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Kalubhai Kesrisingh Mahida Vs. the State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1965)6GLR451
AppellantKalubhai Kesrisingh Mahida
RespondentThe State of Gujarat and ors.
Cases ReferredState of U.P. v. Manbodhan Lal Srivastava
Excerpt:
.....have been adopted in construing statutes as regards the mandatory or directory nature of their provisions have been well-settled. 1917 privy council 142 and has been followed by the federal court as well as the supreme court. of course the government when it consults the commission on matters like these does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed. where indeed the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other no doubt can be entertained as to the intention. the propriety indeed of..........under the provisions of the bombay village panchayats act of 1933. under section 4 of that act the local area comprising of the village deva vanta with its suburb ruun was declared to be a village for the purposes of the said act. that village was comprised of s. nos. 1 to 738 including roads, pasture lands and other waste lands. the village panchayats act 1959 came into force in january 1959 and the village panchayat constituted immediately before the act of 1959 came into force were continued to be village panchayats thereafter therefore the local area for the panchayat of the village deva vanta continued to be the same as before and comprised of s. nos. 1 to 736 which included within the local area the village side of ruun. the gujarat panchayats act 1961 came into force on 24th.....
Judgment:

A.R. Bakshi, J.

1. This petition under Article 226 of the Constitution of India is brought by the petitioner on the following facts:

2. The petitioner is a resident of village Deva Vanta in Petlad Taluka District Kaira. The village Panchayat of the village Deva Vanta was established for the first time in 1956 under the provisions of the Bombay Village Panchayats Act of 1933. Under Section 4 of that Act the local area comprising of the village Deva Vanta with its suburb Ruun was declared to be a village for the purposes of the said Act. That village was comprised of S. Nos. 1 to 738 including roads, pasture lands and other waste lands. The Village Panchayats Act 1959 came into force in January 1959 and the village Panchayat constituted immediately before the Act of 1959 came into force were continued to be village panchayats thereafter Therefore the local area for the Panchayat of the village Deva Vanta continued to be the same as before and comprised of S. Nos. 1 to 736 which included within the local area the village side of Ruun. The Gujarat Panchayats Act 1961 came into force on 24th February 1962 and Section 325 of that Act provided that any local area which was declared to be a village immediately before the coming into force of that Act shall be deemed to be the Gram under the Gujarat Panchayats Act of 1961 and the Panchayats constituted under the Act immediately before the said date shall be deemed to be the Panchayats of the respective Grams and the Sarpanch or Up-Sarpanch and the members of the Panchayat elected or appointed for the Village Panchayat holding office immediately before the Act would respectively be deemed to be the Sarpanch the Up-sarpanch and the members of the new Panchayat. According to the petition elections were held in the year 1961. The petitioner and opponents Nos. 5 to 12 were returned to the Panchayat and respondent No. 9 and the petitioner were elected as Sarpanch and Up-sarpanch respectively. Respondent No. 9 having resigned from his office of Sarpanch the petitioner has been officiating as Sarpanch of the Panchayat. By an order addressed to the Panchayat the Mamlatdar Petlad informed the Panchayat that the Government intended to separate the Ruun area of the Panchayat and by a Resolution dated July 9 1960 the Panchayat resolved that there was no objection to the separation of the Runn area from the local area of the Panchayat. By a Notification dated October 14 1963 the Commissioner Ahmedabad Division purporting to act under Section 9(1) and (2) of the Gujarat Panchayats Act of 1961 altered the limits of the local area for which the Panchayat was established by excluding from the local area the village site of the village Ruun and S. Nos. 247 to 532 of the village Deva Vanta and it is this order passed by the Commissioner under Section 9(1) and (2) of the Act that has been challenged in the present petition.

