GIRISH CHAND SHARMA v. DISTRICT MAGISTRATE — 1991 DIGILAW 1372 (ALL)

JUDGMENT : R.A. Sharma, J. Petitioner, who is chairman, Town Area Committee Hasayan district Aligarh, has filed this writ petition challenging the notice dated 8-5-1991 (Annexure-1 to the writ petition) whereby 29-5-1991 was fixed as the date of the meeting of the Town Area Committee for consideration of the motion of the no-confidence, against him. The meeting of 29-5-1991 was adjourned and was ultimately held on 20-6-1991. It is admitted to the learned Counsel for both the parties that in the aforesaid meeting six members participated and all of them have voted in support of the motion of no confidence against the Petitioner, but in view of the interim order passed by this Court resolution passed in the aforesaid meeting could not be implemented, with the result that the Petitioner is still working as chairman of the Town Area Committee. 2. The Respondents have filed counter-affidavit and the Petitioner has filed rejoinder-affidavit in reply there to We have heard the learned Counsel for the parties. 3. The learned Counsel for the Petitioner has raised three submissions, namely, (i) the meeting of the Town Area Committee for consideration of the motion of no-confidence against the Petitioner, having been fixed after thirty five days from the date of the receipt of the notice of motion by the District Magistrate, the motion has lapsed and no action can be taken on the basis of the resolution passed in such a meeting, (ii) the District Magistrate has not issued the notice of the meeting, but Addl. District Magistrate had issued such notices, and (iii) the notice of motion of no-confidence was signed by six members only who were less than one half of the total number of members of Town Area Committee, and no action could have been taken on such a notice. 4. The Town Area Act does not provide for motion of no-confidence against the chairman of a Town Area Committee, but Section 87-A of the U.P. Municipalities Act (hereinafter referred to as the Act) has been extended to the Town Area, by the Government of Uttar Pradesh on account of which the motion of no-confidence against the chairman of the Town Area Committee can be moved, considered and passed by the Town Area Committee in accordance with Section 87-A of the Act. Sub-section (1) to (6) of Section 87-A, being relevant, are reproduced below: (1) Subject to the provisions of this Section, a motion expressing no-confidence in the President shall be made only in accordance with the procedure laid down below. (2) Written notice of intention to make a motion of no-confidence in its president signed by such number of members of the Board as constitute no 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 Sub-section (2) was delivered to him. He shall sent 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. (4) The District Magistrate shall arrange with the District Judge for a stipendiary civil judicial officer to preside at the meeting convened under this Section, and no other person shall preside thereat. If within half an hour from the time appointed for the meeting, the judicial officer is not present to preside at the meeting, the meeting shall, stand adjourned to the date and the time to be appointed and notified to the members by that officer under Sub-section (5). (5) If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under Sub-section (3). He shall without delay communicate in writing to the District Magistrate the adjournment of the meeting. He shall without delay communicate in writing to the District Magistrate the adjournment of the meeting. It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in Sub-section (3). (6) Save as provided in Sub-sections (4) and (5) a meeting convened for the purpose of considering a motion under this Section shall not for any reason be adjourned. Sub-section (3) of this Section required the District Magistrate to convene a meeting 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 notice under Sub-section (2) was delivered to him. A Full Bench of this Court in the case of Mahesh Chandra and Another Vs. Tara Chand Modi, AIR 1958 All 374 , has laid down that those provisions of Section 87-A of the Act which deal with and relate to the calling of the meeting and actual holding of the meeting as also the conduct of the meeting itself, are mandatory, compliance of which is imperative for passing the motion of no confidence validly against the president of the Municipal Board. A Division Bench of this Court in the case of Sohan Krishna Dabral v. District Magistrate Pauri Garhwal, ILR 1969 (All.)185 has however, taken the view that observation of the aforesaid Full Bench relating to the convening and lading of the meeting etc. were merely orbital dicta and on that basis motion of no-confidence passed against the president of Municipal Board in a meeting held after thirty five days from the date of receipt of the notice by the District Magistrate was upheld on the ground that there has been substantial compliance of the provisions of Section 87-A. The question as to whether the provisions of Section 87-A of the Act are mandatory again came up for consideration before a Full Bench of Five-Hon'ble Judges of this