TaxTMI 
TaxTMI 
2013 (4) TMI 1020
X X X X Extracts X X X X
X X X X Extracts X X X X
....has been filed by the petitioner, who was elected and functioning as Block Pramukh of Kshetra Panchayat Malava, district Fatehpur challenging the order of the District Magistrate dated 21.5.2012 by which order, the District Magistrate has directed for convening the meeting on 11.6.2012 for consideration of no confidence motion against the petitioner. The petitioner after coming to know about the no confidence motion, which was scheduled to take place on 11.6.2012 filed an election petition before the District Judge, Fatehpur making various allegations including the allegation that in the resolution of no confidence motion which has been received by the petitioner, there is no signature of any member. The District Judge fixed a date in July for considering the maintainability of the petition hence, the petitioner filed writ petition No. 29907 of 2012. Meeting for no confidence motion against Vikash Trivedi was held on 11.6.2012 as scheduled. Out of 94 members of the Kshetra Panchayat, 76 members were present in the debate and only 69 members casted their votes. 67 members voted in favour of no confidence motion and one member voted against no confidence motion and one vote was decla....
X X X X Extracts X X X X
X X X X Extracts X X X X
....bservations made in Ram Nath Tripathi (supra) that requirement of notice in prescribed form alongwith its enclosures in complete format is mandatory, or directory as observed in Smt. Krishna Jaiswal (supra). Which of these judgement lays down correct law? 2. Writ petition No. 46452 of 2012 has been filed by Pramod Kumar Tripathi who was working as elected Block Pramukh of Block Saidabad, district Allahabad challenging the order dated 29.8.2012 passed by the District Magistrate by which the District Magistrate on a notice for moving no confidence motion against the petitioner signed by 79 members has convened the meeting on 20.9.2012 for considering no confidence motion. The petitioner also challenged the notice issued by the District Magistrate dated 28.8.2012 by which notice was given for convening the meeting at 11 a.m. on 209.2012 for considering no confidence motion against the petitioner. The petitioner's case in the writ petition is that although the petitioner was served with the order/notice dated 29.8.2012 however, copy of the notice of no confidence motion was not annexed. He further submitted that he received the copy of the notice dated 29.8.2012 by registered po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ient. It cannot be invalidated if some pages containing signatures were not sent. 13. The Ram Nath-case contains some observations contrary to what we have held. It was distinguished in the case of Smt. Krishna Jaiswal v. State of U.P., 2005 (2) AWC 1732 (the Krishna-Jaiswal case) that was not only followed in the number of other cases but SLP against the same was also dismissed. 14. Nevertheless, a Division Bench of this Court in writ petition No. 29907 of 2012, Vikas Trivedi v. State of U.P. and others (the Vikas case) has referred the two questions to the larger bench on 11.6.2012. One of the question relates to the correctness of the Krishna-Jaiswal case. QUESTIONS REFERRED 15. In view of above, it would be appropriate that the following two questions may also be considered alongwith the Vikas case: (i) Whether the notice sent by the Collector convening the meeting to consider motion of no confidence can be invalidated on the ground that the copy of the notice with the names of persons who had signed the written notice of their intention to make motion of no confidence was not sent alongwith the same. (ii) In case, the propo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tioner's case is that alongwith notice which was sent by the Collector, copy of the no confidence motion was not attached. In writ petition No. 46452 of 2012, the petitioner has filed copy of the notice of no confidence motion issued by the Collector as well as copy of the no confidence motion dated 27.8.2012 as Annexure-1 to the writ petition. The case of the petitioner however, is that copy of the no confidence motion which has been attached alongwith the notice is not complete copy and although the copy of no confidence motion runs in five pages but only two pages have been given to the petitioners and there are signature of only six members on second page, whereas 79 members have claimed to have signed the no confidence motion. The learned counsel for the petitioners have attacked the notice issued by the Collector to the members giving information of the meeting. The submission in writ petition of Vikas Trivedi is that alongwith notice which was sent by Collector copy of the no confidence motion was not attached and in Pramod Kumar Tripathi's case, the argument is that incomplete copy of the no confidence motion was attached since out of five pages only two pages were ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s members is five years. Term of Pramukh according to Section 9 shall extend up to the term of Kshetra Panchayat. Section 15 of the Act provides for "Motion of non-confidence in Pramukh". Section 15 which is relevant in the present case is as follows: 15. Motion of no-confidence in Pramukh or.