Kishore Goswami v. District Magistrate — 1970 DIGILAW 214 (ALL)

JUDGMENT B. N. Lokur, J. - The petitioner was the President of the Municipal Board, Charkhari, in the district of Hamirpur, when he filed this petition under Article 226 of the Constitution. He received on the 31st July, 1968, a notice stated the 25th July, 1968, over the signature of jai Dayal, respondent No. 2, as "Incharge District Magistrate," stating that a motion of no-confidence in the President signed by more than half the members of the Municipal Board had been received on the 11th July, 1968, and that a meeting to consider the motion would be held on the 12th August, 1968. The petitioner then filed this petition on the 7th August, 1968, challenging the validity of the notice. He also asked for an order of stay of the meeting but it was refused and the meeting took place as scheduled on the 12th August, 1968, and the no-confidence motion was passed against the petitioner. Thereupon, the petitioner made certain amendments in the petition and sought to have the no-confidence motion also quashed. It was further urged that respondents Nos. 4 and 5, who were joined as parties at the time of the amendment of the petition, were disqualified as they had not paid the municipal dues and the votes cast by them in favour of the no-confidence motion could not be counted and, ignoring the two votes cast by them, the no- confidence motion received the votes of seven members of the Board whereas the total membership of the Board including the President is sixteen and hence the motion cannot be deemed to have been passed. The learned counsel for the petitioner, however, fairly did not press this aspect of the case at the hearing for the obvious reason that no order removing respondents Nos. 4 and 5 from the membership was passed under Section 40 of the U. P. Municipalities Act, and they (lid not cease to be members. 2. Thus, the only question which survived and was strenuously argued was whether the notice of the meeting was invalid and hence the meeting convened pursuant to that notice and the proceedings thereof were also invalid. 2. Thus, the only question which survived and was strenuously argued was whether the notice of the meeting was invalid and hence the meeting convened pursuant to that notice and the proceedings thereof were also invalid. Section 87-A (2) of the U. P. Municipalities Act (hereinafter referred to as the Act) re- quires a notice of intention to move a motion of no-confidence against the President to be delivered to the District Magistrate and Section 87-A (3) of the Act postulates that the District Magistrate shall convene a meeting for the consideration of the motion. It is urged that these provisions were not complied with in the present case and hence the notice of the meeting is invalid. 3. As regards the violation of the provisions of Section 87-A (2) of the Act, it was pointed out that the notice of the meeting was signed by jai Dayal, describing himself as Incharge District Magistrate, and the notice itself stated that the notice of motion of no-confidence "has been delivered to me on 11th July, 1968" implying thereby that the notice was delivered to Jai Dayal and not to the District Magistrate. It was contended that the District Magistrate, P. C. Saxena was in office on the 11th July, 1968, when the notice was delivered but the notice was delivered to Jai Dayal and not to P. C. Saxena and hence the delivery of the notice was not in accordance with law. An affidavit however, has been filed by Virendra Kumar Nigam, the local Bodies clerk in the Collectorate, stating that the notice was actually delivered to P. C. Saxena, District Magistrate, who made the following endorsement thereon "Presented before me by two Members of Municipal Board, Charkhari, Sri M. K. Goswami and Sri Brij Lal at 6.45 p.m. on 11-7-1968 along with the notice of intention. O/C.LB Please take immediate n-a-as per M. Act and Rules." A similar affidavit has also been filed by Respondent No. 5, who has also produced a copy of the notice, on which P. C. Saxena has made an endorsement as follows : "Recd. two copies of notice and resolution at 6.45 p.m. on 11-7-1968". O/C.LB Please take immediate n-a-as per M. Act and Rules." A similar affidavit has also been filed by Respondent No. 5, who has also produced a copy of the notice, on which P. C. Saxena has made an endorsement as follows : "Recd. two copies of notice and resolution at 6.45 p.m. on 11-7-1968". In view of these two affidavits and the copy of the notice, I am satisfied that the notice was actually delivered to P. C. Saxena, District Magistrate, but it has been wrongly mentioned in the notice of meeting sent to the petitioner by jai Dayal that the notice was "received by inc. "1, therefore, hold that there has been no breach of the provisions of Section 87-A (2) of the Act. 4. The endorsement made by P. C. Saxena on the notice of no-confidence motion directed O/C.LB, i.e. Officer-in-charge Local Bodies, to take immediate necessary action as per the Act and the Rules. P. C. Saxena did not himself take the necessary action, but instructed the Officer-in-charge Local Bodies i.e. Jai Dayal, to take further action. It was urged by the petitioner that the action taken by Jai Dayal would not be in compliance with Section 87-A (3) of the Act and the notice of the meeting issued by him is hence invalid. In Krishna Chandra Gupta v. Prayag Narain, 1962 A.L.J. 226, it question arose whether a notice of meeting under Section 87-A (3) would be invalid if it has not been signed by the District Magistrate. The learned Judges observed : "The Second argument was that the notice which had been sent to the members was not under the signature of the then District Magistrate of the district. From a copy of the notice (Annexure 5) on record it appeared that the same had been signed by Sri Ramesh Chandra Dikshit, Officer-in-Charge, Local Bodies. Neither sub-sec. (3) nor