Gopal Tewari v. District Panchayat Raj officer — 1991 DIGILAW 480 (ALL)

JUDGMENT R.A. Sharma, J. - Petitioners who are Pradhans of Gaon Sabhas, have filed these writ petitions challenging the orders passed by the District Panchayat Raj Officers fixing dates for meeting of the Gaon Sabha for consideration of motions of no-confidence against the petitioners on the ground that in view of Rule 33-B (2) of the U.P. Pancyayat Raj Rules (hereinafter referred to as the Rules) no meeting for consideration of the moton of no-confidence against a Pradhan can be held after 30 days from the date of the receipt of the notice of motion. 2. A Division Bench of this court in Ballu Ram Kushwaha v. Zila Panchayat Raj Adhikari, 1987 UPLBEC 718, has held the provisions of Rule 33-B (2) are mendatory, consequences of which is that motion of no-confidence cannot be passed against the Pradhan after a period of 30 days from the date of receipt of the notice with the result that the notice is rendered ineffective and the Pradhan cannot be removed. Another Division Bench of this court in the case of Devi Singh v. District Panchayat Raj Adhikari, 1987 UPLB EC 745, has on the other hand declared the aforesaid Rule as directory. In view of the conflict of the decisions of the aforesaid two Division Benches of this Court a reference was made to the Full Bench for resolving the controversy relating to the question as to whether Rule 33-B (2) is mandatory or directory. 3. Section 14 of the U.P. Panchayat Raj Act (hereinafter referred to as the Act), which deals with the removal of Pradhan by motion of no-confidence is reproduced below : "14. Removal of Pradhan or Up-Pradhan. - (1) The Gaon Sabha may, at a meeting specially convened for the purpose and of which at least 15 days' previous notice shall be given, remove the Pradhan by a majority of two-thirds of the members present and voting. (2) A meeting for the removal of a Pradhan shall not be convened within one year of his election. (3) If the motion is not taken up for want of quorum or fails for lack of requisite majority at the meeting, no subsequent meeting for the removal of the same Pradhan shall be convened within a year of the date of the previous meeting. (3) If the motion is not taken up for want of quorum or fails for lack of requisite majority at the meeting, no subsequent meeting for the removal of the same Pradhan shall be convened within a year of the date of the previous meeting. (4) Subject to the provisions of this section, the procedure for the removal of a Pradhan, including that to be followed at such meeting, shall be such as may be prescribed." Sub-section (4) of Section 14 requires the procedure for removal of Pradhan to be prescribed. Rule 33-B, which provides for procedure for removal of Pradhan, has been framed by the Government. Sub-rules (1) and (2) of Rule 33-B being relevant are reproduced below : "33-B. Procedure for removal of Pradhan or Up-Pradhan. - (1) A written notice of the intention to move a motion for removal of the Pradhan or Up-Pxadhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one half of the total number of members of the Gaon Sabha and shall be delivered in person by at least five members signing the notice to the prescribed authority. (2) The prescribed authority shall convene a meeting of the Gaon Sabha, under Section 14 of the Act, on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. The meeting so convened shall be presided over by the prescribed authority or the person authorised by him in writing in this behalf. The presiding officer may take such clerical assistance for conducting the proceedings of the meeting for the consideration of the motion as he deems necessary." 4. Section 14 (1) of the Act lays down that a meeting for consideration of the motion of no-confidence can be convened on a date of which at least 15 days previous notice shall be given. The Section does not lay down the outer limit within which a meeting is to be held but only requires at least clear 15 days' gap between the date of the notice and the date fixed for convening such meeting of Gaon Sabha for considering motion of no-confidence. The Section does not lay down the outer limit within which a meeting is to be held but only requires at least clear 15 days' gap between the date of the notice and the date fixed for convening such meeting of Gaon Sabha for considering motion of no-confidence. Rule 33-B (2) however, requires the prescribed authority to convene a meeting of the Gaon Sabha under Section 14 of the Act on a date, which shall not be later than 30 days from the date of the receipt of the notice. If this Rule is held mandatory no meeting can be held for considering the motion of no-confidence against a Pradhan after expiry of 30 days from the date of receipt of the notice of motion, with the result the motion will laps; but a contrary result will follow if the Rule is held to be directory. 