--(1) A motion expressing want of confidence in the Pramukh or any of a Kshetra 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 Kshetra 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 Kshetra Panchayat. (3) The Collector shall thereupon.--(i) convene a meeting of the Kshetra Panchayat for the consideration of the motion at the office of the Kshetra 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 hi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....taining the name of the members who had signed the notice of no confidence motion was there. The Division Bench held that both the parts of Section 15(3) are mandatory in character and since the form in which notice has to be issued to the members has been provided by the rules made by the State Government, the requirement that notice shall be in that form is also mandatory. Following was laid down in paragraphs 18 to 23 and 25 Ram Nath Tripathi's case (supra). 18. The original record also contains the copies of the notice of the motion which have been sent to various members alongwith the notice dated 28.2.1992 issued by the Collector, Hardoi by which it was indicated that a meeting of the Kshetra Samiti Shahabad had been convened for 23.3.1992 at 11.00 a.m. for consideration of the no confidence motion, but neither the copy of the motion nor the copy of the notice contains the names of the members who had signed the notice of the motion. A copy of the notice served on the petitioner has already been filed alongwith the writ petition. The names of the members, who had given notice of no confidence and who also signed the motion, have not been indicated in the said not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all the members of the Kshetra Samiti who had signed the motion, had not been indicated in the copy. 25. Since in the instant case we have found it as a fact that the copy of the motion issued to the petitioner alongwith the notice or the date on which the meeting was convened was not a complete copy inasmuch as the names of the members of the Kshetra Samiti who had signed the original motion, were not mentioned in the copy sent to him and had thereby been concealed from him, there was total non-compliance of the provisions of Section 15(3) read with the Rules made by the State Government under Section 237 of the Act, which were notified by the State Government on 4.12.1962. Since the steps indicated in Section 15(3) had not been properly taken by the Collector and there was no-compliance of the legal requirements, all subsequent steps and actions become invalid and cannot be sustained. 10. In Smt. Krishna Jaiswal (supra), a notice by 28 elected members was given under Section 28 to bring motion of no confidence against the petitioner Smt. Krishna Jaiswal. The Collector passed an order on 30.11.2004 for convening the meeting on 20.12.2004. The writ petition was filed an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....opy of the resolution was not attached alongwith notice. This is clear from paragraph 16 of this judgement which is as under: The question raised before us, and on which we intend to dispose of this writ petition finally is that although the notice was issued in the prescribed form, but a complete copy of the motion of no confidence was not attached with the said Form. 28. Gyan Singh v. D.M., AIR 1975 All 313 (the Gyan Singh case) is a five judges full bench decision regarding interpretation of Section 87A of the UP Municipalities Act. This section dealt with no confidence motion against the president of the Municipality. The Full bench in paragraph 8 of the judgement mentioned the purpose of giving notice as follows: The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion. 28. The aforesaid observations equally apply here. The purpose to give notice is to give information regarding the meeting. The words in Section 28(3)(ii) providing holding of meetings in such manner as may be prescribed; uses the wor....
