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Madhya Pradesh High Court · body

2015 DIGILAW 1179 (MP)

Farook Mohammad v. State of M. P.

2015-11-17

SHEEL NAGU

body2015
ORDER 1. This Court on 14.8.2015 formulating the following question had referred the matter to Hon’ble the Chief Justice for being decided by a Larger Bench : “Whether the Division Bench decision in the case of Awadh Behari Pandey v. State of Madhya Pradesh and others, reported in 1969 JLJ 144 =1968 MPLJ 638, was correct to the extent of holding the provision of section 56(3) of M.P. Municipalities Act, 1961 ass mandatory to the extent of vitiating the duly held elections to the office of Vice-President despite the petitioner not only participating but also contesting the election without demur.” 2. The Larger Bench by its judgment dated 15.9.2015 while upholding the decision of Awadh Behari Pandey v. State of Madhya Pradesh and others, reported in 1969 JLJ 144 =1968 MPLJ 638, on which this Court had expressed its doubt, inter alia rendered the following findings, which are relevant for disposal of this case. Paragraphs 24, 25 and 26 of the judgment of the Larger Bench are being reproduced below for ready reference and convenience : “24. Reverting to the second part of the question as formulated by the learned Single Judge, as mentioned earlier, it is essentially about the discretion of the Court. Even this aspect is no more res integra. The Full Bench of our High Court in the case of Smt. Bhulin Dewangan (supra), has considered the same. The Court in paragraphs No.14 and 15 has observed thus : “14. An incidental question arose is whether non-compliance of the second part of sub-rule (3) of rule 3 of the Rules of 1994, which we have held as mandatory, would as a necessary corollary invalidate the proceedings held in the meeting called for passing the no-confidence motion. This question has not directly been posed, but as the learned Single Judge appears to have noticed some conflict or cleavage of opinion between several Single Bench decisions of this Court, we find it necessary to express our opinion on the same. 15. The general rule is that non-compliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. 15. The general rule is that non-compliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C.K. Prasad, J., in Dhumadhandin v. State of M.P. [1997(1) Vidhi Bhasvar 49], which was followed by R.S. Garg, J., in Mahavir Saket v. Collector, Rewa [1998(1) JLJ 113], for holding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of no-confidence would not invalidate the whole proceedings. In case of Dhumadhandin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no-confidence and in fact had taken chance by facing the motion. R.S. Garg, J., in Mahavir Saket (supra), placed reliance on the decision of C.K. Prasad, J., in Dhumadhandin (supra), to uphold the passing of the no-confidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not available. Sub-section (4) of section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no-confidence motion had been passed. The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though second part of the rule requiring dispatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case non-compliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every non-compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfilment of mandatory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion not to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of rule 3(3) of the Rules of 1994, the resolution of no-confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the Legislature has to be gathered from the provisions contained in section 21 and the rule 3(3) framed thereunder. The provisions do evince an intention that a meeting of the noconfidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than 1/3rd of the total number of elected members as required by first Proviso to sub-rule (1) of rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with sub-section (1) of section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance of second part of sub-rule (3) would not in every case invalidate the action unless the Collector while deciding the dispute under sub-section (4) of section 21 or this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice.” (Emphasis supplied) 25. In view of this legal position already enunciated, the learned Single Judge should have decided the controversy brought before him by applying the settled legal position. 26. Accordingly, the questions referred to us are answered on the above terms.” 3. Perusal of the abovesaid findings rendered in paragraphs 24, 25 and 26 makes it clear that this Court is now required to decide as to whether the breach of procedural provision contained in section 56(3) of the Municipalities Act, 1961 providing in mandatory terms issuance of seven (7) clear days notice for convening the first meeting of the Council immediately after the general elections, would vitiate the subsequent election of Vice-President held in the first meeting despite the person alleging breach having participated in the process of election by contesting the said election without any demur. 4. Factual matrix contained in the present case has been detailed in chronological manner in paragraph 3 of the order of reference of this Court dated 14.8.2015, which are self explanatory and clearly indicate that petitioner Farook Mohammad after receiving the notice of convening of first meeting particilated in the first meeting held on 6.1.2015 and also contested the election of the Vice-President held in this meeting. The proceedings of the meeting, which are annexed with the petition, further indicate that no objection of any kind was raised by the petitioner of the notice informing about convening of the first meeting having been issued 5 days before the scheduled date of the first meeting instead of 7 days. Failure of the petitioner to raise any objection and further contesting election in the said meeting clearly demonstrate acquiescence on his part to the entire process of calling of the meeting and also convening the same. 5. Failure of the petitioner to raise any objection and further contesting election in the said meeting clearly demonstrate acquiescence on his part to the entire process of calling of the meeting and also convening the same. 5. In the instant petition, there is no averment as to what prejudice was caused to the petitioner by issuance of notice 5 days before the scheduled day of the first meeting instead of prescribed 7 days. The petitioner nowhere avers that he could not prepare for the first meeting or that due to shortage of time he was inconvenienced in any manner. 6. This Court, thus, is left with no option to conclude that no prejudice of any kind visited the petitioner due to the notice period being short by two days. 7. The provisions of section 56(3) of the Act of 1961 no doubt are textually mandatory but every mandatory provision on its breach cannot lead to a situation of vitiating the end result. While interpreting the mandatory provision, the Larger Bench in Smt. Bhulin Dewangan v. State of M.P. and others [ 2000(2) JLJ 253 (FB)= 2001(2) MPLJ 372 (FB)], has held (supra). 8. Even the apex Court in various pronouncements has laid down that mandatory provisions laying down the procedure can very well be laid down as directory if by doing so no prejudice is caused and no public inconvenience is occasioned while at the same time preserving the object of the enactment. 9. In the instant case, if the provision of section 56(3) of the Act of 1961 is read as mandatory, the entire subsequently held election of Vice-President shall be set at naught, which shall occasion grave public inconvenience and injustice which shall appear all more absurd in absence of any prejudice having been established by the petitioner. 10. In view of the above discussion, I am of the considered view that in absence of any prejudice established by the petitioner, the impugned notice dated 2.1.2015 (Annexure P-1) issued by the Chief Municipal Officer, Nagar Panchayat Chanderi, District Ashoknagar and also subsequently held proceedings of the first meeting dated 6.1.2015 of the Council cannot be held to be vitiated. 11. Consequently, the present petition is dismissed without costs. 12. 11. Consequently, the present petition is dismissed without costs. 12. Dismissal of this petition shall not come in way of the petitioner to assail the election to the office of the Vice-President in terms of the procedure established by law.