Ashok Bhushan, J.

This Full Bench has been constituted to answer the questions referred by two Division Benches, while hearing writ petition No. 29907 of 2012 and writ petition No. 46452 of 2012. The facts of both the writ petitions and the issues raised need to be noted before we look into the questions which have been referred by the two Division Benches.

Writ petition No. 29907 of 2012, Vikas Trivedi Vs. State of U.P. has been filed by the petitioner, who was elected and functioning as Block Pramukh of Kshetra Panchayat Malava, district Fatehpur challenging the order of the District Magistrate dated 21.5.2012 by which order, the District Magistrate has directed for convening the meeting on 11.6.2012 for consideration of no confidence motion against the petitioner. The petitioner after coming to know about the no confidence motion, which was scheduled to take place on 11.6.2012 filed an election petition before the District Judge, Fatehpur making various allegations including the allegation that in the resolution of no confidence motion which has been received by the petitioner, there is no signature of any member. The District Judge fixed a date in July for considering the maintainability of the petition hence, the petitioner filed writ petition no. 29907 of 2012. Meeting for no confidence motion against Vikash Trivedi was held on 11.6.2012 as scheduled. Out of 94 members of the Kshetra Panchayat, 76 members were present in the debate and only 69 members casted their votes. 67 members voted in favour of no confidence motion and one member voted against no confidence motion and one vote was declared invalid. The no confidence motion was declared passed with majority of 67-1. Amendment application has been filed by the petitioner seeking to amend the writ petition challenging the order dated 11.6.2012 by which result of no confidence motion was declared and letter dated 18.6.2012 by which Sub Divisional Officer was appointed as Administrator till fresh election is held. In the writ petition submission was made that the notice presented before the District Magistrate did not comply with the requirement of Section 15(2) of U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as 1961 Act). It was further submitted that proposed no confidence resolution was not appended with motion nor was in prescribed format. Reliance was placed by learned counsel for the petitioner on Division Bench judgment of this Court in Ram Nath Tripathi Vs. Commissioner Lucknow Division, Lucknow and other (1992) 2 UPLBEC 1181. Learned Standing Counsel refuting the submissions of learned counsel for the petitioner contended that even if notice of no confidence motion has not been given in prescribed format that will not vitiate the proceedings since giving notice in prescribed format is only directory. The Court at the time of hearing of the writ petition looked into the record produced by learned Standing Counsel which indicated that notice of no confidence motion was signed by 60 members and was dated 19.5.2012. The Division Bench heard the matter on 11.7.2012. The Division Bench expressed its doubts regarding the view taken in Ram Nath Tripathis case. The Division Bench also expressed its doubts about the view taken by the Division Bench in Smt. Krishna Jaiswal Vs. State of U.P. and others 2005 (2) AWC 1732 [LQ/AllHC/2005/183] that the word may used in Section 28(3) (ii) of 1961 Act indicates that use of proforma is not mandatory. The Division Bench also noticed subsequent two Division Benches following the view taken in Smt. Krishna Jainswals case. In view of the submissions made before the Division Bench, the Division Bench vide its order dated 11.6.2012 referred following two questions for consideration by larger Bench.

(i) Whether notice required to be given under Section 15(2) and (3) of Act, 1961 as also under Section 28(2) and (3) of Act, 1961 read with Rules prescribing the format and procedure is mandatory

(ii) Whether the observations made in Ram Nath Tripathi (supra) that requirement of notice in prescribed form alongwith its enclosures in complete format is mandatory, or directory as observed in Smt. Krishna Jaiswal (supra). Which of these judgement lays down correct law

Writ petition No. 46452 of 2012 has been filed by Pramod Kumar Tripathi who was working as elected Block Pramukh of Block Saidabad, district Allahabad challenging the order dated 29.8.2012 passed by the District Magistrate by which the District Magistrate on a notice for moving no confidence motion against the petitioner signed by 79 members has convened the meeting on 20.9.2012 for considering no confidence motion. The petitioner also challenged the notice issued by the District Magistrate dated 28.8.2012 by which notice was given for convening the meeting at 11 a.m. on 209.2012 for considering no confidence motion against the petitioner. The petitioners case in the writ petition is that although the petitioner was served with the order/notice dated 29.8.2012 however, copy of the notice of no confidence motion was not annexed. He further submitted that he received the copy of the notice dated 29.8.2012 by registered post. Although notice stated that alleged no confidence is attached but the notice of no confidence which was annexed along with notice dated 29.8.2012 contained signatures of only five persons. It was contended that although the notice dated 29.8.2012 purported to claim that notice has been signed by 79 members but the document which was sent shows signatures of only seven members hence, the alleged motion is not in accordance with Section 15(2) of the 1961 Act. The Division Bench heard the matter on 12.9.2012. Before the Division Bench two submissions were made which have been noted by the Division Bench. The submissions and referring order of the Division Bench are quoted below:

"1st SUBMISSION

7. The procedure for bringing motion of no confidence against the Pramukh of a block is governed by Section 15 of the U.P Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (the Act) and the Rules framed therein. The Rules prescribe a proforma of the notice to be sent.

8. The Act, or the Rules, or the proforma nowhere provide that the names of the persons who gave the written notice to the Collector of their intention to make motion of no confidence should also be sent by the Collector. In case it is not there then the court cannot read it in the provisions.

9. In our opinion, the notice sent by the Collector cannot be invalidated merely on the ground that the names of the persons who had given written notice to the Collector of their intention to make motion of no confidence were not disclosed.

2nd SUBMISSION

10. The standing counsel has produced the record. It indicates that the proposed motion is in two pages. Therefore it is signed by members that runs upto fifth page. The Collector along with notice had sent the first two pages that contained the full motion of no confidence. The portion that was sent is at page-29 of the writ petition. However according to the counsel for the petitioner all pages upto five ought to have been sent.

11. The Act or the Rules do not provide that the proposed motion of no confidence should be signed by any member. The proposed motion of no confidence is neither invalid if it is signed by any members nor the signatures become part of proposed motion of no confidence.

12. In our opinion, the proposed motion was sent along with the notice of the Collector was sufficient. It cannot be invalidated if some pages containing signatures were not sent.

13. The Ram Nath-case contains some observations contrary to what we have held. It was distinguished in the case of Smt. Krishna Jaiswal Vs. State of U.P., 2005(2) AWC 1732 (the Krishna-Jaiswal case) that was not only followed in the number of other cases but SLP against the same was also dismissed.

14. Nevertheless, a Division Bench of this Court in writ

petition No.29907 of 2012, Vikas Trivedi Vs. State of U.P And others (the Vikas case) has referred the two questions to the larger bench on 11.6.2012. One of the question relates to the correctness of the Krishna-Jaiswal case.

QUESTIONS REFERRED

15. In view of above, it would be appropriate that the following two questions may also be considered along with the Vikas case:

(i) Whether the notice sent by the Collector convening the meeting to consider motion of no confidence can be invalidated on the ground that the copy of the notice with the names of persons who had signed the written notice of their intention to make motion of no confidence was not sent along with the same.

(ii) In case, the proposed motion of no confidence was signed by the members then, whether the notices convening the meeting can be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were not included in the copy of the proposed motion of no confidence sent along with the said notice.

16. This petition be connected with Writ Petition No.29907 of 2012 and in the meanwhile, the meeting to consider the motion of no confidence may be held but its result will be subject to the final decision of the writ petition."

Before the Division Bench, learned counsel for the petitioner relied on Division Bench judgment in Ram Nath Tripathis case (supra). The Division Bench noticed the judgment in Smt. Krishna Jaiswal and has also noted that two questions have been referred for consideration of larger Bench on 11.6.2012 in writ petition no. 29907 of 2012. The Division Bench referred two questions for consideration by larger Bench which are as follows: (for convenience they have been renumbered as questions no. (iii) and (iv)).

(iii) Whether the notice sent by the Collector convening the meeting to consider motion of no confidence can be invalidated on the ground that the copy of the notice with the names of persons who had signed the written notice of their intention to make motion of no confidence was not sent along with the same.

(iv)In case, the proposed motion of no confidence was signed by the members then, whether the notices convening the meeting can be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were not included in the copy of the proposed motion of no confidence sent along with the said notice.

After writ petition No. 29907 of 2012 was entertained, counter and rejoinder affidavits have been filed in the said writ petition. In the counter affidavit filed by the State of U.P. copy of the notice signed by 60 members of Kshetra Panchayat dated 19.5.2012 has been annexed as well as copy of the no confidence motion signed by 60 members have been annexed as Annexure C.A. 1. Copy of the notice issued by the Collector dated 21.5.2012 to all members of the Kshetra Panchayat has been annexed as Annexure C.A.2. Notice Annexure C.A. 2 although mentions that along with notice copy of no confidence motion is attached but the petitioners case is that along with notice which was sent by the Collector, copy of the no confidence motion was not attached. In writ petition No. 46452 of 2012, the petitioner has filed copy of the notice of no confidence motion issued by the Collector as well as copy of the no confidence motion dated 27.8.2012 as Annexure-1 to the writ petition. The case of the petitioner however, is that copy of the no confidence motion which has been attached along with the notice is not complete copy and although the copy of no confidence motion runs in five pages but only two pages have been given to the petitioners and there are signature of only six members on second page, whereas 79 members have claimed to have signed the no confidence motion. The learned counsel for the petitioners have attacked the notice issued by the Collector to the members giving information of the

meeting. The submission in writ petition of Vikas Trivedi is that along with notice which was sent by Collector copy of the no confidence motion was not attached and in Pramod Kumar Tripathis case, the argument is that incomplete copy of the no confidence motion was attached since out of five pages only two pages were attached.

Learned counsel for the petitioners in both the writ petitions have contended that Rules have been framed under sub-section (2) of Section 15 and clause (ii) of sub section (3) of Section 15 of the 1961 Act dated 14.12.1962 as well as Rules under sub section (2) and (3) of Section 28 of 1961 Act prescribing the format of notice to be sent under sub sections (2) and (3) and the notice in the present case having been not in the prescribed format which is mandatory, the entire proceeding is vitiated. In view of the aforesaid, the issue no. 1 referred to in writ petition No. 29907 of 2012 be reframed as follows:

(1) Whether the notice by the Collector under section 15(3) (ii) of 1961 Act in the prescribed format along with enclosure as prescribed in Rules is mandatory; and if notice is not given in the prescribed format, the entire proceedings shall be vitiated

In Writ petition No. 31313 of 2012 and the writ petition No. 33351 of 2012, the Division Bench noticed the Division Bench reference made by order dated 11.6.2012 in writ petition no. 29907 of 2012 and both these writ petitions have been connected with writ petition No. 29907 of 2012 and similar orders were passed in both the writ petitions that in the meantime motion for no confidence may proceed as scheduled but its result shall be subject to final decision of the writ petition. In writ petition No. 31313 of 2012, the petitioner who was elected and working as Block Pramukh of Kshetra

Panchayat Manikpur have challenged the notice dated 15.6.2012 by which District Magistrate on a notice of no confidence motion has convened the meeting on 2.7.2012 for considering the no confidence motion. In writ petition No. 33351 of 2012, the petitioner who was elected and working as Adhyaksha of Zila Parishad Fatehpur has challenged the notice issued by the Collector for convening meeting dated 10.7.2012 for considering no confidence motion received against the Adhyaksha.

Having noticed the questions which are to be answered by us in these writ petitions, now it is relevant to note the relevant statutory provisions. U.P. Kshetra Panchayat and Zila Panchayat Adhiniyam 1961 was enacted to provide for the establishment of Kshetra Panchayat and Zila Panchayat in U.P. Section 7 provides for election of Pramukh in Kshetra Panchayat and according to Section 8, the term of Kshetra Panchayat and its members is five years. Term of Pramukh according to Section 9 shall extend up to the term of Kshetra Panchayat. Section 15 of the Act provides for "Motion of non-confidence in Pramukh". Section 15 which is relevant in the present case is as follows:

"15. Motion of no-confidence in Pramukh or-- (1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections.