3. The main grievance of the petitioner is that under Sub-section (2) of Section 9 the Government may by a notification in the Official Gazette after consultation with the Panchayat concerned include within or exclude from any Nagar or Gram any local area or otherwise alter the limits of the Nagar or Gram and that the Panchayat in the present case was consulted only on the question of the formation of a separate Gram Panchayat for the village Ruun but not on the question as to what survey numbers should be included in the local area of the said newly formed village of Ruun or what survey numbers should be encluded from the village Deva Vanta. According to the petitioner it was true that by a Resolution dated July 9 1960 the Panchayat had declared that there was no objection to a separate village Panchayat for the village of Ruun but according to the petitioner the Panchayat was never consulted as required by Sub-section (2) of Section 9 of the Gujarat Panchayats Act on the question as to what particular local area was to be included in the newly constituted Gram of Ruun.

4. According to Mr. Shastri learned advocate for the petitioner Sub-section (2) of Section 9 provides that after consultation with the Panchayat concerned the Government may include within or exclude from any Nagar or Gram any local area or otherwise alter the limits of any Nagar or Gram and this provision was according to Mr. Shastri in the nature of a mandatory provision and it was obligatory on the Government to have consulted the Panchayat on the question as to what survey numbers should be included in the local area of the newly formed village of Ruun and also on the question as to what survey numbers should be excluded from the village Deva Vanta.

5. The principles which have been adopted in construing statutes as regards the mandatory or directory nature of their provisions have been well-settled. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of such duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature it has been the practice to hold such provisions to be directory and the neglect of them though punishable not affecting the validity of the acts done. This principle has been set out in the case of Montreal Street Railway Company v. Normandin A.I.R. 1917 Privy Council 142 and has been followed by the Federal Court as well as the Supreme Court. In the case of Biswanath v. Emperor it was observed at page 68 that:

We are further of the opinion that the direction laid down in Section 256 is directory and not mandatory and that non-compliance with it would not render an appointment otherwise regularly and validly made ineffective or inoperative. It seems to us that any other view would lead in many cases to results which could not have been intended by Parliament and would entail general inconvenience and injustice to persons who have no control over those entrusted with the duty of making recommendations for the grant of magisterial powers: See Montreal Street Railway Co. v. Normandin.

Different expressions are used in statutes in connection with those provisions which require that the authority invested with a power may exercise it after consultation with some person or authority and the words shall be consulted or after consultation with have often been used in such statutes. The question that would arise in such cases would be whether such a provision should be construed as mandatory or directory. A provision which relates to the essence of a thing to be performed or to matters of substance may generally be regarded as mandatory and that which does not relate to the essence of a thing or whose compliance is not a matter of substance may be considered as directory. A provision of the former category would if not complied with render the action taken void whereas none compliance with a directory provision would not invalidate the proceedings to which it relates. In deciding whether the provision is mandatory or directory the words of the section must first be considered and then the nature the context its object and the consequences which would follow from construing it the one way or the other. No universal rule however can be laid down or formulated by reference to provisions of other statutes such as was made to Article 3 or the Constitution of India as that would not be of much help in revealing the true nature of a particular provision of another statute having a different object altogether. Each case will have to be decided on its own merits having regard to the subject matter and the importance of the provision and its relation to the object intended to be secured by the enactment. Not only the actual words used but also the scheme of the enactment in the context of the particular provision under consideration the intended benefit of the provision and the material danger by its contravention have got to be seen.

6. We may here refer to the observations of the Supreme Court in the case of State of U.P. v. Manbodhan Lal Srivastava : (1958)IILLJ273SC in respect of a provision for consultation of the Public Service Commission under Article 320(3)(c) of the Constitution of India where the question arose whether that provision was directory or mandatory. It was held by the Supreme Court in that case that the provision was directory and not mandatory so that the non-compliance with the provision did not invalidate the order passed by the Government without consulting the Public Service Commission or afford a cause of action to the public servant against whom such order was made on the ground of noncompliance with the provision. The relevant observations in the case are at page 916 which are as under:

Once relevant regulations have been made they are meant to be followed in letter and in spirit and it goes without saying that consultation with the Commission on all disciplinary matters affecting a public servant has been specifically provided for in order first to give an assurance to the Services that a wholly independent body not directly concerned, with the making of orders adversely affecting public servants has considered the action proposed to be taken against a particular public servant with an open mind; and secondly to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services.

