Balasubramanyan vs State Of Kerala on 15 November, 2005

JUDGMENT

K.M. Joseph, J.

1. The principal question which arises in both these writ petitions is whether the oath taken by the third respondent in W.P.(C) No. 28913/05 who is none other than the first petitioner in W.P.(C) No. 30262/05 as Deputy Chairperson, before a person other than the Chairperson is valid in law. The Office of the Chairperson of the Municipality is reserved for members of Schedule Caste Community. Hence both the writ petitions are disposed of by a common Judgment.

W.P.(C) No. 28913/05P

The writ petitioner is a voter in a Ward of Palakkad Municipality. He is also a Member of the Communist Party of India (Marxist). He would allege that he is a responsible office bearer of the Democratic Youth Federation of India. In the recently concluded election to the Municipalities, 50 Councilors were elected to the Palakkad Municipal Council, of whom 17 belong to the Left Democratic Front and 17 to the Bharatheeya Janatha Party, while 16 were elected under the United Democratic Front. It is not in dispute that all the Councillors took oath of office on 2.10.2005. The election of Chairperson and Deputy Chairperson was to be held on 6.10.2005. It is the petitioner’s case that all the Councillors attended the council meeting convened for the purpose. However, no nominations were forthcoming in respect of the Chairperson. It is further stated that the Returning Officer discontinued the meeting for lunch break and thereafter, the meeting was continued after lunch break, to elect the Deputy Chairperson on the very same day as scheduled earlier. In the election thus held, the third respondent was declared elected. It is stated that 17 Councillors belonging to the BJP voted in favour of the third respondent. 16 Members belonging to the UDF abstained. 17 Councillors voted in favour of one Shri A.K. Chandrankutty. However, the votes cast by two Councillors owing allegiance to LDF were declared invalid. It is stated that the first respondent, namely the Returning Officer thereafter hastily administered oath of office to the third respondent. The case of the petitioner is that rule 4(2) of the Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules, 1995 was violated in the matter of election of the third, respondent. It is his further case that Section 143 (2) of the Kerala Municipality Act mandates that the Deputy Chairperson shall make and subscribe such oath or affirmation before the Chairperson, after the Chairperson has been elected. However, the oath was administered by not the Chairperson, but by the Returning Officer. It is pointed out that this is violative of the law as declared by this Court in Haridasan Palayil v. The Speaker, Kerala Legislative Assembly (2003 (3) KLT 119). Ext.P3 is a notice issued by the third respondent purporting to convene the meeting of the Council. Rule 4(1) and (2) of the Kerala Municipality (Election of Chairperson and Deputy Chairperson) Rules, 1995 reads as follows:

“4. The procedure for conducting election meeting:–

(1) The Returning Officer shall hold the election of the Chairperson or the Deputy Chairperson or both at a meeting of the elected Councillors of the Municipality specially convened for the purpose in the Municipal Office concerned.

(2) If the election of the Chairperson and the Deputy Chairperson are held in the same meeting, then the procedure for election of the Deputy Chairperson shall start only after the election of the Chairperson and declaration of the result thereof are completed.”

Section 143(2) of the Kerala Municipality Act is extracted hereunder:

“143. Oath or affirmation–

(2) The Chairperson and the Deputy Chairperson shall also, before entering upon their Offices, make and subscribe an oath or affirmation in the form set out in the said Schedule. The Chairperson shall make and subscribe such oath or affirmation before the Officer authorised by the Government in this behalf, and the Deputy Chairperson shall make and subscribe such oath or affirmation before the Chairperson after the Chairperson has been elected.”

On this reasoning, a writ of quo warranto is sought against the third respondent. The further prayer is to declare that the election to the post of Deputy Chairperson of the Palakkad Municipality and the administration as far as taking oath of office of the third respondent is illegal. A writ of prohibition restraining the third respondent from functioning as the Deputy Chairperson of the Palakkad Municipality is also sought.

2. A Counter Affidavit has been filed on behalf of the third respondent. It is, inter alia, contended that the Writ Petition is not maintainable on the ground that the petitioner has no locus standi to file this Writ Petition. It is pointed out that the petitioner not being an elected Member of the Council of the Municipality, has no locus standi. It is only a Councillor who can challenge the election of the Deputy Chairperson by filing a petition before the District Court, it is contended. The provision in the Kerala Municipality Act cannot be bypassed, it is averred. It is pointed out that the Councillors are not impleaded and they are necessary parties. More importantly, it is contended that the averment in the writ petition that the election of the Chairperson and Deputy Chairperson was held in the same meeting, is incorrect. Ext.R3(a) notice is produced to substantiate this denial. It is pointed out that two separate agendas were circulated for election to the post of Chairperson and Deputy Chairperson. Ext.R3(b) is a Fax Message from the State Election Commission. The Commission wrote that if the Chairperson is not elected, the authorised Officer (Returning Officer) can administer oath to the Vice Chairman. The question relating to the validity of the votes can never be subject matter of the writ petition. It is pointed out that OP No. 170/05 filed by the Councillors whose votes were declared invalid in the election, is pending consideration before the District Court.