sub-sec. (5) of Section 87-A has in providing the notice to be given under its provisions required that the same shall be signed by the District Magistrate personally. The duty laid on the District Magistrate is to cause such notice to be published in the manner he shall deem fit. This condition will be satisfied if the notice is caused to be sent by him in the manner deemed fit by him. The duty laid on the District Magistrate is to cause such notice to be published in the manner he shall deem fit. This condition will be satisfied if the notice is caused to be sent by him in the manner deemed fit by him. The absence of his signatures on the notice has no effect on its validity if it otherwise satisfies the conditions regarding the date, time etc. Moreover, the duty of sending a notice provided in sub-sec. (3) is an administrative act to be done by him. In exercising such acts it is usual that subordinates are deputed to carry out the ministerial part which cannot possibly be done by the superior authority himself. The ministerial part which has not been done by the authority itself but has been clone by a subordinate in pursuance of the order and "direction of the superior authority is to all -intents and purposes the act of the superior authority itself which in performing that part acts through its subordinates." (Page 231). Thus, the mere fact that the notice of the meeting in the present case was signed by jai Dayal and not by the District Magistrate Would not invalidate the notice. It was also urged on behalf of the opposite parties that on the 25th July, 1968, the date of the notice, P. C. Saxena had proceeded to Jhansi and Jai Dayal was "Incharge District Magistrate" and hence the notice ought to be deemed to have be,.n given by the District Magistrate himself. I am unable to accept this argument. In the District Magistrate is out of his jurisdiction, he still continues to be District Magistrate unless some other officer is formerly appointed as District Magistrate. It may be that jai Dayal, being the Sub-Divisional Officer, could perform current duties in the absence of the District Magistrate, but he certainly could not perform the statutory duties of the District Magistrate or describe him- self as Incharge District Magistrate. 5. Though the notice of meeting cannot be attacked as invalid on the ground that Jai Dayal had signed it, there is no doubt that the provisions of Section 87-A (3) of the Act were violated inasmuch as the decisions which the District Magistrate has himself to take under that Section were not taken by him ant he had abdicated his powers completely in favour of jai Dayal. The section requires that the (late and time of the meeting have to be appointed by the District Magistrate and the manner of publication of the notice has also to be determined by the District Magistrate. These matters cannot be left to any other authority and if the District Magistrate has not applied his mind and taken decisions on these matters, there is a clear breach of the provisions of Section 87-A(2). In the present case, after the notice of no-confidence motion was received by the District Magistrate, he directed the Officer-in-Charge Local Bodies to take all further action required by the Act and the Rules and it was jai Dayal who fixed the (late and time of the meeting and perhaps also the manner of publication of the notice of the meeting. 6. It was argued on behalf of the opposite parties that the provisions of Section 87-A (3) are directory and not mandatory. In the unreported case, Tara Chand Modi v. The District Magistrate, Special Appeal No. 313 of 1956 decided on 22.01.1957, it was contended that the various directions in Section 87-A (3) were mandatory. The learned judges observed : "If Section 87-A of the Municipalities Act is read keeping in view the context in which it was enacted, it will not be difficult to see the object which the Legislature had in mind in enacting that provision. A motion of no-confidence against it president is, strictly speaking, a resolution passed by a majority declaring that they have no-confidence in the president. In view, however, of the serious consequences which such a motion involves special significance is attached to it. The legislature, therefore, decided to put it on a basis different from the one on which the other resolutions of the Board are placed. It lays down a special procedure for the passing of a motion and for its enforcement. The procedure is to be found in the various clauses of Section 87-A. If these clauses are carefully read it will become obvious that the four objects which the Legislature had in mind were: (1) that the president of the Board who was the person to be directly affected by the resolution of no-confidence. The procedure is to be found in the various clauses of Section 87-A. If these clauses are carefully read it will become obvious that the four objects which the Legislature had in mind were: (1) that the president of the Board who was the person to be directly affected by the resolution of no-confidence. should not have any hand in the matter; (2) that the resolution must be passed after due notice to all the members and after they have had sufficient time for deliberation and consideration, the matter not being left to depend on the mood of the moment or on temporary considerations; (3) that the resolution should be passed after an adequate debate at an orderly and well-conducted meeting at which no one should be allowed to adopt dilatory tactics; and - (4) once the motion is passed by the requisite majority all the persons concerned must be duly informed and it must be allowed to have its desired effect. If, however, the motion is not passed the president should have a respite of at least twelve months and within that period no question of any no-confidence motion should be allowed to be raised again. The detailed directions that are to be found in the various clauses