Gauhati High Court
Mumtaz Rana Laskar vs State Of Assam And Ors. on 20 December, 2005
Equivalent citations: (2006)2GLR5
Bench: Chief Justice, D. Biswas
JUDGMENT B. Sudershan Reddy, C.J.
1. These three writ appeals are required to be disposed of by a common order since the question that falls for our consideration in all of them being the same.
2. The core question is as to whether the procedure prescribed as to the time frame under Section 15(1) of the Assam Panchayat Act, 1994 (for short "the Act") in the matter of no confidence motion against the President and the Vice-President is a mandatory or directory in its nature.
FACTUAL MATRIX
3. In order to decide the said question it may be just and necessary to briefly notice the relevant facts. In Writ Appeal No. 280/2005 the appellant/writ petitioner was the elected President of Matijuri Paikan Gaon Panchayat which has the total strength often elected members. That, out of the total strength often elected members eight members of the said Gaon Panchayat served a requisition notice on 3.8.2004 requiring the Secretary of the Panchayat to convene a special meeting to consider resolution expressing want of confidence in the appellant/writ petitioner. Even while the matter was under consideration of the Secretary, two of the signatories to the resolution backed out duly informing the Secretary about their withdrawal from the, requisition. The Secretary thereafter placed the matter before the appellant/writ petitioner seeking her approval to convene the meeting. The appellant did not grant the approval on account of which the Secretary could not convene the special meeting within fifteen days from the date of receipt of notice. The Secretary vide his letter dated 2.8.2004 accordingly refereed the matter to the President of Hailakadi Anchalik Panchayat. The President of the Anchalik Panchayat accordingly convened a meeting of the Panchayat on 1.9.2004 in which resolution expressing want of confidence in the appellant was passed by a majority of two third of the total members of the Gaon Panchayat. The appellant was accordingly removed from the post of President of the Gaon Panchayat.
4. The appellant having left with no other alternative remedy filed the writ petition invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India challenging the legality of the specially convened meeting held on 1.9.2004 and accordingly prayed to quash the resolution expressing want of confidence in her that was passed in the said special meeting.
5. The case set up by the appellant in the writ petition was that the reference made by the Secretary of the Gaon Panchayat to the President of the Anchalik Panchayat was rot in accordance with law and as such all the subsequent proceedings and the convening of the very special meeting by the President of the Anchalik Panchayat was ultra vires and the resolution passed in such meeting was a nullity. The sum and Substance of the contention was that such void and inoperative resolution ca mot be given effect to and she cannot be thrown out of elected office. The learned Single Judge after an elaborate consideration of the matter came to the conclusion that delay of the part of the Secretary in referring the matter to the President of the concerned Anchalik Panchayat was not fatal and the procedure prescribing the time frame for such reference is not mandatory. The learned Judge took the view that the time limit provided for referring the matter by the Secretary to the President of the Anchalik Panchayat is a directory in nature and any other view may result in scuttling the entire democratic process and thereby the Scheme of the Act itself gets frustrated.
6. In this writ appeal the learned senior counsel Mr. AM Mazumdar appearing on behalf of the appellant submitted that the view taken by the learned Single Judge in dismissing the writ petition suffers from various infirmities. The learned Counsel proceeded to submit that the procedure prescribed even as regards the time frame under Section 15(1) of the Act is required to be followed scrupulously and any failure to do so completely vitiates the very convening of the meeting and the consequential resolution. Learned senior counsel commended for consideration of this Court to construe the provision as a mandatory one. Mr. BC Das, learned senior counsel appearing on behalf of the respondents, per contra, submitted that the procedure prescribed as regards the time frame is only directory in nature and substantial compliance would meet the requirement in law. Any other view, according to the learned senior counsel may frustrate the very scheme of the Act making it impossible to move any motion of no confidence against the President of the Gaon Panchayat even in cases where the President has lost the confidence of the Gaon Panchayat.