3. A Statement has been filed on behalf of the Returning Officer and the State Election Commission. It is firstly contended that the Writ Petition is not maintainable. Reliance is also placed on the decision of the Apex Court in Jaspal Singh Arora v. State of Madhya Pradesh and Ors.((1998) 9 SCC 594) in this regard. It is also pointed out that the writ petition is bad for non-joinder of necessary parties, namely the Councillors of the Municipality. A quo warranto, it is stated, will not lie as the Statute provides for an alternate remedy. No prohibition also would lie against the third respondent as he is not a Court or Tribunal nor is he a quasi-judicial authority. It is pointed out that the meeting for election of the Chairperson was scheduled to be convened on 6.10.2005 at 10 a.m., and that of the Deputy Chairperson was scheduled to be held at 3 p.m. on 6.10.2005. The meeting scheduled to elect the Chairperson was adjourned, as no nominations were forthcoming to the said post. As scheduled earlier, it is stated, the meeting to elect the Deputy Chairperson was conducted. It is contended that under Section 143(2) of the Kerala Municipality Act, the Deputy Chairperson has to make or subscribe the oath before the Chairperson and it is not as if the oath has to be administered to the Deputy Chairperson. Section 143 (2), it is contended, provides only a ministerial act to be done by the Chairperson while oath is made and subscribed to or affirmation is made by the Deputy Chairperson. It is pointed out that Section 143(2) is a provision which is directory in nature, and not mandatory.

W.P.(C) No. 30262/05C

4. The writ petitioners are elected Councillors of the Palakkad Municipality. The first petitioner is the third respondent in W.P.(C) No. 28913/05 and is stated to be the Deputy Chairperson elected by the Councillors. They challenge Ext.P1. Ext.Pl is a communication issued on behalf of the Secretary to the Local Self Government by which the petition filed by the 6th respondent is disposed of. The 6th respondent in his petition had stated that till now, there is no elected Chairperson and the actions of the first petitioner in calling a meeting of the Council etc. are illegal and may be stopped. On the basis of the same, it is stated that under Section 143(2) of the Kerala Municipality Act (hereinafter referred to as ‘the Act’), the Deputy Chairperson has to take oath before the Chairperson. A person who has not taken the oath before the Chairperson and enters office as such, cannot in law exercise the powers of the Chairperson when the Office of the Chairperson is vacant or in his absence. It is further stated that the oath taken by the Deputy Chairperson otherwise than as stated above, is illegal and the meeting of the Council convened on 14.10.2005 cannot be treated as legal. The Secretary to the Municipality was directed to take steps and further action in the matter. Ext.Pl is challenged as illegal, arbitrary and ultravires the provisions of the Act. There is reference to W.P.(C) No. 28913/05 in which the validity of the election of the first petitioner as Deputy Chairperson is pending consideration before this Court. There is reference to other Writ Petitions also. It is stated that the impugned order was issued in undue haste. Learned counsel for the petitioners submits that prayers (c) to (e) are not pressed in this writ petition. It is contended by the petitioners that Ext.Pl is absolutely unauthorised in law and that there is violation of the principles of natural justice. It is highly improper when the very same question was being considered by this Court.

5. As far as the contention in W.P.(C) No. 28913/05 that the election of the Deputy Chairperson should not have been held on 6.10.2005, as Rule 4(1) and (4) of the Rules would thereby suffer a violation, I am of the view that the contention is meritless. Sections 4(1) and (2) together would indicate that if the election of the Chairperson and Deputy Chairperson are held in the same meeting, then the procedure for election of the Deputy Chairperson can start only after the election of the Chairperson and declaration of the result thereof are completed. It is not in dispute that the election was held pursuant to Ext.R3(a). Ext.R3(a) would show that the Returning Officer had issued the same on 2.10.2005 as per which the election to the post of Chairperson was to be held on 6.10.2005 at 10 a.m., and the election of the Deputy Chairperson was to be held at 3 p.m. on the same day. Therefore, the averment in the writ petition that the election was to be held on 6.10.2005 as regards the posts of Chairperson and Deputy Chairperson is not fully correct. Though the election was scheduled to be held on the same day, the first election was to be held and a meeting of the Councillors was to take place at 10 a.m., while the election to the post of Deputy Chairperson was to take place at 3 p.m. on the same day. The averment in the writ petition that there was a meeting does not appear to present the correct state of affairs and this Court takes the view that there were two meetings, namely one scheduled at 10 a.m. on 6.10.2005 and another at 3 p.m. also on 6.10.2005 to elect the Chairperson and Deputy Chairperson respectively. The meeting at 10 a.m. on 6.10.2005 did not lead to the election of the Chairperson admittedly for the reason that nominations were not forthcoming from the parties, which had candidates from the reserved community. It is not as if nominations were available and the meeting was adjourned. Therefore, the prohibition contained in Rule 4(2) referred to hereinbefore that the procedure for election of Deputy Chairperson shall start only after the election of the Chairperson and declaration of the result are completed, will not apply as the election of the Chairperson and the Deputy Chairperson was not held in the same meeting. Therefore, I see no merit in this contention.

