01 April 1964
Supreme Court


Case number: Appeal (civil) 223 of 1964






DATE OF JUDGMENT: 01/04/1964


CITATION:  1966 AIR  330            1964 SCR  (7) 618

ACT: Municipality-No  confidence  resolution  against  President- Enactment  providing  three clear days  notice  for  holding special  general meeting --Provision  if  mandatory--Failure to    give    such    notice-Effect--Validity-Mysore    Town Municipalities  Act, 1951, ss. 23(9), 24(1) (a),  24(3)  and 27(3).

HEADNOTE: The appellant was the elected President of the Municipality. In a special general meeting of the councillors a resolution expressing  no confidence in him as President was moved  and passed.   In  the High Court as well as in this  Court,  the legality of the proceedings of the meeting and the  validity of  the  resolution was challenged by the appellant  on  the grounds, (i) that the requisite three days notice under  the Act was not served on all the members and so the meeting was not  validly  held, (ii) that the meeting was  not  properly held as the appellant was not allowed to preside and thus s. 24(1)  (a)  of the Act was contravened and  (iii)  that  the requisition  for moving the resolution ,did not comply  with the  proviso to s. 23(a) of the Act as fifteen  days  notice was not given of the intention to move the resolution.   The last  two contentions were rejected by the High  Court.   On the main contention it held that as the notices were sent to the councillors on the 10th October 1963, they must be  held to  have  been  given on that date  even  though  they  were actually served on the llth, 12th and 13th; but, apart  from that it was of opinion that the provisions about three days, notice  was  only  directory and not mandatory  and  so  the omission to give notice would not affect the validity of the resolution. Held:     (i)  The High Court was wrong holding that  "send- ing"  a notice amounts to "giving" the notice.  There is  no authority  or principle for the proposition that as soon  as the  person in the 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.  Therefore, it must be  held that the notice given to some of the councillors was of less than three clear days. (ii) The  provision as regards any motion or proposition  of



which  notice must be given in s. 27(3) of the Act  is  only directory  and not mandatory.  Therefore the fact that  some of  the  councillors  received less than  three  clear  days notice of the meeting did not by itself made 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.  In the present case, nineteen of the, twenty councillors attended the meet- ing and of these 19, 15 voted in favour of the resolution of no  confidence  against  the appellant.  There  is  thus  no reason for holding that the proceedings of the meeting  were prejudicially  affected by the "irregularity in the  service of notice". State  of  U.P. v. Manbodhan Lai Srivastava,  [1958]  S.C.R. 533, referred to. (iii)     On a consideration of the material on the  record, it  must  be held that it was after the appellant  left  the meeting   that  the  Vice  President  took  the  chair   and thereafter  the  no  confidence  resolution  was  moved  and passed.  There could therefore 619 be no question of any contravention of the requirement under s.24(1) (a) of the Act that the President shall preside. (iv) The proviso to s.23(9) of the Act was not  contravened. All  that  is  required is that  before  the  resolution  is actually  moved, the President has got fifteen days  notice. In the present case, the meeting was held on October 14  and the  appellant  received the notice on the  25th  September. There was thus more than 15 days notice given to him.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 223 of  1964. Appeal  by special leave from the Judgment and  order  dated December  6, 1963 of the Mysore High Court in Writ  Petition No. 2273 of 1963. S.K.  Venkataranga  Iyengar and R. Gopalakrishnan,  for  the appellant. N.S. Krishna Rao and Girish Chandra, for respondents No.  1, 2, 4-10, 12-15. April 1, 1964.  The Judgment of the Court was delivered by DAS GUPTA, J.-Is the requirement of three clear days’ notice for the holding of a special general meeting as embodied  in s.  27(3)  of  the Mysore Town Municipalities  Act  1951,  a mandatory provision?  That is the main question which arises for decision in this appeal. The  appellant was elected as the President of  Holenarsipur Municipality  on September 11, 1962.  At a  special  general meeting of the Municipal Council held on October 14, 1963, a resolution was passed in the following terms:- "This  Council has no confidence in the Municipal  President of Holenarsipur Municipality." On  November 2, 1963 Mr. Narasimhiah, the President  of  the Council  applied to the High Court of Mysore under Art.  226 of the Constitution praying for the issue of an  appropriate writ quashing the proceedings of the meeting which culminat- ed in the resolution of no confidence against him.   Prayer; were made also for some consequential reliefs. Holenarsipur Municipality has twenty Councillors.   Thirteen out of the them sent a request to the President to convene a special  general meeting to discuss a resolution  expressing no confidence in him as President.  This request was  handed over to the President on 25th September 1963.  As however he did  not take any steps for convening the meeting  the  Vice



