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1995 DIGILAW 240 (MP)

Hari Singh Patel v. Janpad Panchayat

1995-02-20

M.V.TAMASKAR

body1995
ORDER M.V. Tamaskar, J. 1. By this petition the petitioners who are members of Zila Panchayat and Gram Panchayat have challenged the constitution of Standing Committees of the Janpad Panchayat, Hoshangabad. The objection of the learned counsel for the petitioners is that the elections were notified on 26-7-1994 as such elections to the Standing Committee should have been held within one month from the said date and in any case within four months under Rule 4 of the M. P. Janpad Panchayat and Zila Panchayat Standing Committees (Election of members, powers and functions and term of members and procedure for the conducting business) Rules, 1994, which is quoted below: "4. Meeting for constitution of Standing Committee. - The Chief Executive Officer of the Janpad Panchayat the Zila Panchayat shall within one month of the date on which the election of members, President and Vice-President is notified under Section 26 or 33, as the case may be, convene a meeting of the Janpad Panchayat or Zila Panchayat as the case may be for the election of the members of the Standing Committee other than the General Administration Committee of the Janpad Panchayat or Zila Panchayat as the case may be : Provided that for the constitution of the Janpad Panchayat and the Zila Panchayat, as the case may be, the period prescribed above shall be 4 months." 2. The constitution of the Janpad Panchayat is to be made as stated above under the rules, Section 47 of the Act provides for composition of Janpad Panchayat. The letter written by the Director, Panchayat and Social Welfare, was only a communication to comply with the provisions of the Act i.e. that the elections to the constitution of the Standing Committee before 24-10-1994. This date could be extended. The holding of elections on 29-10-1994 cannot be said to be without jurisdiction. The elections held are according to law. 3. Learned counsel for the petitioners submitted that the elections having not been held as per the direction given by the Director are vitiated. He also stated that the election should be held only within the time as prescribed under Section 47 of the Act and Rule 4 of the Rules, referred to above, and if that is not done according to the said rule, the whole action is vitiated. 4. He also stated that the election should be held only within the time as prescribed under Section 47 of the Act and Rule 4 of the Rules, referred to above, and if that is not done according to the said rule, the whole action is vitiated. 4. I do not agree with the submissions and for the reason that the Act does not contemplate that if there is a delay in holding the meetings or elections, the committees cannot be constituted at a later date. There is no other provision which gives any alternative in the event of non-constitution of the Standing Committees. 5. Unless the provision is accompanied by some penal consequences, the same cannot be held to be mandatory. The provision can only be said to be directory. Learned counsel for the petitioners relied on Sharif-ud-Din v. Abdul Gani and Ors., AIR 1980 SC 303 and M. Karunanidhi v. V. Handa, AIR 1983 SC 558 . 6. In the present case the elections were held two days after the period prescribed. The functioning of the Janpad Panchayat would be difficult in absence of elections to the Standing Committee. The Committees have been constituted. In principles of Statutory Interpretation (Fourth Edition 1988) by Justice G. P. Singh, Former Chief Justice, M.P. High Court, it is observed as under at pages 219 and 221. "When consequence of nullification on failure to comply with a prescribed requirement is provided by the statute itself, there can be no manner of doubt that such statutory requirement must be interpreted as mandatory." "When the statute does not expressly provide for nullification as a consequence of the non-compliance of the statutory injunction but imposes expressly some other penalty, it is a question of construction in each given case whether the legislature intended to lay down an absolute prohibition or merely to make the offending person liable for the penalty." It has been held in 1989 MPLJ 285 as under : "No universal rule can be stated with any amount of precision to test whether a given provision is directory or mandatory. The language employed plays a vital role in determining this question but it is often not decisive. Regard must be had to the context, subject-matter and object of the provision in question. The language employed plays a vital role in determining this question but it is often not decisive. Regard must be had to the context, subject-matter and object of the provision in question. In State of U.P. v. Manbodhanlal Shrivastava, AIR 1957 SC 912 , the Supreme Court approved the following passage from Liverpool Borough Bank v. Turner, (1861) 30 LJC 379 where Lord Cambell said : "No universal rule can be laid down into whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be considered." " 7. The Supreme Court in Manbodhanlal Shrivastava's case (supra) stressed that the intention of the legislature and not the language employed must govern. The nature and design of the provision together with the consequences which may follow from construing it one way or the other must be considered. (See also; State of U.P. v. Baburam Upadhaya, AIR 1961 SC 751 ; State of Mysore v. V. K. Kangan, AIR 1975 SC 2190 and Govindlal Chhaganlal Patel v. Agriculture Produce Market Committee, AIR 1976 SC 263 . If the object of the enactment would be defeated by holding the provision directory, it would be construed as mandatory. When consequence of nullification on failure to comply with a prescribed requirement is provided by the statute itself. There can be no manner of doubt that such statutory requirement must be interpreted as mandatory. When the statute does not specifically provide for nullification as consequence of the non-compliance of the statutory injunction but imposes expressly some other penalty, it is a question of construction in each given case whether the legislature intended to lay down an absolute prohibition or merely to make the offending person liable for the penalty." , 8. The petitioners who are not members of the Janpad Panchayat but outsiders cannot challenge the elections to the Standing Committees of the Janpad Panchayat. No prejudice is caused to the petitioners in any way. In this view of the matter the petition has no force. 9. There is yet another way of looking at the controversy where a provision is made for performance of duties imposed under the Act. No prejudice is caused to the petitioners in any way. In this view of the matter the petition has no force. 9. There is yet another way of looking at the controversy where a provision is made for performance of duties imposed under the Act. The same can be exercised unless a different intention appears from the language of the section. Section 14 of the General Clauses Act reads as under : "14. Powers conferred to be exercisable from time to time. - (1) Where, by any Central Act of Regulation made after the commencement of this Act, any power is concerned, then, unless a different intention appears, that powers may be exercised from time to time as occasion requires." 10. In the instant case, there is a power conferred to hold the elections and there is no different intention appearing from the language of the section or the rules. The exercise of powers by the Janpad Panchayat to elect the Standing Committees cannot be said to be without jurisdiction or without authority of law. In this view of the matter also the petition is liable to be dismissed. Consequently, the petition is dismissed.