(2) A written notice of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of elected members of the Kshettra Panchayat for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat.

(3) The Collector shall thereupon:--

(i) 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 (2) was delivered to him;

and

(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed.

Explanation--In computing the period of thirty days specified in this sub-section, the period during which a stay order, if any, issued by a Competent Court on a petition filed against the motion made under this section is in force plus such further time as may be required in the issue of fresh notices of the meeting to the members, shall be excluded.

(4) The sub-divisional officer of the sub-division in which the Kshettra Panchayat exercises jurisdiction shall preside at such meeting;

Provided that if the Kshettra Panchayat exercises jurisdiction in more than one sub-division of the sub- divisional officer cannot for any reason preside, any stipendiary additional or assistant Collector named by the Collector shall preside at the meeting."

Similarly, the Adhyaksha of the Zila Parishad is to be elected whose term is co-terminus with the term of the Zila Parishad. Section 28 of the Act provides for motion of no confidence in Adhyaksha. Section 28 is pari-materia with Section 15 as noted above.

Now the facts of both the cases namely; Ram Nath Tripathi and Smt. Krishna Jaiswal (supra) and the respective views taken therein need to be noted. In Ram Nath Tripathis case, the petitioner who was elected Pramukh was served with notice dated 28.2.1992 issued by the Collector intimating that meeting for considering no confidence motion has been called on 23.3.1992. The Division Bench noted sub section (3) of Section 15 which indicates that Collector has to convene the meeting of Kshetra Panchayat for consideration of motion of no confidence on a date appointed by him on which notice is to be given to the members of the Kshetra Panchayat in such manner as may be prescribed. The "prescribed" had been defined in Section 2(19) which means prescribed by Act or by any rule made thereunder. The Division Bench noticed the rule made by the State Government. In paragraph 14, the Division

Bench noticed the Rule 2 and Form 2 by which notice is to be issued by the Collector to the members informing about meeting for convening no confidence motion. The Division Bench noticed that in the notice dated 28.2.1992 issued by the Collector neither copy of the motion nor copy of the notice containing the name of the members who had signed the notice of no confidence motion was there. The Division Bench held that both the parts of Section 15(3) are mandatory in character and since the form in which notice has to be issued to the members has been provided by the rules made by the State government, the requirement that notice shall be in that form is also mandatory. Following was laid down in paragraphs 18 to 23 and 25 Ram Nath Tripathis case (supra).

18. The original record also contains the copies of the notice of the motion which have been sent to various members alongwith the notice dated 28.2.1992 issued by the Collector, Hardoi by which it was indicated that a meeting of the Kshettra Samiti Shahabad had been convened for 23.3.1992 at 11.00 A.M. for consideration of the no confidence motion, but neither the copy of the motion nor the copy of the notice contains the names of the members who had signed the notice of the motion. A copy of the notice served on the petitioner has already been filed alongwith the writ petition. The names of the members, who had given notice of no confidence and who also signed the motion, have not been indicated in the said notice. This is also borne out by the original record produced before us as the copies of the notice of intention to move the motion of no confidence as also the motion issued to the members available on the original record do not contain the names of the members who had signed the motion as also the notice.

19. The contention of the learned counsel for the petitioner is that since the names of the members of the Kshettra Samit, who had signed the notice of intention to move the motion of no confidence against the petitioner or also the motion itself had not been indicated on the copy of the notice sent to him, there was a violation of the provisions of Section 15(3) read with Rule 2 of the Rules made under the Act for the consideration of motion of no confidence. It is also contended that the requirement indicated in Form II that "a copy of the motion is annexed hereto" was also not complied with as the notice sent to the petitioner cannot be said to be a copy of the original motion, as the names of the persons signing the motion had not been indicated in the copy.

20. Section 15(3) is in mandatory form. It consists of two parts. The first part says that the Collector shall convene a meeting of Kshettra Samiti for consideration of the motion. It further provides that the meeting shall be convened at the office of the Kshettra Samiti on a date appointed by the Collector. This date cannot be later than 30 days from the date on which the notice is delivered to the Collector under Sub-section (2) of Section 15.

21. The second part provides that the Collector shall give notice of the meeting to all the members of the Kshettra Samiti in such manner as may be prescribed. Both the parts are mandatory in character. Since the form in which the notice is to be issued to the members of the Kshettra Samiti has been prescribed by the rules made by the State Government, the requirement that the notice shal be in that form, is also, therefore, mandatory.

22. Where the law requires a thing to be done in a particular manner, that thing is to be done in that manner or not at all. This is a well known principle.

23. Examined on the touch stone of this principle, it will be seen that the notice issued to the petitioner, though on the prescribed form, was not in compliance of all the requirements prescribed by Rules inasmuch as the names of all the members of the Kshettra Samiti who had signed the motion, had not been indicated in the copy.

25. Since in the instant case we have found it as a fact that the coy of the motion issued to the petitioner alongwith the notice or the date on which the meeting was convened was not a complete copy inasmuch as the names of the members of the Kshettra Samiti who had signed the original motion, were not mentioned in the copy sent to him and had thereby been concealed from him, there was total non-compliance of the provisions of Section 15(3) read with the Rules made by the State Government under Section 237 of the Act, which were notified by the State Government on 4.12.1962. Since the steps indicated in Section 15(3) had not been properly taken by the Collector and there was no- compliance of the legal requirements,all subsequent steps and actions become invalid and cannot be sustained. "

In Smt. Krishna Jaiswal (supra), a notice by 28 elected members was given under section 28 to bring motion of no confidence against the petitioner Smt. Krishna Jaiswal. The Collector passed an order on 30.11.2004 for convening the meeting on 20.12.2004. The writ petition was filed and by interim order, the meeting to consider no confidence was kept in abeyance. During the pendency of the writ petition, 32 elected members gave another notice when the meeting was not convened. Writ petition No. 436 of 2005 was filed by 32 members for a direction to the Collector to convene the meeting for considering no confidence motion. One of the questions which was framed for consideration by the Division Bench was question No. 2 which is as follows:

"(ii) Whether the part of section 28(3)(ii) providing for holding of the meeting in such manner as may be prescribed and the manner prescribed mandatory. Is a meeting convened in pursuance of the notice--not in the prescribed proforma--illegal "

The Division Bench noticed that notice sent by the Collector under section 28(3)(ii) was not in the format prescribed by the Rules. The Court thereafter proceeded to consider as to whether the proforma is mandatory. The petitioners of the said case relied on Ram Nath Tripathis case (supra). The Division Bench relied on five Judges Full Bench case in Gyan Singh Vs. The District Magistrate, Bijnor and others, AIR 1975 Allahabad 315, which Full Bench considered Section 87A of U.P. Municipalities Act and held that purpose of giving notice is to give information regarding the meeting. The Division Bench in Smt. Krishna Jaiswal (supra) also placed reliance on an earlier Division Bench in 2004 (4) ESC 2385 Phula Devi Vs. State of U.P. and others, where the Court held that giving 15 days notice may be mandatory but in what manner and in what proforma it is to be given is mere directory and notice cannot be invalidated merely on the ground that it is not on the prescribed proforma. Paragraphs 21,24,28,29 and 30 are quoted as below:

21. Section 28(3)(ii) of the Act states that notice has to be given in such a manner as may be prescribed. This has been prescribed under the Uttar Pradesh Zila Panchayat Ke Adhyaksha Ke Avishwas Prastav ke Sambandh Me Niyam (the Rules). Form no. II also prescribes the proforma of the notice which is required to be sent by the Collector to different members. Neither the notice (Annexure-2 to the counter affidavit filed by the Collector) nor the other documents (that were admittedly sent) are in the proforma prescribed by the Rules. But, is the proforma mandatory

24. In the RamNath case the complete copy of the resolution was not attached alongwith notice. This is clear from paragraph 16 of this judgement which is as under:

The question raised before us, and on which we intend to dispose of this writ petition finally is that although the notice was issued in the prescribed form, but a complete copy of the motion of no confidence was not attached with the said Form.

28. Gyan Singh vs. DM: AIR 1975 Allahabad 313 (the GyanSingh case) is a five judges full bench decision regarding interpretation of section 87-A of the UP Municipalities Act. This section dealt with no confidence motion against the president of the Municipality. The Full bench in paragraph 8 of the judgement mentioned the purpose of giving notice as follows:

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.

29. The aforesaid observations equally apply here. The purpose to give notice is to give information regarding the meeting. The words in section 28(3)(ii) providing holding of meetings in such manner as may be prescribed; uses the word may; it show that the use of proforma is not mandatory. The only thing necessary is that requisite information should reach. It has also been so held in Phula Devi vs. State of UP: ESC (All) 2385 regarding interpretation of section 15 of the Act providing notice for no confidence against Pramukh and Up-Pramkukh of Kshetriya Samiti. This provision is similar to section 28 of the Act. The Division Bench in paragraph 24 of the report observed as follows:

It necessarily follows that the provisions of section 15(3) (i) and the first part of section 15(3)(ii) have to be held to be mandatory as was held by the Full Bench in respect of the corresponding part of section 87-A(3) of the UP Municipalities Act but the second part of section 15(3)(ii) which deals with the manner in which the notice has to be sent has to be held to be directory and substantial compliance of the procedure will not invalidate the notice.

30. The first part of section 28 (3)(ii) that requires 15 days of notice may be mandatory but in what manner and in what proforma it is to be given is merely directory. The notice can not be invalidated merely on the ground that it is not in the prescribed manner. The meeting for no confidence can be invalidated only if necessary information was not conveyed to the members. Annexures 1 and 2 to the WP 52945 of 2004 were admittedly sent to the members. Annexure 1 consists of two parts. The first part is the written notice given by the members to the Collector for bringing no confidence motion. The second part is resolution to be brought against Smt. Jaiswal. Annexure-2 is the order passed by the District Magistrate. This order clearly indicates the place, date, time and purpose of the meeting. This is substantial compliance of second part of section 28(3)(ii) of the Act. The no confidence meeting can not be invalidated merely on the ground that information was not in the prescribed proforma."

All the questions which have been referred for consideration before this Bench including the question no. 1 which we have reframed, being inter-connected are taken together. The issue which is to be answered in the present case is as to whether giving notice by the Collector in the prescribed proforma along with enclosure is mandatory. Section 15(3) (ii) provides as follows:

"(3) The Collector shall thereupon:-- (i)(ii) give to the elected member of the Kshettra Panchayat notice of not less than fifteen days of such meeting in such manner as may be prescribed."

Section 2(19) is as follows:

"Prescribed" means prescribed by the Act or any rule made thereunder"

The Rules have been framed by the State in exercise of power under sub-section (2) of Section 15 and clause (ii) of sub section (3) of Section 15 of the Act. There are only two rules which are as follows Rules 1 and 2.

"1. A written notice of intention to make a motion expressing want of confidence in the Prakukh or the Up- Pramukh of a Kshettra Samiti shall be in Form I of the Schedule given below.

2. The notice under clause (ii) of sub-section (3) of Section 15 of the U.P Kshettra Samitis and Zila Parishads Adhiniyam, 1961, shall be in Form II of the Schedule given below and shall be sent by registered post to every member of the Kshettra Samiti at his ordinary place or residence. It shall also be published by affixation of a copy thereof on the notice board of the office of the Kshettra Samiti."

In the schedule there are two forms, Form I and form II. Form II which is relevant in the present case is as follows:

"FORM II

(Form of the notice of a meeting of the Kshettra Samiti to be held for consideration of the non-confidence motion against the Pramukh/Up-Pramukh)

To

Sri

Member ofKshettra Samiti,

Notice

This notice is hereby given to you of the meeting of Kshettra Samiti which shall be held at the office of the said Kshettra Samiti on .... (date) at (time) for consideration of the motion of non-confidence which has been made against Sri ... the Pramukh/Up-Pramukh of the said Kshettra Samiti.

A copy of the motion is annexed hereto.