7. We have carefully considered the submissions made during the course of hearing of these appeals.
STATUTORY PROVISIONS
8. We shall first notice Section 15 of the Act since the whole controversy centers around the interpretation of the same and it reads as under:
15. No-confidence motion against the President and Vice-President (1) Every President or Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two-third of the total number of members of the Gaon Panchayat.
Such a meeting shall be specially convened by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat. Such meeting shall be presided over by the President if the motion, is against the Vice-President, and by the Vice President, if the motion is against the President. In case, such a meeting is not convened within a period of fifteen days from the date of receipt of notice, the Secretary of the Gaon Panchayat shall, within three days, refer the matter to the President of the concerned Anchalik Panchayat, who shall convene the meeting within seven days from the date of receipt of the information from the Secretary of the Gaon Panchayat and preside over such meeting.
In case, the President of the Anchalik Panchayat does not take action as above within the specified seven days' time, the concerned Gaon Panchayat Secretary shall inform the matter to the Deputy Commissioner/Sub-Divisional Officer (Civil), as the case may be, within three days after expiry to the stipulated seven days' time and the concerned Deputy Commissioner/Sub-Division Officer (C) shall convene the meeting within seven days from the date of receipt of the information with intimation to the Zilla Parishad and the Anchalik Panchayat and preside over the meeting so convened.
Provided that the concerned Deputy Commission/Sub-Divisional Officer (C), the case may be, in case of his inability to preside over the meeting, may depute one Gazetted Officer under him not below the rank of Class I Gazetted Officer to preside over such meeting:
Provided further that when a no-confidence motion is lost, no such motion shall be allowed in the next six months.
(2) The requisition for such a special meeting under Sub-section (1) shall be signed by not less than one-third of the total number of members of the Gaon Panchayat and shall be delivered to the President or Vice-President, as the case may be, of the concerned Gaon Panchayat with intimation to the Deputy Commissioner of the district.
(3) Without prejudice to the provision under this Act a President or a Vice-President of a Gaon Panchayat with the approval of the Zilla Parishad for misconduct of his/her duties or neglect or incapacitate perform his/her duties or for being persistently remiss m the discharge or, or guilty of any disgraceful conduct and President or Vice-President so removed shall not be eligible for re-election as President or Vice-President during the remaining term of office either as President or Vice-President such Gaon Panchayat:
Provided that no such President of Vice-President or a Gaon Panchayat shall be removed from office unless he is given reasonable opportunity to furnish explanation to the Anchalik Panchayat.
(4) A Vice-President so removed from his office under Sub-section (3) may also be removed from membership of the Gaon Panchayat by the Government after giving the member a reasonable opportunity to furnish his explanation.
(5) If under Sub-section (1), the members of the Gaon Panchayat express want of confidence both in the President and Vice-President of the Gaon Panchayat at the same time and issue notices, the Secretary of the Gaon Panchayat, within seven days from the date of receipt of such notices, shall report the matter to the President of the concerned Anchalik Panchayat who shall arrange to convene the meetings within fifteen days from the date of receipt of the intimation separately to consider the motion against the President first and to consider the motion against the Vice-President next day and shall preside over both the meetings. The President of the concerned Anchalik Panchayat presiding the meetings shall have no vote.
In case, the President of the concerned Anchalik Panchayat does not take action as above, the Secretary of the Gaon Panchayat, within three days after the expiry of the stipulated fifteen days' time, shall after the matter to the concerned Deputy Commissioner or the Sub-Divisional Officer (C), as the case may be. On receipt of the information, the Deputy Commissioner or the Sub-Divisional Officer, as the case may be, shall convene both the meetings in the manner as above, Within fifteen days from the date of receipt of the information with intimation to the concerned Anchalik Panchayat and Zilla Parishad and preside over such meetings:
Provided that the concerned Deputy Commissioner or the Sub-Divisional Officer, as the case may be, in case of his inability to preside over the meeting, may depute a Gazetted officer not below the rank of Class I Gazetted Officer to preside over such meetings:
Provided further that if it is not possible to hold the meting for a situation due to non-attendance of the requisite number of members in such meting or meetings, as the case may be, the no-confidence motion shall automatically stand cancelled and motion shall be deemed to have lost, in the event of which no such motion shall be allowed within the next six months.
