Madras High Court
A. Elumalai vs Administrator-Cum-Lt. Governor Of ... on 24 January, 2001
Equivalent citations: AIR2001MAD265, AIR 2001 MADRAS 265
JUDGMENT E. Padmanabhan, J.
1. The petitioner, a Member of the Pondicherry Legislative Assembly has filed the present writ petition praying this court to issue a writ of declaration declaring the election of the 3rd respondent as the Speaker of the Pondicherry Legislative Assembly with effect from 24-5-2000 pursuant to the election conducted on 24-5-2000 as void illegal, inoperative and pass such other further order
2. Heard Mr. A.L. Somayaji, learned Senior Counsel appearing for Mr. AR.L. Sundaresan for the petitioner.
3. At the outset, we hold that the writ petition deserves to be rejected summarily as it is belated and the petitioner is also estopped from seeking the relief of declaration as he had been taking part in the proceedings of the House for nearly six months of which the 3rd respondent was the speaker. The writ petition deserves to be dismissed primarily on the ground of latches as well.
4. The petitioner is the elected representative of the Pondicherry Legislative Assembly. ThiruV.M.C. Sivakumar was elected as the speaker and he held the office till 17-3-2000. His resignation was notified in the official gazette on 18-3-2000 to the effect that V.M.C. Sivakumar had resigned the office of the Speaker with effect from the Afternoon of 18th March, 2000. The former DMK Ministry resigned and a new Ministry came to power. On 22nd March 2000 the new Ministry was sworn in and on 27th March, 2000 the House transacted its business. A date has been fixed for the election of the Speaker by the first respondent and a formal notification was issued on 15-5-2000 to the effect that on 23rd May, 2000 election to the office of the Speaker will be conducted. 23rd May, 2000 was fixed as a date for submitting nomination papers. On 24th May, 2000 election was conducted in which the 3rd respondent was unanimously elected as the Speaker and a notification has been issued in this respect on 24-5-2000. From 24-5-2000 the 3rd respondent has been holding the office and functioning as Speaker of the Legislative Assembly.
5. On 21-12-2000, the present writ petition has been filed by the petitioner seeking the relief of declaration. The petitioner a member of the Legislative Assembly had kept quiet for six months and he had filed the present writ petition on the sole ground that the date should have been fixed for the election of the Speaker in terms of Rule 9 of the Rules of Procedure and Conduct of Business of the Pondicherry Legislative Assembly, in that in so far as within 15 days from the date of the first Meeting, the date for the election had not been fixed or notified the issue of notification and holding of election on 23-5-2000 and 24-5-2000 respectively is contrary to Rule 9( l)(b) of the said Rules and therefore the election of the 3rd respondent has to be declared as illegal. In other words, after the vacancy election should have been conducted within the date provided in Rule 9(l)(a) and not otherwise.
6. Mr. A.L. Somayaji, learned Senior Counsel contended that the rules prescribe that the election to the office of the Speaker has to be notified and held in the manner on or before the expiry of the 15 days time and it shall not be done in any other manner and therefore the election of the 3rd respondent is illegal and vitiated.
7. It is relevant to extract the statutory provisions of the Act as well as the Rules, which are relevant. Section 7 of the Government of Union Territories Act, 1963 provides that every legislative Assembly shall as soon as may be choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof. The said section further provides that so often as the office of the speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker as the case may be.
8. Section 7(1) which is relevant reads thus "Every Legislative Assembly shall as soon as may be choose two members of the Assembly to be respectively Speaker and Deputy Speaker thereof, and so often as the office of the Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member to be Speaker or Deputy Speaker as the case may be."
9. Sub-section (3) of Section 7 provides that while the office of Speaker is vacant the duties of the office shall be performed by the Deputy Speaker or if the office of Deputy Speaker is also vacant, by such member of the Assembly as may be determined by the rules of procedure of the Assembly.