It is therefore incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation.

Secondly it is clear that the requirement of the consulation with the Commission does not extend to making the advice of the Commission on those matters binding on the Government. Of course the Government when it consults the Commission on matters like these does it not by way of a mere formality but with a view to getting proper assistance in assessing the guilt or otherwise of the person proceeded against and of the suitability and adequacy of the penalty proposed to be imposed.

If the opinion of the Commission were binding on the Government it may have been argued with greater force that non-compliance with the rule for consultation would have been fatal to the validity of the order proposed to be passed against a public servant. In the absence of such a binding character it is difficult to see how noncompliance with the provisions of Article 320(3)(c) could have the effect of nullifying the final order passed by the Government.

Thirdly, Article 320 or the other Articles in Chap. II of Part XIV of the Constitution deal with the constitution of the Commission and appointment and removal of the Chairman or other members of the Commission and their terms of service as also their duties and functions. Chapter II deals with the relation between Government and the Commission but not between the Commission and a public servant.

Chapter II containing Article 320 does not in terms confer any rights or privileges on an individual public servant nor any constitutional guarantee of the nature contained in chap. I of that Part particularly Article 311. Article 311 therefore is not in any way controlled by the provisions of chap. II of part XIV with particular reference to Article 320.

The question may be looked at from another point of view. Does the Constitution provide for the contingency as to what is to happen in the event of noncompliance with the requirements of Article 320(3)(c)? It does not either in express terms or by implication provide that the result of such a non-compliance is to invalidate the proceedings ending with the final order of the Government.

In Maxwell's Interpretation of Statutes Eleventh Edition the principles pertaining to the present issue have been summarised at page 362:

When a statute requires that something shall be done or done in a particular manner or form, without expressly declaring what shall be the consequence of noncompliance the question often arises: What intention is to be attributed by inference to the Legislature? Where indeed the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other no doubt can be entertained as to the intention..

The reports are full of cases dealing with statutory provisions which are devoid of indication of intention regarding the effect of non-compliance with them. In some of them the conditions forms or other attendant circumstances prescribed by the statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its validity. In others such prescriptions have been considered as merely directory the neglect of which did not affect its validity or involve any other consequence than a liability to a penalty if any were imposed for breach of the enactment. The propriety indeed of ever treating the provisions of any statute in the latter manner has been sometimes questioned but it is justifiable in principle as well as abundantly established by numerous authorities.

It has been said that no rule can be laid down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard or as imperative with an implied nullification for disobedience beyond the fundamental one that it depends on the scope and object of the enactment. It may perhaps be found generally correct to say that nullification is the natural and usual consequence of disobedience but the question is in the main governed by considerations of convenience and justice and when that result would involve general inconvenience or injustice to innocent persons or advantage to those guilty of neglect without promoting the real aim and object of the enactment such an intention is not (to) be attributed to the legislature. The whole scope and purpose of the statute under consideration must be regarded. The general rule is that an absolute enactment must be obeyed or fulfilled exactly but it is sufficient if directory enactment be obeyed or fulfilled substantially.

A strong line of distinction may be drawn between cases where the prescriptions of the Act affect the performance of a duty and where they relate to a privilege or power, here powers rights or immunities are granted with a direction that certain regulations formalities or conditions shall be complied with it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred and it is therefore probable that such was the intention of the legislature. But when a public duty is imposed and the statute requires that it shall be performed in a certain manner or within a certain time or under other specified conditions such prescriptions may well be regarded as intended to be directory only in cases when injustice or inconvenience to others who have no control over those exercising the duty would result if such requirements were essential and imperative.

