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Judgment
By means of present writ petition, petitioner has sought the following reliefs:-
i. Issue a writ of certiorari to quash the order dated 18.09.2017 passed by Chief Development Officer, Pithoragarh and order dated 13.10.2017
issued by Block Development Officer, Dharchula as well as notice dated 12.10.2017 issued by Block Development Officer, Dharchula.
ii. Issue a writ, order or direction in the nature of mandamus declaring the proceeding of no confidence stood rejected.
Heard learned counsel for the parties and perused the records.
Petitioner was elected as the Block Pramukh of Dharchula Block, District Pithoragarh in the year 2014. On 16.09.2017, a notice signed by
more than 50% of the members of Kshetra Panchayat was presented before the Chief Development Officer, Pithoragarh seeking a motion of ''no
confidence'' against the petitioner, in terms of Section 63(1) of the Uttarakhand Panchayat Raj Act, 2016 (hereinafter referred to as ""the Act"").
Pursuant to the said notice, Chief Development Officer issued an order dated 18.09.2017, whereby he directed that meeting for considering no
confidence motion would be held on 12.10.2017 and shall be presided by Sub-Divisional Magistrate, Pithoragarh. Copy of the said order was
sent to the petitioner as well as all members of the Kshettra Panchahyat.
The Sub-Divisional Magistrate, Pithoragarh, who was to preside the meeting for considering no confidence motion, issued a letter on
12.10.2017 to the Chief Development Officer expressing his inability to preside the meeting on account of ill-health and adjourned the meeting to
05.11.2017 in terms of Section 63(5) of the Act.
In view of adjournment of the meeting by Sub-Divisional Magistrate, the Chief Development Officer, Pithoragarh issued one letter on
12.10.2017 to the District Panchayat Raj Officer directing him to personally inform all members of the Kshetra Panchayat about the next date of
meeting i.e. 05.11.2017 and also to read the text of the letter in the house. Copy of the said letter was sent to Block Development Officer,
Dharchula with a direction to immediately inform all members regarding the decision and also to serve individual notice regarding next date of
meeting upon all members.
Pursuant to the direction issued by Chief Development Officer, Block Development Officer issued one notice dated 12.10.2017, which was
sent to petitioner and all members of Kshettra Panchayat through special messenger as well as by registered post. The said letter is on record as
Annexure CA-2 to the counter affidavit. Thereafter on 13.10.2017, Block Development Officer, Dharchula issued another letter to all Village
Panchayat Development Officers with a direction to immediately give notice regarding next date of meeting to all members and submit compliance
report on or before 16.10.2017 and in case of refusal on the part of a member to acknowledge receipt of the notice, the notice may be pasted on
the main gate of his residence, in the presence of two public representatives.
The present writ petition was filed on 03.11.2017 i.e. two days before the adjourned meeting scheduled for considering ''no confidence
motion''. It has been pleaded in the writ petition that on 12.10.2017, he alongwith all members was present in the meeting hall, but due to absence
of Presiding Officer, motion of no confidence could not be considered. Petitioner admits that Block Development Officer had issued one notice
dated 12.10.2017 and subsequent letter dated 13.10.2017. However, his contention is that the letter dated 13.10.2017 was served upon him only
on 27.10.2017.
On these facts, petitioner contends that the notice regarding adjourned meeting scheduled for 05.11.2017 was not given in terms of Section
63(5) of the Act, therefore, the entire proceeding is vitiated and the meeting, if any, convened for considering no confidence motion is non-est in
the eyes of law. According to the petitioner, said notice is unsustainable on two counts:-
(i) Section 63(5) of the Act requires that the notice has to be issued by the Chief Development Officer, but in the present case, Chief Development
Officer did not issue any notice to the members.
(ii) Section 63(5) of the Act further requires that at least ten days notice has to be given to the members regarding the next meeting, but in the
present case, notice was served upon the petitioner on 27.10.2017 in respect of the meeting scheduled for 05.11.2017.
In the counter affidavit, it has been stated that upon receiving the letter issued by S.D.M., Pithoragarh, the Chief Development Officer
immediately informed petitioner and all members about the next date of meeting by issuing letter dated 12.10.2017. Paragraph Nos. 11 and 12 of
the counter affidavit are extracted below:-
That the contents of para 11 of the writ petition are wrong hence denied. It is submitted that the Chief Development Officer, Pithoragarh sent
a letter no. 3774/33-Vividh/PA/2017-18 dated 12th October, 2017 to the District Panchayat Raj Officer, Pithoragarh and the copy of the same
was also sent to the Block Development Officer, Dharchula, District Pithoragarh with the direction that the next date of meeting is fixed on
05/11/2017 the Block Development Officer was further directed to intimate all the members of the Kshetra Panchayat regarding the same. In
compliance of the letter no. 3774/33-Vividh/PA/2017-18 dated 12th October, 2017 the Block Development Officer, Dharchula, Pithoragarh on
13/10/2017 sent the notices through registered post to all the members of Kshetra Panchayat and also intimated through telephone and whatsapps.