6. The second contention is that Section 143 (2) is violated. It is no doubt true that the said provision mandates that the Deputy Chairperson shall make and subscribe the oath or affirmation mentioned in the IIIrd Schedule before the Chairperson after the Chairperson has been elected. There is no case for the petitioner that the oath which the third respondent took before the first respondent, Returning Officer, did not conform to the oath as contained in the IIIrd Schedule. In other words, there is no case for the petitioner that the third respondent took an oath which was not the oath prescribed in the IIIrd Schedule. The only case is that the law mandates that the Deputy Chairperson should take the oath before the Chairperson after the Chairperson has been elected and that stands violated. The learned Counsel for the petitioner in W.P.(C) No. 28913/05, Shri T.A. Shaji would contend that the wording of the aforesaid provision would make it clear that the third respondent was bound to take the oath before the Chairperson and none-else. Learned counsel for the petitioner relied on the decision of this Court in Haridasan Palayil v. The Speaker, Kerala Legislative Assembly (2003 (3) KLT 119) wherein the question which arose for consideration was whether a Member of the State Legislature who took the oath in the name of Sree Narayana Guru in the faith that he was taking the oath thereby in the name of God could be said to have taken the oath in conformity with law. The Court proceeded to hold as follows:

“In respect of the State Legislature, a similar provision has been made in Article 188. The provision requires a member of the Legislature to make and subscribe to an oath or make an affirmation before taking his seat in the Assembly. This oath has to be taken according to the form given in the Third Schedule. The said Schedule provides the following form in case of a Member of the State Legislature. Another fact, which deserves mention, is that Article 188 falls in Part VI Chap.III of the Constitution. It is a part of the scheme governing the State Legislatures. Under Article 193, it has been inter alia, provided that a person who “sits or votes as a Member of the Legislative Assembly of a State before he has complied with the requirements of Article 188 shall be liable in respect of each day on which he so sits or votes to a penalty of Rs. 500 to be recovered as a debt due to the State.” Thus, failure to comply with the requirements of Article 188 carries a recurring penalty. Article 194 deals with the privileges and immunities of the State Legislature. Under Article 212, the validity of any proceedings in the Legislature cannot be questioned on the ground of an irregularity in the procedure. Article 188 of the Constitution makes it incumbent upon a Member of the Legislative Assembly to subscribe to the oath or affirmation before taking his seat in the Legislature. As already noticed, the Constitution makers have even prescribed the form. The language is plain. It lays down the choice. Either swear in the name of God or make an affirmation. Nothing more. The words allow no variation. In fact, the violation of the provision results in liability to pay penalty at the rate of Rs. 500/:per day. The text and the context of the provision clearly show that the requirement is mandatory. It has to be followed. By all and every one. Without any exception. The form cannot be departed from.”

7. Shri T.A. Shaji, learned Counsel would contend that the said dictum is squarely applicable to the facts of this case and he would contend that when the Statutes ordain that a thing should be done in a particular manner, it could be done only as enjoined in the Statute and not in any other fashion. In this regard, he relied on the following decisions:

Nazir Ahmad v. King Emperor (AIR 1936 PC 253) and A.R. Antulay v. Ramdas Sriniwas Nayak and Anr. (1984) 2 SCC 500).

8. He would further draw support from the decisions of the Apex Court in Sheikh Abdul Rehman v. Jagat Ram Aryan (AIR 1969 SC 1111) and Harjit Singh Mann v. S. Umrao Singh and Ors.(AIR 1980 SC 701), to contend that the failure to take the oath as prescribed in Section 143 (2) has fatal consequences. In Sheikh Abdul Rehman’s case (AIR 1969 SC 1111), the respondent was declared elected. The appellant was a voter. He challenged the election on the ground that the nomination papers of one Narayan Das Nikkararn and Bhagatram were improperly rejected. It was common case that the said two candidates had filed oath forms signed by them. The appellant contended that at the time of the presentation of their nomination papers, they made oath and signed oath forms in the presence of the Assistant Returning Officer. The Court proceeded to hold that the materials on record corroborated the testimony of the Assistant Returning Officer that they did not sign the oath forms in his presence and did not make the oath or affirmation before him. The court further referred to the decision of the Apex Court in Pashupati Nath Singh v. Harihar Prasad Singh (AIR 1968 SC 1064) wherein the Court held that the nomination paper was liable to be rejected, if the qualification required under Article 173(a) did not exist on the date of scrutiny of the nominations. Court found that the candidates in question neither made, nor subscribed the oath or affirmation before the Assistant Returning Officer as required under Section 51 (a), after noting that signed forms along with nomination papers were filed before the Assistant Returning Officer on January 23rd 1967 before the date fixed for scrutiny. In Harjit Singh Mann’s case (AIR 1980 SC 701), the Court held as follows:

