ORDER
D.M. Dharmadhikari, J.
1. In the course of deciding this writ petition on merits which was filed to assail the 'No Confidence Motion' passed against the petitioner as elected Sarpanch of Gram Panchayat, Koora, Hon'ble Justice Dipak Misra, sitting singly found that in construing the provisions of Section 21 of the M.P. Panchayat Raj Adhiniyam, 1993 and analogous provisions of the repealed Act as also sub-rule (3) of Rule 3 framed thereunder have been differently construed in several Single Bench decisions of this Court (INFRA) and in these decisions earlier Division Bench decision of this Court in Gayasuddin v. Gram Panchayat (1971 JLJ 286) was not noticed, The learned Judge also found that the decision of this Court in Akbar Khan v. S.D.O., Mandleshwar (1997) 2 Vidhi Bhasvar 284] was not noticed in Sharda Bai v. State of M.P. [(1997) 2 MPLJ 291]. The learned Single Judge, therefore has made this reference to the Full Bench for resolving the cleavage of opinions expressed by several Benches of this Court on the import and effect of the provisions contained in Section 21 of the Act and Sub-rule (3) of Rule 3 of the Rules.
2. We have heard learned counsel Shri N.K. Shukla for the petitioner, Shri Ajay Mishra, learned Government Advocate for the State and its Authorities and Shri Ahadullah Usmani learned counsel for respondent Nos. 3 to 15, 17 & 19. We have gone through the various decisions referred in the order of reference of the learned Single Judge and those cited at the Bar. The sole question for consideration before us is one of general importance regarding the interpretation of Sub-rule (3) of Rule 3 of the M.P. Panchayat (Gram Panchayat Ke Sarpanch Tatha Up-Sarpanch, Janpad Panchayat Tatha Zila Panchayat Ke President Tatha Vice-President Ke Virudh Avishwas Prastav) Niyam, 1994 (shortly referred as 1994 Rules) read with Section 21 of the M.P. Panchayat Raj Adhiniyam, 1993. The relevant provisions contained in Section 21 of the Act and Rule 3 including sub-rule (3) thereunder which are for interpretation before us need reproduction in full:--
'Section 21 of the Act:
No-Confidence Motion against Sarpanch and Up-Sarpanch.--
(1) On a motion of no-confidence being passed by the Gram Panchayat by a resolution passed by majority of not less than three fourth of the Panchas present and voting and such majority is more than two third of the total number of Panchas constituting the Gram Panchayat for the time being, the Sarpanch or Up-Sarpanch against whom such motion is passed, shall cease to hold office forthwith.
(2) Notwithstanding anything contained in this Act or the Rules made thereunder a Sarpanch or an Up-Sarpanch shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be convened in such manner as may be prescribed and shall be presided over by an officer of the Government as the Prescribed Authority may appoint. The Sarpanch or the Up-Sarpanch, as the case may be, shall have a right to speak at, or otherwise to take part in, the proceeding of the meeting. (3) No-confidence motion shall not lie against the Sarpanch or Up-Sarpanch within a period of--
(i) one year from the date of which the Sarpanch or Up-Sarpanch enter their respective office;
(ii) six months preceding the date on which the term of office of the Sarpanch or Up-Sarpanch, as the case may be, expires;
(iii) one year from the date on which previous motion of no-confidence was rejected.
(4) If the Sarpanch or the Up-Sarpanch, as the case may be, desires to challenge the validity of the motion carried out under sub-section (1), he shall, within seven days from the date on which such motion was carried, refer the dispute to the Collector who shall decide it, as far as possible, within thirty days from the date on which it was received by him, as his decision shall be final.'
'Rule 3 of the Rules is as under :--
3. Notice.-- (1) Elected members of Gram Panchayat, Janpad Panchayat or Zila Panchayat desiring to move a motion of no-confidence against the Sarpanch or Up-Sarpanch of a Gram Panchayat or President or Vice-President of Janpad or Zila Panchayat, as the case may be, shall give a notice thereof to the prescribed authority in the form appended to these rules :
Provided that such notice shall be signed by not less than one third of the total number of elected members of the concerned Panchayat:
Provided further that where the elected members desire to move the motion of no-confidence against both the Sarpanch and Up-Sarpanch, President and Vice-President of Janpad Panchayat or Zila Panchayat as the case may be, they shall give separate notice.
(2) The prescribed authority, on receiving the notice under Sub-rule (1) shall sign thereon a certificate stating the date on which hour and at which the notice has been given to him and shall acknowledge its receipt.