Court in the case of Gyan Singh Vs. The District Magistrate, Bijnor and Others, AIR 1975 All 315 . The District Magistrate, Bijnor and Others, AIR 1975 All 315 . This Full Bench has laid down that the first part of Sub- Section (3) of Section 87-A, which deals with the convening of the meeting of the Municipal Board and sending of the notice of the meeting is mandatory. However, later part of Sub-section (3) of Section 87-A which relates to the sending of the notices to the members of the Municipal Board by registered post was held to be directory. The relevant extract from the decision of this Full Bench judgment, as contained in para 8, is reproduced below: 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. In view of the decision of the aforesaid Full Bench the provisions of Sub-section (3) of Section 87-A so far as they relate to the convening of the meeting on the date which shall not be earlier than thirty and not later than thirty five days from the date on which the notice was delivered to the District Magistrate, are mandatory. This provision being mandatory it is incumbent on the District Magistrate to convene the meeting on any date between thirty and thirty-five days. If a meeting is convened by the District Magistrate after thirty five days from the date of receipt of notice, such meeting will be illegal and the resolution passed therein cannot be said to have been validly passed. If a meeting is convened by the District Magistrate after thirty five days from the date of receipt of notice, such meeting will be illegal and the resolution passed therein cannot be said to have been validly passed. Legal effect of the provision of Sub-section (3) is that if the meeting is not convened on a date between 30 and 35 days from the date of the receipt of the notice by the District Magistrate, the notice of motion of no-confidence will lapse and no action can be taken on it. 5. In the instant case the admitted position is that the notice of motion of no-confidence was delivered to the District Magistrate on 1-4-1991. In pursuance of the aforesaid notice the Additional District Magistrate, by his order dated 8-5-1991, fixed 29-5-1991 as the date of meeting of the Town Area Committee for considering the motion of no-confidence against the Petitioner. 29-5-1991 was obviously much beyond thirty-five days from the date of receipt of the notice by the District Magistrate (1-4-1991). The meeting not having been convened within the time fixed by Sub-section (3) of Section 87-A, the motion has lapsed and no action can be taken on its basis. The resolution passed, if any, by the Town Area Committee in such a meeting has no legal sanctity and is liable to be ignored. 6. Learned Counsel for the Respondents, relying on the decision of another Full Bench in the. case of Gopal Tiwari v. District Panchayat Raj Officer 1991 (2) UPLBEC 904, have argued that the provisions of Sub-section (3) of Section 87-A of the Act, so far as they relate to convening the meeting on a date between 30 and 35 days from the date of presentation of notice of motion of no-confidence, are directory. Before this Full Bench the question involved was whether provisions of Rule 33-B (2) of the U.P. Panchayat Raj Rules, which require convening the meeting of the Gaon Sabha u/s 14 of the U.P. Panchayat Raj Act, on the date which shall not be later than 30 days from the date of the receipt of notice are mandatory or directory. Before this Full Bench the question involved was whether provisions of Rule 33-B (2) of the U.P. Panchayat Raj Rules, which require convening the meeting of the Gaon Sabha u/s 14 of the U.P. Panchayat Raj Act, on the date which shall not be later than 30 days from the date of the receipt of notice are mandatory or directory. Although Section 14 of the U.P. Panchayat Raj Act which provides for removal of Pradhan by passing motion of no-confidence against him, does not lay down any outer limit for fixing the date of meeting for considering the motion but the Government by Rule 33-B(2) has fixed the outer limit of thirty days for convening the meeting This Court has held that the provision of Rule 33-B(2) of the U.P. Panchayat Raj Rules is directory, on the ground that Section 14 of the U.P. Panchayat Raj Act, which deals with removal of the Pradhan by motion of no-confidence has not laid down any outer limit within which the meeting is to be convened and the Government under guise of prescribing the procedure cannot lay down any unalterable rule of limitation and if Rule 33-B(2) is held to be mandatory, it may be liable to be struck down being inconsistent with Section 14 of the U.P. Panchayat Raj Act. The Full Bench also relied upon the well known principle according to which when public officials are required by law to perform public duty within the given time, prescription of time is not rule of limitation and is generally treated as directory. In that connection reliance was placed on the decisions in the cases of Dattatreya Moreshwar Pangarkar Vs. The State of Bombay and Others, AIR 1952 SC 181 , Rule v. Urbanowski 1976 (1) All. ER 679 and Dalchand Vs. Municipal Corporation, Bhopal and Another, (1984) 2 SCC 486 . Learned Counsel for the Respondents have argued that the aforesaid principle