“11. It is not in controversy that it was obligatory under Clause (a) of Article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the 3rd Schedule and that he could not be qualified to be chosen to fill a seat in the Legislature of a State without doing so. The importance of that requirement of the Constitution has been reiterated in Sub-section (2) of Section 36 of the Act for ground No. (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nominations the candidate was, inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under Article 173 of the Constitution. The requirement for the making and subscribing the oath or affirmation was therefore clearly mandatory.”

Learned counsel Shri Shaji also relied on the decision in Shaiju v. State Election Commission (2003 (1) KLT 658). Therein the court dealt with the question as to whether the election of the respondents was vitiated for the fact that they had not subscribed to the oath in the prescribed form at the time of filing the nomination papers. The words “Uphold the sovereignty and integrity of India” were missing in the oath taken by the respondents. Overruling the contention based on an election petition being available as an alternate remedy, this Court proceeded to hold that the requirement that the candidate should subscribe to the oath in the prescribed form was mandatory and a person who does not subscribe to the oath or affirmation is not qualified to hold office and the respondents were directed to vacate their offices. Shri Shaji also relied on the decision of the Apex Court in Vinoy Kumar v. State of U.P. and Ors. (2001) 4 SCC 734). Therein, the Court held as follows:

“Generally speaking, a person shall have no locus standi to file a writ petition if he is not personally affected by the impugned order or his fundamental rights have neither been directly or substantially invaded nor is there any imminent danger of such rights being invaded or his acquired interests having been violated ignoring the applicable rules. The relief under Article 226 of the Constitution is based on the existence of a right in favour of the person invoking the jurisdiction. The exception to the general rule is only in cases where the writ applied for is a writ of habeas corpus or quo warranto or filed in public interest….”

He would submit that the Chairperson is a fulcrum whose presence is indispensable for the carrying out of the affairs of a Municipality.

8. Learned counsel for the third respondent relied on the following decisions of the Supreme Court in Virji Ram Sutaria v. Nathalal Premji Bhanvadia and Ors. (AIR 1970 SC 765), K.M. Sharma v. Devilal and Ors. ((1990) 1 SCC 438), and Mohan Singh and Ors. v. International Airport Authority of India and Ors.(( 1997)9 SCC 132). Shri Murali Purushothaman, learned standing counsel for the Election Commission relied on the decisions in P.N. Vallarasu v. M.G. Ramachandran and Ors.(1983 ELR 378), C.K. Ramaswamy v. G. Vasantha Pai and Ors.(lLR 1979 Madras 180), Bhairulal Chunilal v. State of Bombay (AIR 1954 Bombay 116) and Virji Ram Sutaria v. Nathalal Premji Bhanvadia and Ors. (AIR 1970 SC 765).

10. In Virji Ram Sutaria’s case (AIR 1970 SC 765), the Apex Court was dealing with a case where an election of a candidate who was returned to the Gujarat State Legislative Assembly was challenged, and the question was whether his election should be declared invalid as he did not subscribe to an oath according to the form in the 3rd Schedule to the Constitution as required under Article 173 of the Constitution. There were two forms – the 1st, the English form followed word for word Form No. VII as set out in the Third Schedule to the Constitution. The Gujarati form purported to set out the Gujarati translation of the form of oath or affirmation. In the Gujarati form, the words “Legislative Assembly” was translated as “Rajya Sabha”. The returned candidate had given evidence to the effect that he had taken the oath not according to the words in the Gujarati form, but according to the translation of the words in the English form rendered by the Returning Officer. The court, however, proceeded on the basis that the returned candidate took the oath according to the words of the Gujarati form. It was contended that “Rajya Sabha” means Legislative Council and not Legislative Assembly and, therefore, the oath taken by the candidate returned to the Assembly did not fulfil the requirements of Article 173(a) of the Constitution. The High Court held that there was substantial compliance with the requirements of Article 173(a). The Apex Court agreed with the said view. It is profitable to extract the Judgment of the Apex Court as contained in paragraphs 8 to 12 in the decision in Virji Ram Sutaria’s case (AIR 1970 SC 765):

“8. The real question is, whether the deviation, if any, from the form of oath in English as contained in the Third Schedule is so vital as to lead to the conclusion that no proper oath was taken by the returned candidate. There have been many instances where this Court has held that a substantial compliance with the statute or with the rules framed thereunder is enough even if there be no literal compliance and in our view, there is no reason to adopt a different line of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real purpose of the provision whether statutory or constitutional to find put whether notwithstanding the apparently mandatory form of the words used any deviation therefrom was to be struck down.