(3) On receiving the notice under Sub-rule (1) the prescribed authority shall satisfy himself about the admissibility of the notice with reference to Sections 21 (3), 28 (3) and 35 (3), as the case may be. On being thus satisfied, he shall fix the date time and place for the meeting of the Gram Panchayat, Janpad Panchayat or Zila Panchayat as the case may be, which shall not be more than fifteen days from the date of receipt of the said notice. The notice of such meeting specifying the date, time and place thereof shall be caused to be despatched by him through the Secretary of the Gram Panchayat or Chief Executive Officer of the Janpad Panchayat or Zila Panchayat, as the case may be, to every member of the Panchayat concerned seven days before the meeting.'
3. The question on which the learned Single Judge finds a cleavage of opinion between various decisions of this Court is whether the latter part of the Rule (italicised in the quoted rule) requiring despatch of notice of meeting to every member of the Panchayat is mandatory and means service of notice on the members seven days in advance of the date scheduled for considering the no-confidence motion.
4. Learned counsel Shri N.K. Shukla appearing for the petitioner very strenuously urged that in the context of Section 21 of Rule 3 Sub-rule (3), the use of the words 'cause to be despatched' should be construed to mean ensuring receipt of the notice by every member' because, it is argued, that mere dispatch of notice with no guarantee of its receipt by the member would frustrate the very object for which the notices are required to be given to every member of the holding of the meeting for passing the no-confidence motion.
5. Use of word 'shall' in a statute is normally to be construed as mandatory but it is settled that in the context and object of the statute, it can, to effectuate the meaning of the relevant rule or law be construed as 'may'. See the following passage in Principles of Statutory Interpretation, 7th Edition, 1999 by Justice G.P. Singh at page 298, Syn. 6 Clause (e) :--
'The use of word 'shall' raises a presumption that the particular provision is imperative; but this prima facie inference may be rebutted by other consideration such as object and scope of the enactment and the consequences flowing from such construction. There are numerous cases where the word 'shall', has, therefore, been construed as merely directory. 'The word 'shall', observes Hidayatullah, J., 'is ordinary mandatory but it is sometimes not so interpreted if the context or the intention otherwise demands', and points of Subbarao, J., 'When a statute uses the word 'shall', prima facie it is mandatory, but the Court may ascertain the real intention of the Legislature by carefully attending to the whole scope of the statute.'
6. The subject matter dealt with in Section 21 of the Act is passing of a no-confidence motion against Sarpanch or Up-Sarpanch. The above mentioned office bearers hold their office by election. The law requires that if they are made to vacate their offices on loss of confidence of the other elected members, there should be a requisite majority for passing the resolution, i.e., not less than 3/4th of the Panchas and the resolution should be carried by voting of more than 2/3rd of the total number of Panchas. Since the passing of no-confidence motion results in adverse consequence of the Sarpanch or Up-Sarpanch vacating the elected office, the law incorporates the principle of natural justice that the office bearer concerned should have an opportunity to participate in the motion and to speak and take part in the proceedings so as to regain the confidence of the House.
7. The Rules framed under the Act lay down a time bound procedure for ensuring proper conduct of the proceedings of the no-confidence motion. As passing of no-confidence motion entails serious civil consequences against the concerned office bearer Sub-rule (3) of Rule 3 prescribes a time limit for calling a meeting for consideration of no-confidence motion and sending of notice in advance of the meeting to all the members of the Panchayat. The expression used in the first part of the rule for fixing the date, time and place for the meeting is 'which shall not be more than 15 days from the date of receipt of the said notice'. The legislative intent behind the rule clearly appears to be that when a notice of no-confidence motion duly signed by the requisite not less than 1/3rd of the total number of elected members of the concerned Panchayat is received, the prescribed authority shall not be allowed to sit idle over it for an unreasonable long period of time. It is enjoined on him that he shall within not more 15 days from the receipt of the notice by him, call a meeting for considering the no-confidence motion,
8. The second part of Sub-rule (3) of Rule 3 mandates that the prescribed authority after fixing date, time and place of the meeting within the prescribed period not later than 15 days as laid down in the first part of the Rule, shall cause despatch of notice of such meeting to every member of the Panchayat 7 days before the meeting. The said latter part of Sub-rule (3) of Rule 3 of 1994 Rules is mandatory as intimation of date, time and place of meeting to every member is essential to ensure his presence, if he so desires, in the meeting to be held on such vital issue of passing of no-confidence motion.