9. A reading of the provision makes it clear that the first part of Section 15(1) is a declaratory one being specific and emphatic in its nature. It declares that every President or the Vice-President shall be deemed to have vacated his office forthwith when resolution expressing want of confidence in him is passed by a majority of two third of the total number of members of the Gaon Panchayat. Once such a resolution is passed no further steps are required to be taken for removing the President or Vice-President, as the case may be, from office. There is no requirement that there should be an intimation to that effect the resolution comes into effect itself and the office holder is declared to have vacated the office. The next part deals with convening of the special meeting by the Secretary of the Gaon Panchayat with approval of the President of the Gaon Panchayat the Legislature in its wisdom for whatever reason thought it fit that a special meeting for the purpose of "Considering a no confidence motion against a President or a Vice-President, as the case may be, cannot be convened without the prior approval of the President against whom the motion itself may have been moved. In case if the meeting could not be convened within the period of fifteen days the Secretary of the Goari Panchayat is required to refer the matter to the President of the Anchalik Panchayat within three days of expiry of period of fifteen days and upon such reference the President of the Anchalik Panchayat is required to convene the meeting within seven days from the date of receipt of the information from the Secretary. That, in case the President of Anchalik Panchayat does not take action within the specified seven days time the Secretary once again required to inform the matter to the Deputy Commissioner/Sub Divisional Officer (Civil), as the case may be, within three days after the expiry of the stipulated seven days time and the Deputy Commissioner is required to convene the meeting within seven days from the date of receipt of the information with intimation to the Zilla Parishad and Anchalik Panchayat and preside over the meeting so convened.
10. Sub-section (2) of Section 5 provides that the requisition for such a special meeting under Sub-section (1) shall be signed by one third of the members of Gaon Panchayat and shall be delivered to the President or Vice-President, as the case may be, of the concerned Goan Panchayat with intimation to the Deputy Commissioner concerned.
11. That, convening of the meeting by the Secretary of the Gaon Panchayat and his duty to refer the matter to the President of the Anchalik Panchayat, in case the meeting is not convened within fifteen days from the date of requisition, is obviously a ministerial one. He has no authority to convene the special meeting without the approval of the President. He has no authority even to receive the requisition for convening special meeting since such a requisition is required to be delivered to the President or Vice-President, as the case may be, of the concerned Gaon Panchayat. His duty is to inform the President of the concerned Anchalik Panchayat in case if no meeting is convened within a period of fifteen days from the date of receipt of notice and if there is a further failure on the part of the President of Anchalik Panchayat in convening the meeting within specified seven days time he is required to inform the matter to the Deputy Commissioner/SDO (Civil), as the case may be within three days after expiry of stipulated seven days time. It is plainly evident that once a notice of no confidence motion with request for convening the special meeting is served the same has to ultimately culminate in the meeting of the Gaon Panchayat either convened by the Secretary with the approval of the President or convened by President of the Anchalik Panchayat or by the Deputy Commissioner, as the case may be. Convening the meeting pursuant to the request for considering motion of no confidence is mandatory requirement and under no circumstances, can be allowed to be frustrated by any of the authorities.
RE : QUESTION
12. The core question that falls for our consideration is whether the requirement on the part of the Secretary of the Gaon Panchayat to inform the President of the Anchalik Panchayat within three days, if no meeting is convened within a period of 15 days from the date of receipt of notice, is a mandatory one. Likewise, the requirement on his part to inform the matter to the Deputy Commissioner/SDO (Civil), as the case may be, within three days after the expiry of the stipulated seven days time in case of failure even on the part of the President of Anchalik Panchayat to convene the meeting is a mandatory one?
WHEN APROVISION COULD BE HELD TO BE AND IMPERATIVE ONE?
13. I an often quoted passage Lord Campbell said : "No universal rule can be laid down 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 considered.