of Section 87-A appear to have been enacted for ensuring the attainment of the above mentioned object. All the directions contained in the section cannot, therefore be put on the same footing. Some of them are obviously important and their compliance cannot be dispensed with. Others relate to details and so long as the object for which they were enacted is not defeated a substantial though not literal compliance with them will be enough. It is, therefore, not possible to accept the contention of the learned counsel for the appellant that every single direction contained in Section 87-A is mandatory in the sense that even the slightest departure from the literal compliance with it will entail a nullification of the motion of no-confidence. In any case, the provisions of Section 87-: which are alleged to have been contravened in the present case appear to relate to mere details, and cannot be considered to be of such importance that mere non-compliance with them will vitiate the entire proceedings .............. 7. In any case, the provisions of Section 87-: which are alleged to have been contravened in the present case appear to relate to mere details, and cannot be considered to be of such importance that mere non-compliance with them will vitiate the entire proceedings .............. 7. In another unreported case Chokhey Lal v. District Magistrate of Meerut, Special Appeal No. 17 of 1957 decided on 25th January, 1957, it was held that though the notice of the meeting was not sent to the Petitioners residence, he had received it and there was no substantial non-compliance with the law. In Sharafatullah Khan v. State of U. P., 1961 A.L.J. 930, the notice of no-confidence motion was presented to the District Magistrate by more than two members and it was argued that this was in violation of Section 87-A (2) of the Act. The Division Bench, after referring to Term Chand Modi's2 case and Chokhey Lal's case, observed : "In respect of various matters provided for in Section 87-A of the Act this Court has, on numerous occasions, held that the procedure laid clown was nc.. mandatory in the sense that, even though there had been substantial compliance, non-observance thereof in the strict language of the law rendered the proceedings illegal or ineffective." 8. There should be, however, substantial compliance with the law in which event non-observance of details could be ignored. As observed in K. C. Gupta's' case, there are certain duties cast by the Section on the District Magistrate which he has to perform himself; and he cannot surrender them to another officer and performance of those duties by such other officer cannot be regarded as substantial compliance with the provisions of Section 87-A (3) of the Act. 9. I come to the conclusion that the provisions which cast duties which the District Magistrate should himself perform and relate to matters on which he himself has to take decisions, are mandatory and not directory and if those duties are not performed and those decisions are not taken by him but are performed and taken by another authority, there is a clear violation of Section 87-A (3) of the Act. 10. The question that then arises is whether violation of the provisions of Section 87-A (3) of the Act would render invalid the notice of the meeting and vitiate the proceedings of the meeting held in pursuance of the notice. 10. The question that then arises is whether violation of the provisions of Section 87-A (3) of the Act would render invalid the notice of the meeting and vitiate the proceedings of the meeting held in pursuance of the notice. My attention was drawn to the decision of this Court in Chandra Pal v. State of U. P., 1968 A.L.J. 431 wherein it was held that sanction for prosecution granted by the District Magistrate under Section 39 of the Arms Act was inoperative as such sanction had to be given by the District -Magistrate himself. In Ajaib Singh v. Gurbachan Singh, A.I.R. 1965 S.C. 1619 the Supreme Court held that the Additional District Magistrate invested with all powers of the District Magistrate could not pass any order for detention under the Defence of India Rules as he was not the District Magistrate. In Narbada Prasad v. Chhaganlal, A.I.R. 1969 S.C. 395, the Supreme Court observed : "It is a well-understood rule of law that if a thing is to be done in a particular manner, it must be done in that manner or not at all. Other modes of compliance are excluded." If a thing is done in a manner different from that prescribed by a statute, the thing is not clone at all in the eye of law. 11. Accordingly, since the notice of the meeting in the present case has not been issued pursuant to the decision as to date and time taken by the District Magistrate himself as contemplated by Section 87-A (3) of the Act, the notice ought to be regarded as invalid and, it follows, the proceedings of the meeting held pursuant to the invalid notice are also vitiated. 12. It was urged on behalf of the opposite parties that no prejudice has been caused to the petitioner and hence this Court should not exercise its discretion under Article 226 of the Constitution in favour of the Petitioner, but since the entire proceedings, are invalid the question of prejudice does not arise. It cannot be maintained that proceedings of a meeting convened by a person not authorised by law should be upheld on the ground that a party is thereby not prejudiced. In fact, a private right is placed in jeopardy by such an illegal motion. 13. It cannot be maintained that proceedings of a meeting convened by a person not authorised by law should be upheld on the ground that a party is thereby not prejudiced. In fact, a private right is placed in jeopardy by such an illegal motion. 13. The result is that the notice of meeting dated 25th July, 1968 issued by Jai Dayal and the resolution passed in the meeting held on the 12th August. 1968 are hereby quashed. Parties shall bear their own costs.