SOMASHEKARA DESAI v. STATE OF KARNATAKA — 1989 DIGILAW 55 (KAR)

BOPANNA, J. ( 1 ) THESE two writ petitions raise a common question of law touching the validity of the notice prescribed under the provisions of section 47 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act. 1983 (hereinafter called. 'the Act') ( 2 ) IN W. P. No. 16660 of 1988 the petitioner is an elected member and pradhan of the Mandal Panchayat in question. The notice of meeting for moving a vote of no confidence against him was served on 13-10-1988 i. e. , on the date of the meeting and this matter was not on the agenda. of the meeting held on 19 -9-1988. In the circumstances it is contended by the learned counsel Sri Rayareddy that that the notice is bad in law being violative of mandatory requirement of the IInd Part of sec. 47 (3) of the Act. ( 3 ) IN W. P. No. 12221 of 1988 the petitioner is an elected Pradhana of the mandal Panchayat in question and his grievance is that the notice of meeting for moving a vote of no confidence against him was despatched on 20-7 1988, was received by him on 2 8 1988 and the meeting was convened on 10-8-1988 and thus the notice of meeting falls short of the period of 1 5 days prescribed in the II Part of section 47 (3) of the Act. ( 4 ) IN both these cases the petitioners have not made a grievance of the requirement of first part of Section 47 (3) of the Act. ( 5 ) ACCORDING to the learned counsel for the petitioners, the provisions of Section 47 of the Act are mandatory and therel'ore if the notice of meeting for moving a vote of no confidence falls short of the requirement of the provisions, the meeting itself is bad in law and consequently the motion that was put to vote against them is a nullity in the eye of law. ( 6 ) ON the other hand, the learned High court Government Pleader has contended that the provisions of Section 47 (3) of the act are not mandatory but only directory and in the light of the decision of the supreme Court in K. NARASIMHAIAH. ( 6 ) ON the other hand, the learned High court Government Pleader has contended that the provisions of Section 47 (3) of the act are not mandatory but only directory and in the light of the decision of the supreme Court in K. NARASIMHAIAH. vs. H. C. SINGRI GOWDA AND OTHERS (A. I. R. 1 966 S. C. 330) which was followed by this Court in W. P. Nos. 8 162 and 8 163 of 1988 disposed of on 8-2-1989 and w. P. Nos. 13898 and 13899 of 1988 disposed of on 28- 9-1988. the petitioners cannot complain of the invalidity in the notices served on them. ( 7 ) THE Scheme of Section 47 of the Act should be noticed first for considering the contentions of the learned counsel for the parties. Under Section 47 (2) of the Act, 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 panchayat. together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Deputy Commissioner. Section 47 (3): The Deputy commissioner shall then convene a meeting lor 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-section (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: (Proviso is not necessary for the purpose of this case ). Section 47 (4): The Deputy 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. Section 47 (7): As soon as the meeting convened under this section commences, the Deputy 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. Section 47 (7): As soon as the meeting convened under this section commences, the Deputy 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. Section 47 (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 upapradhana, as the case may be, shall forthwith cease to function as such and the deputy 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: (Proviso is not necessary for the purpose of this case ). ( 8 ) RELYING on these provisions of Section 47. of the Act, it is contended by the learned counsel for the petitioners that the procedure for moving a vote of no confidence against Pradhana or upapradhana as the case may be is prescribed under Section 47 of the Act and that Section provides a sell contained code for the removal of Pradhana or upapradhana by a vote of no confidence and therefore, that section has to be interpreted without reference to the provisions of Section 55 of the Act. Section 55 reads as under:"55. VALIDITY OF proceedings: (1) No disqualification of or defect in the election or appointment of any person acting as member, or as the Pradhana or member of a committee of a Mandal panchayat appointed under this Act shall be deemed to vitiate any act or proceeding of the Mandal Panchayat or any such committee, as the case may be, in which such person has taken part whenever the majority who were parties to such act or proceeding were entitled to act. (2) No resolution of a Mandal panchayat or of any Committees 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. (2) No resolution of a Mandal panchayat or of any Committees 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. (3) Until the contrary is proved, every meeting of a Mandal Panchayat or of a committee of a Mandal Panchayat constituted under this Act in respect of proceedings whereof a minute has been made and signed in accordance with this act, shall be deemed to have been duly convened and held and all the members of the meeting shall be deemed to have been duly qualified, and where the proceedings are the proceedings of a committee, such