10. On a reading of Sub-section (3) of Section 7, it is clear that if a vacancy in the office of the Speaker arises, the Deputy Speaker either in the absence of the Speaker or in the vacancy of the Speaker could perform the duties of the Speaker and if the office of both the Speaker and Deputy Speaker falls vacant such other person as may be determined by the Assembly shall act as a Speaker. Section 7 of the Act provides that while the office of the Speaker as well as Deputy Speaker of the Assembly becomes vacant the Assembly may choose another member to be the Speaker or Deputy Speaker as the case may be. It is for the Assembly to elect a speaker or the Deputy Speaker as the case may be as every legislative Assembly shall choose two members of the Assembly respectively to be the Speaker or the Deputy Speaker thereof. The said Section further prescribes that so often as the office of the Speaker or Deputy Speaker becomes vacant, the Assembly shall choose another member as the Speaker or Deputy Speaker.
Therefore it is on the part of the Assembly to choose one of its members either as Speaker or Deputy Speaker as the case may be.
11. In terms of Section 33 of the said Act, the legislative Assembly is enabled to make the rules for regulating its procedures and the conduct of its business, but such rules for regulating the procedures and conduct of its business shall be subject to the provisions of the Act.
12. The learned counsel for the petitioner heavily relied upon Rule 9 of the Rules of Procedure and Conduct of Business of the Pondicherry Legislative Assembly. The material portion of Rule 9 reads thus :
9. Election of Speaker: (1) The election of speaker shall be held on such date as the Administrator may fix and the Secretary shall send to every member a notice thereof:
Provided that the date so fixed shall in the case of vacancy occurring during the term of the Assembly, be not beyond 15 days from
(a) the date of occurrance of the vacancy if the Assembly is at the moment sitting and
(b) the date on which the Assembly first meets thereafter if it is not so sitting.
13. While placing reliance on proviso to Rule 9(1), the learned counsel contended that the election of the Speaker should have been conducted on the date the Administrator may fix and in the case of a vacancy occurring during the term of the Assembly, it should not be beyond 15 days from the date of occurrence of the vacancy if the Assembly is at the moment sitting and the date on which the Assembly first meets, if it is not so sitting.
14. According to the learned counsel on the facts of the case within 15 days of the first meeting of the Assembly after the occurrence of the vacancy, the Administrator had not fixed the date for the election of the Speaker but it has been fixed beyond 15 days and consequently the very proviso to Rule 9(1) had not been complied with and therefore, the election of the 3rd respondent as Speaker in its entirety is vold or illegal and therefore a declaration has to be granted as prayed for.
15. According to the learned counsel, the rule is mandatory and when the rules prescribes that the election to fill up the vacancy of the Speaker shall be conducted within 15 days from the date on which the Assembly first meets after the vacancy and no election could be conducted after the expiry of 15 days from the date on which the Assembly first meets.
16. It is emphasised that when the rule requires the election to be notified and held within 15 days from the date of first sitting from the date of which assembly first meets after the vacancy arose and not otherwise. In other words, when once the election for Speaker is not held within 15 days, the vacancy cannot at all be filled up after the expiry of 15 days period stipulated and the office has to be kept vacant. Such a contention is too wide a proposition to be sustained. If such a contention has to be accepted, it would lead to anomalous position. For any reason, the election could not be held within the time stipulated by proviso to Rule 9(1) of the Rules, then the vacancy remains vacant till the term of the Assembly comes to an end. Such a resultant situation can either be the intention of enactment nor it could be the object of the Rule.
17. The said statutory rule nowhere provides for the consequences of breach or failure to hold the election for the office of the Speaker or the Deputy Speaker as the case may be and when Section 7 of the Act provides that the Legislative Assembly shall as soon as may choose two members to be respectively the Speaker or Deputy Speaker as the case may be and so often as the office of the Speaker or Deputy Speaker becomes vacant. It is to be pointed out that in the absence of Speaker or Deputy Speaker or even at the first instance before the election of the Speaker the House could choose any one of its members or request the Speaker of the earlier House to preside over and elect the Speaker or the Member chosen by the House may preside over the House and transact the business till House chooses the Speaker or the Deputy Speaker as the case may be.
18. Article 93 of the Constitution provides for election to the office of Speaker and Deputy Speaker of the House of the People. While Article 89(1) provides that the Vice-President of India shall be ex-officio Chairman of the Council of States and the Council of the States shall as soon as may be, choose a member of the Council to be Deputy Chairman thereof and so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof.
