H.L. Agrawal, C.J.
1. "Whether the period of 'at least fifteen clear days' fixed for convening a meeting by giving a notice for consideration of the resolution of want of confidence in the Sarpanch/Naib-Sarpanch,as the case may be, as provided under Section 24(2)(c) of the Orissa Grama Panchayat Act, 1964 (for short 'the Act') is mandagory in nature?" Is the threshould question necessitating this reference to the Full Bench. Equally at issue is the correctness of some observations made in a Bench decision of this Court in Debraj Mallika v. Collector, Puri, (1978) 45 Cut LT 313.
2. The facts are undisputed and lie within a narrow compass. The petitioner was elected as Sarpanch of Chandpur Grama Panchayat in the district of Drienkanal sometime in December, 1983. A motion expressing want of confidence was proposed against him and a notice requisitioning a meeting of the members of the Grama Panchayat signed by the requisite number of members was made over to the Sub-divisional Officer, Kamakshyanagar (O. P. No. 3). Undisputedly, a notice bearing No. 5392 dated 3-9-1985 (Annexure-3) was issued by O.P. No. 3 to all the members of the Panchayat. A copy of the notice was also sent to the members under certificate of posting as required under Section 24(2)(d) of the Act.
The meeting was held according to the schedule on 24-9-1985 which was presided over by O.P. No. 3, and in the meeting, 11 out of 12 members present and voting supported the no-confidence motion moved against the petitioner. The petitioner had also received the said postal notice on 12-9-1985, but the primary grievance of the petitioner is that the notice of the meeting that was served upon him did not give him clear fifteen days time before the meeting. Therefore, the vote of no-confidence motion passed in the illegal meeting could not be held to be any binding effect in the eye of law. The contention aforesaid has to be followed within the parameters of the statutory provisions.
3. In the counter-affidavit filed on behalf of O.P. Nos. 1 to 4, it has been asserted that the notice was given to all the members holding the office of the Grama Panchayat and that a copy of the notice was also published on the notice board of the Panchayat Samiti on 6-8-1985. Therefore, all the requirements of the law were validly complied with and the petitioner has no case at all.
4. Ina separatecounter-affidavitfiledby O.P. No. 17 allegation has been made that the son-in-law of the petitioner was the Branch Postmaster in the concerned Post-office and he manoeuvred to delay the service of the notice in due time. In the normal course, the letter issued from the post-office on 3-9-1987 to be also delivered by the same post-office, time of 8-9 days was not required. It has been further stated that the Panchayat Office was being held in the house of the petitioner itself and the notice board was in the outer varandah of his residence. On these allegations, it has been asserted that the plea of proper service of the notice of the meeting is without any basis.
5. When the case was earlier heard by a Division Bench, it entertained a doubt regarding the correctness of the decision in Debaraj Mallika's case (1978-45 Cut LT 313) (supra) observing that the provision contained in Section 24(2)(c) of the Act was directory in nature. In view of the importance of the question, the matter has been referred to a larger Bench.
6. Let us refer to the relevant provisions :-- ,
"24. Vote of no confidence against Sarpanch or Naib-Sarpanch : --
(1) Where at a meeting of the Grama Panchayat specially convened by the Subdivisional Officer in that behalf a resolution is passed, supported by a majority of not less than two-thirds of the total membership of the Grama Panchayat, recording want of confidence in the Sarpanchor Naib-Sarpanch the resolution shall forthwith be forwarded by the Subdivisional Officer to the Collector, who shall immediately on receipt of the resolution publish the same on his notice-board and with effect from the date of such publication the member holding the office of Sarpanch or Naib-Sarpanch, as the case may be, shall be deemed to have vacated such office.
(2) In convening a meeting under Sub-section (1) and in the conduct of business at such meeting the procedure shall be inaccordance with such rules, if any, as may be prescribed, subject however, to the following provisions, namely : --
(a) & (b) .....