President  acted in the matter-calling a meeting to  discuss the resoulation to express no confidence in the President. A notice under the Vice-President’s signature stating that  it was proposed to hold a special general body meeting 620 of  the Municipality on the 14th October 1963 at 10 A.M.  in the office premises and asking the members to be present  in time was served on the Councillors.  One copy of the  notice was  also posted up at the Municipal Office as  required  by 27(3)  of the Mysore Town Municipalities Act, 1951  (herein- after  referred to as "the Act").  The notice bore the  date 10th October 1963.  On fifteen of the twenty Councillors the notice  was personally served on that very date,  i.e.,  the 10th  October.   On  three of  the  Councillors,  viz.,  the President  Narasimhiah,  Mr. Dasappa and  Mr.  Sanniah,  the notice  was  served on the 13th October.  It was  served  on Councillor Mirza Mohammad Hussain on the 12th October and on the Councillor R. G. Vaidyanatha on the 11th October 1963. When  the meeting was held on October 14, 1963, nineteen  of the  twenty  Councillors were present.  The  President,  Mr. Narasimhiah was among them.  He claimed to preside over  the meeting.   But,  ultimately,  he appears to  have  left  the meeting.  The meeting was then held under the  presidentship of  the Vice President Mr. Singri Gowda.  The  no-confidence motion against the President was moved and was passed,  fif- teen members having voted for it. In  challenging  the  legality of the  proceedings  of  this meeting  of 14th October and the validity of the  resolution of  no confidence passed there, the petitioner  urged  three principal  grounds.  The first is that the  requisite  three days’  notice was not served on all the members and  so  the meeting  was not validly held.  The second ground urged  was that  the meeting cannot be said to be properly held  as  he was not allowed to preside and the Vice-President  presided. and thus s.24(1)(a) of the Act was contravened.  Thirdly, it was urged that the requisition for moving the resolution  of no confidence did not comply with the proviso to s.23(9)  of the Act as 15 days’ notice was not given of the intention to move the resolution. The High Court held that on the materials before it, it  was not  possible  to pronounce as to  the  circumstances  under which  the Vice-President presided at the meeting.  So,  the High  Court  rejected  the contention  that  there  was  any contravention  of s.24(1)(a) of the Act.  The case  made  in the petition that 15 days’ notice had not been given of  the intention  to  move the resolution does not appear  to  have been  pressed at the hearing; as there is no mention in  the judgment  of any such argument.  On the  question  regarding the  failure. to serve three days’ notice of the meeting  on all  the  Councillors,  the  High  Court  followed  its  own decision  in  another  Writ Petition No. 2280  of  1963  and rejected the petitioner’s contention.  The judgment in  Writ Petition No. 2280 of 1963 which was produced before us shows that the High Court took the view that 621 as  the notices were sent on the 10th October they  must  he held  to have been given on that date even though they  were ,actually served on the 11th, 12th and 13th; but, apart from that the High Court was of opinion that the provision about’ three days’ notice was only directory and not mandatory  and so the omission to give notice would not affect the validity of the resolution. All  the  three grounds raised in the  petition  were  urged before  us  in  support  of  the  appeal.   As  regards  the petitioner’s  contention  that the meeting was not  held  in



accordance with law as he was not allowed to preside, we are of opinion, on a consideration of what material there is  on the  record, that it was after he left the meeting that  the Vice  President  took  the  chair  and  thereafter  the   no confidence  resolution  was  moved and  passed.   There  can therefore  be  no  question  of  any  contravention  of  the requirement that the President shall preside. There  is. our opinion, no substance also in the  contention that  the proviso to s.23(9) was contravened.   The  proviso runs thus: -               "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." Admittedly, the notice was signed by more than one-third  of the whole number of Councillors.  It is said, however,  that fifteen days’ notice of the intention to move the resolution was not given.  This argument which Mr. lyengar addressed to us, but which does not appear to have been urged before  the High  Court-proceeds  on the assumption that  fifteen  days’ notice  of  the intention to move the resolution has  to  be given  not  only  to the President but  also  to  the  other Councillors.   We  do  not think  that  that  assumption  is justified.  In our opinion, what is required is that fifteen days’ notice of the intention to move the resolution has  to be  given  to the President.  In other words,  all  that  is required is that before the resolution is actually moved the President  has  got fifteen days’ notice.   In  the  present case,  the meeting was held on October 14 and the  President received  the notice on the 25th September.  There was  thus more than 15 days’ notice given to him. This  brings  us  to the main contention  that  three  days’ notice  of the special general meeting was not given and  so the meeting is invalid.  We find it difficult to agree  with the High Court that "sending" the notice amounts to "giving" the notice. 622 "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.  In the eye  of  law however giving is complete in many matters where it has been offered to a person but not accepted by him.  Tendering of a notice  is in law therefore giving of a notice  even  though the person to whom it is tendered refuses to accept it..  We can find however no authority or principle for the  proposi- tion  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. We are therefore of opinion that the High Court was wrong in thinking, that the notices were given to all the Councillors on  the 10th October.  In our opinion, the notice given  to, five of the Councillors was of less than three clear days. The question then is: Is the provision of three clear  days’ notice mandatory, ie., does the failure to give such  notice make the proceedings of the meeting and the resolution  pas- sed  there  invalid?   The use of the word  "shall"  is  not conclusive  on  the question.  As in all  other  matters  of statutory construction the decision of this question depends on the ascertainment of the legislature’s intention.  Was it the legislature’s intention in making the provision that the failure  to  comply with it shall have  the  consequence  of making what is done invalid in law?  That is the question to be  answered.  To ascertain the intention the Court  has  to