9. One of the questions which came up for consideration in Kamaraja Nadar v. Kunju Thevar, 1959 SCR 583:(AIR 1958 SC 687) was whether the election petition ought to have been rejected merely because the deposit provided for under Section 117 of the Representation of the People Act was made in favour of the Election Commission and not in favour of the Secretary to the Election Commission as provided for in the said section. Turning down the argument advanced for rejecting the election petition it was observed:

“What is of the essence of the provision contained in Section 117 is that the petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government Treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law….”

In Murarka Radhey Shyam v. Roop Singh (1964) 3 SCR 573 : (AIR 1964 SC 1545) one of the points urged against the petitioner was that there was non-compliance with the provisions of Section 81 (3) of the Representation of the People Act because the copy of the election petition served on the appellant was not a true copy of the original filed before the Election Commission. Rejecting the said contention it was said:

“…the word “copy” in Sub-section (3) of Section 81 does not mean an absolutely extract copy, but means that the copy shall be so true that nobody can by any possibility misunderstand it.”

To the similar effect is the judgment in Ch. Subbarao v. Member, Election Tribunal, Hyderabad(1964) 6 SCR 213 : (AIR 1957 SC 1027).

10. In State of U.P. v. Manbodhan Lal Srivastava, 1958 SCR 533:(AIR 1957 SC 912) one of the contentions urged on behalf of the respondent who was reduced in rank after departmental enquiry, was that the order of the Government was invalid for non-compliance with the provisions of Article 320 (3) (c) of the Constitution which read literally made it obligatory for the Government of India or a Government of a State to consult the Union Public Service Commission or the State Public Service Commission on all disciplinary matters affecting a person in service of the State. In turning down the above, it was observed by this Court:

“…the use of the word “shall” in statute, though generally taken in a mandatory sense, does not necessarily mean that in every case it shall have that effect, that is to say, that unless the words of the statute are punctiliously followed, the proceeding, or the outcome of the proceeding, would be invalid.”

In State of Punjab v. Sat Pal Dang and State of Punjab v. Dr. Baldev Perkash, Civil Appeals Nos. 1427 & 1428 of 1968, D/- 30.7.1968 : (reported in AIR 1969 SC 903) one of the points canvassed before this Court was, whether the certificate by the Deputy Speaker on a Money Bill was sufficient compliance with Article 199(4) of the Constitution which provides that:

“There shall be endorsed on every Money Bill when it is transmitted to the Legislative Council under Article 198, and when it is presented to the Governor for assent under Article 200, the certificate of the Speaker of the Legislative Assembly signed by him that it is a Money Bill.”

It was contended that the provisions of the above Clause were mandatory and only the Speaker of the Legislative Assembly could sign the Money Bill. It was pointed out by this Court that the Speaker was not present when the Bill s were passed and under Article 180(2) the Deputy Speaker could act as the Speaker when the latter was absent. This Court proceeded to examine the several tests to determine when the provisions of a statute might be treated as mandatory and when not, and emphasis was laid on one of the distinctions, namely, in cases where strict compliance was necessary to be a condition precedent to the validity of the act itself, the neglect to perform it as indicated was fatal.

11. The above cases are sufficient to show that non-compliance with the provisions of a statute or Constitution will not necessarily render a proceeding invalid if by considering its nature, its design and the consequences which follow from its non-observance one is not led to the conclusion that the Legislature or the constitution-makers intended that there should be no departure from the strict words used.

12. In this case, as we have already noted, the essential requirement of Article 173 read with Form VII-A was that the person taking the oath or making the affirmation would bear true faith and allegiance to the Constitution and uphold the sovereignty and integrity of India. The words which precede this portion are merely descriptive of the person and of his nomination as a candidate. It is reasonable to think that a mere misprint in the form of the oath or a mere inaccuracy in rendering the expression “Legislative Assembly” in Gujarati would not be fatal to the election of candidate, if otherwise valid.”