In this connection copies of the letter dated 12/10/2017 and the notice sent to the Members of Kshetra Panchayat are being filed herewith and
marked as ANNEXURE NO. C.A.-1 AND C.A.-2 respectively to this affidavit.
That the contents of para 12 of the writ petition are wrong hence denied. It is submitted that the letter of the Chief Development Officer,
Pithoragarh dated 12th October, 2017 was served on the petitioner on 12/10/2017. It is further submitted that the letter of the Chief Development
Officer was received by the petitioner regarding the same, the video recording of the proceeding was also done. A copy of the letter dated
12/10/2017 which was received by the petitioner on 12/10/2017 is being filed herewith and marked as ANNEXURE NO. C.A.-3 to this
affidavit.
Photocopy of certain documents have been enclosed with the counter affidavit. Perusal of those documents reveals that letters issued on
12.10.2017 by S.D.M., Pithoragarh/Presiding Officer as well as Chief Development Officer were duly served upon the petitioner on 12.10.2017
and petitioner acknowledged receipt of these letters, by putting his signatures. This vital aspect has not been disclosed in the writ petition, where it
is alleged that petitioner received notice only on 27.10.2017. Learned Advocate General, therefore, submits that petitioner has not approached this
Court with clean hands.
Learned Senior Counsel for the petitioner does not dispute veracity of the documents enclosed with the counter affidavit, but he submits that
service of the letters issued by S.D.M./Presiding Officer and Chief Development Officer, upon the petitioner will not cure the defect. According to
him, none of these letters can be treated as notice as they were not addressed to the members, including petitioner.
During the course of argument, learned Senior Counsel for the petitioner has given up challenge to the notice/order dated 18.09.2017, issued
by Chief Development Officer, Pithoragarh. Learned Senior Counsel submits that the said notice was issued in conformity with Section 63(2) of
the Act, therefore, there is no infirmity or illegality in the said notice. Thus, petitioner has confined his challenge to the two letters issued by Block
Development Officer, Dharchula on 12.10.2017 and 13.10.2017. The first letter issued by Block Development Officer is in the form of a notice to
the members of Kshettra Panchayat regarding the next date of meeting. The second letter issued by Block Development Officer is to his
subordinates directing them to give notice regarding next date of meeting to all members.
Learned Senior Counsel for the petitioner submits that the notice issued to the petitioner regarding adjourned meeting for considering no
confidence of motion is not in terms of Section 63(5) of the Act. According to him, the said notice has been issued by the Block Development
Officer and not by the Chief Development Officer as required under Section 63(5) of the Act. His second submission is that the statute requires
that at least ten days notice of the next meeting has to be given to all members under Section 63(5) of the Act, but notice regarding meeting
convened for 05.11.2017 was served upon the petitioner on 27.10.2017. Thus, according to him, the notice does not meet the requirement of
Section 63(5) of the Act. Section 63(5) of the Act is extracted below for ready reference:-
(5). If the officer/Sub District Magistrate mentioned in Sub-Section preside at the meeting, he may, after recording his reasons, adjourn the
meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting. He shall without delay
inform the Chief Development Officer in writing of the adjournment of the meeting. The Chief Development Officer shall give to the members at
least ten days Notice of the next meeting in the manner prescribed under sub-section (2).
Learned Senior Counsel for the petitioner further submits that when a statute requires a thing to be done in a particular manner, then that thing
should be done in that manner or not at all. He further submits that Section 63(5) of the Act refers to Section 63(2), regarding the manner in which
notice of the adjourned meeting has to be given to the members. He contends that the earlier notice issued by Chief Development Officer on
18.09.2017 was strictly in terms of Section 63(2) of the Act, therefore, the same manner should have been followed while issuing notice regarding
the adjourned meeting.
Mr. S.N. Babulkar, learned Advocate General assisted by Mr. Paresh Tripathi, Chief Standing Counsel for the State, on the other hand,
submits that not only the letter issued by the Presiding Officer i.e. Sub-Divisional Magistrate, Pithoragarh was served upon the petitioner on
12.10.2017, but the letter issued by Chief Development Officer on 12.10.2017 was also served upon the petitioner, the same day.