committee shall be deemed to have been duly constituted and to have had the power to deal with matters referred to in the minute. (4) During any vacancy in a Mandal panchayat or committee of a Mandal panchayat, the continuing members may act as if no vacancy had occurred. " ( 9 ) ACCORDING to the learned counsel for the petitioners Sec. 55 of the Act applies to the proceedings of the Mandal Panchayat in its general or special meetings and it does not apply to proceedings of the Mandal panchayat in a meeting convened for the purpose of moving a vote of no confidence against Pradhana or Upapradhana in terms of Sec. 47 of the Act. It is also contended by them that the decision of (he Supreme Court in AIR I 966 SC 330 is a decision rendered on the relevant provisions of the Mysore town Municipalities Act, 1951 (in short 'the 1951 Act) and that apart, the observations of the Supreme Court in that case on the provisions of Section 36 of the 1951 Act would not be a correct guide for the interpretation of Section 47 of the Act since Section 47 of the Act is a self-contained code for the removal of the pradhana or Upapradhana and the meeting of the Mandal Panchayat for moving a vote of no confidence is not a general or special meeting which finds a place in Section 50 of the Act and therefore Section 55 of the Act is not applicable to the proceedings of the meeting of the Mandal Panchayat held pursuant to the requisition under Section 47 (2) of the Act. On these rival contentions by the parties what arises for determination in these cases is: (a) Whether the language of Sec. 47 (3) of the Act is mandatory or directory; (b) Whether the meeting held under section 47 (3) of the Act is a meeting which comes within the scope of provisions of Sec. 50 of the Act; and (c) Whether any resolution passed in such a meeting could be validated in terms of Provisions of Sec. 55 of the act? ( 10 ) IT is well settled that the word "shall" in Section 47 (3) is not conclusive of the test to determine whether the language of that sub section is mandatory' or directory. The intendment of the Legislature regard being had to the scheme of the Act should be taken into consideration to determine whether the language of a particular provision in a statute is either mandatory or Directory. The intendment of the Legislature regard being had to the scheme of the Act should be taken into consideration to determine whether the language of a particular provision in a statute is either mandatory or Directory. ( 11 ) THE learned Counsel lor the petitioners submitted that the provisions of section 47 (3) entail in adverse consequences on the right of a Pradhana or upapradhana to continue in his elective office and those consequences could have been avoided by the petitioners if notices had been sent to them giving I 5 clear days" to prepare themselves for voting in the no confidence motion, and if the intention of moving a vote of no confidence had been properly made known to them by the assistant Commissioner under the I Part of section 47 (3 ). According to them, the notice calling for the meeting will have to be given by the prescribed number of members who constituted the quorum to the Assistant commissioner and not to the Pradhana or upapradhana and the Assistant commissioner must give clear 30 days' notice of his intention to call for the meeting and he also must give 1 5 days clear notice to the members of the Mandal Panchayat in order to enable them to participate in the proceedings of the meeting. The very object of holding a meeting after not less than 30 days after the date of intention to hold the meeting for moving a vote of no confidence and the very object of 1 5 days' notice to the members of the Mandal Panchayat are to ensure that the members of the Mandal panchayat will have sufficient time to deliberate over the consequences of moving a vote of no confidence and also to give sufficient time to the petitioners rectify any mistakes or irregularities which had the effect of inducing these members to move a vole of non confidence against them. ( 12 ) WHETHER the language of Section 47 (3) is mandatory or directory will have to be determined from the object and intendment of that Section. Chapter III of the Act deals with establishment and constitution of Mandal panchayats. Sections 47. 50 and 55 come under Chapter III of the act. ( 12 ) WHETHER the language of Section 47 (3) is mandatory or directory will have to be determined from the object and intendment of that Section. Chapter III of the Act deals with establishment and constitution of Mandal panchayats. Sections 47. 