. 1980 SC 303, held as under:-
"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."
19. The Hon'ble Supreme Court in the case of Lakshmanasami Gounder vs. C.I.T. Selvamani and others reported in (1992)1 SCC 91, held as under:-
""It is settled law that the word 'shall' be construed in the light of the purpose the Act or Rule that seeks to serve. It is not an invariable rule that even though the word 'shall' is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory. The construction ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word 'shall' has been used and the mischief it seeks to avoid. Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of noncompliance thereof. In its absence the consequence has to be determined with reference to the effect of the non-compliance of the provision of the legislature. Mere use of the word 'shall' need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory."
20. The Hon'ble Supreme Court in the case of Pt. Rajan vs. T.P.M. Sahir and others reported in (2003)8 SCC 498, has held as under:-
""49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory If thereby no prejudice is caused. (See Raza Buland Sugar Co. Ltd. v. , State Bank of Patiala v. S.K. Sharma, Venkataswamppa v. Special Dy. Commr. (Revenue) and Rai Vimal Krishna and Ors. v. State of Bihar and Ors."
21. Thereafter the Hon'ble Supreme Court in the case of Mahadev Govind Gharge vs. Special Land Acquisition Officer reported in (2011)6 SCC 321, held as under:-
""29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have already noticed that there is no indefeasible divestment of right of the cross-objector in case of a delay and his rights to file cross-objections are protected even at a belated stage by the discretion vested in the Courts. But at the same time, the Court cannot lose sight of the fact that meaning of `ends of justice' essentially refers to justice for all the parties involved in the litigation. It will be unfair to give an interpretation to a provision to vest a party with a right at the cost of the other, particularly, when statutory provisions do not so specifically or even impliedly provide for the same.
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37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them."
22. More recently the provisions of the 1961 Act came up for consideration before the Full Bench of this Court in the case of Vikas Trivedi (supra). The Full Bench after considering the various judgments of the Hon'ble Supreme Court pertaining to the use of the word "shall" held as follows:-
"70. As noted above, Section 15 of the 1961 Act is a statutory provision recognising the right of elected members to bring motion of no confidence against the Pramukh. The Collector is entrusted with public duty to issue notice. As noted above, the Apex Court in Dattaraya Moreshwar vs. the State of Bombay and others case (supra) had laid down that provisions of statute creating public duty are directory and those conferring private rights imperative. If the contention is accepted that while sending notice by the Collector although relevant information regarding date, time and place of meeting has been given and notice also mentions that no confidence motion has been proposed against such and such officer bearers but the copy of the motion of no confidence is not annexed, whether the same shall frustrate the very object of the Act or shall advance the object and purpose of the statutory provision, is the question to be answered. Obviously, if the members are given notice and information which is primary object and purpose of giving notice by the Collector of the meeting and the motion of no confidence is read as soon as the meeting is convened, we are of the view that to hold that not sending of copy of no confidence motion shall vitiate the entire proceeding, shall be defeating the very purposes and object of Section 15 of the 1961 Act.
71. Whether there has been substantial compliance of the second part of Clause (ii) of Section 15(3) read with Rule 2 of the Rules and Form II contained in the Schedule to the Rules, depends on the facts and circumstances of each case.
72. Where copy of proposed Motion is not enclosed with the notice under Clause (ii) of sub-section (3) of Section 15, it will depend on the facts and circumstances of each case whether there has been substantial compliance of the above provisions or not.
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76. The provisions of Rule 2 read with Form-2 are also statutory provisions which are required to be complied with and there is no discretion in the authorities or they are not free to disregard the same at their whims. If the notice, which is sent by the Collector does not substantially comply with the requirements, the proceeding may be vitiated, similarly when the notice substantially comply with the provisions, the action may survive. This can be explained by giving illustration. Take an example where Collector after receiving notice for no confidence motion along with proposal convenes a meeting and issue a notice to the members which does not indicate that meeting is fixed for consideration of no confidence motion against which office bearers, obviously the said notice cannot be said to be substantial compliance. Another example of non compliance shall be when notice does not mention even the date of meeting. The Court has to look into as to whether there is substantial compliance, and the proceeding will be allowed not to be vitiated only when the Court is satisfied that there is sufficient compliance of the manner in which notice has been sent. In this context reference of the judgment of the Apex Court in the case of Rani Drigraj Kuer v. Amar Krishna Narain Singh reported in A.I.R 1960 SC 444 is also relevant where the Apex Court laid down following in paragraphs 18, 20 and 21 which are as under:-
"18. . The appellant first says that the compromise decrees were a nullity as the terms of s. 56 of the Act which are mandatory, had not been complied with. That section reads thus:
"Section 56: When in any suit or proceeding two or more wards being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards."
20.The question then is, is s. 56 imperative ? In our view, it is not. It, no doubt, says that " the Court of Wards shall appoint . . . . a representative." But it is well-known that the use of the word " shall " is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad Ishaque (1). The intention of the legislature has to be gathered from the whole statute."
21. Several grounds are suggested why s. 56 should be held to be imperative. First, it is said that otherwise, in view of s. 55, it would be otiose. Section 55 is in these terms:
"Section 55: No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf."
It is said that the concluding words of s. 55 give the Court of Wards a discretionary power to appoint a representative and therefore if s. 56 was only directory, then it would also give the same discretionary power to appoint a representative and thus become otiose. The contention seems to us to be ill founded. In order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject- matter, the two must then be serving the same purpose. The argument is founded on the basis that read as an imperative provision s. 56 would not be otiose, that is, then it would be serving a purpose different from that which s. 55served. Now, we do not appreciate how s. 56 becomes otiose by being read as a directory provision while it would not be so if read as a mandatory provision. Surely, the subject-matter of a statutory provision is not changed whether it is read as directory or as mandatory. If it was not otiose as a mandatory provision, it would no more be so as a directory provision. Another fallacy in this argument is that it assumes that by reading s. 56 as a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards, as it pleases. A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion. A directory provision however gives no discretionary power free to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity. Therefore, it seems to us to be wrong to say that by reading s. 56 as merely directory any discretion is conferred on the Court of Wards."