(c) the Subdivisional Officer on receipt of such requisition shall fix the date, hour and place of such meeting and give notice of the same to all the members holding office on the date of such notice along with a copy of the requisition and of the proposed resolution, at least fifteen clear days before the date so fixed;
(d) the aforesaid notice shall be sent by post under certificate of posting and a copy thereof shall be published at least seven days prior to the date fixed for the meeting in the notice board of the Samiti,
(e) the proceedings of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member,
(f) to (k) ....."
7. Let us now first examine the decision of this Court in Debaraj Mallika's case (1978-45 Cut LT 313) (supra), the correctness of which has been doubted.
In this case, the notice was issued on 11-8-1977 forconveninga special meeting on 31-8-1977. But the writ petitioner and his brother (O.P. No. 3) avoided to receive the notice. On 16-8-1977 and 17-8-1977 it was sent by registered post. It was held in this case : --
".....On a proper construction of clauses (c), (d) and (e) of Sub-section (2) of Section 24, the legislative intention appears to be that a communication which carries knowledge of the fact that a no-confidence motion would be brought should be sent to the members. The provisions of Section 24(2)(c) regarding notice of at least fifteen clear days is directory in character and if there has been substantial compliance with the requirements of the section, that is sufficient to uphold the validity of the notice and the proceedings of the meeting convened in pursuance thereof."
8. Reference was also made to an earlier decision of this Court in Bhupendra Kumar Bose v. The State (1959) 25 Cut LT 42. But, being a case under the Orissa Municipal Act and the provisions being different, I do not think it necessary to discuss the same.
9. Mr. Panda, learned Advocate appearing for the petitioner, placed strong reliance on the decision of the Supreme Court in K. Narasimhiah v. H. C. Singri Gowda, AIR 1966 SC 330. That was a case under the Mysore Town Municipalities Act, and a somewhat similar question as to whether the requirement of three clear days' notice for holding a special general meeting was a mandatory provision was raised. The proviso to Section 23(9) of that Act which reads as follows is in pari materia with Clause (c) of Sub-section (2) of Section 24 of the Act :--
"Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the whole number of the Councillors and at least fifteen days' notice has been given of the intention to move the resolution."
Section 36 of that Act also contains a somewhat analogous provision as in Section 24(2)(e) of the Act. That reads as follows : --
"No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipal council or committee were not prejudicially affected by such irregularity."
With reference to this provision, it was observed by the Supreme Court in paragraph 19 of the judgment that "the existence of this provision in Section 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in Section 27(3) is only directory and not mandatory". In this view of the matter, it was firmly held that "the fact that some of the councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity."
10. In that case also 19 of the 20 councillors had attended the meeting. It is no doubt true that in the 11th paragraph of the judgment, an observtion has been made that " 'giving' of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given." However, I am constrained to observe that Mr. Panda has not correctly appreciated the ratio of this case and his reliance on this decision does not support him in the least, rather, it goes against him. In this very paragraph (11th para) it has further been observed that "in the eye of law however 'giving' is complete in many matters where it has been offered to a person". 'Tendering of a notice in law therefore is giving of a notice even though the person to whom it is tendered refuses to accept it."
However, it may be pointed out that the Supreme Court did not approve the proposition that "as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete."
11. Learned Advocate General, who appeared for the official opposite parties, has clearly conceded that whereas itis mandatory under the scheme of the Act to give a notice to all the members of a Grama Panchayat and that the date must be fixed after clear 15 days from the date of the notice, its service on the members or failure to receive it by any of them 15 clear days before the date of the meeting is only directory in nature. This submission finds full support from the provision contained in Section 24(2) (e), which provides that the proceedings of the meeting shall not be invalidated merely on the ground that the notice has not been received by any member. Therefore, all that is required is that the Sub-divisional Officer on receipt of a requisition, after fixing the date, hour and place of the meeting, has to give notice of the same to all the members holding the office and that part is as a matter of course. But, whether the notice reaches the addressee is not of any consequence, unless of course, any prejudice on the failure of the service of the notice is writ large or established by bringing the relevant facts on the recrod. No such case has been pleaded, much anything has been brought on the record, by the petitioner. Rather, ithas been seen that all the members had taken part in the meeting and voted.