Place Dated Collector "

Rule 2 provides that notice under clause (ii) of (3) of 15 shall be in Form II of the Schedule given below and shall be sent by registered post to every member of Kshettra Samiti. The form-II which provides format of notice also in the end of the notice mentions " a copy of the motion is annexed hereto". As noted above, Section 15(3) requires giving of notice in such manner as may be prescribed and the manner of giving notice is prescribed in the Rules which use word shall. Whether the requirement in Rule 2 of sending notice in the prescribed proforma is mandatory and non compliance shall vitiate the entire proceedings is the issue to be answered. When provision is to be read mandatory or obligatory and when it is to be read as directory only, has time and again considered by several Courts and the authors.

Maxwell On the Interpretation of Statutes (Twelfth Edition) in Chapter 13,while discussing "Imperative And Directory Enactments" said following:

"The first such question is: 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 non-compliance, is the requirement to be regarded as imperative (or mandatory) or merely as directory (or permissive) In some cases the conditions or forms 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 them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.

It is impossible to lay down any general rule for determining whether a provision is imperative or directory. No universal rule, said Lord Campbell, L.C., can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. And Lord Penzance said: I believe as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter; consider the importance of the provisions that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act; and upon a review of the case in that aspect decide whether the matter is what is called imperative or only directory.

De Smiths Judicial Review (Sixth Edition) in the heading "Mandatory and Directory Duties and powers" said following in paragraph 5-049 and 5-054:

"When Parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts have therefore formulated their own criteria for determining whether the prescriptions are to be regarded as mandatory, in which case disobedience will normally render invalid what has been done, or as directory, in which case disobedience may be treated as an irregularity not affecting the validity of what has been done."

"in order to decide whether a presumption that a provision is "mandatory" is in fact rebutted, the whole scope and purpose of the enactment must be considered, and one must assess " the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act". In Assessing the importance of the provision, particular regard should be given to its significance as to the rights that may be adversely affected by the decision, and the importance of the procedural requirement in the overall administrative scheme established by the Statute. Breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced. But the requirement will be treated as "fundamental" and "of central importance" if members of the public might suffer from its breach. Another factor influencing the categorisation is whether there may be another opportunity to rectify the situation; of putting right the failure to observe the requirement."

The judicial committee of the Privy Council in celebrated decisions of Montreal Street Railway Co. Vs. Normandin AIR 1917 P.C. 142, laid down following for determining whether a provision in a statute is directory or imperative.

"The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at.... 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 this 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 only, the neglect of them, though punishable, not affecting the validity of the acts done."

Supreme Court in Dattaraya Moreshwar Vs. The State of Bombay and others, AIR 1952 S.C.181 has also laid down that law which creates public duties is directory but if it confers private rights, is mandatory. Following are the observations which were made by the apex Court in the said judgment:

"It is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperative. 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 this 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 of the Courts to hold such provisions to be directory only, the neglect of them not affecting the validity of the acts done."

Article 320(3) of the Constitution of India came for consideration before the apex Court in AIR 1957 SC 912 [LQ/SC/1957/93] State of U.P. Vs. Manbodhan Lal Srivastava. Article 320(3) (c) provides as follows:

"320 (3) The Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted-

(c) On all disciplinary matters affecting a person serving under the Government of India or the Government of a State in a civil capacity, including memorials or petitions relating to such matters."

The apex Court laid down following in paragraph 11.

"(11) An examination of the terms of Art. 320 shows that the word " shall " appears in almost every paragraph and every clause or sub-clause of that article. If it were held that the provisions of Art. 320(3)(c) are mandatory in terms. the other clauses or sub-clauses of that article will have to be equally held to be mandatory.

If they are so held, any appointments made to the public services of the Union or a State, without observing strictly the terms of these sub- clauses in cl. (3) of Art. 320, would adversely affect the person so appointed to a -public service, without any fault on his part and without his having any say in the matter.

This result could not have been contemplated by the makers of the Constitution. Hence, the use of the word " shall " in a statute, though generally taken in a mandatory sense, does -not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid.

On the other hand, it is not always correct to say that where the word " may " has been used, the statute is only permissive or directory in the sense that non-compliance with those provisions will not render the proceeding invalid. In that connection, the following quotation from Crawford on Statutory Construction-art. 261 at p. 516, is pertinent:

" 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"

The apex Court had occasion to consider again the test of determining a Statute as mandatory or directory in State of U.P. & others Vs. Babu Ram Upadhyaya AIR 1961 SC 751 [LQ/SC/1960/292] . Following was laid down in paragraph 29:

"The relevant rules of interpretation may be briefly stated thus: When a statute uses the word "shall", prima facie, it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute. For ascertaining the real intention of the Legislature the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered."

A five Judges Bench of Supreme Court had interpreted the provision of Section 131(3) and Section 94(3) of Municipalities Act, 1916 in context of mandatory or directory nature of the Statute in AIR 1965 SC. 895 Raza Buland Sugar Company Ltd. Rampur Vs. The Municipal Board, Rampur. The judgment of the apex Court in the aforesaid case throws considerable light and guidelines for determining the issues, which have arisen in these writ petitions. The procedure for imposition of tax by the municipal Board is provided under sections 131 to 135 of the U.P. Municipalities Act. Section 131(3) and Section 94(3) which came for consideration before the apex Court were as follows:

"131(3). The Board shall, thereupon publish in the manner prescribed in section 94 the proposals framed under sub-section (1) and the draft rules framed under subsection (2) along with a notice in the form set forth in Schedule III.

"94(3). Every resolution passed by a Board at a meeting shall, as soon thereafter as may be, be published in a local paper published in Hindi and where there is no such local paper, in such manner as the State Government may, by general or special order, direct."

In the aforesaid case, the municipal board imposed taxes and issued demand notice to the appellant. The appellant objected to the payment of water tax and filed a writ petition in the High Court. The writ petition was dismissed. On a certificate granted by the High Court, the appeal was taken to the apex Court and one of the grounds which was urged before the apex Court as has been noted in paragraph 5(1) is as follows.

"(1) There was no publication as provided by s. 131(3) read with s. 94(3) of the Act, and as the provision of s. 131(3) is mandatory and was not complied with, all subsequent action taken for the imposition of the tax was bad for non- compliance with a mandatory provision and therefore the tax itself was not levied according to law and could not be realised; and

(2) the tax could not be levied on most of the premises belonging to the appellant as there was no standpipe or other waterwork whereat water was made available to the public by the respondent within 600 feet of all of the buildings of the appellant."

In the aforesaid case by virtue of section 131 (3) proposal was to be published by the Board in the manner prescribed in Section 94(3). Section 94(3) provided that every resolution of the Board be published in the local paper published in Hindi. The apex Court after considering the submission in the aforesaid case, held requirement of Section 131(3) as mandatory. However, the requirement of publishing the proposal in the manner as laid down and Section 94(3) was held to be directory. Following was laid down in paragraphs 6 and 7:

"(6) We shall first consider the ground as to publication and three questions fall to be decided in that behalf : (first), is publication as provided in s. 131 (3) mandatory or directory, for it is contended on behalf of the respondent that publication under s. 131(3) is merely directory; (secondly), was the publication in this case strictly in accordance with the manner provided in s. 94(3); and (thirdly), if the publication was not strictly in accordance with the manner provided in s. 94(3), is the defect curable under s. 135(3)

(7) 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."

After noticing the principle for interpreting a provision mandatory or directory, the apex Court examined the case and the Scheme under section 131(3) and section 94(3) and laid down following in paragraph 9:

"This brings us to the examination of the facts and circumstances of the present statute in the light of what we have said above as to the criteria for determining whether a provision in a statute is mandatory or directory. The provision with which we are concerned, namely, S. 131(3), can be divided into two parts. The first part lays down that the Board shall publish proposals and draft rules along with a notice inviting objections to the proposals or the draft rules so published within a fortnight from, the publication of the notice (see Sch. III). The second part provides for the manner of publication and that manner is according to s 94(3). We shall first deal with what we have called the first part of S. 131(3). This provision deals with taxation. The object of providing for publication of proposals and draft rules is to invite objections from the inhabitants of the municipality, who have to pay the tax. The purpose of such publication obviously is to further the democratic process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax before imposing it on them.

In the circumstances if we are to hold that this part of s. 131(3) was merely directory, the whole purpose of the very elaborate procedure provided in ss. 131 to 135 for the imposition of tax would become meaningless, for the main basis of that procedure is the consideration of objections of tax-payers on the proposals of the Board. If such publication is merely directory, the Board can proceed to levy the tax without complying with them and that would make the entire elaborate procedure provided in the Act before a tax is imposed nugatory. We are therefore of opinion that this part of s. 131(3) is mandatory and it is necessary to comply with it strictly before any tax can be imposed.

....We therefore hold that this part of S. 131(3) is mandatory considering its language, the purpose for which it has been enacted, the setting in which it appears and the intention of the legislature which obviously is that no tax should be imposed without hearing tax-payers. Lastly we see no serious general inconvenience or injustice to anyone if this part of the provision is held to be mandatory; on the other hand it will be unjust to taxpayers if this part of the provision is held to be directory, inasmuch as the disregard of it would deprive them of the opportunity to make objections to the proposals, and the draft rules. We therefore hold that this part of s. 131(3) is mandatory."

The apex Court held Section 131(3) as mandatory looking to the very purpose of the enactment. It was held that if the Board does not publish proposal it can proceed to levy tax without complying with the procedure causing great prejudice to the residents. On contrast while considering section 94(3), it held that so long publication is made in substantial compliance that shall serve the purpose and the manner of publication under section 94(3) was held to be directory. Following was laid down in paragraph 10:

"Turning now to the second part, which provides for the manner of publication, that manner is provided in S. 94(3) already set out above. It seems to us that when the legislature provided for the manner of publication it did not intend that manner should be mandatory. So long as publication is made in substantial compliance with the manner provided in s. 94(3), that would serve the purpose of the mandatory part of the section which provides for Publication. It would therefore, not be improper to hold that the manner of publication provided in s. 94(3) is directory and so long as there is substantial compliance with that the purpose of the mandatory part of s. 131(3) would be served

....But the manner of publication provided by s. 94(3) which we have called the second part of s. 131(3), appears to be directory and so long as it is substantially complied with that would be enough for the purpose of providing the tax-payers a reasonable opportunity of making their objections. We are therefore of opinion that the manner of publication provided in s. 131(3) is directory."

The ratio of above case lays down sufficient guidelines for interpreting section 15(3) (ii) and the requirement of sending notice in the manner as prescribed in the Rule.

The difference between mandatory rule and directory rule was again examined by the apex Court in AIR 1980 SC 303 [LQ/SC/1979/448] Sharif- ud-Din Vs. Abdul Gani Lone in which judgment, the principle was stated in paragraph 9 in following words:

"9. The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non- compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow."

In another judgment, (1992) 1 SCC 91 [LQ/SC/1991/593] Lakshmanasami Gounder Vs. C.I.T. Selvamani and others following was laid down in paragraph 5:

"It is settled law that the word shall be construed in the light of the purpose the Act or Rule that seeks to serve. It is not an invariable rule that even though the word shall is ordinarily mandatory but in the context or if the intention is otherwise, it may be construed to be directory. The construction ultimately depends upon the provisions itself, keeping in view the intendment of the enactment or of the context in which the word shall has been used and the mischief it seeks to avoid. Where the consequence of failure to comply with any requirement of a provision is provided by the statute itself, the consequence has to be determined with reference to the nature of the provision, the purpose of enactment and the effect of noncompliance thereof. In its absence the consequence has to be determined with reference to the effect of the non-compliance of the provision of the legislature. Mere use of the word shall need not be given that connotation in each and every case that the provision would be invariably interpreted to be mandatory or directory."

Learned Counsel for both the parties have cited several decisions of the apex court interpreting procedural statutes. As notice above, De Smiths Judicial Review in paragraph 5.054 has said that breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced.