7. In the light of the aforesaid principles let us examine the relevant section of the Gujarat Village Panchayats Act and the effect of the action taken by the Government under that section. On a reading of Section 9 it would appear that the Government has been authorised to declare any local area comprising of a revenue village or a group of revenue villages or hamlets forming part of a revenue village to be a Nagar or a Gram in the circumstances set out in that section and it is further provided in the section that the Government may by a notification at any time include within or exclude from any Nagar or Gram any local area or otherwise alter the limits of any Nagar or Gram. But if the Government wanted to act under the latter part of the section it is provided in Sub-section (2) of Section 9 that the action should be taken after consultation with the Panchayat concerned. It appears that the provision about consultation has not been included in the section as a safe-guard of a right of any person but seems to be a mere direction to take the sense of the Panchayat before its limits were altered or added to. The main object of the section seems to effect an alteration of the limits and while doing so one of the steps to be taken by the Government is to consult the Panchayat concerned. If such a step is not taken the main purpose of the enactment viz. alteration of or adding to the limits of a Panchayat would not be frustrated nor would the right of any person be prejudiced. On this question Mr. Shastri contended that the right of the Panchayat would be affected because the Panchayat would be divested of some part of its property and that the statutory right of the Panchayat vested in it under Section 96 of the Gujarat Panchayats Act 1961 would be effected. There is no substance in this argument. Under Section 96 of the Gujarat Panchayats Act a power is given to the Government to vest in the Panchayat certain types of property but there is no right given to a Panchayat that such property will be continued to be vested in it in perpetuity. Similarly the argument of Mr. Shastri based on Section 99 of the Act has also no substance. Under Section 99 of the Act a fund is constituted for each Panchayat from certain recoveries by the Panchayat. The Panchayat as constituted would continue to recover such recoveries as are permissible under the Act and therefore because of the alteration of the limits the Panchayat would not be deprived of such a right. Reference was made to some of the provisions of the Act including Section 310 and it was urged that the consequence of an action such as the one taken in the present case would be to dissolve a Panchayat once constituted and the right of the persons elected to the old Panchayat to continue as members for the full term would be affected and the people of the area would not have a local-self Government till the new Panchayat was constituted. It was contended that the requirement for a prior consultation was a condition precedent to the taking of an action under Section 9(2) which was a power conferred on the Government and not a duty. But it must not be forgotten that whatever rights if any of having a local-self Government body or of membership to the Panchayat are the creation of the statute which itself brings into existence a Panchayat and its electorate body and provides for its re-arrangement. Such an action of reconstituting or rearranging the areas would not totally and for ever deprive the people of a local self Government body or the right of the people to elect their representatives to a Panchayat. Since the section provides for the reconstitution of a village it also provides that the sense of the Panchayat should be taken before its limits are altered. The section however does not prescribe what consequences would follow if prior consultation is not made before taking an action under the section. Considering the consequences that are likely to follow on the taking of an action under the section and the effect of noncompliance with that part of the section which provides for a prior consultation and considering the subject matter of the provision and its relation to the general object thereby intended to be secured and upon a review of the matter according to the principles of construction discussed above it appears that the provision with which we are here concerned is directory and although it does indicate a duty to consult the Panchayat before passing an order under the section it does not follow that every departure from that duty will taint the whole proceeding with a fatal blemish and render it void and ineffective. We find nothing in Section 9 or the Act which would lead us to the conclusion that if the Government omits to consult the Panchayat concerned while taking action under Sub-section (2) of Section 9 the right of the Panchayat or any person would be adversely affected. There is also nothing in the Act to show that even after consultation the sense indicated by the Panchayat concerned would be binding on the Government. As admitted by the petitioner the Panchayat was consulted on the question of the formation of a separate Gram Panchayat for the village Ruun. The provision contained in Sub-section (2) of Section 9 has thus been substantially complied with. In our view the direction given in Sub-section (2) of Section 9 is directory and not mandatory and none of the contentions of Mr. Shastri can therefore prevail.

The petition therefore fails and is dismissed. The rule granted on the petition is discharged with costs.


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