12. Reliance was placed with equal force by Mr. Panda on two decisions of the Madhya Pradesh High Courts-- (i) Bhagwan Singh v. The Collector, District Gwalior, AIR 1971 Madh Pra 228 and (ii) Gayasuddin Khan v. Gram Panchayat, Village Tal, 1971 Jab LJ 286. Both the cases were under the Madhya Pradesh Panchayats Act. But Mr. Panda overlooked to notice that the relevant provisions under the statute itself provided that the notice should be delivered 5 clear days before the date of the meeting giving the time, date, place and purpose for calling the meeting. Obviously, in view of this mandate, the notice to be valid, had to be delivered five clear days before the date of the meeting. In the M. P. Act also the provision was that "the notice of such meeting specifying the time and place thereof shall be despatched by the Secretary to every Panch seven clear days before the meeting."
13. Mr. Panda also relied upon the case of Eknath v. Gram Panchayat, Gadchiroli 1965 Mah LJ (NOC) 106. In this case, the law required that 7 days' notice for consideration of a no-confidence motion against the Deputy Chairman of a Panchayat Samiti. The notice calling the meeting on 18-11-1964 was issued on 14-11-1964 and served on the Deputy Chairman against whom the motion was to be considered on 16-11-1964. The resolution was challenged in the High Court on the ground that the notice in question did not allow the requisite period of seven days to intervene between the date of the notice and the date of the special meeting. The stand was accepted and the meeting was held to be illegal. Obviously, in that case, in between the date of the notice and the date of the meeting, there was less thanclearsevendays' time violating the provision of 'clear 7 days notice'. This case, therefore, instead of supporting the petitioner, goesagainst him as it speaks of the intervening period only between the date of the notice and the date of the meeting, and not the date of service of the notice and the date of the meeting.
14. There is an unreported decision of this Court dated 27-2-1987 in O.J.C. No. 563 of 1987, where, reference has been made to the case of (i) Pioneer Motors (Private) Ltd. v. Municipal Council, Nagrcoil, AIR 1967 SC 684 and (ii) Jai Charan Lan Anal v. The State of U.P., AIR 1968 SC 5. The essential question that fell for consideration in this case and in both the Supreme Court cases was the meaning of '15 clear days' and it was held that 15 days must intervene between the date of the notice and the date of the meeting and, therefore, the terminal dates must be excluded so as to provide 15 clear days in between.
15. There is no such contingency in the case before us as here the date of the notice was 3-9-1985 and the meeting was to be held on 24-9-1985. The above decision, therefore, is not in point and, if at all, only supports my view that the period of 15 clear days is only intended to apply between the date of the notice and the date of the meeting so fixed and not between the date of the actual service of the notice and the date of the meeting.
16. Learned Advocate General also referred to Krupasindhu Misra v. Gobinda Chandra Misra, AIR 1980 Orissa 199 (FB) a case arising out of the Orissa Estates Abolition Act. Under the statutory scheme of the Act, wide publicity of the claim was intended in conformity with the principles of natural justice, such as, by beat of drum as well as by placing placards at conspicuous places. It was observed that under the scheme of the Act, a notice was mandatory, but the mode of notice was directory.