50 and 55 come under Chapter III of the act. If me intention of the Legislature were to treat Section 47 as a complete Code by itself for holding a meeting for moving a vote of no confidence of Pradhana or upapradhana, there was no difficulty for t he Legislature to give some indication in the language of Sec. 47 itself. The very fact thate sec. 47 comes under Chapter ITT along with sections 50 and 55 of the Act would throw some light on the intendment of the legislature in prescribing the period of notice under Sec. 47 (3) of the Act. The object of Section 47 (2) is. in my view,'to ensure that the Assistant Commissioner does not sleep over the matter when a requisition is made by the requisite number of members of the Mandal Panchayat to call for a meeting for moving a vote of no confidence against Pradhana or Upapradhana. That is the intendment of the I part of Section 47 (3 ). The II Part of Sec. 47 (3) which prescribes not less than 1 5 clear days notice lor holding a meeting is to ensure that all the members of the Mandal Panchayat will have sufficient time to attend the meeting. A provision similar to Sec. 47 (3) arose lor consideration before the Supreme Court in k. NARASIMHIAH vs. H. C. SINGRI gowda and OTHERS ( A. I. R. 1 966 s. C. 330 ). That decision was rendered by the supreme Court on the interpretation of the relevant provisions of the Mysore Town municipalities Act 1961 (hereinafter referred to as the 1951 Act ). The three questions that arose for consideration in thai case were: (1) That the requisite three days' notice was not served on all the members and so the meeting was not validly held. (2) That the meeting cannot be said to be properly held as the President was not allowed to preside and the vice President presided, and thus s. 24 (1) (a) of the Act was contravened. (2) That the meeting cannot be said to be properly held as the President was not allowed to preside and the vice President presided, and thus s. 24 (1) (a) of the Act was contravened. (3) That the requisition for moving the resolution of no confidence did not comply with the proviso to Sec. 23 (9) of the Act as 15 days' notice was not given of the intention to move the resolution. ( 13 ) WE arc now concerned only with the first point that is, whether the requirement of three days' clear notice was mandatory or directory. The language of Section 23 (9) of the 1951 Act may be noticed. It reads as:"every president and every vice president of a municipal council shall forth-with be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two thirds of the whole number of councillors at a special general meeting convened for the purpose. Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one third of the whole number of councillors and at least fif teen days' notice has been given of the intention to move the resolution. " ( 14 ) SECTION 27 (3) prescribes notice to he given for the meetings of the Municipal councils. It reads as under:"seven clear days' notice of an ordinary general meeting, and three clear days" notice or in cases of great urgency, notice ol such shorter period as is reasonable of a special general meeting, specifying the time and place at which such meeting is to be held and the business to be transacted thereat, shall be given to the councillors, and posted up at the municipal office or some other public building in the municipality. The said notice shall include any motion or proposition which a councillor shall have given written notice, not less than ten days previous to the meeting, of his intention to bring forward thereat and. in the case of a special general meeting, any motion or proposition mentioned in any writte'n request made for such meeting: provided that the motion or proposition of which a councillor or councillors shall have given notice shall relate to matters connected with the municipal administratipn and shall not be inconsistent with the provisions of this act. in the case of a special general meeting, any motion or proposition mentioned in any writte'n request made for such meeting: provided that the motion or proposition of which a councillor or councillors shall have given notice shall relate to matters connected with the municipal administratipn and shall not be inconsistent with the provisions of this act. So, in terms of Section 27 (3), 3 clear days' notice or in cases of great urgency, notice of such shorter period as is reasonable shall be given for holding a special general meeting in order to seek a vote of no confidence against the president or Vice-president as the case may be. Another provision which requires to be noticed is Section 36 (1) of the 195 1 Act. It reads as under: "no disqualification of, or defect in the election or appointment of, any person acting as councillor, or as the president or presiding authority of a general meeting or as chairman of a committee appointed under this Act, shall be deemed to vitiate any act or proceeding of the municipal council or of any such committee, as the case may be, in which such person has taken part, whenever the majority of persons, parties to such act or proceeding, were entitled to act. No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member, provided that the proceedings of the municipal council or committee were not prejudicially affected by sueh irregularity. " ( 15 ) THE other provisions are not relevant for the purpose of this case. The Supreine court on consideration of these two provisions held that failure to give 3 clear days' notice to some of the Councillors did not affect the validity of the meeting or the no confidence resolution passed against the appellant in that case. The reasoning of the supreme Court is found in para 1 2 of the judgment. The Supreme Court posed the following question for its consideration: "the question then is; Is the provision of three clear days' notice mandatory, i. e. . does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid?' ( 16 ) IN para-14 of the judgment, the supreme Court discussed the object of giving notices to the Councillors. does the failure to give such notice make the proceedings of the meeting and the resolution passed there invalid?' ( 16 ) IN para-14 of the judgment, the supreme Court discussed the object of giving notices to the Councillors. The supreme Court observed:"it is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to. give enough time for the purpose. But a lesser period "of three clear days is considered sufficient for "special general meetings" generally. The obvious reason for providing a shorter of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days' notice would be sufficient. " ( 17 ) IT is in this manner we have to construe the provisions of Sec. 47 (3 ). 