The rule requiring a notice of "at least ten days" for a motion of no-confidence under S. 18-A of the C. P. and Berar Municipalities Act, 1922, is mandatory and not directory.

1. The petitioner Shri Rambharoselal Gahci has filed this petition requesting that a writ of 'mandamus' be issued against the Government of Madhya Pradesh to accept the resignation of the second respondent, Shri Radheshyam Khare, under S. 13-A, C. P. and Berar Municipalities Act. He also seeks a writ of 'quo warranto' against the second respondent prohibiting him from holding office as president of the Municipal Committee, Dhamtari, which is also joined to these proceedings as respondent. No. 3.

2. The petitioner is a member of the Municipal Committee, Dhamtari. which consists of 17 members. On 25-5-1903 at 10-15 a.m. the petitioner gave a notice in writing to the president under S. 18-A, C. P. and Berar Municipalities Act, 1922, intimating that he wished to move a motion of no-confidence against the president. On 28-5-1953 the president circulated a notice and called a meeting on 30-5-1953 to consider the motion. On that day the meeting was held at about 8-30 p. m. and the resolution expressing no-confidence in the president was carried by 11 votes to 4, two members remaining neutral.

3. As a result of this vote, the president.submitted his resignation to the State Government as required by the first sub-section of S. 18-A. He also asked for the dissolution of the Municipal Committee under the third sub-section of S. 18-A. The State Government, however, by its memorandum No. 4339-3258-M-XIII, dated 28-7-1953 declined to accept the resignation or to dissolve the municipal committee. In reaching this conclusion the State Government was of opinion that ten clear days ought to have elapsed before the resolution was moved. Thus the second respondent still functions as the president. The present petition asks for a 'mandamus' against the State Government to give effect to the resignation and a writ of 'quo warranto' against the second respondent from acting as the president.

4. Under the C. P. and Berar Municipalities Act, the president is elected by a direct vote of all the persons whose names are enrolled on the electoral rolls of the municipality (section 18). The president, however, holds office only if he enjoys the confidence of the members of the municipal committee. Under sub-section (1) of S. 18-A 'ibid' it is provided: A motion of no-confidence may be moved by any member of a committee, after giving such notice as may be prescribed by rules made under this Act, against the president and if the motion is carried by a majority of the members present and voting, the president shall, within three clays of the passing of the motion, resign his office by submitting his resignation to the State Government and thereupon his office shall be deemed to be vacant.

The petitioner contends that inasmuch as the vote of no-confidence was passed by a majority of the members present and voting and the president also submitted his resignation, the office of the president must be deemed to be vacant. It is contended that the claim for a writ of 'quo warranto' against the president is well-founded, and that the State Government had no option but to accept the resignation and to dissolve the municipal committee. It is submitted, therefore, that a writ of 'mandamus' ought to issue against the State Government.

5. The pertinent rule which prescribes the time and manner of the notice reads as follows: Any member of a municipal committee who desires to move a motion of no-confidence in the president of the committee shall give notice of such a motion in writing to the president at least ten days before moving it.

It will thus be seen that the rule requires a notice of "at least ten days". The State Government is of opinion that the notice was defective inasmuch as ten clear days had not elapsed before the resolution was moved.

6. Under S. 21 of the Act, it is provided: No resignation tendered otherwise than under S. 18-A by the president of a committee shall be valid until it has been accepted by the State Government....

It is argued that the same