Thus, according to learned Advocate General, the challenge thrown by the petitioner in the writ petition is without any substance and the notice
regarding adjourned meeting was given to all the members, including petitioner, in terms of provisions of the Act. He further submits that petitioner
and all members were informed about the date of adjourned meeting on 12.10.2017 itself, therefore, there is no substance in the contention that
ten days notice was not given to the petitioner. He further submits that Section 63(2)(b) of the Act, which is incorporated by reference in Section
63(5) only provides that notice has to be given in such a manner as may be prescribed. Learned Advocate General makes a statement at the Bar
that rules have not been framed under the Act so far, therefore, the manner of giving notice has not been prescribed in any statute. He further
submits that the purpose of notice is to inform the members about the scheduled date of meeting for considering no confidence motion and this
information was given to all members, including petitioner, on 12.10.2017 itself.
Learned Advocate General has referred to paragraph No. 11 of the counter affidavit, where it has been pleaded that pursuant to Chief
Development Officer''s letter issued on 12.10.2017, Block Development Officer sent individual notices to all members and further that all members
were informed about the meeting through Telephone and Whats-app. Learned Advocate General submits that the assertion regarding notice made
in paragraph No. 11 of the counter affidavit has not been specifically denied in the rejoinder affidavit. Thus, the question which falls for
consideration of this Court is whether the notice regarding adjourned meeting is in conformity with the statutory provisions or not.
Section 63(2) and 63(5) are relevant for appreciating the arguments raised in the writ petition, therefore, these provisions are extracted below:-
63(2) The Chief Development Officer shall thereupon:-
(a) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by
him, which shall not be later than thirty days from the date on which the notice under sub-section(1) was delivered to him; and
(b) give to the members of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.
63(5) If the officer/sub District Magistrate mentioned in sub-section preside at the meeting, he may, after recording his reasons, adjourn the
meeting to such other date and time as he may appoint, but not later than 25 days from the date appointed for the meeting. He shall without delay
inform the Chief Development Officer in writing of the adjournment of the meeting. The Chief Development Officer shall give to the members at
least ten days Notice of the next meeting in the manner prescribed under sub-section (2).
Section 63(2) of the Act provides for the meeting which is convened by the Chief Development Officer after receiving the notice of no
confidence motion. Section 63(5) deals with a situation where the Sub Divisional Magistrate is unable to preside the meeting of no confidence and
consequently the said meeting is adjourned to some future date.
The contention of the petitioner is that the notice given regarding the adjourned meeting is not in accordance with Section 63(5) of the Act,
which vitiates the entire proceedings. The first contention of the petitioner is that the statute provides that notice has to be issued by Chief
Development Officer, whereas in the present case, Block Development Officer issued the notice. Although, Section 63(5) provides that Chief
Development Officer shall give notice to the members regarding the adjourned meeting as well, however, consequence of failure on the part of
Chief Development Officer to issue notice has not been indicated in the Uttarakhand Panchayati Raj Act. Section 63(5) provides that notice of the
next meeting shall be given in the manner prescribed under section 63(2). Section 63(2)(b) provides that notices has to be given in such manner as
may be prescribed. The Uttarakhand Panchayati Raj Act is silent regarding the manner in which notice of the meeting has to be given. Learned
Advocate General informs the Court that rules have not been framed under the said Act.
Learned counsel for the petitioner refers to Section 149 (e) and submits that in terms of Section 149(e), every notice has to be given or
tendered or sent by post to the person to whom it is addressed. Thus, according to the petitioner, the letter issued by Block Development Officer
on 12.10.2017 cannot be treated as notice as it was not addressed to the individual member. As discussed above, the letters issued by Sub-
Divisional Magistrate and Chief Development Officer on 12.10.2017 were served personally upon the petitioner on the very day they were issued.
Section 149(e) does not provide the form of notice, therefore, in my humble opinion, there is no infraction of Section 149(e). Moreover, Section
149(f) of the Act provides that no notice or bill shall be invalid for defect or form.
The purpose of notice as contemplated under Section 63(5) is to give due intimation of the proposed meeting to all members of the Kshetra
Panchayat and to make it possible for them to adjust their work in such a manner so as to enable them to attend the proposed meeting of no
confidence motion. Once the member is informed about the meeting, he is not required to make any further preparation for the purpose of meeting
except by making himself available in the meeting. Legislature has not provided consequence of non-compliance of Section 63(5). If the Legislature
intended the procedural aspects mentioned in Section 63(5) to be made mandatory, then the consequence of noncompliance of those procedural
aspects would also have been provided in the Act.
Many a times, Courts are required to ascertain whether a particular provision is mandatory or directory. In the case of Raza Buland Sugar Co.
Ltd. Vs. Municipal Board reported in AIR 1965 SC 895, Hon''ble Supreme Court, in para 8 of the judgment, has held as follows:-
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 - 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.