In the decision in KM. Sharma v. Deviled and Ors. ((1990) 1 SCC 438), Shri Devilal was appointed as Deputy Prime Minister of India. One of the contentions raised was that the oath administered to him as Deputy Prime Minister was not the oath in accordance with the prescription of the Constitution. The Court took note of the submission of the Attorney General that there is no separate form even for the Prime Minister. Yet, in view of the fact that the Constitution describes him as the Prime Minister, while being sworn into office, the prospective incumbent describes himself as Prime Minister and in fact this was the practice in vogue ever since 1950. The Attorney General also contended that the oath consists of a part which is descriptive and the other contains the substantial part and a mere mistake or error in the descriptive part would not violate the oath. The Apex Court proceeded to hold as follows:

“6. In view of the clear statement made by the learned Attorney General that respondent 1 is just a Minister like other members of the Council of Ministers though he has been described as Deputy Prime Minister but the description of him as Deputy Prime Minister does not confer on him any powers of the Prime Minister, along with his other submissions, we think the first contention raised by the petitioner has no force….”

In Motion Singh’s case ((1997) 9 SCC 132), the Apex Court while dealing with 8.17(1) of the Land Acquisition Act, 1894, held that though compliance with the three steps under Section 4(1) is mandatory, while exercising the power of eminent domain thereunder, when the appropriate Government uses its power to dispense with the enquiry under Section 5A, it is not mandatory to publish the Notification under 8.4(1) in the newspapers. The Court proceeded to hold as follows:

“… The word ‘shall’ is not always decisive. Regard must be had to the context, subject-matter and object of the statutory provision in question in determining whether the same is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular provision or. enactment Shall be considered mandatory or directory. It is the duty of the court to try to get at the real intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under consideration. As stated earlier, the question as to whether the statute is mandatory or directory, depends upon the intent of the legislature and not always upon the language in which the intent is couched. The meaning and intention of the legislature would govern design and purpose the Act seeks to achieve.

The word ‘shall’, though prima facie gives impression of being of mandatory character, it requires to be considered in the light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to keep in view the impact on the_ profession, necessity of its compliance: whether the statute, if it is avoided, provides for any contingency for non-compliance: If the word ‘shall’ is construed as having mandatory character. the mischief that would ensue by such construction: whether the public convenience would be subserved or public may ensue if it is held mandatory and all other relevant circumstances are required to be taken into consideration in construing whether the provision would be mandatory or director. If an object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of enactment, the same should be construed as directory but all the same, it would not mean that the language used would be ignored altogether. Effect must be given to all the provisions harmoniously to suppress public mischief and to promote public justice.”

11. Shri Murali Purushothaman, learned standing counsel for the Election Commission, placed considerable reliance on the decision of the Madras High Court in P.N. Vallarasu v. M.G. Ramachandran and Ors. (1983 ELR 378). Shri M.G. Ramachandran was declared elected as a member of the Tamil Nadu Legislative Assembly. One of the grounds taken by the petitioner in the Election Petition was that the oath taken by Shri M.G. Ramachandran did not conform to the requirements of Article 173(a) of the Constitution. Article 173 provides the taking of an oath as one among the qualifications for a candidate standing for election. The oath had to be subscribed before an authority notified by the Election Commission of India. Shri M.G. Ramachandran was confined to bed in Brooklyn Hospital in New York. Therefore, it was contended that it was paragraph 2(c) of the notification which would apply and the oath had to be taken before a medical practitioner and the oath taken by Shri M.G. Ramachandran before the Medical Officer sent by the Consulate General of India would not suffice. The learned Judge repelled the contention that the oath had not been taken as required under Article 173. The question for consideration was primarily whether in view of the fact that Shri M.G. Ramachandran was confined to a hospital, Clause(c) would apply or whether Clause(d) which provided for taking of the oath by a person who is abroad would apply. In paragraph 21 of the judgment, after referring to the decision of the Madras High Court in C.K. Ramaswamy v. G. Vasantha Pai and Ors.(ILR 1979 (1) Madras 180), it was held as follows by His Lordship Justice Section Mohan (as His Lordship then was):

“21. These cases clearly lend support to the argument of Mr. K.K. Venugopal that the taking of oath alone is essential. As was observed by the Supreme Court in V.R. Sutaria v. N.P. Bhanvadia (AIR 1970 SC 765). one will have to consider the real purpose. If the object of the oath is to put the matter on record, there seems to be every justification for Mr. K.K. Venugopal to contend that so long as owing of allegiance to the sovereignty and integrity of India is established by oath or affirmation, it would not matter very much with regard to the person before whom the oath is taken or the manner in which it is taken. However. I will not conclude the issue of this finding.”