14. The Supreme Court in State of UP v. Manmohan Lal Srivastava AIR 1957 SC 912 approvingly quoted the following passage from Crawford, which is to the following effect:
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 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.
15. It is also fairly well settled for ascertaining the real intention of the legislature, the court may consider inter alia, the nature and 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 circumstances, 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 the trivial consequences, that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. See State of UP v. Babu Ram Upadhya .
16. The following passage from Maxwell on The Interpretation of Statutes is instructive:
The first such question is when a statue 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 statue 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.
The learned author having stated the principle observed that it is impermissible to lay down any general rule for determining whether a provision is imperative or directory. That, a provision may be mandatory as to one person and permissive as to another.
17. That a number of decisions have been cited at the bar but we do not propose to burden this judgment by citing all those decisions in which the obvious principle has been stated and restated and precisely for that reason we have noted the basic principle in the preceding paragraphs. That a critical analysis of numerous authoritative pronouncements on the topic does not lead us to formation of any universal rule. Therefore, we bear in mind that due regard must be had to context, subject matter and object of the provisions in question in order to determine whether the same is mandatory or directory one. We shall bear in mind the caution administered by Lord Denning:
We sit hear to find the intention of Parliament and of Ministers and carry it out, and we do this better by filling in the gaps and making sense of the enactment than by opening it up to destructive analysis See Magor & St. Mellons Rural District Council v. Newport Corporation (1950) 2 All ER 1126.
18. We shall, therefore, notice only such decisions of the Supreme Court which are apt since the provision of law dealt with therein are quite near to the provision under consideration by us.
19. In Shyabuddinsab Mohidinsab Akki v. Gadag-Betgeri Municipal Borough and Ors. an interesting question arose for consideration of the Apex Court. Section 35(3) of Bombay Municipal Borough Act required the notice of special general meeting to be given in writing but the same had not been given in writing but had only been intimated to all the Councillors who were present at a prior meeting and the notice was not served in the manner indicated in Sub-section (3) of Section 35 of the Act. It had been contended that the notice required Section 35(3) contemplates written notices be served and published in a manner specified, and that the meeting on 3.8.1954 could not be said to have been held after complying with the terms of Sub-section (3) of Section 35. The contention was that the special meeting convened for the purposes of electing President/Vice-President was vitiated. The Supreme Court observed.
It is true that the notice of the meeting of 3.8.1954 had not been given in writing but had only been intimated to all the Councillors who were present at the meeting of 30.7.1954. The notice amply satisfies the requirement of three days clear notice, though it was not in writing...the provision of Section 35(3) are directory and not mandatory and that any omissions in the manner of service of the notice are mere irregularities which would not vitiate the proceedings unless it was shown that those irregularities had prejudicially affected the proceedings...if has not been either alleged or proved that the irregularities in the service of the notice or the omissions complained of had prejudicially affected the proceedings.... It must, therefore, be held that the meeting of 3.8.1954 in substance, though not in form, complied with the requirements of the law for holding a valid special general meeting and that, therefore, that meeting was not invalid.
20. K Narasimhiah v. HC Singri Gowda and Ors. is another apt decision which is required to be noticed. In K Narasimhiah's case the appellant was elected as President of Municipality on 11.9.1962. In the special general meeting of the Municipal Council held on 14.10.1963 a resolution was passed expressing no confidence in him. He approached the High Court seeking quashing of the notice of the meeting. The Municipal Council had altogether twenty Counillors. Thirteen out of them sent a requisition to the Preisdent to convene a special general meeting to discuss the resolution expressing no confidence in him as President. It was handed over to the President on 25.9.1963. The President did not act on the notice but the Vice President having acted called meeting of the Councillors to discuss the resolution and notice under the Vice-President's signature proposing to hold a special general body meeting on 14.10.1963 was sent to the Councillors. It bore the date 10.10.1963. Notice was personally served on fifteen Councillors on 11.10.1963. On three Councillors it was served on i3.10.1963 and on two was served on 11.10.1963 and 12.10.1963. When the meeting was held on 14.10.1963, nineteen out of twenty Councillors were present including the President. The no confidence motion was carried. Challenge to the legality of the proceedings, inter alia, was on the ground that the requisite three days notice was not served on all the members and so the meeting was not validly held. The High Court rejected the contention of the petitioner therein, but took the view that the notice were sent on 10.10.1963, therefore, they must have been held to be served on the same days even though they were actually served on 11.10.1963, 12.10.1963, 13.10.1963. The court further took the view that the requirement of three days notice is only directory and not mandatory and so the omission to give notice would not affect the validity of the resolution. The matter was carried to the Supreme Court. The Supreme Court framed the question : is the provision of three clear days notice mandatory, i.e., does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid?.... We are, therefore, of opinion that the fact that some of the Councillors received less than three clear day's notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no confidence against the appellant. There is, thus, absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice".