Learned Counsel for the petitioner has placed reliance on (1969) 2 SCC 746 [LQ/SC/1969/333] The Maharashtra State Road Transport Corporation Vs. Babu Goverdhan Regular Motor Service and others. The appellant and the private respondents have made an application for grant of permit before the Regional Transport Authority. The appellant was granted permit whereas the same was refused to the private respondents. An appeal was filed by the private respondents where a contention was raised that mandatory information required to be submitted in an application for permit under section 46 of the Road Transport Corporation Act read with

Form prescribed under Rule 80 have not been fully and completely furnished by the appellant. The appellate committee remanded the matter to the Regional Transport Authority for consideration. The private respondents challenged the order of Appellate Committee before the High Court. The High Court remanded the appeals to the appellate Committee directing to reconsider on the materials already on record. The High Court allowed the appeal and set aside order of the Appellate Committee and while considering section 46 of the Act and while noticing the submissions regarding the requirement of giving of the particulars, it observed that Section. 46, the relevant rule, and the form prescribed, have to be read together, and so read it follows that an applicant for a permit must comply, at any rate, substantially with the various matters mentioned therein. Following was observed by the apex Court in paragraph 15:

"Section 46, as we have already pointed out, requires information to be given by an applicant for permit not only in respect, of all the particulars enumerated under els. (a) to (e), but also under cl. (f). He has to give information on such other matters as may be prescribed and prescribed as defined in s. 2(21), means prescribed by rules made under the Act. Section 68 to which we have already referred, gives power to the State Government to make rules for the purpose of carrying into effect, the provisions of Chapter IV and also, without prejudice to the generality of this power, to make rules in respect of the various matters mentioned in sub-s. (2). Clause (c) of sub- s. (2) specifically gives power to prescribe the form to be used for the purpose of Chapter IV, including the form of permit. s. Therefore, an application filed by a party for a permit must, at any rate, substantially conform to the requirements of s. 46, as well as to the form framed under the rule-making power of the State Government. We have already pointed out that rule 80 provides that every application for permit should be in the appropriate form mentioned therein. Therefore s. 46, the relevant rule, and the form prescribed, have to be read together, and so read it follows that an applicant for a permit must comply, at any rate, substantially with the various matters mentioned therein."

The next judgment relied by learned counsel for the petitioner is Metal Forgings Vs. Union of India (2003) 2 SCC 36 [LQ/SC/2002/1231] . In the said case, the demand made under Central Excise Act, 1944 by the revenue was challenged on the ground that the demand was not within the period of limitation. Section 11A of the Act required issue of show cause notice before any demand was raised. Revenue referred and relied on certain orders and letters during the course of proceedings and submitted that such letters and orders should be treated as required show cause notice. The apex Court repelled the above argument of revenue and laid down following in paragraph 12:

"12.) It is an admitted fact that a show cause notice as required in law has not been issued by the revenue. The first contention of the revenue in this regard is that since the necessary information required to be given in the show cause notice was made available to the appellants in the form of various letters and orders, issuance of such demand notice in a specified manner is not required in law. We do think that we cannot accede to this argument of the learned counsel for the revenue. Herein we may also notice that the learned Technical Member of the tribunal has rightly come to the conclusion that the various documents and orders which were sought to be treated as show cause notices by the appellate authority are inadequate to be treated as show cause notices contemplated under Rule 10 of the Rules or Section 11A of the Act. Even the Judicial Member in his order has taken almost a similar view by holding that letters either in the form of suggestion or advice or deemed notice issued prior to the finalisation of the classification cannot be taken note of as show cause notices for the recovery of demand, and we are in agreement with the said findings of the two Members of the tribunal. This is because of the fact that issuance of a show cause notice in a particular format is a mandatory requirement of law. The law requires the said notice to be issued under a specific provision of law and not as a correspondence or part of an order. The said notice must also indicate the amount demanded and call upon the assessee to show cause if he has any objection for such demand. The said notice also will have to be served on the assessee within the said period which is either 6 months or 5 years as the facts demand. Therefore, it will be futile to contend that each and every communication or order could be construed as a show cause notice. For this reason the above argument of the revenue must fail."

Issuance of show cause notice in a particular format is a mandatory requirement of law. In the said case, the issuance of show cause notice gave jurisdiction to revenue to assess the liability and reference of letters and orders by the revenue was not accepted to be show cause notice in the proper format. In the said case, no notice at all was issued and reliance was placed on certain letters and orders hence, the observations made by the apex Court in the facts of the present case does not help the petitioners.

Sri M.D. Singh Shekhar has placed heavy reliance on the judgment of the apex Court in Pt. Rajan Vs. T.P.M. Sahir and others (2003) 8 SCC 498 [LQ/SC/2003/998] . The apex Court laid down following in paragraph 49:

"49. Furthermore, a provision in a statute which is procedural in nature although employs the word "shall" may not be held to be mandatory If thereby no prejudice is caused. (See Raza Buland Sugar Co. Ltd. v. , State Bank of Patiala v. S.K. Sharma, Venkataswamppa v. Special Dy. Commr. (Revenue) and Rai Vimal Krishna and Ors. v. State of Bihar and Ors."

Two more judgments are relevant i.e. Mahadev Govind Gharge Vs. Special Land Acquisition Officer (2011) 6 SCC 321, in which the apex court again held that procedural laws are primarily intended to achieve the ends of justice and normally not to shut the doors of justice . Following was laid down in paragraphs 29 and 37:

"29. Thus, it is an undisputed principle of law that the procedural laws are primarily intended to achieve the ends of justice and, normally, not to shut the doors of justice for the parties at the very threshold. We have already noticed that there is no indefeasible divestment of right of the cross-objector in case of a delay and his rights to file cross-objections are protected even at a belated stage by the discretion vested in the Courts. But at the same time, the Court cannot lose sight of the fact that meaning of *ends of justice essentially refers to justice for all the parties involved in the litigation. It will be unfair to give an interpretation to a provision to vest a party with a right at the cost of the other, particularly, when statutory provisions do not so specifically or even impliedly provide for the same.

37. Procedural laws, like the Code, are intended to control and regulate the procedure of judicial proceedings to achieve the objects of justice and expeditious disposal of cases. The provisions of procedural law which do not provide for penal consequences in default of their compliance should normally be construed as directory in nature and should receive liberal construction. The Court should always keep in mind the object of the statute and adopt an interpretation which would further such cause in light of attendant circumstances. To put it simply, the procedural law must act as a linchpin to keep the wheel of expeditious and effective determination of dispute moving in its place. The procedural checks must achieve its end object of just, fair and expeditious justice to parties without seriously prejudicing the rights of any of them."

Another judgment relevant is Pesara Pushpamala Reddy Vs. G. Veera Swamy & others (2011) 4 SCC 306 [LQ/SC/2011/356] . Following was laid down in paragraph 32:

"32. The provisions of the Act and Rules mandatorily requiring notification or publication of the notice of the case after the Special Tribunal or the Special Court takes cognizance are procedural provisions and the law laid down by this Court in State Bank of Patiala & Ors. v. S. K. Sharma (supra) is that violation of such procedural provisions will not vitiate the proceedings unless prejudice is caused to the party complaining of the violation. The respondents in the two cases before us not only had notice of the application under Section 7-A of the Act before the Special Tribunal but also filed their replies to the application and got the opportunity to adduce evidence in support of their case and had not suffered any prejudice for non-compliance of the provisions of the proviso to sub-section (4) of Section 7-A of the Act or Rule 7 of the Rules. The High Court was, therefore, not right in quashing the proceedings before the Special Tribunal in the present case on the ground that a notification or notice in terms of Rule 7(2) of the Rules had not been issued after the case was taking cognizance of by the Special Tribunal."

Now before proceeding to examine judgments of our Court interpreting Sections 15 and 28 of 1961 Act, one way or other, it is relevant to notice the concept of no confidence motion and the principles on which the theory is founded. No confidence motion is a motion which is moved by the elected members against the Adhyaksha of the Kshetra Panchayat or Zila Parishad. In context of motion, made before the house or Parliament or State Legislature in, Major Law Lexicon Vol 4 (10th edition) motion was defined as follows:

"Motion. A motion is a method of making, an application to the Court where in the course of the proceedings it is necessary to invoke its assistance in any matter requiring to be speedily dealt with.

Broadly speaking a motion is a proposal brought by a member before a House of the Parliament or State Legislature for eliciting decision or expressing the opinion of the House on a matter of public importance. No discussion can take place in a House except on a motion made with the consent of the Speaker or the Chairman of the House, as the case may be."

In Blacks Law Dictionary, while dealing with motion in Parliamentary Law following has been said :

"Parliamentary law. A proposal made in a meeting in a form suitable for its consideration and action that the meeting (or the organization for which the meeting is acting) take a certain action or view. Motion may be a main motion or a secondary motion. Motion technically becomes a "question" when the chair states it for the meetings consideration. But for most purposes, the parliamentary terms "motion" and "question" are

interchangeable. Cf. Quest."

The provision of bringing no confidence motion are contained in various municipal statutes. Section 87-A of the U.P. Municipalities Act, 1916 as well as section 14 of the U.P. Panchayat Raj Act, 1947 contain the similar provision. The apex Court in (1992) 4 SCC 80 [LQ/SC/1992/419] Mohan Lal Tripathi Vs. District Magistrate Rae bareli and others, while considering the concept of bringing no confidence motion, laid down following in paragraph 4:

"4. Vote of no-confidence against elected representative is direct check flowing from accountability. Today democracy is not a rule of Poor" as said by Aristotle or of Masses as opposed to Classes but by the majority elected from out of the people on basis of broad franchise. Recall of elected representative is advancement of political democracy ensuring true, fair, honest and just representation of the electorate. Therefore, a provision in a statute for recall of an elected representative has to be tested not on general or vague notions but on practical possibility and electoral feasibility of entrusting the power of recall to a body which is reprehensive in character and is capable of projecting views of the electorate. Even though there was no provision in the Act initially for recall of a President it came to be introduced in 1926 and since then it has continued and the power always vested in the Board irrespective of whether the President was elected by the electorate or Board. Rationale for it is apparent from the provisions of the Act. Under Sub-section (2) of Section 87-A the right to move the motion of no-confidence vests in the members of the Board which under Section 9, normally, comprises of elected representatives.

A person removed from office of President for loss of confidence, from the very nature of the Constitution of Board, is recall by the electorate themselves. An elected" representative is accountable to its electorate. That is the inherent philosophy in the policy of recall. For the President his electorate, to exercise this right, is the Board as it comprises of representatives of the same constituency from which the President is elected. Purpose of Section 87-A of the Act is, to remove elected representative who has lost confidence of the body which elected him. It may be by people themselves or they may entrust their power through legislation to their representatives. In Act it is the latter. Members of the Board are elected from smaller constituencies. They represent the entire electorate as they are representatives of the people although smaller in body. A President who is elected by the entire electorate when removed by such members of the Board who have also been elected by the people is in fact removal by the electorate itself. Such provision neither violates the spirit nor purpose of recall of an elected representative. Rather ensures removal by a responsible body. It cannot be criticised either as irrational or arbitrary or violative of any democratic norm. In fact construing the provision as suggested would render it unreasonable. A President of a Municipal Board of more than one lakh population would be removable by the Board comprising of elected representatives whereas a President of smaller Board would virtually get immunity from removal. It would be contrary to scheme of the Act and against public interest."

Thus, bringing no confidence motion is recognized as right of members and the interpretation is to be adopted which effectuate the purpose.