The learned Judge proceeded also to hold that the oath was taken in conformity with the Notification. The case which arose before the Madras High Court which is reported in the decision in C.K. Ramaswamy. Secretary to Government, Legislative Council Department, Madras v. G. Vasantha Pai and Ors. (ILR 1979 (1) Madras 180), related to the validity of the oath taken by the returned candidate who filed the writ petition for a declaration that he had performed his obligation by presenting himself before the Governor to subscribe to the oath under Article 188 of the Constitution of India, and after informing the appellant to make the necessary arrangements for making the oath and subscription thereof before the Governor and having further on a later day subscribed in writing to the oath as prescribed in Schedule 3 of the Constitution and sent the same in duplicate to the Governor and offering to follow it up if necessary by making the oath in person, has performed all his obligations under Article 188 of the Constitution and, therefore, is entitled to take a seat in the Legislative Council. The writ petition having been allowed, the respondent appealed and therein, the Division Bench proceeded to pose the question as to whether the petitioner in the writ petition was to be deemed to have substantially complied with the provisions in Article 1-88 of the Constitution. The Court held as follows:

“…At this stage a distinction has to be made between cases where the Governor is to administer the oath and cases where the oath has to be taken by the person himself before the Governor. If the Governor is to administer the oath, then any other person administering the oath cannot be a compliance with the provision at all, but, where the party himself has to make and subscribe the oath before the Governor and it is found that it was not possible for the first respondent to go before the Governor for making and subscribing the oath in view of the stand taken by the appellant or the Government that the first respondent has to make and subscribe the oath only before the nominee and not before the Governor, strict compliance cannot be insisted. When every possible effort had been taken by the first respondent to ensure his presence before the Governor for making and subscribing the oath before him and when all those -attempts failed, he had sent the form duly subscribed to the Governor. If the distinction between administration of oath to a person by the Governor and the oath being taken by the party himself before the Governor is borne in mind, the physical presence of the party before the Governor can be said to be merely directory. In these circumstances, the principle of substantial compliance can be invoked by the respondent…. In the peculiar facts and circumstances of the case. therefore, the writ petitioner should be taken to have substantially compiled with Article 188 of the Constitution so as to enable him to sit in the Council as its member.

It is to be noted that, that was a case which arose under Article 188 of the Constitution which mandated that every Member of a Legislative Assembly or the Legislative Council of the State “shall make and subscribe before the Governor or some person appointed in that behalf by him an oath or affirmation according to the form set out for the purpose in the Third Schedule.” It must at once be noted that therefore the aforesaid provision sanctions taking of the oath before the Governor or some person appointed by him in that behalf. It was found by the Court that there existed circumstances beyond the control of the respondent as a result of which he could not take the oath orally in the presence of the Governor and he had to subscribe the oath in the prescribed form and send it to the Governor. The court also found that it was the appellant who had made it impossible for making of the presence of the Governor himself, in view of the stand that the oath could be subscribed only before the Protem Chairman who was appointed by the Governor under Article 188 of the Constitution as the person before whom the oath or affirmation may be made by the duly elected Members. The respondent had his reservation against taking the oath before the Protem Chairman and it was in such circumstances that he wished to take the oath before the Governor himself. The court took the view that the Governor continued to possess the concurrent power under Article 188 and the respondent could invoke the principle of substantial compliance. In the letter enclosing the requisite form, he had offered to appear before the Governor to orally take the oath and the court held that in the peculiar circumstances the petitioner should be taken as substantially complied with Article 188 of the Constitution.

12. In State of Punjab v. Satya Pal Dang and Ors.(AIR 1969 SC 903), the Court held as follows:

“29. The short question here is whether the provisions of Article 199(4) must be read as imperative or merely directory. The distinction between a mandatory provision of law and that which is merely directory is this that in a mandatory provision there is an implied prohibition to do the act in any other manner while in a directory provision substantial compliance is considered sufficient.

30. There are several tests to determine when the provision may be treated as mandatory and when not and they have been culled from books and set down by Subba Rao, J. (as he then was) in State of Uttar Pradesh v. Babu Ram Upadhya, 1961 (2) SCR 679 (at p.710) : (AIR 1961 SC 751 at p. 765) and earlier by Venkatarama Iyer, J. in State of Bombay v. Rule M.D. Chamarbaugwala, 1957 SCR 874 at p.950 (sic). For our purpose it is necessary to emphasise only one distinction. In those cases where strict compliance is indicated to be a condition precedent to the validity of the act itself the neglect to perform it is indicated is fatal. But in cases where although a public duty is imposed and the manner of performance is also indicated in imperative language, the provision is usually regarded as merely directory when general injustice or inconvenience results to others and they have no control over those exercising the duty.

31. Judged from this test the provisions of Article 199(4) cannot be viewed as mandatory but only as directory. If the Constitution saw the necessity of providing a Deputy Speaker to act as the Speaker during the latter’s absence or to perform the Office of the Speaker when the office of the Speaker is vacant, it stands to reason that the Constitution could never have reposed a power of mere certification absolutely in the Speaker and the Speaker alone. The happenings in the Assembly lend support to this inference. It is reasonable to think that the Speaker in his then mood might have declined to certify and a second impasse would have ensued. A similar situation may arise not because of intransigence but because of illness or absence. The inconvenience to the State and the public at large is avoided by holding the provision to be directory and not imperative.