(emphasis added).
21. In the case on hand there are no irregularities alleged either in convening or holding the meeting Where the resolution expressing no confidence against the appellant has been passed. The whole controversy centeres round the delay on the part of the Secretary of Gaon Panchayat in making reference to Anchalik Panchayat. It is neither pleaded nor explained as to how and in what manner any prejudice has been caused to the petitioner. It is not explained as to how and in what manner the irregularity on the part of the Secretary is likely to affect the result of the resolution.
22. In PT Rajan v. TPM Sahir and Ors. the Supreme Court held:
Where a statutory functionary is asked to perform a statutory duty within the time prescribed therefore, the same would be directory and not mandatory. 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.
23. As with all controversial subjects interpretation of statutes attract argument both ways. The arguments that the provision may be treated as an imperative one are principled and practical. It will be convenient to note first the major practical difficulties attended upon holding the particular provision with which we are concerned as imperative one. What happens in a given case if the Secretary of the Gaon Panchayat on his own accord for whatever reason or at the behest of the vested interest does not act in the matter as is expected even though the requisition given expressing no confidence may be strictly in accordance with the requirement in law? Will the whole democratic process come to an end? After all democratic process not only includes choosing one's own representative but also dislodging such elected representatives from their office in accordance with law. The whole democratic process cannot be put at the disposal of an insignificant authority who is required to convene the meeting in accordance with law. The inaction on the part of such authority should not be allowed to result in frustration and subversion of the very scheme of the Act. The practical difficulties are also required to be kept at the back of our minds for interpreting the provisions.
24. On an analysis of the binding precedents referred to above leads us to irresistible conclusion that a mere procedural irregularity in the matter of making the reference by the Secretary of the Gaon Panchayat either to President of the Anchalik Panchayat or to the Deputy Commissioner, as the case may be, shall have no bearing whatsoever upon the resolution passed in the specially convened meeting expressing want of confidence in the President or the Vice-President of the Gaon Panchayat, as the case may be. That itself would not result in causing any prejudice to the person against whom the motion is carried out.
25. For the aforesaid reasons we are in complete agreement with the view taken by hon'ble Agarwal, J in WP(C) No. 6793/2004. We are unable to persuade ourselves to agree with the view taken by the learned Single Judge in Aleya Khatun and Ors. v. State of Assam and Ors. 2004 (3) GLT 361 and Basanti Das v. State of Assam and Ors. 2004 (Suppl) GLT 717 wherein the learned judge has taken the view that the prescription of Section 15(1) vis-a-vis the procedure and the time schedule relatable to the date suggested thereof are invariably mandatory so much so that any departure, even minimal, would render it illegal. We find it difficult to agree with the broad propositions articulated in the said judgments.
26. The Writ Appeal No. 280/2005 [arising out of WP(C) No. 6793/04] is dismissed. The Writ Appeal No. 513/2005 [arising out of WP(C) No. 4378/04] is allowed and the impugned judgment and order is set aside. The Writ Appeal No. 186/2005 [arising out of WP(C) No. 5925] is allowed and the impugned judgment and order is set aside. Parties to bear their own costs.