X X X X Extracts X X X X
X X X X Extracts X X X X
........ (ii) give to the elected member of the Kshetra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed. Section 2(19) is as follows: "Prescribed" means prescribed by the Act or any rule made thereunder 13. The Rules have been framed by the State in exercise of power under sub-section (2) of Section 15 and clause (ii) of subsection (3) of Section 15 of the Act. There are only two rules which are as follows Rules 1 and 2. 1. A written notice of intention to make a motion expressing want of confidence in the Pramukh or the Up-Pramukh of a Kshetra Samiti shall be in Form I of the Schedule given below. 2. The notice under clause (ii) of sub-section (3) of Section 15 of the U.P. Kshetra Samitis and Zila Parishads Adhiniyam, 1961, shall be in Form II of the Schedule given below and shall be sent by registered post to every member of the Kshetra Samiti at his ordinary place or residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshetra Samiti. 14. In the schedule there are two forms, Form I and form II. Form II which is relevant in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctment 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. 17. De Smith's Judicial Review (Sixth Edition) in the heading 'Mandatory and Directory Duties....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. 19. Supreme Court in Dattaraya Moreshwar v. The State of Bombay and others, AIR 1952 SC 181, has also laid down that law which creates public duties is directory but if it confers private rights, is mandatory. Following are the observations which were made by the Apex Court in the said judgment: It is well-settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ion 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........... 22. The Apex Court had occasion to consider again the test of determining a Statute as mandatory or directory in State of U.P. and others v. Babu Ram Upadhyaya, AIR 1961 SC 751. Following was laid down in paragraph 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 circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact tha....
X X X X Extracts X X X X
X X X X Extracts X X X X
....le to the public by the respondent within 600 feet of all of the buildings of the appellant. 25. In the aforesaid case by virtue of Section 131(3) proposal was to be published by the Board in the manner prescribed in Section 94(3). Section 94(3) provided that every resolution of the Board be published in the local paper published in Hindi. The Apex Court after considering the submission in the aforesaid case, held requirement of Section 131(3) as mandatory. However, the requirement of publishing the proposal in the manner as laid down and Section 94(3) was held to be directory. Following was laid down in paragraphs 6 and 7: (6) We shall first consider the ground as to publication and three questions fall to be decided in that behalf: (first), is publication as provided in Section 131(3) mandatory or directory, for it is contended on behalf of the respondent that publication under Section 131(3) is merely directory; (secondly), was the publication in this case strictly in accordance with the manner provided in Section 94(3); and (thirdly), if the publication was not strictly in accordance with the manner provided in Section 94(3), is the defect curable under Section 135(....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in Sections 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 Section 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ay 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 noncompliance 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced. 32. Learned Counsel for the petitioner has placed reliance on The Maharashtra State Road Transport Corporation v. Babu Goverdhan Regular Motor Service and others, (1969) 2 SCC 746. The appellant and the private respondents have made an application for grant of permit before the Regional Transport Authority. The appellant was granted permit whereas the same was refused to the private respondents. An appeal was filed by the private respondents where a contention was raised that mandatory information required to be submitted in an application for permit under Section 46 of the Road Transport Corporation Act read with form prescribed under Rule 80 have not been fully and completely furnished by the appellant. The appellate committee remanded the matter to the Regional Transport Authority for consideration. The private respondents challenged the order of Appellate Committee before the High Court. The High Court remanded the appeals to the appellate Committee directing to reconsider on the materials already on record....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g the course of proceedings and submitted that such letters and orders should be treated as required show-cause notice. The Apex Court repelled the above argument of revenue and laid down following in paragraph 12: (12) It is an admitted fact that a show-cause notice as required in law has not been issued by the revenue. The first contention of the revenue in this regard is that since the necessary information required to be given in the show-cause notice was made available to the appellants in the form of various letters and orders, issuance of such demand notice in a specified manner is not required in law. We do think that we cannot accede to this argument of the learned counsel for the revenue. Herein we may also notice that the learned Technical Member of the tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show-cause notices by the appellate authority are inadequate to be treated as show-cause notices contemplated under Rule 10 of the Rules or Section 11A of the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advic....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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. 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 constru....
