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Gyan Singh Vs. the District Magistrate, Bijnor and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 7583 of 1973
Judge
Reported inAIR1975All315
ActsUttar Pradesh Municipalities Act, 1916 - Sections 87A(3); Constitution of India - Article 226
AppellantGyan Singh
RespondentThe District Magistrate, Bijnor and ors.
Appellant AdvocateK.C. Saxena, Adv.
Respondent AdvocateV.K. Khanna, Standing Counsel
DispositionPetition dismissed
Excerpt:
civil - mode of sending notice - section 87-a (3) of u. p. municipalities act, 1916 - mode of sending notice as mentioned in section 87-a (3) is only directional - no specific way prescribed. - - no registered notice of the meeting was, however, sent to the petitioner at his place of residence, instead a copy of the notice was endorsed to the president of nagar palika, dhampur, (municipal board, dhampur) for information and ne-necessary action. he further directed that a copy of the notice be pasted on the notice board of the municipal board as well as on the notice board of the tahsil and collectorate. the contention that section 131 (3) read with section 94 (3) of the act was mandatory in nature, therefore it required strict compliance, the board's failure to publish the tax proposals.....k.n. singh, j. 1. a full bench of this court consisting of three judges referred this petition to a larger bench as in their opinion certain observations made and conclusions drawn by a full bench of this court in mahesh chandra v. tara chand, air 1958 all 374 (fb) required reconsideration. the full bench was of the opinion that in this case a question of gravity and general importance was involved with regard to the principles on which this court, while exercising its jurisdiction under article 226 of the constitution, can in its discretion, refuse relief to the petitioner, even though it may be established that there was non-compliance of a provision of law mandatory or directory in nature. in view of the observations made by the full bench this writ petition has been referred to a.....
Judgment:

K.N. Singh, J.

1. A Full Bench of this Court consisting of three Judges referred this petition to a larger Bench as in their opinion certain observations made and conclusions drawn by a Full Bench of this Court in Mahesh Chandra v. Tara Chand, AIR 1958 All 374 (FB) required reconsideration. The Full Bench was of the opinion that in this case a question of gravity and general importance was involved with regard to the principles on which this Court, while exercising its jurisdiction under Article 226 of the Constitution, can in its discretion, refuse relief to the petitioner, even though it may be established that there was non-compliance of a provision of law mandatory or directory in nature. In view of the observations made by the Full Bench this writ petition has been referred to a larger Bench for decision.

2. Briefly, the facts giving rise to the petition are that Sardar Gyan Singh petitioner was President of the Municipal Board, Dhampur, District Bijnor, which is constituted of sixteen elected members and the President. The petitioner was not an elected member of the Board but by virtue of Section 49 of the U. P. Municipalities Act, 1916, he was ex-officio member of the Board. On 24th October, 1973, two members of the Board presented a notice of intention to move a motion of no-confidence in the present (sic) (President ?--Ed.) to the District Magistrate, Bijnor, together with a copy of the motion signed by ten members of the Board including those who personally presented the same to the District Magistrate. On 8th November, 1973, the District Magistrate convened a meeting of the Board for consideration of the motion of no-confidence to be held at the office of the Board on 24th November, 1973. at 11 A. M. which was to be presided over by Irshad Husain, Munsif Magistrate, Nagina. The District Magistrate sent notices by registered post to all the members of the Board informing them about the date, time and place of the meeting. No registered notice of the meeting was, however, sent to the petitioner at his place of residence, instead a copy of the notice was endorsed to the President of Nagar Palika, Dhampur, (Municipal Board, Dhampur) for information and ne-necessary action. This notice was sent by ordinary post and it was received in the office of the Nagar Palika on 14th November, 1973. The District Magistrate further directed publication of the notice in 'Lokmat' and 'Chingari', two local newspapers published from Bijnor. He further directed that a copy of the notice be pasted on the Notice Board of the Municipal Board as well as on the Notice Board of the Tahsil and Collectorate. The direction of the District Magistrate was complied with and the notices were posted on the notice Boards of the Nagar Palika, Dhampur, Tahsil of Dhampur, and Collectorate at Bijnor. They were further published in 'Lokmat' and 'Chingari', the two local newspapers.