17. Mr. A. K. Misra, learned Advocate appearing for the private opposite parties, reiterated the stand taken by the learned Advocate General and submitted that no prejudice was caused to the petitioner nor any objection was taken by him in the meeting thaton account of a period shorter than clear 15 days between the date of actual receipt of the notice and the date of the meeting, he had suffered any prejudice. He also referred to Shyabuddinsab Mohidinsab Akki v. Gadag Betgeri Municipal Borough, AIR 1955 SC 314, a case arising from the Bombay Municipal Boroughs Act, where on consideration of the various provisions of the Act, it was held that the provision regarding service of notice was directory and not mandatory. Reliance was also placed by Mr. Misra on a decision of the Calcutta High Court in Jnanendra Nath Pramanick v. The District Magistrate, Nadia, AIR 1978 Cal 324 arising out of the Bengal Municipal Act. There also, while considering the expression "shall give not less than 15 clear days' notice of the meeting", it was observed on a reference to K. Narasinhiah's case (AIR 1966 SC 330) that the requirement of time was directory and not mandatory.
18. On a circumspection of the various authorities discussed above dealing with the analogous provisions in different statutes, I would now proceed to record my own conclusions : --
The scheme of the notice contemplated under Section 24(2)(c) may be divided into three parts -- (i) requirement of giving the notice, (ii) fixing the margin of time between the date of the notice and the date of the meeting, and (iii) service of notice on the members, I am of the view, which isalso conceded by the learned Advocate General, that the first two parts, namely, the duty to issue the notice and the margin of clear 15 days between the date of the notice and the date of the meeting, are mandatory. In other words, if there is any breach of these two conditions, then the meeting will be invalid without any question of prejudice. But the third condition, i.e., the mode of service or the failure by any member to receive the notice at all or allowing him less than 15 clear days before the date of the meeting, will not render the meeting invalid. This requirement is only directory. This is also based on a sound public policy as in that event any delinquent Sarpanch or Naib-Sarpanch can frustrate the consideration of the resolution of non-confidence against him by tactfully dealing oravoiding the service of the notice on him and thus frustrate the holding of the meeting. The legislation has also accordingly taken care to provide in unequivocal terms a provision to obviate such contingencies by incorporating Clause (e) to Sub-section (2) of Section 24.
19. Once I come to the above conclusion, I must record my disapproval to the observation of a general nature made in Debaraj Mallika's case (1978) 45 C ut LT 313 to the effect that the whole of the provision under Section 24(2)(c) is directory in nature, as that is too wide.
Since I have held that service of notice on a member of a Grama Panchayat without giving him 15 days clear time is not mandatory but is only directory in nature, and this being the only ground urged on behalf of the petitioner in challenge of the impugned order, this application has got no merit.
20. Before parting with the case, I may also emphasize on another aspect of the matter, namely, that the petitioner, having participated in the meeting in question without any protest or objection is estopped from challenging the validity of the meeting on the ground that the gap between the date of service of notice and the date of the meeting was less than 15 days.
21. For the reasons discussed above, the writ application must fail and is accordingly dismissed. But, in view of the intricacy of the question and some conflict of precedent, I would leave the parties to bear their own costs.
R.C. Patnaik, J.
22. I agree.
D.P. Mohapatra, J.
23. I have had the privilege of reading the judgment of my Lord the Cheif Justice, I agree that the writ petition is to be dismissed. However, I would like to indicate my reasonsseparately.
24. The facts on which there is no controversy are that the petitioner assumed charge of office of the Sarpanch on 14-2-84. Notice of the non-confidence motion proposed to be passed against him was issued by the Subdivisional Officer, Kamakhyanagar on 3-9-85 fixing 24-9-85 as the date for the said meeting (Annexure 3). The said notice was published in the Notice Board Of the Panchayat Samiti on 6-9-85. The notice was received by the petitioner on 12-9-85. In the meeting held on 24-9-85 the no-confidence motion was passedagainst the petitionerby the requisite majority. The main contention raised on behalf of the petitioner is that he did not get fifteen clear days after receipt of the notice and before the date of the meeting as prescribed under Section 24(2)(c) of the Orissa Grama Panchayat Act, 1964 (hereinafter referred to as the 'Act'). Since the provision is mandatory the decision is invalid due to its non-compliance. On the other hand, the contention on behalf of the opp. parties is that the provision of Section 24(2)(c) was duly complied with inasmuch as the notice was issued on 3-9-85 and the date of meeting was fixed to 24-8-85 thus leaving a gap of more than fifteen clear days. According to the opposite parties what is relevant is issue of notice and not its service.