9. The legislature has designedly used the expression 'the notice of such meeting specifying date, time and place thereof shall be caused to be dispatched by him through the Secretary' of the Panchayat concerned. The use of the word 'dispatch' appears to be deliberate and it cannot be read as 'receipt' of the notices by the members of the Panchayat. No rule of interpretation permits reading of one word for the other. As is clear from the contents of the rule, the intention appears clear to us. The law intends that the notice of meeting should be sent to the members concerned seven days in advance of the meeting to enable them to participate in the motion of no-confidence. The Rule does not convey any intention that the motion of no-confidence should be taken up only after each and every member of the Panchayat has been actually served with the notice. Had the intention been such, it would have been easy for the legislature to have clearly said so by use of word 'receipt' instead of the word 'dispatch' of notices 7 days in advance of the meeting. Use of word 'dispatch' in the Rule is clearly with a view that merely on non-service of notice of meeting on one or few members, the consideration of motion of no-confidence should not be frustrated, as in any case the passing of it depends on existence of the requisite majority. Section 21, however, requires that a valid motion of no-confidence can be passed only on a motion mooted by prescribed one third of total number of elected members and passed by majority of not less than 3/4th of the Panchas present and voting and such majority is more than 2/3rd of the total number of Panchas. If the motion is validly passed by the requisite majority, mere non-service of notice of meeting on one or more members would not render the passing of no-confidence motion invalid. The latter part of Sub-rule (3) of Rule 3 uses the words 'shall be caused' indicating clearly that the rule is mandatory and requires due compliance. The literal meaning of word 'dispatch' or 'despatch' is given in New Standard dictionary, Vol. I as under :--
'1. The act of dispatching; a forwarding to some destination: usually with the implication of promptness or celerity; as, as the dispatch of a messenger, or of the mails. 2. A message sent by special means and with haste, as by telegraph; especially, a communication on public matters sent by one official to another. 3. Quick transaction, as of business; speedy execution : the prompt performance and completion of work; expedition; speed; as, he shows ability in dispatch of business; he concluded the negotiations with dispatch.'
10. We have, however, to assign both a literal and legal meaning to the word 'dispatch' otherwise it is open to wicked abuse in the hands of concerned authority who may act in collusion with any of the elected members. It is not mere sending or giving of notice of meeting in the manner best suited to the liking of the Secretary of the Panchayat.
11. In the decision of the Supreme Court in the case of Delhi Development Authority v. H.C. Khurana (AIR 1993 SC 1488), the question arose was whether sealed cover procedure in the matter of promotion under the circular could be followed in the case of a government servant against whom although a charge-sheet had been issued but it was not served on him on the date of the proceedings of the D.P.C. In that respect, the observations of the Supreme Court in its earlier decision in Union of India v. Jankiraman [(1991) 4 SCC 109] = (AIR 1991 SC 2010) came up for consideration. The contention advanced on behalf of the employee was that the requirement of issuance of charge-sheet to the employee as a pre-condition for adopting sealed cover procedure should mean actual service of charge-sheet on the employee. Negativing such a contention, the Supreme Court construed the meaning of the word 'issued' used in the circular laying down sealed cover procedure in the case of H.C. Khurana (supra). In the circular of sealed cover procedure the words used were 'government servants in respect of whom a charge-sheet has been issued'. In the Rule 3 (3) for construction before us, the expression used in analogous i.e., 'notice shall be caused to be dispatched to him'. The literal meaning for words 'issued' and 'dispatched' and the following observations in the decision of H.C. Khurana's case support the construction placed on the rule by us :
'The meaning of the word 'issued', on which considerable stress was laid by learned counsel for the respondent, has to be gathered from the context in which it is used. Meanings of the word 'issue' given in the Shorter Oxford English Dictionary include : 'to give exit to; to send forth, or allow to pass out; to let out;.... to give or sent out authoritatively or officially; to send forth or deal out formally or publicly; to emit, put into circulation'. The issue of a charge-sheet, therefore, means its despatch to the Government servant, and this act is complete the moment steps are taken for the purpose, by framing the charge-sheet and despatching it to the Government servant, the further fact of its actual service on the Government servant not being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'charge-sheet has already been issued to the employee', in para 17 of the decision in Jankiraman.'