19. Section 7 is in part materia with Article 93 as well as Article 178 of the Constitution, which provides for with respect to the speaker, or Deputy Speaker of a State Assembly. The provisions namely Sections 7 and 8 are parallel provisions to Art. 178, 179, 180, 181 in respect of the Legislative Assembly concerned.
20. A reading of the above constitutional provision as well as Sections 7 and 8 of the Government of Union Territories Act, 1963 obligates that the respective House as soon as may choose one of its members as the Speaker or Deputy Speaker as the case may be. In case of a vacancy, either one of them either the Speaker or the Deputy Speaker could act and in case both the offices are vacant, the house could elect one of its Members to preside over and the House could transact its business.
21. If the interpretation placed by the counsel for the petitioner on Rule 9 is to be sustained, then on the facts of the case, the office of Speakership cannot be filled up till the next Assembly after the General Election comes into being as per the statutory provisions. Such is not the object and such incongruous position is not the intention of the statutory provision or the rules. Further any portion of Rule 9 or other statutory provisions of the Act and the rules do not provide for any consequences of such deviation, namely holding the election beyond 15 days from the date of first meeting as provided in the proviso to Sub-rule (1) of Rule 9. In our considered view, even if such an election had not been conducted within the date specified or it could not be conducted for any reason either valid or invalid or if the House either adjourns the matter or if there is a deadlock, it cannot be said that there could be no election at all after the expiry of 15 days as contemplated by proviso to Sub-rule (1) of Rule 9.
22. It is true and well settled that all procedural requirements laid down by statute should of course be complied with. However, it does not follow that in all cases failure to follow such requirements to the letter will result in the exercise of power being null and void. Although the statutes commonly prescribe procedures, but the very statutory provision has not made any express provision as to the consequence of non-application or non-compliance, In such case, a flexible attitude has to be adopted. The failure to comply with the obligation or the procedures or the time specifications has to be treated directory and the obligation will have to be treated differently from less serious departures from the prescribred procedure. The nature and purpose of the procedure in question is the test or touch stone to decide as to whether election in the present case is void or illegal. Further the consequences of the procedural failure also should exist. In the present case none had been prejudicially affected including the petitioner who had stood by the election and also took part in the proceedings before the very Speaker namely, the 3rd respondent.
23. The procedural deficiency in the present case is not in relation to the mere exercise of a power but it relates to the performance of a duty owed by the House. In the former case to hold the act or decision is a nullity may simply frustrate the public authority in its purpose and in the latter case it may deprive the public of the benefit of the performance of the public duty.
24. The procedural safeguard should be commensurate with the sweep of the powers. The wider the power, the greater the need for the restraint in its exercise and correspondingly, more liberal the construction of the procedural safeguard is envisaged by the statute. In the present case, it is the House that has to elect as soon as the Assembly is convened or as soon as the vacancy arises and it is the election by the Members.
25. If the interpretation as sought to be contended and advanced by the learned senior Counsel is to be sustained, then neither the first respondent Administrator nor any other Authority including the Legislative Assembly, a public authority who could elect the speaker could act at all and the said office has to be kept vacant tilt the next Assembly is constituted. That cannot be the intention of the Legislature nor it is the object nor such a consequence is provided for the Rule.
26. If such interpretation as advanced by the counsel for the petitioner on the Rule 9(1) proviso is sustained, then Section 7 of the Act will be rendered nugatory and the Rule framed by the Assembly would defeat the very parliamentary enactment, namely The Government of Union Territories Act, 1963. This is impermissible in law. The statutory provision as legislated by the Parliament prevails and the rules of the Pondicherry Legislative Assembly a delegatee under the Act cannot override the statutory provisions of the Central Act. Rule 9 is only a procedural provision, the substantive provision namely. Section 7 of the Government of Union Territories Act, 1963 shall not be rendered nugtory and it will not take away the rights of the House to exercise the power conferred on it to elect or choose one of its Members as the Speaker when a vacancy had arisen or on any later date to the date fixed by the procedural provision namely Rule 9.
27. Most often it has been held that the language of the Rule alone is not decisive and regard must be had to the context, subject matter and object of the statutory provison in question while determining whether the rules of procedure is mandatory or directory.
