G.K. Misra, C.J.
1. The undisputed facts of the case may be stated in brief. By a notice (Annexure 'A') dated 1st March, 1969, the first meeting of the newly elected councillors of the Notified Area Council. Surada (hereinafter to be referred to as the Council) was held on 8th March, 1969 at 3 p. m. in the council office to hold the election of Chairman and Vice-Chairman from amongst the newly elected members. The Additional District Magistrate, Ganjam, Miss R. C. Amal, I. A. S. (opposite party No. 2) presided over the meeting being delegated with powers under Section 3 (16) of the Orissa Municipal Act, 1950 (hereinafter to be referred to as the Act). The President called for nomination for the office of Chairman, The petitioner and Opposite Party No. 1 were the only two contesting candidates. All the 12 members of the Council were present The two candidates did not vote. The remaining 10 members voted by secret ballot. Each of them got five votes. As there was equality of votes, on the direction of the President a peon of the office called one Manmohan Acharya, a boy aged 7 years who was standing nearby, to draw the lots. Two empty ballot boxes were placed on the table of the Council hall. The names of the petitioner and opposite party No. 1 were written on two slips of the paper which were put inside the box. Into the other box two other slips of paper one containing the number 'Zero' and the other the word 'Chairman' -- were put. It was explained to the candidates in the meeting that the boy would draw two pieces of paper -- one from each box --and that the name of the candidate associated with the paper containing the word 'Chairman' would be declared to be elected. The boy was asked by the President to take out one slip from each of the boxes. The boy accordingly picked up one slip from each box. In the first round the slip containing the name of the petitioner and the other slip containing 'Zero' came out. Obviously the other two slips contained the names of opposite party No. 1 'Chairman'. In the circumstances, the President declared that opposite party No. 1 was duly elected as the Chairman of the Council. The entire proceedings were recorded in the minute book of the Council by an assistant under the direction of the President.
2. On the aforesaid facts Mr, Panda for the petitioner advanced the following contentions:--
(i) That the Additional District Magistrate Ganjam, was not a Magistrate subordinate to the District Magistrate as contemplated in Section 3 (16) of the Act. and, as such delegation of powers by the District Magistrate to the Addl. District Magistrate to preside over the meeting was without jurisdiction. As the Addl. District Magistrate had no authority to preside over the meeting, the entire proceeding leading to the election was illegal.
(ii) Under Rule 4, Sub-rule (3) (i) of the Rules for Election of Chairman and Vice-Chairman of Municipalities (hereinafter to be referred to as the Rules), in the event of there being an equality of votes Between the two candidates, it is the President who shall draw lots, and as the lot was drawn by a boy of 7 years, the drawing of lots was illegal and invalid and the election of opposite party No. 1 is liable to be quashed.
(iii) As the petitioner's name first came out, in accordance with the Rules, the petitioner should have been declared elected. The arrangement for drawing up papers from another box with the name of the candidate is contrary to law.
(iv) Under Rule 7 the President alone should have prepared the records of the proceeding and the same having been done by an assistant of the Council office, the entire proceeding is invalid.
All these contentions require careful examination.
3. Under Section 3 (16) of the Act, a 'Magistrate of the district' means District Magistrate and includes any Magistrate ' subordinate to the District Magistrate to whom he may delegate all or any of his powers under this Act. The District Magistrate delegated his powers to the Addl. District Magistrate to preside over the meeting. It is contended that this delegation is without jurisdiction inasmuch as the Addl. District Magistrate is not subordinate to the District Magistrate.
It is not necessary to examine the contention whether the Addl. District Magistrate is subordinate to the District Magistrate within the meaning of Section 3 (16) of the Act as otherwise the Addl. District Magistrate could exercise the powers of the District Magistrate being empowered under Section 10 (2) of the Criminal P. C.
4. On 13th March, 1968 the following notification was issued by the Government:--
'No. 5433-Gen. In exercise of the powers conferred by Sub-section (2) of Section 10 of the Code of Criminal Procedure, 1898 (Act 5 of 1898), the State Government do hereby appoint Miss R. C. Ammal, I. A. S., Magistrate, first class, to be an Addl. District Magistrate in the district of Ganjam and direct that she will exercise all the powers of the District Magistrate under the said Code and under all other laws for the time being in force.'