examine carefully the object of the statute, the consequence that may follow from insisting on a strict observance of the particular provision and above all the general scheme of the other provisions of which it forms a part.  In the State  of U.P.  v.  Manbodhan Lal Srivastava (1)  where  the  question arose  whether  the  provisions of  Art.  320(3)(c)  of  the Constitution  are mandatory (which provides that  the  Union Public  Service  Commission  or  the  State  Public  Service Commission  shall  be  consulted  on  certain   disciplinary matters),  this  Court  laid stress on  the  fact  that  the proviso  to the Article contemplates that the  President  or the Governor as the case may be make regulations  specifying the matters in which either in general or in any  particular class  or in any particular circumstances, it shall  not  be necessary for the Public Service Commission to be consulted. Speaking for the Court Sinha J. observed: -               "If  the  provisions  of Art. 320  were  of  a               mandatory  character, the  Constitution  would               not have left it to the discretion of the Head               of  the  Excutive  Government  to  undo  those               provisions   by  making  regulations  to   the               contrary." (1) [1958] S.C.R. 533 623 This  appears to have been the main reason for  the  court’s decision  that the provisions of Article 320 (3)(c) are  not mandatory.   Naturally, strong reliance has been  placed  on this  decision on behalf of the respondents.  It is  pointed out  that while providing that three clear days’  notice  of special  general meeting shall be given to the  Councillors, the  legislature said in the same breath that "in  cases  of great   urgency,  notice  of  such  shorter  period  as   is reasonable  should be given to the Councillors of a  special general meeting." The decision of what should be  considered to  be a case of "great urgency" was left ,entirely  to  the President  or  the Vice-President on whom the duty  to  call such  a meeting is given under s.27(2). It is urged  by  the learned Counsel that if the intention of the legislature had been  to make the service of three clear days’  notice  man- datory  it  would  not have left the  discretion  of  giving notice for a shorter period for some of the special  general meetings in this manner.  We see considerable force in  this argument.  The very fact that while three clear days’ notice is  not to be given of all special general meetings and  for some such meetings notice only of such shorter period as  is reasonable has to be given justifies the conclusion that the "three  clear days". mentioned in the section was  given  by the  legislature  as only a measure of  what  it  considered reasonable. It  is  necessary also to remember that the main  object  of giving the notice is to make it possible for the Councillors to  so arrange their other business as to be able to  attend the  meeting.   For an ordinary general meeting  the  notice provided  is of seven clear days.  That is expected to  give enough  time for the purpose.  But a lesser period-of  three clear  days’--is considered sufficient for "special  general meetings"  generally.   The obvious reason for  providing  a shorter   period  for  such  meetings  is  that  these   are considered  more  important  meetings  and  Councillors  are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves.  Where  the special  general  meeting is to dispose of  some  matter  of great  urgency it is considered that a period ,of even  less than three clear days’ notice would be sufficient. A  consideration of the object of these provisions  and  the



manner  in  which  the  object  is  sought  to  be  achieved indicates  that  while  the  legislature  did  intend   that ordinarily the notice as mentioned should be given it  could not  have intended that the fact that the notice is of  less than  the  period  mentioned in the  section  and  thus  the Councillors  had  less time than  is  ordinarily  considered reasonable  to  arrange  his other business to  be  free  to attend the meeting, should have the serious result of making the proceedings of the meeting invalid. 624 It is important to notice in this connection one of the pro- visions in s.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 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 s.36 the legislature  was not thinking only of irregularity of the mode of service but also  of the omission to give notice of the full  period  as required. It  is  interesting to notice in this  connection  that  the English  law  as regards meetings of  borough  councils  and county  councils contain a specific provision that  want  of service  of  a  summons  to attend  the  meeting  (which  is required  to be served on every member of the council)  will not affect the validity of the meeting.  It may be  presumed that   the  legislature  which  enacted  the   Mysore   Town Municipalities Act,. 1951, was aware of these provisions  in English  law.  It has not gone to the length of saying  that the  failure to serve the notice will not make  the  meeting invalid.   It has instead said that any irregularity in  the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected  by such irregularity.  The logic of making such  a provision  in  respect  of irregularity in  the  service  of notice becomes strong if the fact that the notice given  was short of the required period is considered an irregularity, The existence of this provision in s.36 is a further  reason for  thinking  that the provision as regards any  motion  or proposition of which notice must be given in s-27(3) is only directory and not mandatory. We  are therefore of 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  no-confidence against the appellant.  There is 625 thus absolutely no reason for thinking that the  proceedings of   the   meeting  were  prejudicially  affected   by   the "irregularity in the service of notice." We have therefore come to the conclusion that the failure to give three clear days’ notice to some of the Councillors did



not affect the validity of the meeting or the resolution  of no confidence passed there against the appellant. In the result, we dismiss the appeal with costs.                        Appeal dismissed. 626