Karnataka High Court
C. Puttaswamy, Etc. vs Smt. Prema, Etc. on 24 February, 1992
Equivalent citations: AIR1992KANT356, AIR 1992 KARNATAKA 356
Author: Chief Justice
Bench: Chief Justice
ORDER S. P. Bharucha, C.J.
1. The question that is referred to the Full Bench for consideration reads thus :
"Whether the provision under S. 47(3) of the Karnataka Zilla Parishads, Taluk Pan-chayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 requiring the Deputy Commissioner to give to members of a Mandal Panchayat notice of a meeting for consideration of a motion of no-confidence against the Pradhan or Upa-Pradhan 'of not less than 15 clear days of such meeting' is mandatory or directory?"
2. Briefly, the facts that give rise to the reference are these : The writ petitioner (the first respondent to the appeal) is the elected Pradhan of the Mandal Panchayat which is the third respondent to the appeal. On 9th August 1991 a majority of the members of the Mandal Panchayat forwarded to (he Assistant Commissioner, Ramanagaram Sub-Division (the second respondent to the appeal) a notice requiring him to call a meeting to consider a No-confidence motion against the first respondent. The second respondent issued a notice on 19th August 1991 calling such meeting on 5th September 1991. Admittedly, the notice to the individual members of the Mandal Panchayat were posted on 24th August 1991 and received by them on 27th August 1991. The first respondent thereupon filed the writ petition to quash the notice dated 19th August 1991 on the ground that the convening of the meeting in pursuance thereof was illegal in that the notice had not been served as rcquried by S.47(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 i.e., it was not a notice of "not less than 15 clear days". At the earliest stage of the writ petition, the learned single Judge stayed the meeting that was to be held on 5th September 1991. This appeal was filed against the order of stay. At the admission stage thereof the order of stay was varied; the second respondent was permitted to hold the meeting on 5th September 1991, but was directed not to announce the result and to keep it in a sealed cover until further orders. We understand that the meeting could not be held on 5th September 1991 but was held on a later date and that the result has not been declared but has been preserved as directed.
3. When the appeal reached hearing before a Division Bench, attention was drawn to the Division Bench judgment dated 6th November 1990 in W. A. No. 2162 of 1990 which held that the provisions of S.47(3) requiring the Assistant Commissioner to give the members of a Mandal Panchayat notice of a meeting for consideration of a motion of No-confidence against the Pradhan of not less than 15 clear days of such meeting was mandatory. On the other hand, attention was invited to S. 55(2) of the Act, which prima facie suggested that the provisions of S. 47(3) was merely directory. In that view of the matter, the reference to the Full Bench was made.
4. It is necessary immediately to set out the provisions of S. 47 :
"47. Motion of no-confidence against Pradhana or Upa-Pradhana of Mandal Panchayat :--
(1) A motion expressing want of confidence in the Pradhana or Upa-Pradhana may be made 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 not less than one half of the total number of members of the Mandal Panchyat, together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Assistant Commissioner.
(3) The Assistant Commissioner shall then convene a meeting for the consideration of a motion at the office of the Mandal Panchayat on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-sec, (2) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in such manner as may be prescribed :
Provided that where the holding of such meeting is stayed by an order of a court it shall be adjourned, and the said officer shall hold the adjourned meetingon adate not later than thirty days from the date on which he receives the intimation about the vacation of stay after giving to the members notice of not less than fifteen clear days of such adjourned meeting.
(4) The Assistant Commissioner shall preside at such meeting. The quorum for such meeting shall be two thirds of the total number of members of the Mandal Panchayat.
Explanation:-- In the determination of two thirds of total number of members under this section, any fraction arrived at shall be construed as one.
(5) Save as otherwise provided in this Act, a meeting convened for the purpose of considering a motion under this section shall not for any reason be adjourned.
(6) If within one hour after the" time appointed for the meeting there is no quorum, the meeting shall stand dissolved and the notice given under sub-section (2) shall lapse.
(7) As soon as the meeting convened under (his section commences, the Assistant Commissioner shall read to the members of the Mandal Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate.
(8) The Assistant Commissioner shall not speak on the merits of the motion and he shall not be entitled to vote thereon.
(9) If the motion is carried with the support of not less than two-thirds of the total number of members of the Mandal Panchayat, the Pradhana or Upa-Pradhana, as the case may be, shall forthwith cease to function as such and the Assistant Commissioner shall, as soon as may be, notify such cessation in the prescribed manner and arrange in the manner prescribed for the handing over of any documents, moneys or other properties of the Mandal Panchayat by the person removed :
Provided that no election to the office of Pradhana or Upa-Pradhana shall be held until after such notification removing the Pradhana or Upa-Pradhana, as the case may be, is published."