77. Thus substantial compliance shall not vitiate the proceeding of no confidence motion cannot be read as requirement of not following the prescribed procedure in the rules."
23. Though in the case of Vikas Trivedi (supra) the Full Bench was considering the provisions of Section 15(3)(ii) of the 1961 Act yet the principles of law laid down in the said judgment would be relevant as regards the question which has arisen in the instant petition. What can be culled out from the judgments in the case of Vikas Trivedi, Babu Ram Upadhyaya, Raja Buland Sugar Company Ltd. Rampur, Sharif-ud-Din, Lakshmanasami Gounder and Pt. Rajan (supra) is that merely because the statute uses the word "shall", it is not conclusive on the question whether it is a mandatory or a directory provision. In order to find out true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and the real intention of the legislature by carefully seeing the whole scope of the legislative intent. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory, but when a provision of law which relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one.
24. Armed with the said conclusions as have been culled out from the aforesaid judgments, what we find is that the intention of the legislature by incorporating the word "shall" in sub-section (2) of Section 15 of the 1961 Act is to ensure that the copy of the proposed motion reaches the Collector and it is the Collector alone who is to convene the meeting of the Kshetra Panchayat for the consideration of the motion after giving to the elected members of the Kshetra Panchayat notice of such meeting as specified in Section 15(3) of the 1961 Act. Thus the purpose of Section 15(2) of the 1961 Act is to ensure that the Collector gets a copy of the proposed motion which is to be delivered in person by any one of the members signing the notice. The said delivery of notice is thus mandatory but the contention on the part of the petitioner that it is the Collector alone who can receive the said notice would only be a procedural requirement and will fall within the realm of being a directory provision and merely because the notice has not been handed in the hands of the Collector would not vitiate the notice as is sought to be made out by the petitioner. Moreover, no prejudice is caused to the Pramukh in case the notice is not handed over in the hands of the Collector, as sought to be set out by the petitioner inasmuch as the intention of the no confidence motion and a meeting convened in pursuance thereof would be to test the confidence of the Pramukh amongst the elected members of the Kshetra Panchayat who initially elected the Pramukh from amongst themselves in terms of Section 7 of the 1961 Act and the said Pramukh would only continue till such time the elected members continue to express their confidence upon him. Thus, in our considered opinion, delivery of the proposed motion in the hands of the Collector is only a directory provision and not mandatory and the notice of no confidence would not be vitiated merely because the notice was not given to/received personally by the Collector.
25. So far as the argument on the part of the petitioner that the District Magistrate should have taken steps to verify the signatures on written notice of no confidence motion and he having not done the same the entire exercise is vitiated, is concerned, it is submitted that even the said issue is no longer res-integra taking into consideration the Full Bench judgment of this Court in Smt. Sheela Devi (supra) wherein the Full Bench has held that it is the discretion of the Collector to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2) of Section 15 of the 1961 Act. The Full Bench also held that it was not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice as the same would be outside the purview of Section 15 of the 1961 Act. For the sake of convenience, the conclusion of the Full Bench is reproduced below:-
"23. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with the stipulation of time enunciated in sub-section (3) of Section 15 of convening a meeting no later than thirty days from the date of delivery of the notice and of issuing at least a fifteen days' notice to all the elected members of the Kshettra Panchayat, it is not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice. Where a finding in regard to the validity of the signatures can only be arrived at in an enquiry on the basis of evidence adduced in the course of an evidentiary hearing at a full-fledged trial, such an enquiry would be outside the purview of Section 15. The Collector does not exercise the powers of a court upon receipt of a notice and when he transmits the notice for consideration at a meeting of the elected members of the Kshettra Panchayat. Hence, it would not be open to the Collector to resolve or enter findings of fact on seriously disputed questions such as forgery, fraud and coercion. However, consistent with the law which has been laid down by the Full Bench in Mathura Prasad Tewari's case, it is open to the Collector, having due regard to the nature and ambit of his jurisdiction under sub-section (3) to determine as to whether the requirements of a valid notice under sub-section (2) of Section 15 have been fulfilled. The proceeding before the Collector under sub-section (2) of Section 15 of the Act of 1961 is more in the nature of a summary proceeding. The Collector for the purpose of Section 15, does not have the trappings of a court exercising jurisdiction on the basis of evidence adduced at a trial of a judicial proceeding. Whether in a given case, the Collector has transgressed the limits of his own jurisdiction is a matter which can be addressed in a challenge under Article 226 of the Constitution. We clarify that we have not provided an exhaustive enumeration or list of circumstances in which the Collector can determine the validity of the notice furnished under sub-section (2) in each case and it is for the Collector in the first instance and for the Court in the exercise of its power of judicial review, if it is moved, to determine as to whether the limits on the power of the Collector have been duly observed."
26. As regards the argument of the delivery of the notice of no confidence to the Chief Development Officer, Sitapur on 18.1.2018 and not the Collector, suffice to state that keeping in view the definition clause as used in Section 2(5) of the 1961 Act and the fact that Dr. Arvind Kumar Chaurasia, Chief Development Officer was officiating as District Magistrate on the said date, this ground taken by the petitioner also fails.
27. Keeping in view the aforesaid discussions, we are of the opinion that there is no merit in the writ petition and consequently the writ petition is dismissed.
Order Date :- 2.2.2018
Rakesh
(Abdul Moin) (Vikram Nath)