3. On 23rd November, 1973, i.e., one day prior to the holding of the meeting the petitioner filed the present petition before this Court under Article 226 of the Constitution for the issue of writ of mandamus directing the District Magistrate not to hold meeting of the Board convened for considering the no-confidence motion against him. The petition was admitted and the notices were made returnable to a Division Bench. On the stay application the Bench refused to stay the holding of the meeting, instead it granted a limited stay order that if the motion of no-confidence is carried at the meeting it shall not be deemed to have come into existence within the meaning of Section 44-A read with Section 47-A of the U. P. Municipalities Act and no proceedings shall be taken for the election of a new President. The meeting of the Board was held on 24th November, 1973, which was presided over by the Munsif, Nagina. In all ten members of the Board attended the meeting, the petitioner, however, did not attend the meeting. All the ten members unanimously voted in favour of the no-confidence motion with the result the motion was carried. The petitioner thereafter got the petition amended and added a prayer for the quashing of the proceedings of the meeting of the Board held on 24th November, 1973, and for the issue of a writ of mandamus directing the respondents not to interfere with the petitioner's functioning as President of the Municipal Board, Dhampur.

4. Sri K.C. Saxena, learned counsel for the petitioner, submitted that the provisions of Section 87-A (3) of the U. P. Municipalities Act (hereinafter referred to as 'the Act') are mandatory, its non-compliance vitiated the motion of no-confidence even if declared to have been carried by the members of the Board. Since no registered notice was sent to the petitioner at his place of residence the mandatory provision of Sub-section (2) of Section 87-A of the Act was disregarded, consequently the motion of non-confidence is rendered void. Learned Standing Counsel and Sri V.K. Khanna appearing for the respondents urged that the provisions of Section 87-A (3) are directory in nature and it was sufficiently complied with inasmuch as the District Magistrate had sent notice addressed to the petitioner which was received in his office on 14th November, 1973. The petitioner had full knowledge and information about the meeting and as such he was not prejudiced by the non-service of the notice through registered post.

5. Section 87-A of the Act deals with motion of no-confidence against President of a Municipal Board. It begins by stating that 'subject to the provisions of this section a motion expressing no-confidence in the President can be made only in accordance with the procedure laid down in the section'. The section contains 15 different sub-sections but for our purposes only first three sub-sections are material which are set out as under:

'87-A: (1) Subject to the provisions of this section, a motion expressing non-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 non-confidence on its president signed by such number of members of the board as constituted not 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 send 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 therefor, 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.'

The question which arises for consideration is whether the provisions of Section 87-A (3) of the Act are mandatory or directory. No universal rule can be laid down for the construction el statutes whether a particular statute is mandatory or directory. The use of the word 'shall' or 'may' is also not a decisive factor in determining this question, In State of U. P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912, Article 320(3)(c) of the Constitution was held to be directory and not mandatory even though the word 'shall' appears in almost every paragraph and every clause or sub-clause of that article. In considering the question the purpose and the object of the provision contained in the statute, the setting and the context in which the provisions occur and the purpose which is sought to be achieved by the provisions and the legislative intent in making the provision are necessary to be considered. In Raza Buland Sugar Co. v. Rampur Municipality, AIR 1965 SC 895 the Supreme Court while considering the mandatory or directory nature of the provisions contained in Section 131 (3) of the U. P. Municipalities Act, considered this question at length and laid down certain principles. Wanchoo, J., speaking for the majority held:

'The question whether a particular provision of a statute which on the face of it appears mandatory--inasmuch as it uses the word 'shall' as in the present case--or is merely directory cannot be resolved by laying down any general rule and depends upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor. The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which may arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.'