12. In this respect mode of service of notice prescribed in Panchayat (Method of Service of notice and document) Rules, 1995 (shortly referred as 1995 Rules) need to be noticed. The said rules are to be read for understanding and giving effect to word 'dispatch' used in the latter part of the rule. The different modes prescribed in Rule 3 of the said Rules of 1995 for service of notice include 'giving or tendering the notice or document to the person concerned'. In the absence of notice, giving or tendering the same to some adult member or servant of the family, sending the same by post under certificate of posting. If the member resides beyond the jurisdiction of Panchayat and his address is known, by sending the same to him by registered post acknowledgment due. The Rules of 1995 also prescribe the substituted mode of service. In the light of the above rules prescribing various modes of service of notice, the word 'dispatch' would mean giving or sending for transmission the notice in the manner prescribed in the Rules of 1995 so as to reasonably ensure its service on the notice. The dispatch of notice for complying the provisions of latter part of Sub-rule (3) of Rule 3 of 1994 Rules has to be in one of the prescribed mode indicated for service in the Rules of 1995. If the dispatch of notices is not in the mode prescribed for its service, there would be no proper compliance of the requirement of Sub-rule (3) of Rule 3 of the Rules of 1994.
13. Construing thus the meaning of word 'dispatch' in latter part of Sub-rule (3) of Rule 3 of 1994 Rules, it has to be held that dispatch of notice for effecting service on the members in one of the modes prescribed in Rules of 1995 would be due compliance of the provision.
14. An incidental question arose is whether non-compliance of the second part of Sub-rule (3) of Rule 3 of the Rules of 1994, which we have held as mandatory, would as a necessary corollary invalidate the proceedings held in the meeting called for passing the no-confidence motion. This question has not directly been posed, but as the learned Single Judge appears to have noticed some conflict or cleavage of opinion between several Single Bench decisions of this Court, we find it necessary to express our opinion on the same.
15. The general rule is that non-compliance of mandatory requirement results in nullification of the Act. There are, however, several exceptions to the same. If certain requirements or conditions are provided by statute in the interest of a particular person, the requirements or conditions, although mandatory, may be waived by him if no public interest are involved and in such a case the act done will be valid even if the requirements or conditions have not been performed. This appears to be the reason for learned C.K. Prasad, J., in Dhumadhandin v. State of M.P. (1997 (1) Vidhi Bhasvar 49) which was followed by R.S. Garg, J., in Mahavir Saket v. Collector, Rewa (1998 (1) JLJ 113) for holding that mere non-compliance of first part of the rule in fixing a meeting beyond the prescribed days of the motion of no-confidence would not invalidate the whole proceedings. In case of Dhumadhandin (supra), the Sarpanch did not question the validity of the notice calling the meeting of no-confidence and in fact had taken chance by facing the motion. R.S. Garg, J., in Mahavir Saket (supra) placed reliance on the decision of C.K. Prasad, J., in Dhumadhandin (supra) to up-hold the passing of the no-confidence motion in the adjourned meeting as in the meeting called within the prescribed fifteen days the Presiding Officer was not available. Sub-section (4) of Section 21 permits reference of a dispute to the Collector by Sarpanch or Up-Sarpanch against whom a notice of no confidence motion had been passed. The proceedings of the no-confidence motion or other proceedings under the Act are also assailable in this Court as Constitutional Court under Article 227 of the Constitution of India. As has been construed by us, even though second part of the rule requiring dispatch of notice of the meeting to the member is mandatory, yet in every case of challenge to the proceeding of no-confidence motion either before the Collector or this Court, it would still be open to the Collector or this Court to find out whether in a given case non-compliance of any part of the rule has in fact resulted in any failure of justice or has caused any serious prejudice to any of the parties. The general rule is that a mandatory provision of law requires strict compliance and the directory one only substantial. But even where the provision is mandatory, every non-compliance of the same need not necessarily result in nullification of the whole action. In a given situation even for non-fulfillment of mandatory requirement, the authority empowered to take a decision may refuse to nullify the action on the ground that no substantial prejudice had been caused to the party affected or to any other party which would have any other substantial interest in the proceeding. This Court under Article 227 of the Constitution has also a discretion not to interfere even though a mandatory requirement of law has not been strictly complied with as thereby no serious prejudice or failure of justice has been caused. This is how various Single Bench decisions in which even after finding some infraction of the second part of Rule 3 (3) of the Rules of 1994, the resolution of no-confidence motion passed was not invalidated on the ground that no substantial prejudice thereby was caused to the affected parties. The intention of the legislature has to be gathered from the provisions contained in Section 21 and the Rule 3 (3) framed thereunder. The provisions do evince an intention that a meeting of the no-confidence motion be called within a reasonable period of not later than 15 days and every member has to be informed of the same seven days in advance. A notice of no-confidence motion is required to be moved by not less than 1/3rd of the total number of elected members as required by first Proviso to Sub-rule (1) of Rule 3 and can be lawfully carried by a resolution passed by majority of not less than 3/4th of the Panchas present and voting and such majority has to be more than 2/3rd of the total number of Panchas constituting the Panchayat in accordance with subsection (1) of Section 21 of the Act. This being the substance of the provisions under the Act and the rules, a mere non-compliance of second part of Sub-rule (3) would not in every case invalidate the action unless the Collector while deciding the dispute under Sub-section (4) of Section 21 or this Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution comes to the conclusion that such non-compliance has caused serious prejudice to the affected office bearer or has otherwise resulted in failure of justice.