Now the judgment of five Judges Full Bench in Gyan Singh Vs. District Magistrate (supra) needs to be noted in detail on which reliance has been placed by the Division Bench in Smt. Krishna Jaiswals case (supra). Learned Counsel for the respondents also contended that interpretation put by five Judges Full Bench on Section 87-A was also applicable on section 15 and 28 and infact there was no need of making a reference by Division Bench since the Full Bench covered the field. It is further submitted that Division Bench judgment in Ram Nath Tripathi (supra) which is sheet anchor of the arguments of the learned counsel for the petitioner did not notice the five Judges Full Bench judgment in Gyan Singh (supra). In five Judges Full Bench in Gyan Singhs case two members of the Board presented a notice of intention to move motion of no confidence against the President of the Municipal Board Dhampur. Together with a motion signed by ten members of the Board, District Magistrate convened a meeting on 24.11.1973 for consideration of motion. The District Magistrate send the notice by registered post to all the members of the Board. However, no registered notice of the meeting was sent to the petitioner at his place of residence instead copy of the notice was endorsed to Nagar Palika Dhampur for information and necessary action. Further publication of the notice was made in two local newspapers and notice was to be pasted on the notice Board of the Municipal Board, Tahsil and Collectorate. One day prior to holding of the meeting, the petitioner filed writ petition for a writ of mandamus directing the District Magistrate not to hold the meeting. The Court did not grant interim order and meeting was held and all the ten members unanimously voted for the no confidence motion. In the writ petition, submission was raised that provisions of Section 87-A(3) are mandatory and its non compliance vitiated the motion of no confidence since no registered notice was sent to the petitioner at his place of residence hence, the mandatory provision of Section 87A(3) was disregarded. On the contrary, the respondents urged that provisions of Section 87-A(3) are directory which were sufficiently complied with. Section 87-A(3) which came for consideration in the said case is as follows:

"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 Full Bench noted the ratio of judgment of the apex Court in State of U.P. Vs. Manbodhan Lal Srivastava (supra) and Raja Buland Sugar Company Vs. Rampur Municipality (supra) and thereafter proceeded to consider Section 87-A. The Full Bench held that Section 87A (3) contains two parts. The first part which required the District Magistrate to convene meeting is mandatory whereas the second part which lays down the manner required to be followed in sending notice is directory. Paragraphs 7,8 and 9 which are relevant are quoted as below:

"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 mandatory. 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 sending 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."

Referring to earlier judgments of this Court, following was laid down in paragraph 18:

"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."

The writ petition was dismissed by the Full Bench. It is relevant to note that second part of Section 87-A(3) which contained the provisions for sending the notice was under consideration. In the present case, the manner of sending notice is prescribed in the Rules, whereas under section 87-A the same was prescribed under sub section (3). Section 87-A(3) had also used the word shall i.e. "he shall send by registered post". The said part has been read as directory not vitiating the proceeding by the Full Bench.

Sri Ravi Kant, learned Senior Advocate as well as Sri K.N. Tripathi, learned Senior Advocate, appearing for the appellants, submitted that the judgment of Full Bench in Gyan Singhs case (supra) is not relevant after insertion of Part-IX-A in the Constitution of India by 74th Amendment Act, 1992. It is submitted that Municipalities have been conferred constitutional status and the judgment of the Full Bench which was delivered before the 74th

Constitutional Amendment, is no more relevant.

To test the above submission, it is relevant to look into the provisions of Part IX-A of the Constitution of India. Articles 243P to 243ZG contain constitutional provisions regarding the Municipalities. Article 243Q provides that there shall be constituted in every State a Nagar Panchayat, a Municipal Council and a Municipal Corporation in accordance with the provision of Part IX-A. Article 243R provides for composition of Municipalities, Article 243U provides for duration of Municipalities. Article 243ZA provides for election to the Municipalities. Article 243ZF provides for continuance of existing laws and Municipalities. Article 243ZF of the Constitution is quoted below:-

"243ZF. Notwithstanding anything in this Part, any provision of any law relating to Municipalities in force in a State immediately before the commencement of the Constitution (Seventy-fourth Amendment) Act, 1992, which is inconsistent with the provisions of this Part, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier:

Provided that all the Municipalities existing immediately before such commencement shall continue till the expiration of their duration, unless sooner dissolved by a resolution passed to that effect by the Legislative Assembly of that State or, in the case of a State having a Legislative Council, by each House of the Legislature of that State."

The above Article provides that any provision of any law relating to Municipalities in force in a State immediately before the commencement of 74th (Amendment Act), 1992, which is inconsistent with the provisions of Part-IX-A, shall continue to be in force until amended or repealed by a competent Legislature or other competent authority or until the expiration of one year from such commencement, whichever is earlier. Thus unless amended on expiry of one year after the commencement of 74th Amendment inconsistent laws shall become unenforceable. The provisions of Section 15 and Section 28 of the 1961 Act, which provide for bringing no confidence motion against the Adhyaksha are existing provisions of law which are not inconsistent to any Article of the Constitution in Part IX-A. Section 87A of the Municipalities Act, 1916, which was interpreted by the Full Bench in Gyan Singhs case (supra) was also existing law of the Municipalities which is still in force not being in any manner inconsistent with Part IX-A of the Constitution. Thus the interpretation of Full Bench of Section 87-A of the U.P. Municipalities Act, 1916 is very much relevant and in no manner its precedencial value can be ignored after 74th Amendment of the Constitution.

Learned counsel for the petitioners have further placed reliance on a judgment of the Apex Court in the case of Ravi Yashwant Bhoir vs. District Collector, Raigad and others reported in (2012)4 SCC 407 [LQ/SC/1977/258] . In the said case the Apex Court was considering the action of the State Government by which the appellant of that case was declared disqualified under Section 55-B of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. Section 55-B was a provision which empowered the State Government to declare a President disqualified for remaining tenure of Councillor-ship on proved charges. The proceedings were initiated by serving charge-sheet on the appellant alleging violation of various statutory provisions and also alleging misconduct. The order passed by the Government was challenged on several grounds including violation of principles of natural justice. The Apex Court laid down following in paragraphs 30 to 36 of the said judgment:-

"30. There can also be no quarrel with the settled legal proposition that removal of a duly elected Member on the basis of proved misconduct is a quasi-judicial proceeding in nature. (Vide: Indian National Congress (I) v. Institute of Social Welfare & Ors., AIR 2002 SC 2158 [LQ/SC/2002/645] ). This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab & Anr, AIR 1963 SC 395 [LQ/SC/1962/109] and Union of India v. H.C. Goel, AIR 1964 SC 364 [LQ/SC/1963/208] . Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office bearer.

31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a government servant. If a temporary government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office bearer can be removed without holding a full fledged inquiry.

32. In service jurisprudence, minor punishment is permissible to be imposed while holding the inquiry as per the procedure prescribed for it but for removal, termination or reduction in rank, a full fledged inquiry is required otherwise it will be violative of the provisions of Article 311 of the Constitution of India. The case is to be understood in an entirely different context as compared to the government employees, for the reason, that for the removal of the elected officials, a more stringent procedure and standard of proof is required.

33. This Court examined the provisions of the Punjab Municipal Act, 1911, providing for the procedure of removal of the President of the Municipal Council on similar grounds in Tarlochan Dev Sharma v. State of Punjab & Ors., AIR 2001 SC 2524 [LQ/SC/2001/1510] and observed that removal of an elected office bearer is a serious matter. The elected office bearer must not be removed unless a clear-cut case is made out, for the reason that holding and enjoying an office, discharging related duties is a valuable statutory right of not only the elected member but also of his constituency or electoral college. His removal may curtail the term of the office bearer and also cast stigma upon him. Therefore, the procedure prescribed under a statute for removal must be strictly adhered to and unless a clear case is made out, there can be no justification for his removal. While taking the decision, the authority should not be guided by any other extraneous consideration or should not come under any political pressure.

34. In a democratic institution, like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office bearer sought to be removed.

35. The elected official is accountable to its electorate because he is being elected by a large number of voters. His removal has serious repercussions as he is removed from the post and declared disqualified to contest the elections for a further stipulated period, but it also takes away the right of the people of his constituency to be represented by him. Undoubtedly, the right to hold such a post is statutory and no person can claim any absolute or vested right to the post, but he cannot be removed without strictly adhering to the provisions provided by the legislature for his removal (Vide: Jyoti Basu & Ors. v. Debi Ghosal & Ors., AIR 1982 SC 983 [LQ/SC/1982/56] ; Mohan Lal Tripathi v. District Magistrate, Rai Barelly & Ors., AIR 1993 SC 2042 [LQ/SC/1992/419] ; and Ram Beti etc. etc. v. District Panchayat Rajadhikari & Ors., AIR 1998 SC 1222 [LQ/SC/1997/1705] ).

36. In view of the above, the law on the issue stands crystallized to the effect that an elected member can be removed in exceptional circumstances giving strict adherence to the statutory provisions and holding the enquiry, meeting the requirement of principles of natural justice and giving an incumbent an opportunity to defend himself, for the reason that removal of an elected person casts stigma upon him and takes away his valuable statutory right. Not only the elected office bearer but his constituency/ electoral college is also deprived of representation by the person of his choice.

There cannot be any dispute to the proposition as laid down by the Apex Court in the aforesaid judgment that elected member can be removed only after following the procedure strictly prescribed for removal after giving due opportunity. The said case was a case of removal and those observations were made by the Apex Court since there was violation of principles of natural justice in removing the appellant of that case. The Apex Court in the aforesaid judgment also held that there was no reason given in the order. The said case does not help the appellant in facts of the present case.

Learned counsel for both the parties have placed reliance on several other judgments of this Court, which according to them support their respective contentions.

Learned counsel for the petitioner has relied on the judgment of this Court in the case of Dr. Mahendra Pal vs. Collector, Hardoi reported in 1999(90) RD 618. In the said case the Court had considered Section 15 of the U.P. Kshettra Samitis and Zila Parishad Adhiniyam, 1961 and Section 87 of the U.P. Municipalities Act, 1916. In the said case out of 63 members of Kshetra Samiti, 35 members gave notice to Collector to convene a meeting for consideration of no confidence motion on the basis of which the Collector issued notice for holding the meeting on 3rd August, 1997. The petitioner of that writ petition thereafter made an application to the Collector on 17th July, 1997 requesting him to supply a copy of notice. Another application was also given requesting supply of copy of no confidence motion along with charges if any. The petitioner in that case contended that it was obligatory upon the Collector to send copy of the motion along with the notice issued for holding the meeting. The copy of the motion was not enclosed with the notice, therefore, entire proceeding of the meeting dated 3rd August, 1997 was invalid. The Division Bench noticed the provisions of rules framed under Section 15 and Form-2 in which notice is required to be sent by the Collector. Following the Ram Nath Tripathis case, the Division Bench laid down following in paragraphs 17 and 18 of the said judgment:-

"17. In view of statutory provisions noted above, it was mandatory for the Collector to send copy of the resolution, along with the notice issued by him for holding meeting. Admittedly, as stated above, copy of motion was not annexed to and was not sent to the members, along with the notice, issued by the Collector. Thus, the proceedings of the meeting held on 3.8.1997 were no held in accordance with the provisions of the Act.

18. Similar controversy as is involved in the present case, was Involved in the case of Ram Nath Tripathi v. Commissioner, Lucknow Division, Lucknow and others, 1993 (11) LCD 375 [LQ/AllHC/1992/1113 ;] ">1993 (11) LCD 375 [LQ/AllHC/1992/1113 ;] [LQ/AllHC/1992/1113 ;] ">1993 (11) LCD 375 [LQ/AllHC/1992/1113 ;] ">1993 (11) LCD 375 [LQ/AllHC/1992/1113 ;] [LQ/AllHC/1992/1113 ;] [LQ/AllHC/1992/1113 ;] , a Division Bench of this Court after referring to the provisions of Section 15 of the Act, and the rules framed thereunder, was pleased to rule as under :

"21. Section 15 (3) is in mandatory form, it consists of two parts. The first part says that the Collector shall convene a meeting of Kshettra Samiti for consideration of the motion. It further provides that the meeting shall be convened at the office of the Kshettra Samiti on a date appointed by the Collector. This date cannot be later than 30 days from the date on which the notice is delivered to the Collector under subsection (2) of Section 15.

The second part provides that the Collector shall give notice of the meeting to all the members of the Kshettra Samiti in such manner as may be prescribed. Both the parts are mandatory in character. Since the form in which notice is to be issued to the members of the Kshettra Samiti has been prescribed by the Rules made by the State

Government the requirement that the notice shall be in that form, is also, therefore, mandatory.

Where the law requires a thing to be done in a particular manner, that thing is to be done in that manner or not at all. This is a well known principle.