15 clear days' notice to the members of the mandal Panchayat is not given to them to lobby in favour or against the President or vice President as the case may be, but to deal with the business of the Mandal panchayat that is by attending the meeting for moving a vote of no-confidence. In case, the notice falls short of the prescribed period under Sec. 47 (3), that by itself would not be a ground to invalidate the meeting or the resolution, that is, passed at such meeting. The test that has to be applied for a proper construction of Sec. 47 (3) could be discerned from the later decision of the supreme Court in SHERIF UD DIN VS. ABDUL GANI LONE (A. I. R. 1980 s. C. 303 ). The Supreme Court was dealing with the provisions of Sections 89 (3) and 94 of the Jammu and Kashmir Representation of the People Act and the question for consideration in that case was whether the language of those two sections in so far as it relates to verification of the copies of the election peitition is mandatory or directory. The Supreme Court was dealing with the provisions of Sections 89 (3) and 94 of the Jammu and Kashmir Representation of the People Act and the question for consideration in that case was whether the language of those two sections in so far as it relates to verification of the copies of the election peitition is mandatory or directory. The Supreme Court in para-9 of its judgment observed as follows:"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 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 summerised 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 contest in which it is enacted. If the object of 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 acquire 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. 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 acquire 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. "in that case, under the Jammu and Kashmir act, the failure to comply with the requirement of Section 89 (3) resulted in the dismissal of the election petition under section 94 of the Act. In this case, on the contrary, failure to comply with the requirement of Sec. 47 (3) of the Act is regularised under Sec. 55 of the Act. The Act does not say that in case, the Assistant commissioner fails to give a notice of 1 5 days to all the members as prescribed under section 47 (3) of the Act the notice of no confidence motion shall lapse and the person going to be affected is free to continue as a Pradhana or Upapradhana as the case may be. On the contrary, under section 55, the Legislature has taken care to see that any defect in the service of notice does not invalidate the proceedings under sec. 47 (3) of the Act. On the same reasoning, the Supreme Court in narasimhaiah's case held regard being had to the language of Sec. 35 of the 1 95 I Act, that the provisions of Sec. 27 (3) of the 195 1 act are not mandatory. 47 (3) of the Act. On the same reasoning, the Supreme Court in narasimhaiah's case held regard being had to the language of Sec. 35 of the 1 95 I Act, that the provisions of Sec. 27 (3) of the 195 1 act are not mandatory. ( 18 ) BUT it is contended by the learned counsel for the petitioners that sub sections (1) to (9) of Sec. 47 constitute a complete code by themselves and the entire law relating to motion of no confidence against pradhana and Upapradhana is contained in those sub sections and it would be wrong on the part of this Court to determine the mandatory nature of the notices prescribed under Section 47 (3) of the Act with reference to Section 55 of the Act. This argument at first blush supports the case of the petitioners because Section 47 prescribes a separate procedure for moving a vote of no confidence against Pradhana and Upapradhana. The meeting has to be called by the Assistant Commissioner and not by the Pradhana or Upapradhana. The assistant Commissioner himself has to preside over the meeting, he remains neutral in such meeting and the result of the meeting is declared by show of hands; the Assistant commissioner himself issues the necessary notification declaring that the person against whom the motion is carried by majority ceases to function as Pradhana or upapradhana as the case may be. But if the scheme of Chapter III is considered as a whole, it is quite apparent that Sec. 47 cannot be read in isolation and it has to be read along with the other provisions in chapter III which deals with the functions of the Mandal Panchayat. The rules framed by the Legislature known as the Karnataka zilla Parishads. Taluk Panchayat Samithis, mandal Panchayats and Nyaya Panchayats (No confidence Motion Against Pradhana and Upapradhana) Rules. 