Similarly in the case of State, represented by Inspector of Police, Chennai Vs. N.S. Gnaneswaran reported in (2013) 3 SCC 594, Hon''ble
Supreme Court has observed in para 15 of the judgment that ""while determining whether a provision is mandatory or directory, in addition to the
language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve"". Para 22 of the said
judgment is extracted below:-
The law on this issue can be summarized that in order to declare a provision mandatory, the test to be applied is as to whether non-compliance
with the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of the
legislature and not upon the language for which the intent is clothed. But the circumstance that the legislature has used the language of compulsive
force is always of great relevance. If we apply this test to the provisions of Section 154 Cr.P.C., we reach the inescapable conclusion that the
provisions of Section 154(2) are merely directory and not mandatory as it prescribes only a duty to give the copy of the FIR.
Similarly, in the case of Dhampur Sugar Mill Limited Vs. State of U.P. and others reported in (2007) 8 SCC 338, Hon''ble Supreme Court, in
para 36 of the judgment, has held that:-
We are unable to subscribe to the above view. In our judgment, mere use of word ""may"" or ""shall"" is not conclusive. The question whether a
particular provision of a statute is directory or mandatory cannot be resolved by laying down any general rule of universal application. Such
controversy has to be decided by ascertaining the intention of the Legislature and not by looking at the language in which the provision is clothed.
And for finding out the legislative intent, the Court must examine the scheme of the Act, purpose and object underlying the provision, consequences
likely to ensue or inconvenience likely to result if the provision is read one way or the other and many more considerations relevant to the issue.
In view of the law laid down by Hon''ble Supreme Court in the aforesaid judgments, I have no hesitation in holding that Section 63(5) of the
Act in so far as it lays down the procedure of giving notice regarding the adjourned meeting is directory, even though the expression used is ""shall"".
Therefore, substantial compliance of the procedure prescribed will be sufficient to hold the meeting contemplated under Section 63(5).
As discussed above, the purpose of notice contemplated under Section 63(5) of the Act is to give information to the members about the
proposed meeting. The form of notice and the manner of giving notice has not been prescribed in the statute, nor consequence of failure on the part
of the Authorities in faithfully complying the provision contained in Section 63(5) has been provided. Section 63(5), therefore, lays down the
procedure and does not create any substantive right in favour of a person who is facing no confidence motion.
Annexure CA-1 to the counter affidavit filed by Block Development Officer, Dharchula indicates that the letter issued by Sub-Divisional
Magistrate, Pithoragarh / Presiding Officer to the Chief Development Officer was served upon the petitioner the same day i.e. 12.10.2017. This
fact is borne from the acknowledgment made by the petitioner, in which date of service is also indicated. In the said letter, date of the next meeting
to consider motion of no confidence was clearly indicated as 05.11.2017. Thus, petitioner was informed about the date of the next meeting well in
advance. Annexure CA-3 to the Counter Affidavit filed by Block Development Officer, Dharchula is a letter issued by Chief Development Officer
on 12.10.2017 to the District Panchayat Raj Officer, Pithoragarh. The said letter was personally served upon the petitioner as is apparent from the
acknowledgement made by him which bears the date of 12.10.2017. By means of the said letter, District Panchayati Raj Officer was directed to
inform all members present in the meeting hall about the date of adjourned meeting and he was further asked to read out the letter in the meeting
hall. Thus, on 12.10.2017, two letters were served upon the petitioner, one issued by Chief Development Officer and another issued by Block
Development Officer. The date of next meeting was mentioned in both the letters.
In such view of the matter, the contention of the petitioner that the notice issued to him is not in conformity with Section 63(5) of the Act,
cannot be sustained in the eyes of Law. Another contention of the petitioner is that notice of the adjourned meeting issued by Block Development
Officer, Dharchula on 13.10.2017 was served upon him on 27.10.2017, therefore, ten days notice, as contemplated under Section 63(5), was not
given to him.
Learned Advocate General submits that notice of the adjourned meeting was given to the petitioner on 12.10.2017 itself, as is evident from the
documents enclosed as Annexures CA-1 and CA-3. He further submits that if that aspect be ignored, then also the notice given to the petitioner on
27.10.2017 meets the requirement of Section 63(5) inasmuch as the meeting was held on the tenth day from 27.10.2017.
Since, petitioner has not disputed the statement made in the counter affidavit regarding receipt of letters of Sub- Divisional Magistrate and
Chief Development Officer on 12.10.017 and the adjourned date of meeting was mentioned in both these letters, therefore, this Court finds that
the notice given to the petitioner was sufficient and it was not short of the ten days period provided in the statute. In other words, substantial
compliance of Section 63(5) of the Act has been made, therefore, there is no reason to interfere in the matter. Moreover, no other member of the
Kshettra Panchayat has complained about violation of Section 63(5).
For the aforesaid reasons, this Court finds no merit in the Writ Petition. The Writ Petition is liable to be dismissed and is hereby dismissed. No
order as to costs.