25. This Court in the case of Debaraj Mallika v. Collector Puri, reported in (1978) 45 Cut LT 313 construing Clauses (c), (d) and (e) of Section 24(2) of the Act held that the provision of Section 24(2)(c) requiring notice of at least fifteen clear days is directory in character and if there has been substantial compliance with the requirement of the section that is sufficient to uphold the validity of the notice and the proceedings of the meeting convened in pursuance thereof. The Division Bench while referring this case to a larger Bench for examination indicated that it was argued that no significance has been given to the two expressions 'at least' and 'clear' used in Clause (c) in the aforementioned decision. At the hearing of the case before us, it was contended by the learned Advocate-General appearing for the State that a part of the section requiring notice to be issued is mandatory, but service of notice is only directory, in view of the provision under Clause (e) of Section 24(2). To that extent according to him, the decision in Debaraj Mallika's case requires clarification. An unreported decision in the case of Sarbeswar Satpathy v. State of Orissa O.J.C. No. 563 of 1987 disposed of on 27-2-87 was cited in course of hearing of the case and a faint attempt was made to contend that there is a conflict between this decision and the decision in Debaraj Mallika's case.
26. I have carefully perused the decision in Debaraj Mallika's case as well as that in Sarbeswar Satpathy's case. I have given my anxious consideration to the matter being fully cognisant that the interpretation to be given to the statutory provision dealing with the important matter like no-confidence motion against the Sarpanch is likely to have considerable impact on Panchayat administration in the State. I find no conflict regarding the principles laid down in the aforementioned decisions. I am in respectful agreement with the principles laid down in Debaraj Mallika's case holding that the provisions under Section 24(2)(c) are directory. The principle is well settled that in considering whether a statutory provision is mandatory or directory, in addition to the language, the subject matter of the statutory provision, the legislative intent behind it and the purpose sought to be achieved by it have important bearing. It is also an accepted principle that when thereare several provisions in the statute dealing with a particular matter, while interpreting any of such provision care should be taken to see that by the interpretation other provisions are not rendered otiose.
27. Coming to the instant case, Section 24(2) of the Act prescribes the procedure for holding the meeting of the Grama Panchayat specially convened to consider no-confidence motion against the Sarpanch and conduct of business at such meeting. Clause (c) of subsection (2) of Section 24 requires the Subdivisional Officer, on receipt of the requisition, to fix the date, hour and place of the meeting and give notice of the same to all members holding office on the date of such notice along with a copy of the requisition and of the proposed resolution, at leastf if teen clear days before the date so fixed. In Clause (d) of Sub-section (2) it is provided that the aforesaid notice shall be sent by post under certificate of posting and a copy thereof shall be published at least seven days prior to the date fixed for the meeting i n the notice board of the Samiti. Clause (e) of Sub-section (2) which is important for the present purpose, lays down that the proceedings of the meeting shall notbe invalidated merely on the ground that the notice has not been received by any member. From these provisions it is manifest that non-receipt of notice by any member shall not invalidate the meeting and the decision taken therein and further that fifteen clear days notice is not an inflexible requirement. Under Clause (d) the notice is required to be published in the notice board of the Samiti leaving at least seven clear days prior to the date fixed. If a member who has not received notice of the meeting at all is not entitled to challenge its validity on that ground it does not appeal to reason that one who has received notice but less than fifteen days before the meeting is entitled to do so. The notice of the meeting is given with a view to enable the members to deliberate about the proposed no-confidence motion and to make necessary arrangements to attend the meeting on the date fixed. Therefore non-receipt of notice or receipt of notice short of the prescribed period will be a matter of prejudice to be considered on the facts and circumstances of each case. Keeping in view the intent and purpose of the provision as discussed above, it will not be reasonable to say that the legislative intent was that shortage of the prescribed period for notice will automatically