1985 show that the notice to convene a meeting under sub section (3) of Section 47 is in Form-II and has to be given to every member including Pradhana and Upapradhana. The manner of giving notice is found in Rule 4 of the Rules: It reads:"notice to convene a meeting under sub-section (3) of Section 47 A notice under sub section (3) of Section 47 shall be in Form II and shall be given to every member including the Pradhana and upapradhana. The manner of giving notice is found in Rule 4 of the Rules: It reads:"notice to convene a meeting under sub-section (3) of Section 47 A notice under sub section (3) of Section 47 shall be in Form II and shall be given to every member including the Pradhana and upapradhana. (a) by delivering or tendering the said notice to such member; or (b) if such member 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 (c) by registered post; or (d) if none of the means aforesaid be available, by affixing such notice on some conspicuous part of the house, if any, in which the member is known to have last resided or carried on business within the Mandal. "section 48 of the Act indicates that the procedure at a meeting of the Mandal panchayat is as prescribed. It does not make a distinction between the meeting of the mandal Panchayat for moving a vote of no confidence and the other meeting of the mandal Panchayat to carry on the day to day business of the Mandal Panchayat. Section 50 of the Act provides. . . . . . . . . . . . " (1) A Mandal Panchayat shall meet for the transaction of business at least once in every month at the office of the mandal Panchayat and at such time as the Pradhana may determine. (2) The pradhana may, whenever he thinks fit and shall, upon the written request of not less than one third of the total number of members, call a special meeting. (3) 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, and pasted up at the office of the Mandal Panchayat. (4) The officers to whom notice is given under Sub section (3) and other government Officers having jurisdiction over the Mandal or any part thereof shall be entitled to attend every meeting of the mandal Panchayat and take part in the proceedings but shall not be entitled to vote. (5) If the Pradhana fails to call a special meeting as provided in sub section (2), the Upapradhana or one third of the total number of members may call such a meeting for a day not more than fifteen days after the presentation of such request and require the Secretary of the mandal panchayat to give notice to the members and to take such action as may be necessary to convene the meeting. " ( 19 ) THIS section prescribes the procedure for holding a meeting of the mandal Panchayat for transacting its regular business, and the business of the Mandal panchayal in such a meeting should not be confused with the business of the meeting of the Mandal Panchayat. which is called for under Section 47 (3) of the Act. The contention of Sri Somanath Reddy. learned counsel for the petitioner in w. P. 1 222 1 / 1988 is that in order to hold a valid meeting under Section 47 (3) of the Act there should be two notices, one notice under Section 47 (3) and the second notice under Section 50 (3) of the Act. He contended that if Section 50 of the Act governs the proceedings under Sec. 47 (3), then there should be 7 clear days" notice of a special meeting specifying the date time and place of such meeting and the business of the meeting which should be given by the secretary of the Mandal Panchayat to the members and such Officers, as the government may prescribe. I am unable to agree with this contention, though Section 50 comes under Chapter-III of the Act and section 50 is also controlled by the provisions of Sec. 55 of the Act, the meeting of the Mandal Panchayat contemplated under Sec. 50, which can be called as an ordinary meeting or a special meeting depending on the nature of business of the meeting is not a meeting under Sec. 47 (3) of the Act, as that meeting does not relate to the general or special business of the mandal panchayat. But it is an extraordinary meeting for moving a vote of no-confidence against the members concerned on the requisition made by the Assistant Commissioner in terms of Section 47 (2) of the Act. Therefore, the second notice on which mr. Somanath Reddy has insisted under the provisions of Sec. 50 (3) of the Act, need not be given for moving a vote of no confidence against the Pradhana of the Mandal panchayat. What is necessary is a notice under Sec. 47 (3) and a meeting of the mandal Panchayat to be held pursuant to that notice for moving a vote of no confidence. ( 20 ) THAT takes me to the second contention of the learned Counsel for the petitioners. They contended that the provisions of Sec. 55 of the Act should not be relied upon for validating the resolution passed without a proper notice under see. 47 (3) of the Act. Section 55 (2) of the Act reads as under:"no resolution of a Mandal Panchayat or of any Committees 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. "it was contended by the learned Counsel for the petitioners that the service of notice is one thing and the duration of notice is quite another and therefore, Sec. 55 (2) is not available to the contesting respondent for validating the resolutions impugned in these petitions. ( 21 ) A similar argument was raised before the Supreme Court in Narasimhiah's case. The Supreme Court rejected the contention with the following observations:"it is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words "irregularity in the service of the notice upon any Councillor". It appears to us. however reasonable to think that in making such a provision in S. 