16. We get some support in our conclusion on the construction of the provisions contained in the Rule from Statutory Construction by Francis J. McCaffrrey, 1953 Edition, Article 52, Page 110 where it stated :
'Where a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally construed to be permissive only as to the time, for the reason 'that the public interests are not to suffer by the laches of any public officer' (Looney v. Hughes, 26 N.Y., 514). While the Courts are inclined to hold such provisions to be directory only as to time, they will be read as mandatory if the nature of the act to be performed or the phraseology of the statute indicates an intention on the part of the legislature to exact a literal compliance with the requirement of time. The Courts seek to achieve a just result in not ascribing an invalidating effect to the failure of public officers to observe the time provisions of statutes; a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the conduct of the public officer.'
and from the following passage in Statutory Interpretation by Francis Bennion, Second Edition, Part I, Section 10 page 34 :
'Even where the duty is mandatory, the Court will not now-a-days hold it to be contravened because of a purely formal or technical defect. This may be described as a defect that does not materially impair the remedy intended to be provided by the enactment for the mischief to which it is directed.'
17. Consequent to the discussion aforesaid, we respectfully approve the Division Bench decision in Muku Bai v. State of M.P. (1998 (2) MPLJ 661), Mahesh Pd. Choudhary v. State of M.P. (1997 (2) JLJ 397). We also find no conflict inter se in the decisions in Srinarayan Tiwari v. State of M.P. (1998 (1) JLJ 124) and Sharda Bai Khatik v. State of M.P. (1998 (1) JLJ 399) (both decided by Hon'ble C.K. Prasad, J.).
18. We also hold that the learned Single Judge in Dhumadhandin v. State of M.P. and Ors. (1997 (1) Vidhi Bhasvar 49) rightly in exercise of his discretion declined to invalidate the no-confidence motion passed in a meeting held beyond 15 days of the receipt of the no-confidence motion and the case is distinguishable on its facts.
19. We, however, with respect, are unable to subscribe to the view expressed by the Division Bench in Gayasuddin v. Gram Panchayat (1971 JLJ 286) that the requirement of the rule is service of notice of no-confidence motion seven clear days in advance of the holding of the meeting. The decision in the case of Gayasuddin (supra) has failed to notice the earlier Division Bench decision in Raghuvans Prasad v. Mahendra Singh and Ors. (1967 MPLJ 941). In Raghuvans Prasad v. Mahendra Singh (supra), construing comparable provisions contained in Section 56 (3) of the M.P. Municipalities Act, where similar language was used as in the second part of Rule 3 (3) of the 1994 Rules, it was observed :
'It is thus manifest that the mandatory provisions contained in Section 56 (3) about seven clear days' notice of the meeting was not complied with. It is true that Rule 3 of the Madhya Pradesh Municipalities (President and Vice-Presidents) Election Rules, 1962 which provides that the presiding authority shall specify in the notice of the meeting the time and place so fixed, is silent about the period of notice for the meeting at which the election is to be held. But this rule does not in any way override Section 56 (3) and, so read, it necessarily follows that the presiding authority must despatch to every Councillor notice of meeting seven clear days before the meeting.'
It would thus be noticed that the Division Bench in the case of Raghuvans Prasad (supra) has only read into the rule mandatory requirement of despatch of notice of the meeting to every councillor clear seven days before the meeting. But rule has not been construed to mean 'receipt of such notice' by the councillor clear seven days in advance of the actual holding of the meeting.
20. The decision of learned Single Judge N.K. Jain J., in Akbar Khan v. S.D.O., Mandleshwar (supra) in invalidating the result of no-confidence motion on the ground of non-dispatch of notice of meeting seven days in advance is upheld, but his other observations contained in Paragraph 8 of the judgment based on the decision in Gayasuddin (supra) cannot be held as correctly interpreting the language of Rule 3 (3) of the Rules of 1994. The Division Bench decision in the case of Gayasuddin (supra) and the Single Bench decision of N.K. Jain, J., in Akbar Khan (supra) to the extent indicated above are over-ruled.
21. The reference is answered accordingly. The writ petition may now be placed before the learned Single Judge for decision on merits.