X X X X Extracts X X X X
X X X X Extracts X X X X
....course of the proceedings it is necessary to invoke its assistance in any matter requiring to be speedily dealt with. Broadly speaking a 'motion' is a proposal brought by a member before a House of the Parliament or State Legislature for eliciting decision or expressing the opinion of the House on a matter of public importance. No discussion can take place in a House except on a motion made with the consent of the Speaker or the Chairman of the House, as the case may be. 39. In Black's Law Dictionary, while dealing with motion in Parliamentary Law following has been said: Parliamentary law. A proposal made in a meeting in a form suitable for its consideration and action that the meeting (or the organization for which the meeting is acting) take a certain action or view. Motion may be a main motion or a secondary motion. Motion technically becomes a "question" when the chair states it for the meeting's consideration. But for most purposes, the parliamentary terms "motion" and "question" are interchangeable. Cf. Quest." 40. The provision of bringing no confidence motion are contained in various municipal statutes. Section 87A of the U.P. Munici....
X X X X Extracts X X X X
X X X X Extracts X X X X
....electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. In fact construing the provision as suggested would render it unreasonable. A President of a Municipal Board of more than one lakh population would be removable by the Board comprising of elected representatives whereas a President of smaller Board would virtually get immunity from removal. It would be contrary to scheme of the Act and against public interest. 41. Thus, bringing no confidence motion is recognised as right of members and the interpretation is to be adopted which effectuate the purpose. 42. Now the judgment of five Judges Full Bench in Gyan Singh v. District Magistrate (supra) needs to be noted in detail on which reliance has been placed by the Division Bench in Smt. Krishna ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....h number of members of the board as constituted not less than one-half of the total number of members of the Board, together with a copy of the motion which it is proposed to make, shall be delivered in person together by any two of the members signing the notice to the District Magistrate. (3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the board, on the date and at the time appointed by him which shall not be earlier than thirty and not later, than thirty five days from the date on which the notice under Subsection (2) was delivered to him. He shall send by registered post not less than seven clear days before the date of the meeting, a notice of such meeting and of the date and time appointed therefore, to every member of the board at his place of residence and shall at the same time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice. 43. The Full Bench noted the ratio of judgment of the Apex Court in State of U.P. v. Manbodhan Lal Srivastava (supra) and Raja Buland Sugar Company v. Rampur Municipality (supra) a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of residence and publication is done in the manner as directed by the District Magistrate, then a presumption would arise as contemplated by the last part of the sub-section that every member shall be deemed to have received the notice. 8. A careful analysis of Sub-section (3) would make it clear that the first part which requires the District Magistrate to convene meeting of the Board for considering the motion of no-confidence against the President is mandatory. The District Magistrate is required to perform a public-duty in convening a meeting of the Board for consideration of the motion at the office of the Board on the date and time as fixed by him, he has no choice in the matter. He has to convene a meeting on a date within 30 and 35 days from the date of presentation of the motion to him. The District Magistrate is further enjoined to perform a public duty of sending notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. The second part of the sub-section lays down the manner required to be followed in sending notices to the members. It lays down that notice of the meeting shall be sent by registere....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as made by a member that no notice was received by him, the deeming provision will not be applicable and it would require proof that the notice even though sent by ordinary post or by special messenger was actually served on the member. The emphasis on sending notice to members by registered post and for publication of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as contemplated in the last sentence of the sub-section. In the absence of presumption, it is always open to a party to prove that notice though sent in a different manner was served on the members. In view of the above discussion. I am of the opinion that even if the notice is not sent to the members by registered post the meeting cannot be held to have been illegally convened provided it is proved that the notice was received by the members and they had knowledge of the meeting. Referring to earlier judgments of this Court, following was laid down in paragraph 18: 18. The above discussion shows that the preponderance of the Judicial opinion is that the second part of Subsection (3) of Section 87A is directory, its literal compliance is not necessary. A subs....