Examined on the touchstone of this principle, it will be seen that the notice issued to the petitioner, though on the prescribed form, was not in compliance of all the requirements prescribed by Rules inasmuch as the names of all the members of the Kshettra Samiti who had signed the motion, had not been indicated in the copy.

Since in the instant case we have found it as a fact that the copy of the motion issued to the petitioner along with the notice for the date on which the meeting was convened was not a complete copy inasmuch as the names of the members of the Kshettra Samiti who had signed the original motion were not mentioned in the copy sent to him and had, thereby been concealed from him, there was total non- compliance of the provisions of Section 15 (3) read with the Rules made by the State Government under Section 217 of the Act, which were notified by the State Government on Since the steps indicated in Section 15 (3) had not been properly taken by the Collector, and there was non-compliance of the requirements, all subsequent steps and actions become invalid and cannot be sustained."

The Division Bench in the aforesaid case relied on Ram Nath Tripathis case (supra) and the same reasonings have been followed by the Division Bench as has been given in Ram Nath Tripathis case (supra).

Another judgment relied by the learned counsel for the petitioner is in the case of Krishna Gopal Varshney vs. State of U.P. and another reported in 2012(6) ADJ 563. In the said case the challenge was to the order passed by the State Government in exercise of power under Section 9-A of the Municipalities Act, 1916 reserving the office of Chairperson of Nagar Palika Parishad. In paragraph 45 of the said judgment, the Division Bench held, "It is well settled that if an act is required to be done in a particular manner then that act has to be performed in that manner alone and not in any other manner.". There cannot be any dispute to the proposition as laid down by the Division Bench in the said case. There also cannot be any dispute that while moving the motion of no confidence, the provisions of Section 15 as well as of the rules have to be complied with, but whether substantial compliance of provisions of rules regarding manner of sending notices shall be sufficient, is a question to be answered in the present case. The Division Bench in Krishna Gopal Varshneys case (supra) had neither considered the issues which have been raised in the present case nor the said judgment supports the appellant in the present case.

Now the judgments of the different Division Benches of this Court, which have been relied by Sri C.B. Yadav, learned Additional Advocate General as well as learned counsel for the private respondents are required to be noticed.

A Division Bench of this Court in the case of Pandit Vinod Raj Saran Dubey vs. State of U.P. and others reported in (1994)3 UPLBEC 2024 [LQ/AllHC/2000/695] , had occasion to consider Section 28 of the 1961 Act. In the said case notice of no confidence motion was moved against the petitioner of that writ petition on the basis of which notice was issued fixing 7th April, 1992 as the date of meeting of Zila Parishad. The notice was issued to the members of the Zila Parishad as required by Section 28. Certain members were nominated by the State Government who took oath on 28th March, 1992 hence 15 days notice could not be given to those nominated members as required by Section 28(3)(ii) of the 1961 Act. Following are the some of the submissions which were raised before the Division Bench:-

"(i) The provisions of Section 28(3) (ii) of the Act requires that the members of the Zila Parishad should be given not less than 15 days notice of the meeting. However, in the present case as respondents No.20 to 24 members of the Zila Parishad were given notices on 31st March, 1994, the mandatory provisions relating to notice have been violated and it has vitiated the entire proceedings. For this reliance has been placed by the learned counsel in a case of Division Bench of this Court Amir Khalid v. State of U.P. and others, reported in 1994(1) UPLBEC 45, and Khurshid Hussain v. District Magistrate and Collector, Bareilly and others, reported in 1992(1) AWC 208.

(ii) The notice of vote of no confidence served by respondent No.3 was not in prescribed form as provided in Rules relating to the form for no confidence in Adhyaksh 1962 and it vitiated the proceedings. Reliance has been placed in case of Ram Nath Tripathi v. Commissioner, Lucknow Divion, Lucknow and others, reported in 1992(2) UPLBEC 1181.

(iii) The notice served on the petitioner did not bear any date or signature of the authority issuing the same nor any date was mentioned in the copy of the motion annexed thereto. The notice did not accompany the motion of no confidence. Under Law, it is notice which is required to be signed by the members and not the motion. The signatures on the motion are wholly illegible. Thus there was no compliance of the provisions of the rules mentioned above.

It is also relevant to quote paragraphs 9 and 12 of the said judgment, which were to the following effect:-

"9. The first submission is with regard to absence of a clear 15 days notice given to respondents 20 to 24. There is no doubt that as respondents 20 to 24 were administered oath on 28th March, 1992, it was not possible to give them 15 days notice as required under the Act. There is also no dispute with regard to the legal position that the provisions with regard to the notice under Section 28(3)(ii) are mandatory as held by this Court in several cases where identical notices are required before consideration of no confidence motion under the different Acts of this State. However, the question is as to what view should be taken by this Court in the special facts and circumstances of the present case. The possibilities cannot be ruled out about the change in number of the members of the Zila Parishad on account of various factors, for example the result of the election of the Parliament and Legislative Assembly in which fresh members may be elected as members of the House of People and the State Legislative assembly who on being elected became ex-officio members of Zila Parishad under Section 19I)(vi), so also under Clause (vii) and other clauses. In the present case new members of Zila Parishad came in existence on account of the nomination by the State Government under Section 18 of the Act and such members were administered oath of office after the date, for consideration of the motion, was already fixed. From perusal of the provisions contained in Section 28 of the Act it is clear that once the Collector fixes a date for convening the meeting of the Zila Parishad for consideration of the motion, he cannot adjourn it. Sub-section (5) of Section 28 of the Act contains a mandatory provision that the same as provided in sub-sections (4-A) and (4-B) a meeting convened for the purpose of consideration of motion under this Section shall not be adjourned. Sub-section (4-A) and (4-B) of Section 28 of the Act provide for the grounds to adjourn the meeting on account of inability of the Presiding Officer to attend the meeting. In this legal position, what action could reasonably be expected from respondent No.3. In our opinion, though provisions with regard to the notice required under Section 28(3) (ii) are mandatory but in the situation like in the present case and in view of the provisions of sub-section (5) of Section 28 of the Act only substantial compliance could be legitimately expected from respondent No.3. In such circumstances a rigid balance may be struck to avoid inconvenience of vitiating the entire proceedings by rigidly adhering to the provisions and convenience may be opted by departing from its tenor. In other words, the provisions of law have to be interpreted in a manner to bring a workable harmony. Law never contemplates or expects to do something impossible. In the present case as the new members were given oath after fixing of the date of meeting, naturally they could not be given 15 days notice and only a substantial compliance may be reasonably held sufficient. The question may be considered from a different angle too. What was the object of the notice and whether it has been achieved or not. In our opinion, it intimates the date fixed to the members of Zila Parishad to participate in meeting and as his notice is accompanied by copy of the motion, members become aware of the allegations made therein and get themselves equipped to participate in the debate. In our opinion, the notice served on respondents 20 to 24 achieved all the aforesaid purpose and even the substantial compliance was sufficient and this view may be taken in the special facts and circumstances of the present case, without reducing the mandatory requirement of notice under Section 28(3)(ii) of the act. The result of proceeding of no confidence motion should not be allowed to vitiate merely on technical formality which may not have even a trivial impact on the merits of the result. Thus the submission of the learned counsel for the petitioner that the proceedings vitiated for want of clear 15 days notice, cannot be accepted.

12. It was next contended by the learned counsel for the petitioner that the notice of no confidence motion was not served on the petitioner and other members in the prescribed form and it vitiated the entire proceedings. We have perused the notice and the copy of the motion annexed thereto and we do not agree with the submission made by the learned counsel for the petitioner. The notice contained all those facts which could be necessary to be convened and the copy of the motion annexed thereto was a complete copy. The case of Ram Nath Tripathi v. Commissioner, Lucknow Division, Lucknow and others, reported in 1992(2) UPLBEC 1181, is clearly distinguishable on facts and cannot be applied in the present case."

The next judgment relied by Sri C.B. Yadav, learned Additional Advocate General is in the case of Haji Mohammad Hanif vs. State of U.P. and others reported in 1998(2) UPLBEC 841 in which Section 15 of the 1961 Act and Rule 2 as well as Form-2 of the Rules came for consideration. In the said case also the notice issued by the Collector under Section 15(3) did not accompany the proposal of no confidence motion. Relying on the judgment in Ram Nath Tripathis case (supra), argument was raised that mandatory provisions having not been complied with, the entire proceeding is vitiated. After noticing Rule 2 of the Rules framed under Section 15(3) of the 1961 Act as well as Form-2 in which notice was sent, the Division Bench laid down following in paragraphs 10, 12 and 14:-

"10. Section 15 provides in Sub-section (1) that "a motion expressing want of confidence" has to be carried in accordance with the procedure laid down in Sub-section following Sub-section (1). Sub-section (2) requires notice of intention of no confidence is to be delivered to the Collector in the prescribed form, signed by atleast half of the total number of members of Kshettra Samiti, for the time being, together with a copy of proposed motion by any one of the members signing the said notice. In the present case admittedly, 34 members, who had signed the intention had presented themselves before the Collector for delivering the same. Thus on the facts there was no infraction with regard to Sub-section (2). However, it has also not been so argued by Sri Jain that there was any infraction of this Sub-section.

12. So far as the time factor provided in the said Sub-section is concerned the same has not been assailed. The only contention that was ought to be raised was that this notice requires accompanying of the said proposal. Sub- section(3) as such does not speak of the form of notice nor does it spell out that such notice has to accompany a copy of the intention. But by virtue of Rule 2 framed therefor specifically provides a form for the said purpose. The said form requires annexation of a copy of the motion.

Reading the said provisionstogether in the case of Ram Nath Tripathy (supra), it was held that the provisions contained in Sub-section (i) and (ii) of Sub-section (3) are mandatory. It is mandatory in the sense that the same has to be complied with. It has not been spelt out in the said decision that annexation of a copy of motion is mandatory. The very observation of the Court in Para 18 itself points out that in the said case nothing was disclosed in the notice itself and as such there was infraction of the said mandatory provision . A plain reading of the reasoning given in the said decision does not lead us to infer that the Court had held that annexation of a copy of the motion alognwith notice issued by the Collector is mandatory. Inasmuch as neither Section 15(3) nor Rule 2 provides that copy of motion is to accompany with such notice whereas it has prescribed a particular form. If instead of annexing a copy of the motion the contents of motion is quoted in the notice itself and in that event it can not said that the same is not in conformity with the provision of Section 15(3) read with Rule 2. When the section or the Rule has not mentioned anything about annexation of copy of the motion itself the reference in the form can not be said mandatory as to render the notice invalid, simply because it is not annexed with the copy of motion. While it had conveyed the entire information with regard to the motion.

14. Thus it is apparent that the form is mandatory to the extent it requires conveyance of information, not with regard to its literal formation. The very information, which could have been furnished by annexing a copy of motion, i! is incorporated in the notice itself, it satisfies the requirement of annexing a copy of motion in the body of the notice itself. The aim and object is to furnish whole information to the person concerned and the same having been so conveyed substantially" by the notice impugned . In the present case, there is no reason to hold that the mandatory requirement as held in the case of Ram Nath Tripathi (supra), has not been complied with. Infact from a reading of the notice, as contained in Annexure-1 we are satisfied that there has been substantial compliance of Section 15(3) read with Rule 2 of the said Rule."

The Division Bench in the said judgment held that when the section or the Rule has not mentioned anything about annexation of copy of the motion itself the reference in the form can not be said mandatory as to render the notice invalid, simply because copy of the motion was not annexed.

