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2002 DIGILAW 291 (KAR)

JITENDRA MANNULAL DUBEY v. STATE OF KARNATAKA

2002-04-19

A.V.SRINIVASA REDDY

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A. V. SRINIVASA REDDY, J. ( 1 ) THE petitioner has filed the present petition for quashing the notice dated 11-4-2002 issued by the second respondent as per Annexure-C insofar as it relates to the election of Adyaksha of third respondent-Zilla parishat. ( 2 ) THE petitioner is an elected representative from Narayanapura constituency to the Zilla Panchayat, Bidar. The second respondent issued notice on 11-4-2002 fixing the election to Adhyaksha and Upadhyaksha of Bidar Zilla Panchayat on 18-4-2002. The petitioner claims that the notice is contrary to Rule 3 of the Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 1994 ('the rules', for short), which prescribes 7 days clear notice of the meeting prior to the date of election. On this ground the petitioner prays for quashing of the said notice. ( 3 ) 1 have heard the learned Counsels on both sides. ( 4 ) THE grant or otherwise of the main prayer sought for in the petition mainly depends upon the interpretation of Rule 3 of the Rules. It is necessary, therefore, to set out the rule:"3. First meeting. The Election of Adhyaksha and Upadhyak- sha of Zilla Panchayat shall be held in the first meeting after constitution or reconstitution of the Zilla Panchayat on such date as the Commissioner may fix and he shall thereupon send to every member notice of date so fixed not less than seven days prior to the date of the meeting". (emphasis supplied) ( 5 ) THEREFORE, the question for consideration is whether the notice as issued by the second respondent is bad in law as it does not comply with rule 3 of the Rules. ( 6 ) THE rule lays down the procedure to be followed by the Commissioner in the matter of sending notices to every elected member of the zilla Panchayat before holding the first meeting of the Panchayat in which the election of Adhyaksha and Upadhyaksha is held. Whilst fixing of the date of the meeting is left to the discretion of the Commissioner the rule prescribes that, 'he shall thereupon send to every member notice of date so fixed not less than seven days prior to the date of the meeting". Relying on the said prescription it is argued by learned Counsel Mr. Whilst fixing of the date of the meeting is left to the discretion of the Commissioner the rule prescribes that, 'he shall thereupon send to every member notice of date so fixed not less than seven days prior to the date of the meeting". Relying on the said prescription it is argued by learned Counsel Mr. Nagarajappa that the word used being 'shall' the intention of the legislature was to compel the strict observance of the particular rule and therefore it was mandatory on the part of the Commissioner to have issued the notice seven clear days prior to the meeting. As the notice impugned herein is issued only six clear days prior to the meeting, it is submitted that it is not a valid notice and therefore has to be quashed. ( 7 ) THE impugned notice is dated 11-4-2002. It is the contention of learned Counsel for the petitioner that it was served on him on 12-4- 2002. The rule stipulates that notice of date so fixed must be sent to every member not less than seven clear days prior to the date of the meeting. As the stipulation is seven clear days prior to the date of meeting, if we start calculating the days from 12-4-2002 i. e. , the date of service of notice and exclude 18-4-2002, the date of meeting, the notice served on 12-4-2002 would give only six days clear notice to the member. Thus, the impugned notice issued in the present case falls short of the requirement of the rule by one day. ( 8 ) IN K. Narasimhaiah v H. C. Singri Gowda and Others, the Apex court while interpreting the word 'giving' in the context of tendering notice, observed thus:" "giving" of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however 'giving' is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. In the eye of law however 'giving' is complete in many matters where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. Thus, as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is not complete". Thus, in the present case the service having been done on 12-4-2002, the period would start to run from 12-4-2002 only and the seven clear days would be completed only on 18-4-2002. As the stipulation in the rule is to give notice of 7 clear days prior to the date of meeting, the notice must have been served on the petitioner on 11-4-2002 itself to bring it in conformity with the rule. As the notice gives only 6 clear days notice of the meeting, it falls short by one clear day. The intention of the Legislature that the rule has to be observed strictly and mandatorily becomes all the more obvious if we consider the word 'shall' employed in the rule and also the precise number of days that the Legislature took care to mention in the rule itself. The purpose of the first meeting being to achieve the important object of electing the Adhyaksha and Upadhyak- sha, the stipulation of seven clear days notice has to be construed as mandatory in character and not as directory. Had it not been the intention of the Legislature to insist on seven clear days notice of the meeting, certainly it would have employed a different phraseology such as 'sufficient notice' or 'well in advance'. The very fact that the Legislature took upon itself to mention in the rule itself the precise number of days, it is obvious that the Legislature did not desire to leave matters to the discretion of the authorities under the Act. ( 9 ) THE learned Counsel for the petitioner relied on two decisions of this Court. The very fact that the Legislature took upon itself to mention in the rule itself the precise number of days, it is obvious that the Legislature did not desire to leave matters to the discretion of the authorities under the Act. ( 9 ) THE learned Counsel for the petitioner relied on two decisions of this Court. In M. Putegowda and Another v Assistant Commissioner, mysore Sub-Division, Mysore1, a Division Bench of this Court while interpreting the character of notice issued in compliance with Section 49 and Rule 3, held that there must be a clear gap of 15 days between the date on which notice was issued and the date for which the meeting was convened. The Court in the said case was called upon to decide on the character of the notice issued under rule calling for a meeting to decide on the no confidence motion moved by more than one-third of the total number of members. The Court after noticing that there is every likelihood that the issuance of notice of shorter than the prescribed period could adversely affect the result of the meeting, held that in such a case non-observance of the provisions relating to passing of no confidence motion could easily disturb the position of men holding the high elective offices. Taking the said view of the matter, the Full Bench referred to herein below held that any notice of a meeting which decides on the important issue of the confidence reposed by the elected members of the panchayat would certainly be mandatory and not directory. ( 10 ) SIMILARLY in C. Puttaswamy v Smt. Prema, the character of the provision prescribing notice of not less than 15 clear days of such meeting was considered by a Full Bench of this Court. Justice S. P. Bharucha (as he then was) speaking for the Bench observed that Section 47 being a complete Code in itself, deliberately provided by the Legislature having regard to the importance of the elective office of the Pradhan and up-Pradhan, the authority required to issue it must strictly abide by the direction contained in the provision which is purely mandatory. In the present case also the meeting is scheduled to elect the Adhyaksha and upadhyaksha of the Panchayat, both high elective offices and the rule prescribing a certain procedure for issuance of the notice would be mandatory in nature and could not have been disregarded by the respondent. As the impugned notice is violative of the rule, it is liable to be struck down. ( 11 ) IN the result, for the reasons stated above, the writ petition is allowed and the impugned notice dated 11-4-2002, produced at Annexure-C is quashed. --- *** --- .