5. Section 48 lays down that the procedure at a meeting of a Mandal Panchayat shall be as prescribed. Section 50 provides for meetings of Mandal Panchayats. Under subsection (3) thereof seven clear days notice of an ordinary meeting and three clear days notice of a special meeting, specifying the place, date and time of such meeting and the business to be transacted thereat, shall be given by the Secretary of the Mandal Panchayat to the members and such officers as the Government may prescribe. Section 51 deals with the quorum and procedure of meeting of Mandal Panchayats. Section 52 deals with the modification or cancellation of resolutions of a Mandal Panchayat and Section 53 with the minutes of meetings of Mandal Panchayats. Section 55 deals with the validity of proceedings, and sub-clause (2) thereof states:--
"(2) No resolution of a Mandal Panchayat or of any Committee of a Mandal Panchayat constituted under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any member provided that the proceedings of the Mandal Panchayat or Committee were not prejudicially affected by such irregularity."
6. We may also note the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (No-confidence motion against Pradhana and Upa-pradhana) Rules, 1985. Rule 4 deals with the notice to convene a meeting under sub-s. (3) of S. 47 and provides that it has to be given by delivery or tender to a member; if he is not found, by leaving such notice at his last known place of residence or business within the Mandal or by giving or tendering the same to some adult member or servant of his family; or by registered post; or, if none of the aforesaid means is available, by fixing it on some conspicious part of the house in which he is known to have last resided or carried on business within the Mandal.
7. It is contended by Mr. Narayana Rao, learned counsel for the appellant, who is a member of the Mandal Panchayat, that the provisions of S. 47(3) were directory in nature and were controlled by S. 55(2), that no prejudice had been demonstrated by reason of the irregularity of lack of fifteen clear days notice, and that, therefore, the resolution passed at the meeting held pursuant thereto was valid.
8. Our attention was drawn by Mr. Narayana Rao to the judgment of the learned single Judge in Somashekara Desai v. State of Karnataka, 1989 (1) Kar LJ 476. The learned Judge took the view that S. 47(3) was not a code in itself and would be governed by the provisions, inter alia, of S. 50. In K. Narasimhaiah v. H. C. Singri Gowda, the Supreme Court considered the provisions of S. 27(3) of the Mysore Town Municipalities Act, 1951, which required that, for meetings of Municipal Councillors, "Seven clear days notice of an ordinary general meeting and three clear days notice or, in cases of great urgency, notice of such shorter period as was reasonable of a special general meeting ............. should be given.
The Supreme Court observed that the use of the word "shall" was not conclusive. The question that had to be answered was in regard to the legislature's intention in making the provision. For this purpose, the Court had to examine carefully the object of the statute, the consequenecs that might follow from insisting on strict observance of a particular provision and the general scheme of the other provisions of which it formed a part. It was held that the main object of giving the notice was to make it possible for Councillors to arrange their other business so as to be able to attend the meeting. The obvious reason for providing a shorter period for special general meetings was that these were considered more important and Councillors were expected to make it convenient to attend them even at the cost of some inconvenience to themselves. This interpretation was supported by reference to the provisions of S. 36 of the Municipalities Act, which were substantially similar to S. 55(2). Importance was given to the word "irregularity" used therein and it was held that the existence of this provision was further reason for thinking that the provision as regards any motion of which notice had to be given under S. 27(3) was only directory and not mandatory. In Dharmappa Sabanna Madar v. Chief Secretary, Zilla Parishad, ILR 1991 Kar 3723 a Division Bench of this Court held that where the legislature had not thought it fit to penalise the non-observance of a requirement of the statute, such requirement could not be regarded as mandatory. In Sharif-ud-Din v. Abdul Gani Lone, the Supreme Court was considering whether the requirement of S. 89(3) of the Jammu and Kashmir Representation of the People Act, that every copy of an election petition which was intended for service on the respondents should be attested by the petitioner by the petitioner under his own signature, was a mandatory requirement and whether non-compliance with it should result in the dismissal of the election petition. Paragraph 9 of the judgment may be quoted with advantage :
"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 b'road 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 aquire 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 a 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,"
The Supreme Court held that the requirement was mandatory because the object of it was that the petitioner should take full responsibility for the contents of the petition and the respondents should have in their possession a copy thereof attested under the signature of the petitioner at the earliest possible opportunity to prevent any unauthorised alteration or tampering therewith after being filed in Court. The judgment in State of U.P, v. Manbodhan Lal Srivastava, was cited by Mr. Narayan Rao only because it quoted a passage from "Statutory Construction" by Crawford (Art. 261 at page 516) which reads thus:
"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 in the one way or the other....."