The next judgment which supports the case of the respondents is the Division Bench judgment in the case of Phula Devi vs. State of U.P. and others reported in 2004(4) ESC (All.) 2385. The said case was also a case considering notice of no confidence motion issued under Section 15(3) of the 1961 Act. The Division Bench in paragraph 16 of the said judgment considered the question as to whether sending of the notice in prescribed Form-2 is mandatory or directory. The Division Bench referred to and relied on the judgment of the Full Bench in Gyan Singhs case (supra) and following the said judgment held that the manner in which the notice has to be sent is directory. Following was laid down by the Division Bench in paragraphs 24 and 25:-

"24. On making such a comparison of the provisions of the two Acts it necessarily follows that the provisions of Section 15(3)(i) and the first part of Section 15(3)(ii) have to be held to be mandatory as was held by the Full Bench in respect of the corresponding part of Section 87-A (3) of the U.P. Municipalities Act but the second part of Section 15(3) (ii) which deals with the manner in which the notice has to be sent has to be held to be directory and substantial compliance of the procedure will not invalidate the notice.

25. As indicated above, the notice dated 9.2.2004 issued by the Collector is in conformity with the notice prescribed in Form II except for the fact that the copy of the motion was not annexed because the notice clearly intimates the members that the meeting of the Kshettra Panchayat, Ushawan shall be held in the office of the Kshettra Samiti on 28.2.2004 at 1.00 PM for consideration of the motion of no confidence made against Smt. Phula Devi, Pramukh of the Kshettra Samiti. However, instead of annexing the motion, the notice itself mentions that Sri Pratap Singh had submitted a written notice of a motion expressing want of confidence in the Pramukh, which was signed by 26 members. We are, therefore, satisfied that there has been a substantial compliance of the provisions of Section 15 (3) (ii) regarding the manner in which the notice was required to be sent."

The judgment of Ram Nath Tripathis case (supra) was also considered and distinbuished by the Division Bench in paragraph 27 of the said judgment, which is quoted below:-

"27. Learned counsel for the petitioner, however, placed reliance upon a decision of this Court in the case of Ram Nath Tripathi Vs. Commissioner Lucknow Division, Lucknow and others reported in (1992) 2 UPLBEC 1181 in support of his contention that since the notice was not sent in the prescribed form, the mandatory provisions had not been complied with and, therefore, the notice and the holding of the meeting was bad in law. It is true that the Court held that the second part which provides that the Collector shall give notice of the meeting to all the members of the Kshettra Samiti in such manner as may be prescribed was held to be mandatory but the Full Bench decision of five Honble Judges in the case of Gyan Singh (supra) was not placed before the Division Bench. This apart, in the case of Pandit Vinod Raj Saran Dubey Vs. State of U.P. and others reported in (1994) 3 UPLBEC 2024, the case of Ram Nath Tripathi (supra) was considered and distinguished. In the said case time factor was not adhered to in respect of certain nominated members who were given notice of less than 15 days under Section 28 of the Act which contains identical provision as are contained in Section 15, inasmuch as while Section 15 deals with the motion of no confidence against Pramukh and Up Pramukh, Section 28 deals with that of Adhyaksh and Upadhyaksh. While interpreting identical provisions it was so held in the case of Pandit Vinod Raj (supra).

"..... In our opinion though provisions with regard to the notice required under Section 28(3) (ii) are mandatory but, in the situation like in the present case and in view of the provisions of sub-section (5) of Section 28 of the Act only substantial compliance could be legitimately expected from respondent No.3. In such circumstances a right balance may be struck to avoid inconvenience of vitiating the entire proceedings by rigidly adhering to the provisions and convenience may be noted by departing from its tenor. In other words, the provisions of law have to be interpreted in a manner to bring a workable harmony. Law never contemplates or expects to do something impossible. In the present case as the new members were given oath after fixing of the date of meeting, naturally they could not be given 15 days notice and only a substantial compliance may be reasonably held sufficient."

Another Division Bench judgment in the case of Satya Prakash Mani and others vs. State of U.P. and others reported in (2005)2 UPLBEC 1883 [LQ/AllHC/2002/752] , has taken the same view which has been taken in Krishna Jaiswals case (supra). The Division Bench relied on Full Bench judgment in Gyan Singhs case as well as Phula Devis case. Following was laid down in paragraphs 28, 29 and 30 of the said judgment:-

"28. Gyan Singh v. District Magistrate, AIR 1975 All 313, (the Gyan Singh case) is a five Judges Full Bench decision regarding interpretation of Section 87-A of the UP Municipalities Act. This section dealt with no confidence motion against the President of the Municipality. The Full Bench in paragraph 8 of the judgment mentioned the purpose of giving notice as follows:

"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"

29. The aforesaid observations equally apply here. The purpose to give notice is to give information regarding the meeting. The words in Section 28(3)(ii) providing holding of meetings in such manner as may be prescribed; uses the word may, it show that the use of proforma is not mandatory. The only thing necessary is that requisite information should reach. It has also been so held in Phula Devi v. State of UP. (sic) ESC (All) 2385, regarding interpretation of Section 15 of the Act providing notice for no confidence against Pramukh and Up-Pramukh of Kshetriya Samiti. This provision is similar to Section 28 of the Act. The Division Bench in paragraph 24 of the report observed as follows:

"It necessarily follows that the provisions of Section 15(3)(i) and the First Part of Section 15(3)(ii) have to be held to be mandatory as was held by the Full Bench in respect of the corresponding Part of Section 87-A(3) of the UP Municipalities Act but the Second Part of Section 15(3)(ii) which deals with the manner in which the notice has to be sent has to be held to be directory and substantial compliance of the procedure will not invalidate the notice"

30. The First Part of Section 28(3)(ii) that requires 15 days of notice may be mandatory but in what manner and in what proforma it is to be given is merely directory. The notice cannot be invalidated merely on the ground that it is not in the prescribed manner. The meeting for no confidence can be invalidated only if necessary information was not conveyed to the members. Annexures 1 and 2 to the WP 52945 of 2002 were admittedly sent to the members. Annexure 1 consists of two parts. The First Part is the written notice given by the members to the Collector for bringing no confidence motion. The Second Part is resolution to be brought against Smt. Jaiswal. Annexure-2 is the order passed by the District Magistrate. This order clearly indicates the place, date, time and purpose of the meeting. This is substantial compliance of Second Part of Section 28(3)(ii) of the Act. the no confidence meeting cannot be invalidated merely on the ground that information was not in the prescribed proforma."

There are several other Division Bench judgments relied by learned Additional Advocate General following the view taken by the Division Bench in Krishna Jaiswals case (supra). The said judgments are Division Bench judgments in Writ Petition No.22330 of 2012 (Meera Azad & another vs. State of U.P. & others) decided on 10th May, 2012, Writ Petition No.38769 of 2012 (Smt. Rubi Singh vs. State of U.P. and others) decided on 23rd August, 2012 and Writ Petition No.19583 of 2012 (Smt. Kiran Verma vs. State of U.P. and others) decided on 20th April, 2012. The Division Benches in the aforesaid cases have noticed that earlier judgment of Ram Nath Tripathis case (supra) has not been followed by subsequent several Division Benches.

Now after having noticed the relevant statutory provisions, the principles of statutory interpretation and the various judgments of this Court interpreting Sections 15 and Section 28 of the 1961 Act, which are up for consideration in this writ petitions, we have to look into the statutory provisions under consideration and find out as to whether the requirement of sending the notice in accordance with the prescribed proforma with annexures is mandatory and non compliance of the same shall vitiate entire proceeding.

A perusal of sub-section (2) of Section 15 indicates that it is specifically provided that written notice of intention to make the motion in such form as maybe prescribed together with a copy of proposed motion shall be delivered in person to the Collector. After receiving the written notice of intention to make the motion along with proposed motion, it is enjoined on the Collector to convene a meeting of the Kshetra Samiti for consideration of the motion on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. Sub-section (3)(ii) of Section 15 requires the Collector to give notice to the members of not less than fifteen days of such meeting in such manner as may be prescribed. The manner in which the notice is to be given has been prescribed in the rules. As noted above, the manner of sending notice is prescribed in Rule 2. Rule 2 contains three requirements i.e. (a) shall be in Form-2 of the schedule given below, (b) shall be sent by registered post to the Kshetra Samiti at its ordinary place and (c) shall also be published by affixation of copy thereto on the Notice Board of the office of the Kshetra Samiti. Form-2 of the Schedule is the formate of the notice. The notice is required to contain information regarding following:-

(a) Name of Kshetra Samiti whose meeting is to be held;

(b) Date of meeting;

(c) Time of meeting; and

(d) The name of Pramukh/Up-Pramukh against whom motion of no confidence has been brought.

At the bottom of notice there is endorsement "a copy of the motion is annexed hereto". From the materials brought on the record, it is clear that all requirement of the notice including the name of Kshetra Samiti, date of the meeting, time of the meeting and the name of the person against whom no confidence motion has been brought, have been mentioned. In the case of Vikas Trivedi, it is contended that copy of motion of no confidence has not been annexed and in Pramod Kumar Tripathis case, it has been contended that only two pages of motion of no confidence have been sent which contain signatures of only six persons. Sub-section (2) of Section 15 makes a distinction between "notice of intention to make the motion" and "proposed motion". Thus, there is distinction between notice of intention to make No-confidence Motion and such proposed No-Confidence Motion.

Form II of the Schedule to the Rules requires that "copy of the motion" be annexed, and not copy of "notice of intention to make the motion". Thus, Form II requires sending of "copy of Motion" (and not copy of "notice of intention to make the motion").

Sub-section (2) of Section 15 also shows that while notice of intention to make the Motion is required to be signed by at least half of the total number of elected Members, there is no such requirement in respect of copy of the proposed Motion. One more relevant provision of Section 15, which needs to be noted, is Section 15(6) which provides as under:-

"15(6). As soon as the meeting convened under this section commences, the Presiding Officer shall read to the Kshettra Panchayat the motion for the consideration of which the meeting has been convened and declare it to be open for debate."

The motion which is submitted is required to be read by the Presiding Officer and after reading the motion he shall declare it to be open for debate. If the date, time and place of the meeting has been communicated to a member by notice who present himself in the meeting where the motion of no confidence is to be read by the Presiding Officer at the convening of the meeting and thereafter it is open for debate whether the members who along with the notice has not been sent copy of motion of no confidence can be said to be so prejudice so as to make the meeting unworkable, the answer is obviously no. An argument has also been made by Sri K.N. Tripathi, learned Senior Advocate that service of no confidence motion along with notice is essential at least for the person against whom the motion has been brought. He submits that person against whom notice of motion has been brought has to be well aware since he has to defend himself from the allegations and charges which are made.

The meeting for considering the motion of no confidence is not a meeting for proving any charge against the person against whom motion is brought. The proposal of no confidence motion may be one line motion only saying "we express no confidence" or it may be a proposal making allegation against the person. For passing any motion of no confidence proof of any ground or charge is not necessary. It is right of the elected members to express no confidence in Adhyaksha which right has been conceded to the elected members as per statutory provisions. The Apex Court while considering the nature of motion of no confidence in the case of Babubhai Muljibhai Patel vs. Nandlal Khodidas Barot and others reported in (1974)2 SCC 706 [LQ/SC/2013/501] , had observed that motion of no confidence need not set out any ground or charge. Following was laid down in paragraph 18 of the said judgment:-

"18. There is nothing in the language of section 36 of the Gujarat Municipalities Act reproduced earlier which makes it necessary to specify a ground when passing a motion of no confidence against the President. It is no doubt true that according to the form prescribed the ground for the, motion of no confidence has to be mentioned in the notice of intention to move a motion of no confidence. It does not, however, follow therefrom that the ground must also be specified when a motion of no confidence is actually passed against a President. It is pertinent in this context to observe that there is a difference between a motion of no confidence and a censure motion. While it is necessary in the case of a censure motion to set out the ground or charge on which it is based, a motion of no confidence need not set out a ground or charge. A vote of censure presupposes that the persons censured have been guilty of some impropriety or lapse by act or omission. It may, therefore, become necessary to specify the impropriety or lapse while moving a vote of censure. No such consideration arises when a motion of no confidence is moved. Although aground may be mentioned when passing a motion of no confidence, the existence of a ground is not a prerequisite of a motion of no confidence. There is no legal bar to the passing of a motion of no confidence against an authority in the absence of any charge of impropriety or lapse on the part of that authority. The essential connotation of a no confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members. We may in the above context refer to page 591 of Practice & Procedure of Parliament, Second Ed. by Kaul and Shakdher. wherein it is observed as under :

"A no-confidence motion in the Council of Ministers is distinct from a- censure motion. Whereas, a censure motion must set out the grounds or charge on which it is based and is moved for the specific purpose of censuring the Government for certain policies and actions, a motion of no-confidence need not set out any grounds on which it is based. Even when grounds are mentioned in the notice and read out in the House, they do not form part of the no- confidence motion."