In making the above observations, the Supreme Court was considering the provisions of Section 131 (3) and Section 94 (3) of the U. P. Municipalities Act. Section 131 (11 of the Act empowers a Board to impose a tax by special resolution and for that purpose it is required to frame proposals in the manner laid down in Sub-section (1). Sub-section (2) requires that a draft of the rules may also be prepared. Sub-section (3) however lays down that the Board shall publish tax proposals and the draft rules in the manner prescribed in Section 94 of the Act. Section 94 (3) lays down that every resolution passed by a Board at a meeting shall be, as soon thereafter as may be published in Hindi in any local paper. The Municipal Board, Rampur, had published the tax proposals and the draft rules in a local newspaper but the newspaper was not a Hindi newspaper, instead it was an Urdu newspaper. The contention that Section 131 (3) read with Section 94 (3) of the Act was mandatory in nature, therefore it required strict compliance, the Board's failure to publish the tax proposals and the draft rules in a local Hindi Newspaper vitiated the imposition of the tax, was repelled by the Supreme Court. The Supreme Court held that the first part of the Sub-section (3) of Section 131 which required publication of the tax proposals and the draft rules was mandatory in nature, but the second part of the sub-section which laid down manner of publication was directory in nature, therefore, substantial compliance of the same would meet the requirement of law. The publication of tax proposals and draft rules in Urdu newspaper was found to be in substantial compliance of the second part of Section 131 (3) of the Act.

6. In view of the aforesaid principles laid down by the Supreme Court we have to consider the provisions of Section 87-A (3) of the Act to determine mandatory or directory nature of the said provision. A President of the Municipal Board is elected by the members of the Board. He is at the apex of the local civic administration, his term correlates with the term of the Board which is five years. Sections 50 and 51 confer wide powers and duties and assign important functions to him. He exercises large number of powers of the Board. The legislature considered it necessary to make special provision for considering a motion of no-confidence against the President. The legislature required that no motion of non-confidence shall be brought against a President before the expiry of the period of one year from the date of assumption of his office. The purpose of making provision for moving a no-confidence motion against the President is that if the President commits default in performance of his duties or if there is mal-administration due to his negligence or indifference to the civic administration, the President should be ousted from his office and for that reason members of the Board have been invested with a right to move motion of no-confidence against the President. If the motion is carried by majority of members at the specially convened meeting the President is required to vacate his office. The right to move a motion of no-confidence in the President is a strong weapon in the hands of the members. The legislature intended that this right should (sic) (not Ed.) be exercised in a light-hearted manner and for that reason it enacted Section 87-A laying down a special procedure with regard to manner of presentation, of motion of no-confidence, convening of the meeting and the manner in which the motion is to be discussed and voted. Normally an ordinary or special meeting of a Board for transacting business therein is presided over by the President, but a meeting convened for the purpose of considering the motion of no-confidence is required to be presided over by an independent authority namely a civil judicial officer.

7. Sub-section (1) of Section 87-A ensures that a motion expressing no-confidence against the President shall be made only in accordance with the procedure laid down in the sub-sections. The procedure for presenting the motion of no-confidence is contained in Sub-section (2). Sub-section (3) makes provision for convening meeting and for giving notice of the meeting to the members of the Board. Sub-section (3) is in two parts. The first Part lays down that after a notice of intention to move a motion of no-confidence as required by Sub-section (2) is presented to the District Magistrate together with a copy of the proposed motion, he shall convene a meeting for consideration of the motion to be held in the office of the Board and for that purpose he has to fix a date and time which should not be earlier than 30 days and not later than 35 days from the date on which the notice may have been delivered to him. After the District Magistrate has fixed the time, date and place for the meeting, he is required to give notice to members of the Board about the time, date, place and purpose of the meeting to enable them to be present at the meeting convened for considering the motion of no-confidence. The second part of the sub-section lays down the manner of sending notices to the members, it requires the District Magistrate to send notice to the members by registered post at their place of residence containing information about the date, time and place of the meeting at least seven clear days before the date of the meeting. The District Magistrate is further required to cause publication of the notice in such other manner as he may deem fit. He may direct the publication of notice by pasting the same an the Notice Board of the Municipal Board or by publication in the discretion of the District Magistrate but whatever manner he may adopt for publication of the notice the procedure must be complied with. If both these steps are taken, that is, the notices are sent to members by registered post to their place of residence and publication is done in the manner as directed by the District Magistrate, then a presumption would arise as contemplated by the last part of the sub-section that every member shall be deemed to have received the notice.