5. When public authority or public officials are required by law to perform a duty within given time, the prescription of time is not a rule of limitation and is generally treated as directory. In R. v. Urbanowski, 1976 1 All ER 679, while considering provisions of Section 7 (4) of the Courts Act, 1971 which required the trial to begin not later than prescribed time, it was laid down that if the law was dealing with what was required of a public official, stipulation of time for performance of a duty is directory and not mandatory. The relevant passage from this judgment is extracted below ; "In Moore v. Hewitt the Divisional Court attached importance to the decision in Hughes v. Wavertres Local Board and in giving the judgment of the court Lord Goddard, C.J. emphasised that it was important to observe whether the Act was dealing with what was required of a public official or of a party. See also Caldaw v. Pixell. It seems to us plain that Section 7 (4) of the 1971 Act is primarily addressed to the Crown Court, and obliges the court to take steps to ensure that cases are begun within the prescribed period. See also Caldaw v. Pixell. It seems to us plain that Section 7 (4) of the 1971 Act is primarily addressed to the Crown Court, and obliges the court to take steps to ensure that cases are begun within the prescribed period. Accordingly in our view this provision, being addressed to the court and its officials, is directory and not mandatory." Supreme Court also in the case of Dattatraya Moreshwar v. The State of Bombay and others, AIR 1952 SC 181 , has laid down that law which creates public duties is directory but if it confers private rights is mandatory. Relevant passage from this judgment is quoted below : "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 the legislature, it has been the practice of the Courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done." 6. In this connection reference may also be made to the case of The Remington Rand of India Ltd. v. The Workmen, AIR 1968 SC 224 , wherein the question involved was whether publication of an Award within time fixed by Section 17 (1) of the Industrial Disputes Act is mandatory so as to render the award inoperative if it is not published within the stipulated time Supreme Court therein following the case of State of U.P. v. Babu Ram Upadhayaya, AIR 1961 SC 751 , has laid down as follows : "It was observed by Subbarao J. (as he then was) speaking for the majority of the Court that : "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 one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstances, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above whether the object of the legislation will be defeated or furthered." Keeping the above principles in mind, we cannot but hold that a provision as to time in Section 17 (1) is merely directory and not mandatory. Section 17 (1) makes it obligatory on the Government to publish the award. The limit of time has been fixed as showing that the publication of the award ought not to be held up. But the fixation of the period of 30 days mentioned therein does not mean that the publication beyond that time will render the award invalid. It is not difficult to think of circumstances when the publication of the award within thirty days may not be possible. For instance, there may be a strike in the press or there may be any other good and sufficient cause by reason of which the publication could not be made within thirty days. If we were to hold that the award would therefore be rendered invalid, it would be attaching under importance to a provision not in the mind of the legislature. If we were to hold that the award would therefore be rendered invalid, it would be attaching under importance to a provision not in the mind of the legislature. It is well known that it very often takes a long period of time for the reference to be concluded and the award to be made. If the award becomes invalid merely on the ground of publication after thirty days, it might entail a fresh reference with needless harassment to the parties. The non-publication of the award within the period of thirty days does not entail any penalty and this is another consideration which has to be kept in mind." 7. Rule 33-B (2) contains a direction to the prescribed authority for convening a meeting of Gaon Sabha under Section 14 of the Act within time specified therein. As the directions are addressed to the Public Official for performance of certain duty, the provision cannot be said to be mandatory and is directory only. To hold it otherwise, apart from being inconsistent with the principles of interpretation relating to the prescription of time for performance of duty, it will work great injustice to those who have moved the motion of no-confidence inasmuch as their motion will lapse if no meeting is held within thirty days. The Act provides for Local Self-Government where the people of Goon Sabha have been given the right to manage their own affairs and perform governmental function through a democratic process under which they have been given the right to elect a Pradhan and remove him by passing motion of no-confidence. Election and removal by motion of no-confidence are two important aspects in democratic set-up for which the Act has made ample provisions. But if Rule 33-B (2) is held to be imperative substantive right of members of Gaon Sabha to remove the Pradhan by passing the motion of no-confidence will be adversely affected. It may not be possible to hold the meeting of the Gaon Sabha within a period of 30 days for considering the motion of no-confidence for more than one reasons such as riot, flood or negligence or lapse on the part of the officials, who are required to convene the meeting. It may not be possible to hold the meeting of the Gaon Sabha within a period of 30 days for considering the motion of no-confidence for more than one reasons such as riot, flood or negligence or lapse on the part of the officials, who are required to convene the meeting. Persons, who move motion of no-confidence have no control over them, who are to convene the meeting and their right to remove the Pradhan by such a motion will stand debated on account of the non-convening of the meeting within thirty days from the date of the receipt of the notice. Such a consequence, if allowed to follow, will operate against the very