Lastly, our attention was drawn by Mr. Narayana Rao to the Supreme Court judgment in Dalchand v. Municipal Corporation, Bhopal, where it was held that there are no ready tests or invariable formulae to determine whether a particular provision in a statute is mandatory or directory. The broad purpose of the statute was important. The object of the particular provision had to be considered. The link between the two was most important. The weighing of the consequence of holding a provision to be mandatory or directory was vital and, more often than not, determinative of the very question whether the provision was mandatory or directory. Whether any prejudice was caused was also a relevant consideration.
9. Mr. Gupta, learned Government Advocate, supported the submissions of Mr. Narayana Rao and urged that even if S.47 was held to be a Code in itself, the fact that no consequence was provided for breach of the terms of S. 47(3) indicated that those terms were directory, not mandatory.
10. Mr. Jayakumar S. Patil, learned Counsel for the first respondent, laid emphasis upon the difference of language in S, 47(3) as opposed to S. 50(3), By reason of S, 47(3) the Assistant Commissioner is required to give to the members "a notice of not less than fifteen clear days of such meeting", whereas S. 50(3) requires "Seven clear days notice of an ordinary meeting and three clear days notice of a special meeting". In Mr. PatiPs submission, the language used in S. 47(3) indicated that its provisions were mandatory in nature. Mr. Patil cited the judgment of the Supreme Court in Karnal Leather Karamchari Sanghatan v. Liberty Footwear Company, it was held (in paragraph 26) that it was well-established that the wording of any provision was not determinative of whether it was absolute or directory. Even the absence of a penal provision for non-compliance did not lead to the inference that it was only directory. The Court had to get to the underlying idea and ascertain the purpose to be achieved, notwithstanding the text of the provision, Our attention was also drawn by Mr. Patil to the Division Bench judgment dated 9th December 1990 in Writ Appeal No. 1385 of 1990 (Aftab Ahamed Khan v. The Asstt. Commissioner, Shimoga, Sub-Division, Shimoga). The Division Bench held that S. 47 delineated the entire procedure relating to a meeting convened for a "No-confidence motion"; therefore, that provision had to be regarded as a Code in itself. The Court went on to consider the provisions relating to other meetings held by Mandal Panchayats. Section 50 made the meeting of a Mandal Panchayat at least once in a month a statutory obligation. A special meeting could be convened at the written request of not less than one-third of the members. The notice thereof was required to be of seven clear days. The quorum was prescribed as one-third. If the quorum was not available, the Presiding Authority was required to wait for 30 minutes and if by then a quorum was gained the meeting could be proceeded with, but if it was not gained the meeting had to be adjourned. By contrast, such provisions were absent in S. 47. A meeting of 'No confidence' could be convened only when a written notice of intention in the prescribed form signed by not less than one-half of the total members was delivered to the Assistant Commissioner. The meeting had to be convened by the Assistant Commissioner for consideration of the motion upon a date which should not be less than 30 days from the date upon which the notice was delivered to him. Such notice had to be of fifteen clear days. The section also provided that a meeting convened for the purposes of considering a motion of 'No confidence' "shall not for any reason be adjourned". The motion was required to be carried by two-third the number of the members. Therefore, Sec, 47 contemplated a procedure totally different from what had been laid down in regard to ordinary meetings. It was, therefore, clear that a meeting convened for the consideration of a 'No confidence' motion was something special to the Act. The reason was obvious, because the democratic process by which the Pradhan and Upa-pradhan had been elected was sought to be interfered with by moving a 'No confidence' motion. Therefore, the legislature had prescribed a procedure different from that of a ordinary meeting. The Division Bench then went on to consider whether S. 55(2) would apply in relation to a meeting under S. 47. It said that it doubted whether, for a special meeting for considering a 'No confidence' motion for which a separate procedure under S. 47 was prescribed, S. 55(2) could ever be invoked.
