TaxTMI 
TaxTMI 
2018 (2) TMI 2156
X X X X Extracts X X X X
X X X X Extracts X X X X
....e with law. (ii) to issue any other writ order or direction which this Hon'ble court may deem just fit and proper under the circumstances of the case. (iii) to allow the cost of the writ petition." 3. The case set forth by the petitioner is that the petitioner contested the election of Kshetra Panchayat, Machhreta and was declared elected as Member, Kshetra Panchyat in November, 2015. Thereafter he was elected as Pramukh, Kshetra Panchayat, Machhreta on 7.2.2016 and since then is continuing in the said capacity. It is contended by the petitioner that the total strength of the members of the Kshetra Panchayat Machhreta is 95 out of which one member resigned and two members died and accordingly the actual strength of members of the concerned Panchayat is presently 92. The concerned Kshetra Panchayat was functioning smoothly when a local M.L.A. started interfering in the functioning of the said Kshetra Panchayat and also started manipulating and threatened the other members of the concerned Panchayat which could not be resisted by the said members in particular who belong to poor families and consequently were threatened to sign on a written notice to bring no....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nchayat then delivery of the said notice to the Chief Development Officer of which cognizance was subsequently taken by the District Magistrate, would thus vitiate the said notice and thereby whatever action taken in pursuance thereof would also become vitiated. 6. On the other hand Sri H.P. Srivastava, learned Additional Chief Standing Counsel along with Sri Manish Mishra, learned Standing Counsel submit, on the basis of written instructions, that written notice of intention to make the motion which was signed by more than half (i.e. 60 out of 95 members) was delivered in person to the officiating District Magistrate, Sitapur namely Dr. Arvind Kumar Chaurasia, Chief Development Officer. Dr. Chaurasia was officiating as District Magistrate as on that date the District Magistrate, Sitapur had been directed to appear in person in another writ petition before this Court namely in Writ Petition (M/B) No.1061 of 2018 with the result that the District Magistrate, Sitapur was present in the High Court on that date. Thereafter when she returned back to Sitapur she received the notice of no confidence motion from Dr. Chaurasia and after taking cognizance of the same fixed a date of 9.2.2....
X X X X Extracts X X X X
X X X X Extracts X X X X
..... Motion of non-confidence in Pramukh- (1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections. (2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. (3) The Collector shall thereupon :- (i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and (ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed. Explanation. - In computing the period of thirty days specified in th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....all not be entitled to vote thereon. (10) A copy of the minutes of the meeting, together with a copy of the motion and the result of the voting thereon, shall be forwarded forthwith on the termination of the meeting by the Presiding Officer to the State Government and to the Zila Panchayat having jurisdiction. (11) If the motion is carried with the support of more than half of the total number of elected members of the Kshettra Panchayat for the time being - (a) the Presiding Officer shall cause the fact to be published by affixing a notice thereof on the notice board of the office of the Kshettra Panchayat and also by notifying the same in the Gazette; and (b) the Pramukh or, as the case may be, shall cease to hold office as such and vacate the same on and from the date next following that on which the said notice is fixed on the notice board of the office of the Kshettra Panchayat. (12) If the motion is not carried as aforesaid or if the meeting could not be held for want of quorum, no notice of any subsequent motion expressing want of confidence in the same Pramukh or shall be received until after the expiration of A [one year ]A from....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.' It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule', said Lord Campbell, L.C., 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.'....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed by the tax before imposing it on them. In the circumstances if we are to hold that this part of u/s 131(3)A was merely directory, the whole purpose of the very elaborate procedure provided in A ss. 131A to A 135A 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 u/s 131(3)A is mandatory and it is necessary to comply with it strictly before any tax can be imposed. ....We therefore hold that this part of u/s. 131(3)A 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 u....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow." 19. The Hon'ble Supreme Court in the case of Lakshmanasami Gounder vs. C.I.T. Selvamani and others reported in (1992)1 SCC 91, held as under:- "It is settled law that the word 'shall' be construed in the light of the purpose the Act or Rule that seeks to serve. It is not an invariable rule that even though the word 'shall' is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory. The construction ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word 'shall' has been used and the mischief it seeks to avoid. Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of noncompliance thereof. In its abse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nces. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them." 22. More recently the provisions of the 1961 Act came up for consideration before the Full Bench of this Court in the case of Vikas Trivedi (supra). The Full Bench after considering the various judgments of the Hon'ble Supreme Court pertaining to the use of the word "shall" held as follows:- "70. As noted above, A Section 15A of the 1961 Act is a statutory provision recognising the right of elected members to bring motion of no confidence against the Pramukh. The Collector is entrusted with public duty to issue notice. As noted above, the Apex Court in A Dattaraya Moreshwar vs. the State of Bombay and others A case (supra) had laid down that provisions of statute creating public duty are directory and those conferring private rights imperative. If the contention is accepted that while sending notice by the Collector although relevant information regarding ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nly when the Court is satisfied that there is sufficient compliance of the manner in which notice has been sent. In this context reference of the judgment of the Apex Court in the case of A Rani Drigraj Kuer v. Amar Krishna Narain Singh reported in A.I.R 1960 SC 444 is also relevant where the Apex Court laid down following in paragraphs 18, 20 and 21 which are as under:- "18. The appellant first says that the compromise decrees were a nullity as the terms of u/s 56A of the Act which are mandatory, had not been complied with. That section reads thus: "Section 56: When in any suit or proceeding two or more wards being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards." 20.The question then is, is A 56A 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 mandat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rds." 77. Thus substantial compliance shall not vitiate the proceeding of no confidence motion cannot be read as requirement of not following the prescribed procedure in the rules." 23. Though in the case of Vikas Trivedi (supra) the Full Bench was considering the provisions of Section 15(3)(ii) of the 1961 Act yet the principles of law laid down in the said judgment would be relevant as regards the question which has arisen in the instant petition. What can be culled out from the judgments in the case of Vikas Trivedi, Babu Ram Upadhyaya, Raja Buland Sugar Company Ltd. Rampur, Sharif-ud-Din, Lakshmanasami Gounder and Pt. Rajan (supra) is that merely because the statute uses the word "shall", it is not conclusive on the question whether it is a mandatory or a directory provision. In order to find out true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and the real intention of the legislature by carefully seeing the whole scope of the legislative intent. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory, but when a provision of law which relate....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Magistrate should have taken steps to verify the signatures on written notice of no confidence motion and he having not done the same the entire exercise is vitiated, is concerned, it is submitted that even the said issue is no longer res-integra taking into consideration the Full Bench judgment of this Court in Smt. Sheela Devi (supra) wherein the Full Bench has held that it is the discretion of the Collector to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2) of Section 15 of the 1961 Act. The Full Bench also held that it was not open to the Collector to launch a detailed evidentiary enquiry into the validity of the signatures which are appended to the notice as the same would be outside the purview of Section 15 of the 1961 Act. For the sake of convenience, the conclusion of the Full Bench is reproduced below:- "23. For these reasons, we have come to the conclusion that where a notice is delivered to the Collector under sub-section (2) of Section 15, the Collector has the discretion to determine whether the notice fulfills the essential requirements of a valid notice under sub-section (2). However, consistent with....