Thus by virtue of the aforesaid notification the Addl. District Magistrate, Ganjam. was invested with all the powers of the District Magistrate under the Act. Under Section 47 (1) of the Act, at the first meeting of a municipal council, called at the instance of the Magistrate of the district, a Chairman shall be elected from among their own members. The Magistrate of the district shall preside over it but shall have no right to vote. Rule 1 prescribes that the election of the Chairman of a Municipality shall be held in the office of the Municipality by the councillors at a meeting specially convened for the purpose. Such a meeting shall be convened by the Magistrate of the district. The Addl. District Magistrate being invested with powers under Section 10 (2), Criminal P. C., to exercise powers of the District Magistrate, who is the Magistrate of the District under the Act, was fully competent to preside over the meeting and no specific authorisation under Section 3 (16) wais necessary.
This conclusion is supported by AIR 1961 SC 606 (Central Talkies v. Dwaraka Prasad) and ILR (1970) Cut 1255 = (AIR 1971 Orissa 91) (FB). (Haji Shaik Hyder v. State). In the first case, the question arose as to whether a permission granted by the Addl. District Magistrate under Section 3 of U. P. (Temporary) Control of Rent and Eviction Act (3 of 1947) was valid when the section in terms required that the permission would be given by the District Magistrate. As the Addl. District Magistrate in that particular case had been conferred with powers under Section 10 (2), Criminal P. C. to have all the powers of the District Magistrate under any other law for the time being in force, the permission granted by the Addl. District Magistrate was held to be valid.
In the Full Bench case, a question arose whether an order passed by the Addl. District Magistrate under Section 514, Criminal P. C. was appellable to the District Magistrate. In that particular case, the Addl. District Magistrate had not been conferred with powers under Section 10 (2) of the Code, and, as such, it was held that an appeal lay to the Dist. Magistrate from the order of the Addl. Dist. Magistrate. But as a proposition of law it was held therein that if powers of the District Magistrate had been conferred under Section 10 (2), Criminal P. C. on the Addl. District Magistrate, then no appeal would lie from the order of the Addl. District Magistrate passed under Section 514 to the District Magistrate.
As Miss Ammal had been conferred with powers of the District Magistrate, who is the Magistrate of the District, under any other law for the time being in force, she was competent to preside over the meeting under Section 47 (1) of the Act as the Magistrate of the district. The validity of the meeting cannot be questioned on this score.
Mr. Panda, however, placed strong reliance on AIR 1965 SC 1619 (Ajaib Singh v. Gurbachan Singh) and AIR 1969 SC 483, (Hari Chand v. Batala Engineering Co. Ltd.) in support of the contention that it was the District Magistrate alone and not the Addl. District Magistrate who could preside over the meeting. These two cases are clearly distinguishable. In the first case the Addl. District Magistrate, who had been invested with powers of a District Magistrate under Section 10 (2) of the Code, was in charge of the office of the District Magistrate when the latter was transferred. He passed an order detaining a person under Rule 30 (1) (b) of the Defence of India Rules, 1962. It was held in that case that the Act and Rules showed unmistakably that the power of detention could be exercised only by the State Government or by an officer or authority to whom it may be delegated but who shall in no case be lower in rank than the District Magistrate. The Addl. District Magistrate is lower in rank to the District Magistrate, and eVen though he had been invested with all the powers under the Code, and also under any other law for the time being in force, he is still not the District Magistrate unless the Government appointed him as such under Section 10 fl).
The second case is also equally distinguishable. There under Section 40 (1) of the Defence of India Act, 1962, the Central Government may by order, direct that any power or duty which by this Act or by any Rule made under this Act is conferred or imposed upon the Central Government, shall, in such ch-cumstances and under such conditions, if any, as may be specified in the direction, be exercised or discharged also-
(a) by any officer or authority subordinate to the Central Government, or
(b) x x x x(c) by any other authority.
Under a notification exercise of the powers conferred by Sub-section (1) of Section 40 the Central Government directed the powers exercisable by it under Sections 29 30 (except the proviso thereto) 31. 32, 33, 35 and 36 and Sub-sections (1) and (3) of Section 37 shall also be exercisable by each of the authorities mentioned in column 3. These authorities are all Col lectors. District Magistrates and Deputy Commissioners in the States and all Political officers, in Nefa. It would thus be seen that the Central Government in making the delegation of the power under Section 29 of that Act authorised officers of very high status in the district to exercise the power. The authorisation showed that the functions to be discharged under the notification were made to be performed by officers of very high status like the Collectors, District Magistrates and Deputy Commissioners and no other officers. On the construction of the particular statute their Lordships, therefore, held that the Addl. District Magistrate could not exercise the powers under Section 29.