8. 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 mandatary. 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 se ling notice of the meeting to the members; this again is a mandatory requirement of law which must be strictly complied with. The second part of the sub-section lays down the manner required to be followed in sending notices to the members. It lays down that notice of the meeting shall be sent by registered post to every member of the Board at his place of residence. The essence of this provision is to give information to the members to enable them to avail opportunity of participating in the meeting convened for the purpose of considering the no-confidence motion. The first part of the section requiring the District Magistrate to convene meeting and to send notices to the members is mandatory, any disregard of that provision would defeat the very purpose of the meeting, but the manner of service of notice and publication of the same is directory in nature, therefore a substantial compliance of the same would meet the requirement of law.

9. The purpose of service of notice by registered post and publication of the notice otherwise is to ensure that members should get adequate notice, of the meeting to enable them to participate in the debate over the no-confidence motion at the meeting. That purpose is not defeated if the notice is sent to the members not by registered post but by other methods and seven clear days are given to the members. The legislature never intended that unless notice is sent by registered post to the members the proceedings of the meeting would be vitiated. The legislature, no doubt, stressed that if the two steps as laid down in the sub-section are taken by the District Magistrate, i.e., notice of the meeting is sent to members by registered post at their place of residence and further if it is published in the manner directed by the District Magistrate, a presumption would arise and every member shall be deemed to have received the notice of the meeting. In that case it will not be open to any member to contend that he did not receive notice of the meeting or that the meeting was illegally constituted for want of notice. The purpose of sending notice can be achieved even without sending the same by registered post. There may be a case where the postal system may be disorganised and it may not be possible to send, notice by registered post. I (sic) that situation the District Magistrate may send notice to members of the Board by special messenger giving them seven clear days before the date of the meeting. In that event the legislative intent and purpose requiring sending of notice would be fully achieved, although in that event the rule of presumption as laid down in the sub-section would not be available and if a challenge was made by a member that no notice was received by him, the deeming provision will not be applicable and it would require proof that the notice even though sent by ordinary post or by special messenger was actually served on the member. The emphasis on sending notice to members by registered post and for publication of the same in the manner directed by the District Magistrate, is directed to invoke the presumption as contemplated in the last sentence of the sub-section. In the absence of presumption, it is always open to a party to prove that notice though sent in a different manner was served on the members. In view of the above discussion. I am of the opinion that even if the notice is not sent to the members by registered post the meeting cannot be held to have been illegally convened provided it is proved that the notice was received by the members and they had knowledge of the meeting.

10. Learned Counsel for the petitioner placed reliance on the observations made by a Full Bench of this Court in AIR 1958 All 374 in support of his contention that the provisions of Section 87-A (3) of the Act are mandatory and not directory. In Tara Chand Modi's case, a motion of no-confidence had been passed and the proceedings of the meeting had been communicated to the President. Isra Chand Modi contested the validity of the motion of no-confidence on the ground that the procedure laid down in Section 37-A of the Act was not complied with inasmuch as the Judicial Officer presiding at the meeting did not read out the motion of no-confidence and further a copy of the motion which had been earlier presented along with the written notice of intention to make a motion of no-confidence against him was not forwarded to him, therefore the provisions of Section 87-A (7) and (11) were not complied with. The question which came up for consideration before the Full Bench was as to whether Section 47-A and Section 87-A (7) and (11) lay down procedure which was mandatory or directory in nature. Gurtu, J., observed that the primary purpose of the prescriptions laid down in Sections 87-A (7) and 87-A (11) and Section 47-A of the Act was that the President should know on what ground the vote of no-confidence was passed against him so that he may, if he so desired make a representation to the State Government to dissolve the Board or to deal with the charges made against him. The learned Judge concluded that Sections 87-A (7) and 87-A (11) are mandatory and they have to be strictly complied with to achieve the object contemplated by the Act. The opinion of Gurtu, J., was not accepted by B. Mukerji, J., with whom the third learned Judge agreed. B. Mukerji, J., held that the provisions of Section 87-A could be broadly divided into two parts, one dealing with the provisions which relate to the calling of the meeting and the actual holding of the meeting and the other dealing with what has to follow the termination of the meeting: the learned Judge held that the first part of Section 87-A was mandatory in its scope but the second portion which made provision for taking certain steps after the termination of the meeting was directory as it was in the nature of ministerial function. The learned Judge further held that the provisions of Sub-sections (7) and (11) of Section 87-A of the Act were directory. Thus in the Full Bench case of AIR 1958 All 374 (FB) (supra) the question as to whether Section 87-A (3) was mandatory or directory was not in question. The question which is raised in the instant case was neither raised, discussed or decided in that case.