28. In State of U. P. v. Manbodhanlal, , it has been held thus (at pages 917-918) :
"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 the effect, that is to say, that unless the words of the statute are punctflioulsy 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 permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on statutory construction" Article 261 at p. 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 intention of the Legislature must govern and these are to be ascertained, not only from the phraseolegy of the provision, but also by considering its nature, its design, and the consequence which would follow from construing it the one way or the other ....."
29. InState of U.P. v. Babu Ram Upadhya, the Apex Court held thus (at Page 765 of AIR) :
"29. 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 circum-stance, 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,"
30. In Karnal Leather Karamchari Sanghatan v. Liberty Footwear Company, , their Lordships of the Supreme Court held thus (at Page 254 of AIR).
"That it is impossible to lay down any general rule for determining whether a provision is imperative or directory."
(Maxwell on the Interpretation of Statutes 12th Ed.p. 314)
25. Craies, however, gives us some guidelines :
"when a statute is passed for the purpose of enabling something to be done, and prescribes the formalities which are to attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called imperative or absolute ; but those which are not essential, and may be disregarded without invalidating the thing to be done, are called directory." (Craies on Statute Law 8th Ed. P.63)
26. It is well established that the wordings of any provision are not determinative as to whether it is absolute or directory. Even the absence of penal provision for non-compliance does not lead to an inference that it is only directory. The court, therefore, must carefully get into the underlying idea and ascertain the purpose to be achieved notwithstanding the text of the provision."
These pronouncements squarely apply in interpreting the proviso to Rule 9 and we find support to the interpretation placed by us on the Rule and it is a sustainable interpretation which gives effect to the statutory provision and it avoids the anamolous situation and incongruity in the working of the Rule.
31. The learned counsel for the petitioner relied upon the recent pronouncement of the Apex Court in Babu Verghese v. Bar Council of Kerala, , wherein their Lordships reiterated the basic principle that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all," In that context it has been held thus (at page 1288 of AIR) :
"31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor V. Taylor 1875 (1) Ch D 426 : 45 LJCh 373, which was followed by Lord Roche in Nazir Ahmad v. King Emperor, 1936 (63) IA 372 : AIR 1936 PC 253, who stated as under :
"where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all."
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U. P, (AIR 1954 SC 3220 :(1954 Cri. LJ 910) ; 1954 SCR 1098 and again in Deep Chand v. State of Rajasthan . These cases were considered by a three-Judge Bench of this Court in State of U. P. v. Singhara Singh, and the rule laid down in Nazir Ahmad Case. 1936 (63) IA 372 : AIR 1936 PC 253, was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law :"
There is no quarrel with the said proposition of law.
32. The directory requirements falls under two heads namely, (1) those which should be substantially complied with to make the act valid and (2) those which even if not at all complied with have no effect on the Act.
33. In general, the non-compliance of mandatory requirements results in nullification of the Act and there could be no exception. However, if certain requirements or conditions or procedures are prescribed by a delegatee in the interest of effective implementation of the provisions of the Act, such requirement cannot orverride the substantive provision. When consequences of nullification on failure to comply with a prescribed requirement is provided by the statute itself there can be no manner of doubt that such statutory requirement must be interpreted as mandatory.
34. It is not as if the legislature intends to lay down absolute prohibition in case the election is not conducted before a particular date or before a period in a given situation or contingency. In the circumstances, the contention advanced by the counsel for the petitioner cannot be sustained.
35. Further on the facts of the case, it is the statutory provision namely, substantive provision which prevails and the construction as sought to be advanced by Mr. A.L. Somayaji on proviso to Rule 9(1) is to be sustained, it would render the substantive provision nugatory and the same cannot be the object nor such a rule could overrule the substantive provision.
36. As already stated the Writ Petition is highly belated. Further the petitioner had not challenged the election of the Speaker before the House chose the 3rd respondent as the Speaker consequent to the resignation of the earlier Speaker. Further the petitioner had taken part in the proceedings for nearly six months. Hence while rejecting the contention, we hasten to hold that the writ petition is liable to be dismissed as belated and the petitioner is also estopped from challenging the election of the 3rd reapondent as he is deemed to have taken part in the election and had also actually taken part in the Assembly proceedings for nearly six months. Hence the Writ petition is dismissed Consequently, the connected W.M.P. is also dismissed. No costs.