5. We would, therefore, close up this part of the discussion by concluding that as Miss Ammal was invested with powers under Section 10 (2), she was fully competent to preside over the meeting and to conduct the election as a Magistrate of the District.
6. Rule 4, Sub-rule (3) (i) of the Rules runs thus:--
'(3) The president of the meeting shall then open the box and count the votes in presence of the councillors and declare the result of the election in accordance with the following instructions: (i) If there are only 2 candidates, the one who secures the larger number of votes shall be declared to have been elected. In the event of there being an equality of votes between the two candidates, the president of the meeting shall draw lots in the presence of the councillors and the person whose name is first drawn shall be declared to have been duly elected.'
This Rule thus insists that in case of equality of votes between two candidates, the president of the meeting shall draw the lots and secondly, the person whose name is first drawn shall be declared elected.
7. Mr. Panda contends that this Rule is violated in two ways. Firstly, the President herself did not draw the lots but asked a boy of 7 years to draw the lots. Secondly, the petitioner should have been declared to have been elected as his name was first drawn and he should not have been held to have been defeated by introducing a second box wherein two pieces of paper containing 'Zero' and 'Chairman' were put in.
On a plain reading of the language of the Rule it is clear that the President of the meeting shall draw lots. In this case, however, the lot was drawn by a boy under the instruction of the President. It is, therefore, necessary to consider whether the Rule is mandatory or directory. In Statutory Contribution by Crawford at page 516 the author points out the distinction between mandatory and directory provisions of the statute. He says:--
'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.'
This passage was approved in AIR 1957 SC 912, (State of U. P. v. Manbodhan Lal) -- see para 11. The same view has also been taken in AIR 1955 SC 233, (Hari Vishnu v. Ahmad Ishaque). In paragraph 26 their Lordships observed thus:--
'It is well established that an enactment in form mandatory might in substance be directory, and that the use of the word 'shall' does not conclude the matter. The question was examined at length in Julius v. Bishop of Oxford, (1880) 5 AC 214 and various rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well known, and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context.'
When we say that a particular provision of a statute is mandatory, it means that non-observance thereof involves the conclusion of invalidity. In each case, however, the Court has to find out the legislative intent. As has been said in the aforesaid decision, the Court has to consider not only the actual words used but also the scheme of the statute, the intended benefit to the public of what is enjoined by the provision and the material danger to the public by contravention of the same. It is in the light of these principles that the contentions of Mr. Panda are to be examined.
8. So far as the President herself not drawing the lots but getting it drawn through a boy of 7 years is concerned, the non-observance of the provision causes no material danger to the public or to the candidates. There is hardly any difference between the President herself drawing the lot and getting it drawn by a boy of 7 years under her supervision. The legislative intent is clear that the provision is directory. The drawing of the lots by the boy cannot, therefore, be declared to be invalid.
9. On the same test the arrangement by which separate pieces of paper had to be drawn from two boxes cannot be said to be invalid. The president could have resorted to the method of putting the names of the candidates in two pieces of paper in one ballot box and declared the candidate whose name was first drawn as being elected. Equally no harm was done by having two boxes associating the name of a candidate with the paper containing either 'Zero' or 'Chairman.' That is another method of drawing the lots and no inequity or injustice is done by following that method. No material danger to the public or the candidate was caused by drawing the lot in the latter and not in the former way. More often than not the second method of drawing lots is considered to be more efficacious in eschewing out the degree of chance. The prescription in the Rule regarding the manner of drawing of lot a is directory and not mandatory.
10. The last contention of Mr. Panda was regarding violation of Rule 7 inasmuch as the President herself did not prepare the record of the proceeding but got it written by an Assistant of the Council office. Ultimately, however. Mr, Panda frankly conceded that this provision must be construed as directory.
11. All the contentions urged on behalf of the petitioner fail. The writ application is accordingly dismissed, but in the circumstances without costs.
12. I agree.