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required. It appears to us. however reasonable to think that in making such a provision in S. 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required. "in my view, the very same reasoning of the supreme Court on the provisions of Section 35 of the I 95 1 Act would apply to the facts of this case and also to the construction of sec. 47 (3) of the Act with equal force. ( 22 ) MR. SOMANATH Reddy relied on a decision of the Assam High Court in samiruddin AHMED Vs. S. D. O. MANGALDOI AND OTHERS (A. I. R. 1971 Assam 163 ). He also sought to make a distinction between the provisions of section 49 (9) of the Karnataka municipalities Act and the provisions of sec. 47 (3) of the Act. In my view, the decision of the Assam High Court does not lay down the correct law since the decision of the Supreme Court in Narasimhaiah's case was not brought to the notice of the assam High Court while considering the provisions similar to Sec. 35 of the 1951 Act. The distinction sought to be made in the language of Section 49 (9) of the Karnataka municipalities Act and the Language of section 47 (3) of the Act, in my view, is a distinction without any substance and what is necessary for the purpose of this case is to take the scheme of Part III of the Act to consider whether in the light, of the provisions of Sec. 55 of the Act, the language of Sec. 47 (3) is mandatory or directory. In my view, the decision of the Supreme Court in Narasimhaiah's case is a complete answer to this case as also the later decision of the supreme Court in Sherif-ud Din's case. In the circumstances, there is no good ground to differ from the view taken by this Court in W. P. Nos. 8162 and 8163/1988 decided on 8 2 1988 and also in W. P. No. 1 3898 decided on 8-9-1988. ( 23 ) ONE more contention of Sri somanath Reddy which requires to he considered is whether the notice of no confidence was signed by the requisite majority of the members of the Mandal panchayat as required under Sec. 47 (1) of the Act. ( 23 ) ONE more contention of Sri somanath Reddy which requires to he considered is whether the notice of no confidence was signed by the requisite majority of the members of the Mandal panchayat as required under Sec. 47 (1) of the Act. According to Sri Somanath Reddy the strength of the Mandal Panchayat is 24 and as only 15 members had signed the requisition for moving a vote of no confidence against the petitioners that requisition is bad in law. In w. P. No. 12221/88 the petitioner has averred that the strength of the Mandul panchayat is 22. In the additional affidavit filed by him, he has averred that in addition to 22 elected members, there are two nominated members. If the strength of the mandal Panchayat is taken to be 24, then the requisition is not signed by the majority members as required under Sec. 47 (1) of the act. The records disclose that there are only 22 members in the Mandal Panchayat. The petitioner being a Pradhana he should have known how many are elected members and how many are nominated members but he has not given the names of the elected members and the names of the nominated members. In the circumstances, it is not possible 'for this Court to determine this disputed question of fact for the purpose of ascertaining whether the requisition was signed by the majority of the members as prescribed under Sec. 47 (1) of the Act and therefore, it is not a fit matter for interference under Art. 226 of the constitution. ( 24 ) LEARNED Counsel for the petitioners has invited my attention to the decision ol the Division Bench of this Court in w. A. No. 2392/1982 disposed of on 1-10-1982. In that case, the Ist proviso to section 42 (9) of the Karnataka municipalities Act, 1964 came up for consideration. The Division Bench following the decision of the Supreme Court in Jai charan Lal v. State of U. P. (A. I. R. 1968 s. C. 5) has held that the provision in question emphasises atleast 10 days notice and any resolution made within that period, whatever may be the result of the meeting cannot be considered as valid. In this case we are not concerned with the Ist part of sec. In this case we are not concerned with the Ist part of sec. 47 (3), but the II part prescribing 15 clear days notice to the members of the mandal Panchayat and therefore the decision of the Division Bench in w. A. No. 2392/ 1982 is not applicable to the facts of this Case. ( 25 ) ACCORDINGLY, these petitions are dismissed. Parties to bear their own costs. ( 26 ) A clarification may be necessary in the light of the submission made by the learned Counsel for the petitioners. Though this court has held that the period of notice to be given to the members of the Mandal panchayat for moving a vote of no confidence is not mandatory but only directory it does not mean that the Assistant commissioner in every case could dispense with the notice with impunity or give a lesser period of notice. It is imperative that he complies with this requirement in order to prevent the parties from rushing to this Court and wasting their time and money in litigating over matters already settled by the supreme Court and this Court. Writ petition dismissed. --- *** --- .