11. Section 87-A (3) came up for interpretation before this Court in a number of cases. It is necessary to examine those cases. In Special Appeal No. 313 of 1956 (All) Tara Chand Modi v. Dist. Magistrate. Meerut, decided on 22-1-1957, it was urged that the meeting convened for consideration of the motion of no-confidence against the President was illegal inasmuch as no notice was sent to the members by registered post at their place of resinence. It was further urged that since the provisions of Section 87-A (3) were mandatory in nature, its non-compliance rendered the proceedings of the meeting illegal. A Division Bench of this Court consisting of M.L. Chaturvedi and A.P. Srivastava, JJ. repelled the contention and held that even though the notices were not sent to the members at their residential address, nevertheless the requirements of Section 87-A (3) were sufficiently complied with as the notices had been sent to the members. In that connection the learned Judge observed:

'The only purpose of the direction that the notices should be posted at a particular date with a particular kind of address, therefore, appears to be to ensure service of the notice in order to justify the presumption mentioned in the clause. If, therefore, the notices are served the purpose is fulfilled and no importance can be attached to the omission to address the notices in a particular manner.' The Bench further observed that the contention that every single direction contained in Section 87-A is mandatory in the sense that even the slightest departure from the literal compliance with it will entail a nullification of the motion of no-confidence is not acceptable. It was further observed that all the directions contained in Section 87-A cannot be put on the same footing, a substantial though not literal compliance with them will be enough, The Bench was of the opinion that the second portion of Sub-section (3) of Section 87-A was directory and not mandatory. The judgment of the Division Bench was approved by the majority in the Full Bench cast of Mahesh Chandra (supra).

12. In Special Appeal No. 17 of 1957 (All) (Chokhey Lal v. District Magistrate, Meerut), decided on 25-1-1957, the contention that since the notice of the meeting convened for considering the motion of no-confidence was not sent to the place of residence of a member, the proceedings of the meeting were vitiated for non-compliance of Section 87-A (3), although the member had received the notice, was repelled by a Division Bench of this Court consisting of Desai and Beg, JJ. In that connection the Bench observed:

'The main purpose behind the issue of a notice is that every member should have notice of the date and time fixed for the meeting. As long as the appellant had information of the date and time fixed for the meeting it does not matter in the least if he received the notice not at his residence but some other place.'

13. In Sharafat Ullah v. State, (1962 All LJ 930) another Division Bench of this Court quoted with approval the view expressed by the aforesaid two Division Benches in Tara Chand Modi's case and Chhokhey Lal's case Spl. Appeal No. 17 of 1957, D/- 25-1-1957 (All);

