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High Court of Madhya Pradesh
P.K. Tare, & K.L. Pandey, JJ.
Bir Govind Singh
Vs.
Chief Municipal Officer, Municipal Committee, Jora & others
M.P. No. 286 of 1968
Decided on : 21-8-1968
It was contended that the expression ‘within one month thereof’ means and requires that the meeting must be convened for a date within one month anterior to the date of the expiry of the two years' term of office of the first President. This contention is contra-indicated by the opening expression of the clause. [Para 4]
The provision fixing the time of election is not mandatory, but directory. The failure to observe the time specified in the Act is excusable on the ground that the provisions are directory. 1968 JLJ 125 (reasoning) dissented from.
Even if the election takes place a slightly before the expiry of the term of the outgoing office• bearers and such elections are notified under section 45 of the Act after the expiry of that time, there will be substantial compliance with the directory provisions of clause (b) of section 43 (2) of the Act in regard to the time for holding the elections. [Para 8]
(2) Interpretation of Statutes-mandatory and directory provisions mode of compliance of - tests to determine whether a provision is mandatory or directory - statutes specifying time for performance of a public act – when mandatory.
It is well settled that an absolute enactment must be fulfilled exactly and that the act permitted by such an enactment is lawful only if it is done in accordance therewith without any departure therefrom. On the other hand, it is enough if a directory enactment is fulfilled substantially and the act so done is not rendered invalid for that reason. [Para 5]
For determining whether a provision is directory or mandatory no general rule can be laid down, but the object of the statute is to be looked at and even if the provision is worded in a mandatory form, if its neglect would work serious general inconvenience or injuries 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 is to be treated only as directory and neglect of it though permissible would not affect the validity of the acts done. AIR 1965 SC 895, AIR 1963 SC 1417, AIR 1962SC 113 and 1958 SCR 533 relied on. [Para 5]
As statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others, and made with a view to the proper, orderly and prompt conduct of business, is usually directory, unless the phraseology of the statute, or the nature of the act to be performed and the consequences of doing or falling to do it at such time, is such that the designation of time must be considered a limitation on the power of the officer. AIR 1961 SC 1107 referred to. [Para 6]
Pandey, J.
1. This petition under Articles 226 and 227 of the Constitution is directed against the election of Shankerlal (respondent 2) as the president of the Municipal Council of Jora, a township in Morena district having a Class IV Municipality constituted under the Madhya Pradesh Municipalities Act, 1961 (hereinafter called the Act). For the election of the 'President and the two Vice-Presidents, the Sub-Divisional Officer, Jora (respondent 12), had convened a meeting for 24 June 1968. The petitioner, who is a voter registered in the electoral rolls of the Municipality, mainly called in question the legality of the meeting held on that date.
2. The facts giving rise to this petition may be shortly stated. The general elections took place in April 1964 when the respondents 4 to 10 were duly elected as councilors. In their first meeting held on 30 June 1966, Sukhdayal (respondent 3) was elected as the President. That election was notified in the Madhya Pradesh Rajpatra on 22 July 1966, when the respondent 3 entered upon his office as enacted in section 45 of the Act. He held office for a period of two years, as provided by section 43 (2) (a) of the Act. But even before the expiry of that period of two years, on 21 July 1968, the respondent 12 called the impugned meeting for 24 June 1968, when as already indicated the respondent 2 was elected as the President of the Municipal Council. That election has been challenged on several grounds set out in paragraph 14 of the petition, but it is not necessary to notice them because the only ground pressed in support of this petition is that it was illegal and contrary to the provisions of section 43 (2) (b) of the Act to call a meeting for electing a new President before the expiry of term of office of the out-going President.
3. The provisions of the Act relevant for consideration of the point raised are contained in section 43 of the Act which reads:
"43 (1) A Council shall elect-
(a) a President from its members or from other persons residing in the Municipality possession the qualification of a candidate for election under section 34 and not disqualified under section 35 or any other provision of this Act;
(b) two Vice-Presidents to be designated as Senior Vice-President and Junior Vice-President from amongst its members;
Provided that no person shall be eligible for being elected as a President or Vice-President of a Council if he holds such or similar office in any other local authority.
(2) (a) After every general election, the Council shall elect the President and Vice-President at its first meeting held under sub-section (2) of section 55 and the President and the Vice-President so elected shall hold office for a period of two years from the date on which they enter upon their offices.
(b) On the expiry of the term of the office of the President and the Vice-President elected under clause (a), the Council shall, at a meeting convened for the purpose within one month thereof, elect new President and Vice-Presidents who shall hold office for the unexpired term of the Council.
(c) The provisions of sub-sections (2) and (3) of section 55 shall so far as may be, apply to the meetings under clause (b), as they apply to the first meeting of a Council:
Provided that the President and the Vice-Presidents shall continue in office until their successors enter upon their respective offices in accordance with the provisions of this Act.
(3) If the Council fails to elect a President or Vice-President in accordance with this section, the State Government may, by order, direct the Council to elect the President or Vice-Presidents within the period specified therein and on failure of the Council to do so appoint any person eligible under subsection (1) to fill the vacancy.
(4) The State Government may make rules for regulating the mode and time of election of the President and the Vice-Presidents.
(5) The President, who is not a Councilor shall unless otherwise expressly provided, be deemed to be a C
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