11. Section 47 opens with the words : "A motion expressing want of confidence in the Pradhana or Upa-pradhana may be made in the following manner", which itself suggests that it is only S.47 that is applicable to a motion of non-confidence. Section 47 prescribes that a meeting to consider a 'No confidence' motion shall be called pursuant to a written notice signed by not less than one-half of the total number of members of the Mandal Panchayat. This is in sharp distinction to the requirement under S. 50(2) for the requisitioning of a meeting of a Mandal Panchayat upon the written request of not less than one-third of the total number of members. Section 47(2) prescribes that the notice requisitioning the meeting must be delivered in person to the Assistant Commissioner by at least any two of its signatories. There is no equivalent provision in regafd to the requisitioning of a meeting of a Mandal Panchayat under S. 50. There is, again, a requirement as to when the requisitioned meeting under S.47 shall be called which is different from that in regard to a meeting under S. 50. Section 47(4) requires the Assistant Commissioner to preside over a 'No confidence' meeting, in contrast to the provisions in relation to who shall preside over a meeting of a Mandal Panchayat. Sub-sec. (4) of S. 47 provides that the quorum for a 'No confidence' meeting shall be two-thirds of the total number of members of the Mandal Panchayat; whereas, under S. 51, the quorum for a meeting of a Mandal Panchayat is one-third the total number of members. Very importantly, a meeting convened for the purpose of considering a 'No confidence' motion "shall not for any reason be adjourned". There is a marked distinction here, for a Mandal Panchayat meeting can be deferred for 30 minutes if there is no quorum and if even after 30 minutes there is no quorum the presiding authority must adjourn the meeting to such time on the following day or such future day as he might deem fil. If there is no quorum for a 'No confidence' meeting "The meeting shall stand dissolved and the notice given under sub-sec. (2) shall lapse." Sub-sec. (7) of S. 47 prescribes a total departure from the procedure to be followed at Mandal Panchayat meetings and, indeed, that ordinarily followed at all meetings of any kind. It states that as soon as the meeting commences, "the Assistant Commissioner shall read to the members of the Mandal Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate." (Underlining ours.) For the passing of a 'No confidence' motion the support of not less than two-thirds of the total number of members of the Mandal Panchayat is required; this is in contrast to the procedure in regard to Mandal Panchayat meetings where a simple majority governs. There is, in these circumstances, no question of the application of S. 50 (Meeting of Mandal Panchayat) and S. 51 (Quorum and Procedure) to no-confidence meetings under S. 47. We do not find it possible in these circumstances to hold that S. 55, which deals with the validity of proceedings, can apply to or control the provisions of S. 47. It can apply only to such meetings of the Mandal Panchayat as fall within S. 50. Though S. 50 deals with "Meeting of Mandal Panchayat", a 'No-confidence' meeting is separately dealt with in S.47.
12. In our view, S. 47 is a complete code in itself, deliberately provided by the legislature having regard to the importance of the elective office of the Pradhan and Upa-pradhan, the need to ensure their stability in office and, thus, to promote the objectives of Mandal Panchayats. Section 47 is the only provision that applies to a 'No-confidence' motion against the Pradhan or Upa-pradhan.
13. The judgment of the Supreme Court in K. Narasimhiah v. H.C. Singri Gowda, considered a provision which spoke of "seven clear days' notice of an ordinary general meeting, and three clear days' notice of such shorter period as is reasonable of a special general meeting....."
The difference between these words and those used in S.47(3) is of importance. S.47 requires the Assistant Commissioner to give to the members "a notice of not less than 15 clear days' of such meeting". The words used in S. 47(3) themselves suggest its mandatory requirement. Further, in coming to its conclusion, the Supreme Court relied upon a provision which was akin to S. 55(2). Such a provision enables a court to ascertain whether a notice of shorter than the prescribed period has prejudicially affected the result of the meeting and, if it has, to intervene. We have held upon a construction of the relevant provisions that S. 55(2) has no application to a 'No-confidence' motion u/S.47. Section 47(3) cannot be read as being merely directory for this reason also for that would mean that the Court would have no authority to intervene, however short the period of the notice and however great the prejudice that may have been caused. This could not possibly have been the intent of the legislature which made the special and stringent provisions in regard to 'No-confidence' motions to which we have alluded.
14. That S.47 itself does not specify the penal consequence of a notice of shorter than the period stated does not, in our view, make a difference to our conclusion; and we draw support from the judgment of the Supreme Court in Karnal Leather Karamchari Sanghatan case (ibid). We have already indicated that the underlying idea of S.47 is to ensure that the position of men holding the high elective offices of Pradhan and Upa-pradhan is not easily disturbed so that the functioning of the Mandal Panchayat is disrupted.
15. In the result, the question referred to the Full Bench is answered thus :--
The provision under S.47(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, requiring the Assistant Commissioner to give to members of a Mandal Panchayat notice of a meeting for consideration of a motion of no-confidence against the Pradhan or Upa-pradhan "of not less than 15 clear days of such meeting" is mandatory.
16. The appeals shall now be placed before the appropriate Division Bench for disposal.
17. Reference answered accordingly.