14. In Radhey Shyam Maheswari v. District Magistrate, Special Appeal No. 19 of 1956 (All) decided on 9-2-1956, no notice of the meeting convened far considering the motion of no-confidence against the Chairman of Town Area Committee was sent to the Chairman of the Town Area Committee by registered post, instead a copy of the notice was sent to the Chairman through a peon for information. It is noteworthy that provisions of Section 87-A of the Act are applicable to the Town Areas and for considering the motion of no-confidence against the Chairman of the Town Area Committee the provisions of Section 87-A of the Municipalities Act are required to be complied with (vide Abdul Aziz v. State of U. P., AIR 1958 All 109). In Radhey Shyam's case (supra) the provisions of Section 87-A (3) were not complied with literally as no notice to the Chairman who was a member of the Town Area Committee was sent by registered post at his place of residence, instead a notice was sent to him by peon giving him information of the meeting convened for considering the motion of no-confidence against him. In that situation it was contended that the proceedings of the meeting were nullified. The contention was repelled by the Division Bench consisting of Desai. C. J. and L. Prasad, J., and it was observed that it made no difference whether the notice was sent through a peon to the Chairman or it was sent through registered post. The requirement of law was sufficiently complied with provided he received the notice. In the opinion of the Bench the Chairman was not prejudiced by the irregularity committed by the District Magistrate in sending notice to him in some other manner.

Sri K.C. Saxena, learned counsel for the petitioner placed reliance on Vishwanath Tripathi v. State of U. P., (1968 All WR 114). In that case petitioner's contention that the meeting for the purpose of considering the motion of no-confidence against the President of the Municipal Board was not validly constituted inasmuch as no notice of the meeting had been served or could be deemed to have been served upon one of the petitioners therefore the entire proceedings of the meeting were a nullity was accepted by R.S. Pathak, J. There was no dispute between the parties that notice of the meeting sent to a member of the Board was not actually served upon him. In that situation the question arose as to whether the deeming provision contained in the second part of the sub-section could be invoked to raise a presumption that the member concerned had received the notice. The learned Judge observed that unless the notice is sent to the members by registered post and further unless the publication of the notice is done in the manner considered fit by the District Magistrate no legal fiction, as interred by the legislature, could operate to the effect that the members should be deemed to have received the notice. As discussed above I am in agreement with the proposition that the legal fiction can arise only if both the modes are adopted by the District Magistrate, i.e., by sending notice to the members by registered post and publication of the notice in the manner directed by the District Magistrate.

15. We, however, do not agree with the observations of the learned Judge that the actual service of the notice of the meeting should be proved. It would be sufficient compliance with the provisions of Section 87-A (3) if notice is sent to the members and the members acquire knowledge about the time, date and place of the meeting. The facts involved in Vishwanath Tripathi's case 1968 All WR 114 are different than those available in the present case, The observations of R. S. Pathak, J., that Section 87-A (3) was mandatory in its entirety does not represent correct view for the reasons stated earlier, If notice is sent by registered post and publication of the notice Is done, the legal fiction enacted by the legislature would at once come into play and thereupon every member shall be deemed to have received notice even though a member may not have actually received the same. On the material on record of that case, R.S Pathak. J., held that neither the notice of the meeting was actually served upon one of the petitioners nor the notice was published in any other manner as directed by the District Magistrate, therefore the meeting was not validly constituted. The learned Judge further held that even if the member had knowledge of the meeting he was under no obligation to take notice and for that reason he was not disentitled to relief under Article 226 of the Constitution. We are not in agreement with this view of the learned Judge. As already stated the purpose of sending notice is to give information to the members to attend the meeting convened for the purpose of considering the motion of no-confidence, and once it is established that the member concerned had notice and had acquired knowledge of the date and time of the meeting convened for considering the motion of no-confidence, the purpose for which notice is required to be sent would be fulfilled and the member concerned will not be entitled to any relief from this Court under Article 226 of the Constitution for nullifying the proceedings of the meeting.

16. In J.K. Paliwal v. District Magistrate (1958 All LJ 704) Satish Chandra, J. considered the provisions of Section 87-A (3) of the Act. The learned Judge observed :

'If the notice required under Section 87-A (3) of the Municipalities Act is not sent to any member the meeting is not validly convened and the proceedings at such meeting are wholly invalid. ......... Sending of notice to the members is a condition precedent to the exercise of the power of the District Magistrate to convene a meeting of the Board to consider a motion of no-confidence. The condition precedent not having been fulfilled the exercise of power to convene the meeting is without jurisdiction.'