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with the provision of Part IX-A. Article 243R provides for composition of Municipalities, Article 243U provides for duration of Municipalities. Article 243ZA provides for election to the Municipalities. Article 243ZF provides for continuance of existing laws and Municipalities. Article 243ZF of the Constitution is quoted below: 243ZF. Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier: Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State. 47. The above Article provides that any ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l Congress (I) v. Institute of Social Welfare and others, AIR 2002 SC 2158). This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab and another, AIR 1963 SC 395 and Union of India v. H.C. Goel, AIR 1964 SC 364. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office bearer. 31. Undoubtedly, any elected official in local self-Government has to be put on a higher pedestal as against a Government servant. If a temporary Government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office bearer can be removed without holding a full fledged inquiry. 32. In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full fledged inquiry is required otherwise it will be violativ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e legislature for his removal (Vide: Jyoti Basu and others v. Debt Ghosal and others, AIR 1982 SC 983; Mohan Lal Tripathi v. District Magistrate, Rai Bareilly and others, AIR 1993 SC 2042; and Ram Beti etc. etc. v. District Panchayat Rajadhikari and others, AIR 1998 SC 1222). 36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/electoral college is also deprived of representation by the person of his choice. 49. There cannot be any dispute to the proposition as laid down by the Apex Court in the aforesaid judgment that elected member can be removed only after following the procedure strictly prescribed for removal after giving due opportunity. The said case was a case of removal and those observations were made by the A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ommissioner, Lucknow Division, Lucknow and others, 1993 (11) LCD 375, a Division Bench of this Court after referring to the provisions of Section 15 of the Act, and the rules framed thereunder, was pleased to rule as under: 21. Section 15(3) is in mandatory form, it consists of two parts. The first part says that the Collector shall convene a meeting of Kshetra Samiti for consideration of the motion. It further provides that the meeting shall be convened at the office of the Kshetra Samiti on a date appointed by the Collector. This date cannot be later than 30 days from the date on which the notice is delivered to the Collector under sub-section (2) of Section 15. The second part provides that the Collector shall give notice of the meeting to all the members of the Kshetra Samiti in such manner as may be prescribed. Both the parts are mandatory in character. Since the form in which notice is to be issued to the members of the Kshetra Samiti has been prescribed by the Rules made by the State Government the requirement that the notice shall be in that form, is also, therefore, mandatory. Where the law requires a thing to be done in a particular manner, that....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt, is a question to be answered in the present case. The Division Bench in Krishna Gopal Varshney's case (supra) had neither considered the issues which have been raised in the present case nor the said judgment supports the appellant in the present case. 54. Now the judgments of the different Division Benches of this Court, which have been relied by Sri C.B. Yadav, learned Additional Advocate General as well as learned counsel for the private respondents are required to be noticed. 55. A Division Bench of this Court in the case of Pandit Vinod Raj Saran Dubey v. State of U.P. and others, (1994) 3 UPLBEC 2024, had occasion to consider Section 28 of the 1961 Act. In the said case notice of no confidence motion was moved against the petitioner of that writ petition on the basis of which notice was issued fixing 7th April, 1992 as the date of meeting of Zila Parishad. The notice was issued to the members of the Zila Parishad as required by Section 28. Certain members were nominated by the State Government who took oath on 28th March, 1992 hence 15 days notice could not be given to those nominated members as required by Section 28(3)(ii) of the 1961 Act. Following are the so....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... cannot be ruled out about the change in number of the members of the Zila Parishad on account of various factors, for example the result of the election of the Parliament and Legislative Assembly in which fresh members may be elected as members of the House of People and the State Legislative assembly who on being elected became ex-officio members of Zila Parishad under Section 19(I)(vi), so also under Clause (vii) and other clauses. In the present case new members of Zila Parishad came in existence on account of the nomination by the State Government under Section 18 of the Act and such members were administered oath of office after the date, for consideration of the motion, was already fixed. From perusal of the provisions contained in Section 28 of the Act it is clear that once the Collector fixes a date for convening the meeting of the Zila Parishad for consideration of the motion, he cannot adjourn it. Sub-section (5) of Section 28 of the Act contains a mandatory provision that the same as provided in sub-sections (4-A) and (4-B) a meeting convened for the purpose of consideration of motion under this Section shall not be adjourned. Sub-section (4-A) and (4-B) of Section 28 o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e have perused the notice and the copy of the motion annexed thereto and we do not agree with the submission made by the learned counsel for the petitioner. The notice contained all those facts which could be necessary to be convened and the copy of the motion annexed thereto was a complete copy. The case of Ram Nath Tripathi v. Commissioner, Lucknow Division, Lucknow and others, 1992 (2) UPLBEC 1181, is clearly distinguishable on facts and cannot be applied in the present case. 57. The next judgment relied by Sri C.B. Yadav, learned Additional Advocate General is in the case of Haji Mohammad Hanif v. State of U.P. and others, 1998 (2) UPLBEC 841, in which Section 15 of the 1961 Act and Rule 2 as well as Form-2 of the Rules came for consideration. In the said case also the notice issued by the Collector under Section 15(3) did not accompany the proposal of no confidence motion. Relying on the judgment in Ram Nath Tripathi's case (supra), argument was raised that mandatory provisions having not been complied with, the entire proceeding is vitiated. After noticing Rule 2 of the Rules framed under Section 15(3) of the 1961 Act as well as Form-2 in which notice was sent, the Div....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the notice itself and in that event it cannot said that the same is not in conformity with the provision of Section 15(3) read with Rule 2. When the section or the Rule has not mentioned anything about annexation of copy of the motion itself the reference in the form cannot be said mandatory as to render the notice invalid, simply because it is not annexed with the copy of motion. While it had conveyed the entire information with regard to the motion. 13. Thus it is apparent that the form is mandatory to the extent it requires conveyance of information, not with regard to its literal formation. The very information, which could have been furnished by annexing a copy of motion, is incorporated in the notice itself, it satisfies the requirement of annexing a copy of motion in the body of the notice itself. The aim and object is to furnish whole information to the person concerned and the same having been so conveyed substantially by the notice impugned. In the present case, there is no reason to hold that the mandatory requirement as held in the case of Ram Nath Tripathi (supra), has not been complied with. Infact from a reading of the notice, as contained in Annexure-1 we a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....atisfied that there has been a substantial compliance of the provisions of Section 15(3)(ii) regarding the manner in which the notice was required to be sent. 60. The judgment of Ram Nath Tripathi's case (supra) was also considered and distinguished by the Division Bench in paragraph 27 of the said judgment, which is quoted below: 27. Learned counsel for the petitioner, however, placed reliance upon a decision of this Court in the case of Ram Nath Tripathi v. Commissioner Lucknow Division, Lucknow and others, (1992) 2 UPLBEC 1181, in support of his contention that since the notice was not sent in the prescribed form, the mandatory provisions had not been complied with and, therefore, the notice and the holding of the meeting was bad in law. It is true that the Court held that the second part which provides that the Collector shall give notice of the meeting to all the members of the Kshetra Samiti in such manner as may be prescribed was held to be mandatory but the Full Bench decision of five Hon'ble Judges in the case of Gyan Singh (supra) was not placed before the Division Bench. This apart, in the case of Pandit Vinod Raj Saran Dubey v. State of U.P. and othe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eting convened for the purpose of considering the no-confidence motion. 29. The aforesaid observations equally apply here. The purpose to give notice is to give information regarding the meeting. The words in Section 28(3)(ii) providing holding of meetings in such manner as may be prescribed; uses the word "may", it show that the use of proforma is not mandatory. The only thing necessary is that requisite information should reach. It has also been so held in Phula Devi v. State of U.P., 2004 (4) ESC 2385, regarding interpretation of Section 15 of the Act providing notice for no confidence against Pramukh and Up-Pramukh of Kshetriya Samiti. This provision is similar to Section 28 of the Act. The Division Bench in paragraph 24 of the report observed as follows: It necessarily follows that the provisions of Section 15(3)(i) and the First Part of Section 15(3)(ii) have to be held to be mandatory as was held by the Full Bench in respect of the corresponding Part of Section 87A(3) of the UP Municipalities Act but the Second Part of Section 15(3)(ii) which deals with the manner in which the notice has to be sent has to be held to be directory and substantial compliance o....