( 16 ) THERE is another aspect which should also be taken note of at this place. Admittedly, in the voting by ballot, all the 28 councillors participated and the result of voting shows that 14 supported the proposal and 14 opposed. In terms of Section 69 (2) of the Act, the Chairman gave his casting vote in favour of the proposal and it was thus adopted by a majority of votes. When all the 28 councillors had participated in the voting, so far as they are concerned, they can have no grievance. In fact, having acquiesced to the manner of voting, they should not now be permitted to raise any objection to it. No prejudice also appears to have been caused to them inasmuch as the voting by ballot gives a better opportunity of expressing one's own view independently. The fact that at the time of voting by ballot 14 had supported the resolution, but 15 councillors have now intervened to oppose the writ application goes to show that vote by ballot had been rightly resorted to for obtaining independent view of the councillors on the question. It was also canvassed before us that even if Rule 23 was applicable, the requirement was directory and not imperative. Therefore, non-compliance with rule 23 when the Chairman had decided to resort to vote by ballot on a point of order being raised, did not vitiate the proceeding. Reliance has been placed on the observations of the Privy Council in the case of Montreal Street Rly. v. Normandin, AIR 1917 PC 142 At p. 144 of the Report, the Board indicated:--

". . . 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 statutes must be looked at. . . . . . . . . . . . . ". In the case of Dattatraya Moreshwar v. State of Bombay, AIR 1952 SC 181, s. R. Das, J. , as the learned Judge then was, spoke for the Court thus:--"it is well settled that generally speaking the provisions of a statute creating public duties are directory and those conferring private rights are imperartive. 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. Maxwell on Interpretation of Statutes, 10th, edition, at page 374 has observed:--"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 the question often arises: What intention is to be attributed by inference to the legistalure? Where, indeed, the whole aim and object of the legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be entertained as to the intention. " Lord Penzance in the case of Howard v. Bodington, (1877) 2 PD 203, stated: "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 provision 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 decided whether the matter is what is called imperative or only directory".

Keeping these tests in view, we are inclined to agree with Mr. Misra for the municipal Council that the provision of Rule 23 is directory and non-compliance with the procedure laid down therein, even if Rule 23 was applicable in the instant case, did not vitiate the proceeding so as to justify the action of the state.