I do not find any reason to take a different view. I have already discussed that the requirement laid down under Section 87-A (3) of the Act for convening meeting by the District Magistrate and sending notice to the members of the Board is mandatory. If no notice is sent at all to a member of the Board, the proceedings transacted at the said meeting would be nullified. The observations quoted above were made by the learned Judge on the facts of that case where it was conceded that no notice of the meeting had been sent to the President of the Board although he was a member of the Board. The question with which we are faced was not under consideration before the learned Judge. The learned Judge, however, observed that even if the President had acquired knowledge of the meeting convened for the purpose of considering a motion of no-confidence in him, he was under no obligation to attend the meeting. With great respect to the learned Judge I do not agree. In my opinion even if a member or the President of the Board may not be under a duty to attend the meeting convened for considering the motion of no-confidence in the President, in the absence of service of notice on him but in that event such a member or President will not be entitled to discretionary relief from this Court under Article 226 of the Constitution. It is well settled principle that a petitioner is not entitled to issue of writ as of right under Article 226 of the Constitution. The conduct of a petitioner is a relevant consideration in exercising the discretionary power of this Court under the said Article. In a case where the petitioner is found to have acquired knowledge of the meeting and if he voluntarily abstained from participating in that meeting it would not be sound exercise of jurisdiction under Article 226 of the Constitution to grant relief to the petitioner for nullifying the resolution of no-confidence which may have been passed by the majority of the members of the Board.

17. In Dr. B.N. Sarin v. State of U. P., 1967 All LJ 681 = (AIR 1967 All 465). S.N. Dwivedi, J., held that the President of the Board to whom notice of the meeting convened for consideration of the no-confidence motion in the President was not sent due to mistake of the office of the District Magistrate, was not entitled to any relief under Article 226 of the Constitution because it was established before the Court that the President had full knowledge of the date, time, place and purpose of the meeting. The learned Judge held that the President could not be suffered to impeach the majority resolution for want of notice. I am in respectful agreement with the proposition of law laid down by Dwivedi, J., that the conduct of a petitioner is relevant consideration in granting discretionary relief under Article 226 of the Constitution and for that reason this Court may refuse relief to a petitioner having regard to the facts and circumstances available in the case.

18. The above discussion shows that the preponderance of the Judicial opinion is that the second part of Sub-section (3) of Section 87-A is directory, its literal compliance is not necessary. A substantial compliance in regard to service of notice of the meeting for consideration of the motion of no-confidence on the members will be sufficient and any literal non-compliance of the said provision will not invalidate the meeting or the motion of no-confidence which may be adopted at the said meeting. In view of the above discussion I am of the opinion that the second part of Sub-section (3), of Section 87-A of the Act laying down manner for sending the notice to the members of the Board is directory, while the first part of the said sub-section requiring the District Magistrate to convene a meeting and to send notices to the members is mandatory. It would be sufficient compliance of the directory provision of this sub-section if notice is served on the members not by registered post but by any other mode and in that situation the notion of no-confidence which may be carried at the said meeting cannot be nullified on the ground of any literal non-compliance of service of notice by registered post.

19. The President is elected by the members of the Municipal Board in accordance with Section 43 of the Act. A member of the Board or any elector who is not less than 30 years of age is qualified to be chosen as President of the Board. Thus a non-member may be elected President of the Board. But once an elector is elected President he becomes member of the Board ex-officio under Section 49 of the Act which lays down that the President of a Board if he is not already a member of the Board shall be ex-officio member of the Board. The President presides over the meetings of the Board. All questions which come up before the meeting of the Board are decided by majority of the members at the meeting. Section 92 of the Act lays down that in case of equality of the vote the President of the Board shall have a second or casting vote. These provisions clearly indicate that a President is a member of the Board for all purposes even though he may not be an elected member of the Board. Section 87-A (3) enjoins a duty on the District Magistrate to convene a meeting for consideration of the motion of no-confidence against the President. It further lays a duty on him to send notice of the meeting by registered post to every member of the Board at his place of residence. The District Magistrate therefore must send notice of the meeting to the President also by registered post at his place of residence even though he may not be an elected member. The motion of no-confidence is directed against the President, he is the most affected party in the matter. He is entitled to take part in the debate at the meeting and to defend himself. Thus principles of natural justice require that he should be given notice of the meeting so that he may get an opportunity of defending himself.