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hat it is specifically provided that written notice of intention to make the motion in such form as maybe prescribed together with a copy of proposed motion shall be delivered in person to the Collector. After receiving the written notice of intention to make the motion alongwith proposed motion, it is enjoined on the Collector to convene a meeting of the Kshetra Samiti for consideration of the motion 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. Sub-section (3)(ii) of Section 15 requires the Collector to give notice to the members of not less than fifteen days of such meeting in such manner as may be prescribed. The manner in which the notice is to be given has been prescribed in the rules. As noted above, the manner of sending notice is prescribed in Rule 2. Rule 2 contains three requirements i.e. (a) shall be in Form-2 of the schedule given below, (b) shall be sent by registered post to the Kshetra Samiti at its ordinary place and (c) shall also be published by affixation of copy thereto on the Notice Board of the office of the Kshetra Samiti. Form-2 of the Schedule is the format....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Presiding Officer at the convening of the meeting and thereafter it is open for debate whether the members who alongwith the notice has not been sent copy of motion of no confidence can be said to be so prejudice so as to make the meeting unworkable, the answer is obviously No. An argument has also been made by Sri K.N. Tripathi, learned Senior Advocate that service of no confidence motion alongwith notice is essential at least for the person against whom the motion has been brought. He submits that person against whom notice of motion has been brought has to be well aware since he has to defend himself from the allegations and charges which are made. 69. The meeting for considering the motion of no confidence is not a meeting for proving any charge against the person against whom motion is brought. The proposal of no confidence motion may be one line motion only saying "we express no confidence" or it may be a proposal making allegation against the person. For passing any motion of no confidence proof of any ground or charge is not necessary. It is right of the elected members to express no confidence in Adhyaksha which right has been conceded to the elected members as per stat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ctions, a motion of no-confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no-confidence motion. 70. A Division Bench of this Court while considering a proceeding of no confidence motion in Writ Petition No. 3171 (MB) of 2012 (Radhey Shyam Maurya v. State of U.P. and others) decided on 1st May, 2012, has laid down that for moving no confidence motion under Section 15 of the 1961 Act, no ground has to be disclosed. Following was laid down in paragraphs 13, 15 and 19 of the said judgment which are as under: 13. The right to move motion or participate in debate is a statutory right in the members conferred by Section 15 of the Act. The provisions (supra), used the word, motion and does not speaks for motion containing charges. Legislature to their wisdom has conferred powers on the members of Kshetra Panchayat to move requisition in prescribed format for motion of no-confidence. Once, Legislature to their wisdom has not provided to disclose charges or the allegations, then it is not permissible for the Court to apply principles of reading down. 15. The e....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. 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. 72. 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. 73. 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. 74. The judgment of 5-Judge Full Bench in Gyan Singh's case (supra) had considered Section 87A of the U.P. Municipalities Act, 1916, which is also similar provision for bringing no confidence motion against the President of the Municipal Board. As noted above, Section 87A sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....be held to be mandatory and sufficient compliance of provisions shall suffice. In the present case, Section 15(3) provides issue of notice in the manner as prescribed. The manner of sending notice is prescribed in Rule 2 and form-2. The judgment of the Apex Court in Raza Buland Sugar Company's case (supra) is applicable in full force and in view of clear ratio of the above judgment, it cannot be said that manner of sending notice in prescribed proforma alongwith annexures is mandatory, breach of which shall vitiate the entire proceeding. The proceeding of no confidence motion shall be proceeded with if there is substantial compliance of the provisions of Rule-2 read with Form-2. 76. At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. It is useful to quote paragraph 5-052 of De-Smith Judicial Review 6th Edition in which while dealing with mandatory and directory statutes, following was observed: 5-052. A second reason for the tangle in this area is the use of the terms "mandatory" and "directory"; the latter term is especially misleading. All statutory requirements are prima fade mandatory. Howev....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... behalf of the ward whom he represents, subject to the general control of the Court of Wards. 20. The question then is, is Section 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 Section 56 should be held to be imperative. First, it is said that otherwise, in view of Section 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 Section 55 give the Court of Wards a discretionary power to appoint a representative and therefore if Section 56 was only directory, then it would also give the same discretionary power to ap....