object for which the Act has been passed. That apart, Section 14 which deals with the removal of Pradhan by motion of no-confidence has not laid down any outer limit within which the meeting is to be convened for considering the motion and sub-section (4) of Section 14 merely authorises the Government to frame rules prescribing the procedure for the removal of Pradhan. Under the guise of prescribing the procedure it is not open to the Government to lay down unalterable rules of limitation, which can extinguish right conferred by statute. In M/s. Bharat Barrel ami Drum Mfg. Co. Private Ltd. and another v. The Employees Estate Insurance Corporation, AIR 1972 SC 1935 , Supreme Court held Rule 17 framed under the Employees Estate Insurance Act as ultra vire? on the ground that as the Act merely authorises the Government to make rule for regulating the procedure, it cannot make rule providing for limitation which can put an end to a right conferred by statute. Relevant passage from the said judgment of Supreme Court is extracted below : "What is sought to be conferred is the power to make rules for regulating the procedure before the Insurance Court after an application has been filed and when it is seized of the matter. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale of procedure. Rule 17 is of such a nature and is similar in terms to Section 80. That apart the nature of the rule bars the claim itself and extinguishes the right which is not within the pale of procedure. Rule 17 is of such a nature and is similar in terms to Section 80. There is no gain-saying the fact if an employee does not file an application before the Insurance Court within 12 months after the claim has become due or he is unable to satisfy the Insurance Court that there was a reasonable excuse for him in not doing so, his right to receive payment of any benefit conferred by the Act is lost. Such a provision affects substantive rights and must therefore be dealt with by the legislature itself and is not to be inferred from the rule-making power conferred for regulating the procedure unless that is specifically provided for." In case Rule 33-B (2) is held to be mandatory it may be liable to be struck down being inconsistent with Section 14 of the Act. But the said rule is not imperative and does not provide for rule of limitation and merely contains directions addressed to the public officials for convening a meeting. The rule as such cannot be said to be ultra vires ; but, it is directory in nature with the result that if meeting is fixed even after 30 days from the date of receipt of the notice meeting will be valid and motion passed therein will also be in accordance with law. 8. The contention of the learned counsel for the petitioners to the effect that on account of the use of peremptory language in negative from in Rule 33-B (2) it is liable to be construed as imperative, cannot be accepted The language of a provision is not always decisive in order to find out whether it is mandatory or directory. It all depends on various factors and considerations. In Govind Lal Chaggan Lal Patel v. The Agriculture Produce Market Committee, AIR 1976 SC 263 , Supreme Court hold as follows : "Crawford on 'Statutory Construction' (Edn. 1940 Article 261 p. 516) sets out the following passage from an Americah case approvingly ; 'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. 1940 Article 261 p. 516) sets out the following passage from an Americah case approvingly ; 'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention 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," Thus, the governing factor is the meaning and intent of the legislature, which should be gathered not merely from the words used by the legislature but from a variety of other circumstances and considerations." To the same effect is the law laid down by the Supreme Court in the case of State of Mysore v. V.K. Kangan, AIR 1975 SC 2190 , wherein it was observed that; "The determination of the question whether a provision is mandatory or directory would, in the ultimate analysis, depend upon the intent of the law-maker. And that has to be gathered 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 in one way or the other." Rule 22-B (2) does not confer any right on any person but contains directions addressed to the public officials, who are required to convene a meeting on a date which shall not be later than 30 days from the date of receipt of the notice for consideration of motion of no-confidence. Such a direction even if couched in peremptory language, cannot, for the reasons given hereinbefore, be construed to be imperative and it is merely directory. In this connection reference may be made to a decision of Supreme Court in Dalchand v. Municipal Corporation, AIR 1983 SC 303 wherein it was laid down as follows : "It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statute. It is as well to realise that every prescription of a period within which an act must be done, is not the prescription of a period of limitation with painful consequences if the act is not done within that period." 9. For the reason? given above, we hold that Rule 33-B (2) is not imperative and is only directory and the view on this question taken in the case of Devi Singh v. District Panchayat Raj Adhikari, 1988 UPLBEC 745, represents the correct position. However the decision of this Court in the case of Ballu Ram Kushwaha v. Zila Panchayat Raj Adhikari, 1987 UPLBEC 718, does not lay down the correct law and is accordingly overruled. 10. Let the papers of these cases be sent to learned Single Judge for passing appropriate orders in the writ petitions.