should also be applied, while considering the provisions of Sub-section (3) of Section 87-A so far as they relate to convening the meeting, on a particular date. It is not possible to agree with the learned Counsel. Sub-section (1) of Section 87-A of the Act has expressly laid down that, "a motion expressing no confidence in President shall be made only in accordance with the procedure laid down below" (emphasis supplied). It is not possible to agree with the learned Counsel. Sub-section (1) of Section 87-A of the Act has expressly laid down that, "a motion expressing no confidence in President shall be made only in accordance with the procedure laid down below" (emphasis supplied). The mandate of the legislature as contained in Section 87-A is absolutely clear. The motion of no confidence is to be considered only in accordance with the procedure laid down therein. Sub-sections (2) and (3) prescribe the procedure according to which a meeting is to be convened or held for considering the motion of no-confidence and by virtue of Sub-section (1) the motion of no-confidence has to be considered only in accordance with the procedure contained in the aforesaid provisions. By Sub-section (3) of the legislature has restricted the discretion of the District Magistrate in convening the meeting on a date which will not be earlier than thirty and not later than thirty-five days from the date of the presentation of notice. By this provision the legislature has prescribed both the inner and outer limit of time within which the meeting has to be convened. For the aforesaid reasons in our opinion convening the meeting on a date between thirty and thirty five days from the date of receipt of notice, is mandatory. It is not open to the District Magistrate to convene a meeting on a date earlier than thirty or on a date which is later than thirty-five days, from the date of receipt of the notice. The provisions which came up for consideration before the Full Bench in the case of Gopal Tiwari (supra) were absolutely different and couched in different language, and this decision cannot help the Respondents. 7. It is true that the persons who move the motion of no-confidence have no control over the District Magistrate who is required to fix the date for meeting in accordance with Sub-section (3) of Section 87-A and there are no consequences provided by the statutes if the Greeting is not held within the time specified by Sub-section (3). But that alone cannot be a ground for holding the first part of Sub-section (3) of Section 87-A as directory. The legislative intent has been made clear by Sub-section (1) of Section 87-A, according to which the motion has to be considered in accordance with the procedure prescribed in the subsequent Sub-sections. But that alone cannot be a ground for holding the first part of Sub-section (3) of Section 87-A as directory. The legislative intent has been made clear by Sub-section (1) of Section 87-A, according to which the motion has to be considered in accordance with the procedure prescribed in the subsequent Sub-sections. By enacting the procedure the legislature has restricted the discretion of the District Magistrate to the minimum in the matter of convening the meeting and its adjournment. We respectfully follow the Full Bench decision of this Court in the case of Gyan Singh Vs. The District Magistrate, Bijnor and Others, and we do not find any jurisdiction to refer the question again to a larger bench. The District Magistrate has to fix the meeting between thirty and thirty-five days from the date of receipt of notice and if he does not do so he commits breach of mandatory duty for which he can be held legally liable. Be that as it may, so far as the meeting in the instant case is concerned, it was obviously held after thirty-five days, which was against the provisions of Sub-section (3) of Section 87-A. The meeting was as such illegal and the resolution passed in such a meeting has to be ignored. 8. As we are accepting the first submission of the Petitioner it is not necessary for us to decide the other pleas raised by the 'earned counsel for the Petitioner. 9. The writ petition is accordingly allowed. The notice dated 8-5-1991 fixing the meeting of the Town Area Committee for consideration of the motion of no-confidence against the Petitioner and the motion of no-confidence passed by the Town Area Committee are quashed. It will, however, be open to the members of the Town Area Committee, including the Respondents 3 to 8 to give fresh notice of motion of no-confidence against the Petitioner at any time after this judgment and if such a notice is given to the District Magistrate, we direct that the District Magistrate shall convene a meeting of the Town Area Committee on a date which shall not be earlier than thirty and not later than thirty-five days from the date of presentation of the notice for considering the motion of no-confidence against the Petitioner. In case District Magistrate does not convene the meeting within the time fixed by Sub-section (3) of Section 87-A of the Act it will be open to the Respondents 3 to 8 to take action against the District Magistrate for not complying with the mandatory provisions. There shall be no order as to costs.