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1984 Supreme(AP) 15
Andhra Pradesh High Court
Judges : B.P.JEEVAN REDDY
Voothla Raghavaiah - Appellant
Versus
Bandaru Prasada Rao - Respondent
Decided On : 01-17-84
The requirement of 15 clear days' notice prescribed by clause (d) of Sub-rule (2) of Rule 22 of the Andhra Pradesh Co-operative Societies Rules, 1964, is not mandatory but only directory.
Headnote:
ELECTION - CO-OPERATIVE SOCIETY - NOTICE - MANDATORY OR DIRECTORY - ANDHRA PRADESH CO-OPERATIVE SOCIETIES RULES, 1964 - RULE 22 (2) (D) - INTERPRETATION - WHETHER THE REQUIREMENT OF 15 CLEAR DAYS NOTICE IS MANDATORY OR DIRECTORY.
Fact of the Case:
The issue in this case was whether the requirement of 15 clear days' notice prescribed by clause (d) of Sub-rule (2) of Rule 22 of the Andhra Pradesh Co-operative Societies Rules, 1964, is mandatory, and whether an election held with a shorter notice is liable to be declared void.
Finding of the Court:
The court held that the requirement of 15 clear days' notice in Clause (d) of Rule 22 (2) is not mandatory, but only directory, and inasmuch as no prejudice is said to have been caused on account of the said infraction, the election cannot be declared to be void.
Issues: 1. Whether the requirement of 15 clear days' notice prescribed by clause (d) of Sub-rule (2) of Rule 22 of the Andhra Pradesh Co-operative Societies Rules, 1964, is mandatory? 2. Whether an election held with a shorter notice is liable to be declared void?
Ratio Decidendi: 1. The court considered the object behind the Rule, which provides fifteen clear days' notice, and found that it is to ensure that all the necessary steps for the election are taken during that period and that there is also sufficient time for the candidates to carry on their election campaign. 2. The court also considered the consequences of holding the election void and found that it would cause greater prejudice to the society as such than the infraction involved. 3. The court relied on the decision of the Supreme Court in Narasimhaiah vs Singri Gowda (1) AIR 1966, S. C. 330, which held that a similar requirement in the Mysore Town Municipalities Act is not mandatory.
Final Decision: The writ petition was allowed, and the judgment of the learned District Munsif was quashed.
( 1 ) THE question in this writ petition is whether the requirement of 15 clear days notice prescribed by clause (d) of Sub-rule (2) of Rule 22 of the Andhra pradesh Co-operative Societies Rules, 1964 is mandatory, and whether an election held with a shorter notice is liable to be declared void. Clauses (d) and (e) of rule 22 (2), as they stood at the relevant time, read as follows:-" (D) The election shall be held at a general meeting of the society convened for the purpose, of which not less than fifteen clear days notice shall be given to the members. The Election Officer referred to in sub-rule (1) shall preside over the meeting and conduct the election. (e) The notice of the general meeting shall be sent to the members by any of the following modes, namely :- (i) by local delivery; or (ii) by post under certificate of posting. ", n this case, the notice contemplated by Rule 22 (2) (d) was prepared and posted on 6-6-1981, prescribing the date of election as 21-6-1981. The learned district Munsif has recorded a finding that, all these notices were received by almost all the members, on 8-6-1981, inasmuch as the intervening day, i. e. , 7-6-1981, was a Sunday. The learned district Munsif has set aside the election on the ground that the notice so issued. does not give fifteen clear days notice as required by clause (d) and that, inasmuch as the said clause is mandatory, the election held contrary thereto must be declared to be void. Though several other contentions, were raised by the election- petitioners (respondents 1 to 4 in this writ petition), all of them were negatived and have not been agitated before me.
( 2 ) IN computing the fifteen dear days, it is not in dispute that both the date of issuance, as well as the date of election, should be excluded.
( 3 ) CLAUSE (d) required that "not less than fifteen clear days notice shall be given to the members". One question is: what is the meaning of the expression given ? Does it signify the date of despatch by post under certificate of posting, which is permitted by clause (e), or whether it means the date of actual receipt of the notice by the members ? learned Counsel for the respondents (election-petitioners) contends that the expression given means the date of receipt of the notice by the members and not the date of despatch, while the contention of the learned counsel for the petitioners is that, inasmuch as clause (e) permits the sending of notices by post under certificate of posting, the expression given in Clause (d) must be understood as the date on which the notices are posted, Learned counsel for the respondents (election-petitioners) relies upon the decision of Amareswari, J. in W P no. 2643/78, dated 4. 9 1973, wherein the learned Judge held that the expression given means the date of receipt of the notice, or a reasonable opportunity of receiving the notice. The learned Judge purported to follow the decision of the supreme Court in Narasimhaiah Vs Singri gowda (1) AIR 1966, S C 330 ard certain other decisions. However, it is unnecessary for me to express any opinion on this question, for the reason that, even if the said expression is understood as meaning the date of despatch of notice by post under certificate of posting, even then the notice issued in this case does not vive fifteen clear days notice, as required by clause (d ).
( 4 ) IT is true that, on a prima facie reading of clause (d), it appears to be mandatory, but on a closer consideration, it has to be held that it is not. The use of the word shall is not conclusive, though it may be one indication of the requirement being mandatory. Whether a provision is mandatory or directory is to be decided in the context of each given case having regard to the object behind the Rule and the consequences that are likely to follow, and all other attendant circumstances.
( 5 ) IN Parker s "conduct of Parliamentary Elections" (1970 Edition), the following statement of law occurs a