render the meeting invalid irrespective of the fact that the member concerned otherwise had knowledge of the date of the meeting and had adequate opportunity to attend the meeting on the date fixed. Another relevant aspect for consideration in such matter will be if majority of the members on getting similar notices attended the meeting on the date fixed. The decision of the Supreme Court in the case of K. Narsimhiah v. H. C. Singri Gowda AIR 1966 SC 330 in my view squarely applies to the present case. In that case their Lordships were considering the question whether the requirement of three clear days notice for the holding of a special general meeting as embodied in Section 27(3) of the Mysore Town Municipalities Act, 1951 was a mandatory provision? There also a no-confidence motion was moved against the Municipal President of Holenaraipur Municipality in the meeting. Reading Section 27(3) with Section 36 of the statute which is similar to Section 24(2) of the Orissa Grama Panchayat Act, the Court held that the provision of notice was directory. The relevant portion of the judgment may be extracted :
"It is important to notice in this connection one of the provisions in Section 36 of the Act. It is in these words : --
'No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided that the proceedings of the municipal council or committee were not prejudicially affected by such irregularity.'
It is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words 'irregularity in the service of the notice upon any Councillor.' It appears to us, however, reasonable to think that in making such a provision in Section 36 the legislature was not thinking only of irregularity of the mode of service butalsoof the omission to give notice of the full period as required.
The existence of this provision in Section 36 is a further reason for thinking that the provision as regardsany motion or proposition of which notice must be given in Section 27(3) is only directory and not mandatory.
We are, therefore, of the opinion that the fact that some of the Councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of non-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the 'irregularity in the service of notice'."
28. For the reasons set out above, I would hold that the provisions in Section 24(2)(c) of the Act are directory and the decision in Debaraj Mallika's case (1978-45 Cut LT 313) laysdown the lawcorrectly. That is not tosay that the provisions of the Section 24(2)(c) need not be followed or that a meeting held in contravention of Section 24(2)(c) can never be challenged at all. It only means that the proceeding of the meeting will not stand vitiated automatically for any infringement of the Section. The party challenging the validity of the meeting relying on the provision has to establish that he has been prejudiced.
29. Coming to the other decision in the case of Sarbeswar Satpathy (supra), as noticed earlier, in my view the same does not conflict with the decision in Debaraj Mallika's case (1978-45 Cut LT 313). In that case the Court neither considered norgave a finding whether the provisions under Section 24(2)(c) are directory or mandatory. What the Court considered was the manner of computation of the period of fifteen clear days prescribed under Section 24(2)(c). From the facts stated in the judgment it appears that the Subdivisional Officer issued notice on 23-187 calling a requisition meeting on 7-2-87 for moving no-confidence motion. Relying on some Supreme Court decisions the Court held that in view of the language used in the Act, there cannot be any manner of doubt that fifteen clear days must intervene between the date of notice and the date of meeting. That admittedly having not been done in the case the decision taken in the meeting was held to be invalid. No question of directory or mandatory character of the provision or question of prejudice was either raised or considered by the Court. Therefore a fair reading of the decision does not, in my view, convey any indicated (indication?) in conflict with the principles laid down in Debaraj Mallika's case.
30. Coming to the instant case as noticed earlier, the sole ground on which the resolution passed in the meeting held on 24-9-85 is challenged by the petitioner is the invalidity of the notice on the ground discussed earlier. It is not in controversy that the petitioner received the notice of the meeting. No case has been made out and no material has been placed to show that the petitioner was prejudiced in any manner due to the shorter period of notice. In view of my finding that the provision of Section 24(2)(c) is directory, the challenge of the petitioner to the decision has to be held to be without substance.
31. The writ application therefore fails and is dismissed. Parties will bear their respective costs of this proceeding.