A Division Bench of this Court while considering a proceeding of no confidence motion in Writ Petition No.3171 (MB) of 2012 (Radhey Shyam Maurya vs. State of U.P. and others) decided on 1st May, 2012, has laid down that for moving no confidence motion under Section 15 of the 1961 Act, no ground has to be disclosed. Following was laid down in paragraphs 13, 15 and 19 of the said judgment which are as under:-

"13. The right to move motion or participate in debate is a statutory right in the members conferred by Section 15 of the Act. The provisions (supra), used the word, motion and does not speaks for motion containing charges. Legislature to their wisdom has conferred powers on the members of Kshetra Panchayat to move requisition in prescribed format for motion of no- confidence. Once, Legislature to their wisdom has not provided to disclose charges or the allegations, then it is not permissible for the Court to apply principles of reading down.

15. The elected representatives are accountable to their electorate and electorate choose their members as well as Pramukh. It is right of elected representatives to show their lack of confidence by moving motion of no-confidence accordance with the statutory provisions. This is inherent philosophy in the policy of motion of no- confidence.

19. The other case relied upon by the learned Additional Chief Standing Counsel reiterated the aforesaid proposition of law. Motion of no- confidence expressed by the members of elected body itself is a matter of debate hence it is not necessary to disclose the charges while moving requisition of no-confidence. Persons holding public office as a leader of elected body, cannot equate themselves with the Government employees or bureaucracy. They are elected to discharge public obligations till the confidence reposed in them by the people continue. The moment the people loose their confidence in the elected representative holding a public office or a member of elected body such public representative should relinquish the public office.

That is why, in some of the countries apart from the provisions with regard to no-confidence motion or for absence of confidence, there is provision for recall of elected representative for the purity of system. Election for five years also does not mean that the elected representative has got blanket power to move on his/her own way without taking care of public interest."

As noted above, Section 15 of the 1961 Act is a statutory provision recognising the right of elected members to bring motion of no confidence against the Pramukh. The Collector is entrusted with public duty to issue notice. As noted above, the Apex Court in Dattaraya Moreshwar vs. the State of Bombay and others case (supra) had laid down that provisions of statute creating public duty are directory and those conferring private rights imperative. If the contention is accepted that while sending notice by the Collector although relevant information regarding date, time and place of meeting has been given and notice also mentions that no confidence motion has been proposed against such and such officer bearers but the copy of the motion of no confidence is not annexed, whether the same shall frustrate the very object of the Act or shall advance the object and purpose of the statutory provision, is the question to be answered. Obviously, if the members are given notice and information which is primary object and purpose of giving notice by the Collector of the meeting and the motion of no confidence is read as soon as the meeting is convened, we are of the view that to hold that not sending of copy of no confidence motion shall vitiate the entire proceeding, shall be defeating the very purposes and object of Section 15 of the 1961 Act.

Whether there has been substantial compliance of the second part of Clause (ii) of Section 15(3) read with Rule 2 of the Rules and Form II contained in the Schedule to the Rules, depends on the facts and circumstances of each case.

Where copy of proposed Motion is not enclosed with the notice under Clause (ii) of sub-section (3) of Section 15, it will depend on the facts and circumstances of each case whether there has been substantial compliance of the above provisions or not.

The judgment of 5-Judge Full Bench in Gyan Singhs case (supra) had considered Section 87-A of the U.P. Municipalities Act, 1916, which is also similar provision for bringing no confidence motion against the President of the Municipal Board. As noted above, Section 87-A sub-clause (3) of the Municipalities Act, 1916 requires the District Magistrate to send the notice by registered post not less than seven clear days before the date of meeting at his place of residence. The words used in Section 87(3) were "he shall send registered post". Sending of the notice by registered post was thus preceded by word "shall". The Full Bench held that second part of Section 87(3) which requires sending of the notice by registered post is not mandatory and substantial compliance of the said provision was sufficient and shall not invalidate the proceeding. Sending the notice in prescribed proforma as required by Rule 2 read with Form-2 is also procedural requirement substantial compliance of which shall serve the purpose. Insisting on compliance of each and every part of formate of the notice shall be giving undue weight to the procedure and formate ignoring the purpose and object of whole statutory provision and scheme. The ratio of Full Bench judgment in Gyan Singhs case (supra), as noted above, are fully applicable while interpreting the provisions of Section 15(3)(ii) read with Rule 2 and Form-2. The Full Bench in Gyan Singhs case held that second part of sub-section (3) of Section 87 requiring sending of notice by registered post lays down the manner required to be followed in sending the notice to the members which is directory. The same has been specifically laid down by the Full Bench in paragraphs 8 and 18 which have already been quoted above. We are of the view that ratio of the Full Bench in Gyan Singhs case (supra) is fully applicable for interpreting the provisions of Section 15(3) read with Rule 2 and Form-2.

The ratio of the judgment of the Apex Court in Raza Buland Sugar Company Ltd. vs. Municipal Board, Rampur (supra) is also applicable for interpretation of Section 15 of the 1961 Act. As noted above, Section 131(3) of the U.P. Municipaities Act, 1916 required the Board to publish the proposal framed under subsection (1) in the manner prescribed in Section 94. How the proposal was to be published was provided in Section 94 which required that every resolution passed by the Board be published in the local Hindi newspaper. The Apex Court held that requirement of Section 131(3) regarding publication of resolution is mandatory, however, the manner of publication as prescribed in Section 94(3) cannot be held to be mandatory and sufficient compliance of provisions shall suffice. In the present case, Section 15(3) provides issue of notice in the manner as prescribed. The manner of sending notice is prescribed in Rule 2 and form-2. The judgment of the Apex Court in Raza Buland Sugar Companys case (supra) is applicable in full force and in view of clear ratio of the above judgment, it cannot be said that manner of sending notice in prescribed proforma along with annexures is mandatory, breach of which shall vitiate the entire proceeding. The proceeding of no confidence motion shall be proceeded with if there is substantial compliance of the provisions of Rule-2 read with Form-2.

At this juncture a note of caution is required to be given. All provisions of the statute are required to be complied with. It is useful to quote paragraph 5-052 of De-Smith Judicial Review 6th Edition in which while dealing with mandatory and directory statutes, following was observed:-

"5-052. A second reason for the tangle in this area is the use of the terms "mandatory" and "directory"; the latter term is especially misleading. All statutory requirements are prima facie mandatory. However, in some situations the violation of a provision will, in the context of the statute as a whole and the circumstances of the particular decision, not violate the objects and purpose of the statute. Condoning such a breach does not, however, render the statutory provision directory or discretionary. The breach of the particular provision is treated in the circumstances as not involving a breach of the statute taken as a whole. Furthermore, logically, a provision cannot be mandatory if a court has discretion not to enforce it."

The provisions of Rule 2 read with Form-2 are also statutory provisions which are required to be complied with and there is no discretion in the authorities or they are not free to disregard the same at their whims. If the notice, which is sent by the Collector does not substantially comply with the requirements, the proceeding may be vitiated, similarly when the notice substantially comply with the provisions, the action may survive. This can be explained by giving illustration. Take an example where Collector after receiving notice for no confidence motion along with proposal convenes a meeting and issue a notice to the members which does not indicate that meeting is fixed for consideration of no confidence motion against which office bearers, obviously the said notice cannot be said to be substantial compliance. Another example of non compliance shall be when notice does not mention even the date of meeting. The Court has to look into as to whether there is substantial compliance, and the proceeding will be allowed not to be vitiated only when the Court is satisfied that there is sufficient compliance of the manner in which notice has been sent. In this context reference of the judgment of the Apex Court in the case of Rani Drigraj Kuer v. Amar Krishna Narain Singh reported in A.I.R 1960 SC 444 [LQ/SC/1959/224] is also relevant where the Apex Court laid down following in paragraphs 18, 20 and 21 which are as under:-

"18. . The appellant first says that the compromise decrees were a nullity as the terms of s. 56 of the Act which are mandatory, had not been complied with. That section reads thus:

"Section 56: When in any suit or proceeding two or more wards being parties have conflicting interests, the Court of Wards shall appoint for each such ward a representative and the said representative shall thereupon conduct or defend the case on behalf of the ward whom he represents, subject to the general control of the Court of Wards."

20. The question then is, is s. 56 imperative In our view, it is not. It, no doubt, says that " the Court of Wards shall appoint . . . . a representative." But it is well-known that the use of the word " shall " is not conclusive of the question whether a provision is mandatory: see Hari Vishnu Kamath v. Syed Ahmad Ishaque (1). The intention of the legislature has to be gathered from the whole statute."

21. Several grounds are suggested why s. 56 should be held to be imperative. First, it is said that otherwise, in view of s. 55, it would be otiose. Section 55 is in these terms:

"Section 55: No ward shall sue or be sued nor shall any proceedings be taken in the civil court otherwise than by and in the name of the Collector in charge of his property or such other person as the Court of Wards may appoint in this behalf."

It is said that the concluding words of s. 55 give the Court of Wards a discretionary power to appoint a representative and therefore if s. 56 was only directory, then it would also give the same discretionary power to appoint a representative and thus become otiose. The contention seems to us to be ill founded. In order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject- matter, the two must then be serving the same purpose. The argument is founded on the basis that read as an imperative provision s. 56 would not be otiose, that is, then it would be serving a purpose different from that which s. 55 served. Now, we do not appreciate how s. 56 becomes otiose by being read as a directory provision while it would not be so if read as a mandatory provision. Surely, the subject-matter of a statutory provision is not changed whether it is read as directory or as mandatory. If it was not otiose as a mandatory provision, it would no more be so as a directory provision. Another fallacy in this argument is that it assumes that by reading s. 56 as a directory provision a discretion is conferred on the Court of Wards to appoint or not to appoint representatives for the wards, as it pleases. A provision giving a discretionary power leaves the donee of the power to use or not to use it at his discretion. A directory provision however gives no discretionary power free to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does not render a thing duly done in disobedience of it, a nullity. Therefore, it seems to us to be wrong to say that by reading s. 56 as merely directory any discretion is conferred on the Court of Wards."

Thus substantial compliance shall not vitiate the proceeding of no confidence motion cannot be read as requirement of not following the prescribed procedure in the rules.

In view of the foregoing discussions, we are of the view that the ratio of the Full Bench judgment in Gyan Singhs case (supra) is fully applicable on the issues which have arisen for consideration in this bunch of writ petition. The Division Bench judgment in Ram Nath Tripathis case does not lay down the correct law and the judgment of Division Bench in Smt. Krishna Jaiswals case is to be approved.

Our answers to the questions referred including the question No.1, which has been re-framed by us, are as follows:-

(i) The requirement of giving notice by the Collector under Section 15(3)(ii) in the prescribed form as required by Rule 2 and Form-2 is held not to be mandatory and on substantial compliance of the provisions the proceeding shall not be vitiated. Whether there has been substantial compliance of the said provisions, depends on the facts and circumstances of each case.

(ii) The observation of the Division Bench in Ram Nath Tripathis case (supra) that notice in prescribed form along with its annexures in complete formate is mandatory does not lay down the correct law. The judgment in Smt. Krishna Jaiswals case (supra) lays down the correct law and is approved.

(iii) The notice sent by the Collector convening the meeting to consider the motion of no confidence cannot be invalidated on the ground that copy of the notice with the name of the person who had signed the written notice of intention, was not sent along with the notice. When proposed motion of no confidence is signed by the requisite members, the notice convening the meeting cannot be invalidated merely on the ground that some pages of the proposed motion containing signatures of some members only were sent along with the notice.