20. Sub-section (9) of Section 87-A lays down that upon the conclusion of the debate or upon the expiry of three hours time from the commencement of the meeting convened for purposes of considering the motion of no-confidence in the President, the Presiding Officer shall put the motion to the vote of the Board. The 'Board' as defined in Section 2 (1) means the Municipal Board which includes members, officers or servants of the Board. This provision also indicates that the President who is included in the definition of Board is entitled to vote on the motion of no-confidence. The question whether a President who was not an elected member of the Board was entitled to the notice of the meeting convened for the purpose of considering the motion of no-confidence against him was discussed at length by a Division Bench of this Court in Abdul Aiz v. State of U. P., AIR 1958 All 109. The Division Bench held that the President was a member of the Board even if he was not, an elected member of the Board and he was entitled to notice of the meeting like any other elected member. We are in full agreement, with the law laid down by the Division Bench.

21. The above conclusion is further fortified by the provisions of Sub-section (12) of Section 87-A which lays down that the motion of no-confidence shall be deemed to have been carried only when it is carried by more than half of the total number of members of the Board. 'Total number of members of the Board' includes the elected members as well as the President of the Board who may not be an elected member. If the motion is not carried by the majority of more than half of the members of the Board the motion shall be ineffective and the President cannot be removed from his office. In Mangla Prasad v. District Magistrate, (AIR 1971 All 77) (FB), a Full Bench of this Court held that for purposes of Section 87-A (12) the total number of members of the Board includes the total number of members intially constituting the Board including the President. We ore in agreement with the view of the Full Bench expressed in Mangla Prasad's case.

22. Once the motion of no-confidence is carried a copy of the same along with the proceedings of the meeting is communicated to the President and under Section 47-A he is required to resign within three days of the communication of the minutes of the meeting but he has an option to make representation to the State Government for superseding the Board stating reasons therefor. These provisions clearly indicate that the President, must be given an opportunity to attend the meeting and for that purpose notice must be sent to him as it is required to be sent to other members of the Board in accordance with Section 87-A (3) of the Act.

23. Though the law was laid down as far back as 1958, this Court has come across many cases where the District Magistrate has not sent notice to the President by Registered Post on the mistaken view that he is not a member. In our opinion, the State Government may inform them the true legal position, to avoid unnecessary litigation

24. In the present case the material on record clearly shows that the District Magistrate had sent notice to the petitioner through ordinary post giving him information about the date, time and place of the meeting for purposes of considering the no-confidence motion against him. The notice was served on the petitioner and he had full knowledge about the date, time and place of the meeting. In the circumstances the petitioner's contention that the meeting was illegally convened or that the motion of no-confidence passed against him was nullified on account of non-compliance of Section 87-A (3) cannot be accepted. There was substantial compliance of the provisions of Section 87-A (3) as notice had been sent to the petitioner. It is well settled principle that under Article 226 of the Constitution a petitioner is not entitled to relief even if he is successful in showing that the meeting was convened and the motion of no-confidence was passed in disregard of directory provisions of Section 87-A of the Act. In a case where there is substantial compliance of the directory provisions of the Act and no prejudice is shown to have been caused to the petitioner, it will not be proper to exercise our discretion and grant relief to the petitioner.

25. In view of the above discussion I am of the opinion that the petitioner is not entitled to any relief. In the result the petition fails and is accordingly dismissed but there will be no order as to costs.

K.B. Asthana, J.

26. I agree and have nothing to add.

Satish Chandra, J.

27. I concur.

C.S.P Singh, J.

28. I agree.

K.N. Seth, J.

29. I agree.


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