The learned standing counsel also relied on Construction of Statutes by CRAW FORD. The learned Author referred to the following dictum laid down in People v. Smith (368 III. 328, 14 N.E. (2) 820):

“In determining how far a statute is mandatory, the legislative intent must govern. We must consider the importance of the punctilious observance of the provision in question with reference to the object the legislature had in view. All laws are mandatory in the sense that they impose the duty of obedience on those who come within their purview, but it does not follow that every slight departure therefrom shall taint the whole proceeding with a fatal blemish. The omission of the signer of the petition (referendum) to write in the year and month when they were already in the petition, did not render the petition invalid.”

Maxwell on The Interpretation of Statutes, has stated as follows:

“On the other hand, where the prescriptions of a statute relate to the performance of a public duty, and where the invalidation of acts done in neglect of them would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty, yet not promote the essential aims of the legislature, such prescriptions seem to be generally understood as mere instructions for the guidance and government of those on whom the duty is imposed, or, in other words, as directory only. The neglect of them may be penal, indeed, but it does not affect the validity of the act done in disregard of them. It has often been held, for instance, when an Act ordered a thing to be done by a public body or public Officers and pointed out the specific time when it was to be done, that the Act was directory only and might be complied with after the prescribed time.”

In Khaji Khanavar Khadirkhan Hussain Khan and Ors. v. Siddavanballi Nijalingappa and Anr. (1969 (1) SCC 636) the court dealt with a situation where one of the contentions raised was that the declared candidate had not taken the oath in respect of the constituency from which he was actually elected, even though he had taken the oath before the competent authority in respect of one constituency. The Court held as follows:

“9. Mr. Sen’s case is that, even on this interpretation, respondent No. l had qualified to be a candidate, because, when he made the affirmation before the Returning Officer at Bagalkot, he was already a candidate nominated for election from that constituency. Similarly, when he made the affirmation before the Returning Officer at Hospet, he had already been nominated as a candidate for the Hoovinahadagali Constituency. The argument was that, once respondent No. 1 had made an affirmation, as required by Article 173(a) of the Constitution, before one of the persons authorised by the Election Commission, he had fully complied with the requirements of Article 173(a) and, thereupon, he became qualified to be a candidate for election to the Mysore Legislative Assembly. There was no requirement that that qualification-must be acquired separately in respect of each constituency from which respondent No. 1 was seeking election. We are of the view that this submission must be accepted. The purpose of Article 173(a) is to ensure that any person, who wants to be a member of a Legislature of a State, must bear true faith and allegiance to the Constitution of India as by law established and undertake to uphold the sovereignty and integrity of India, and, to ensure this, he must make an oath or affirmation. Once such an oath or affirmation is made before a competent authority in respect of one constituency. he becomes bound by that oath or affirmation even if he gets elected to the Legislature, from a different constituency, so that there is no necessity that he must make oath or affirmation repeatedly on his being nominated from more than one constituency. The language of Article 173(a) also makes this very clear, because all that it requires is one oath or affirmation in accordance with the form set out in the Third Schedule to the Constitution so as to remove the disqualification from being a candidate for election to the Legislature of the State. The article does not mention that the making of oath or affirmation is to be preliminary to the validity of candidature in each constituency, and recognises the fact that, once the necessary qualification is obtained, that qualification removes the bar laid down by that article. In these circumstances, this ground of disqualification for challenging the validity of the election of respondent No. 1 fails and must be rejected.”

In Jaspal Singh Arora v. State of M.P. and Ors.(l993) 9 SCC 594) on which the learned standing counsel for the Election Commission placed reliance, the Apex Court no doubt was dealing with a case of a petition under Article 226 filed against the election of the President of a Municipality in a Writ Petition by a defeated candidate. An earlier petition was dismissed on the ground of availability of statutory remedy of challenging the election. The subsequent writ petition was filed to the same effect which was allowed by the High Court. It was setting aside the Judgment of the High Court that the Apex Court observed as follows:

“3. These appeals must be allowed on a short ground. In view of the mode of challenging the election by an election petition being prescribed by the M.P. Municipalities Act, it is clear that the election could not be called in question except by an election petition as provided under that Act. The bar to interference by courts in electoral matters contained in Article 243-ZG of the Constitution was apparently overlooked by the High Court in allowing the wit petition. Apart from the bar under Article 243-ZG, on settled principles interference under Article 226 of the Constitution for the purpose of setting aside election to a municipality was not called for because of the statutory provision for election petition and also the fact that an earlier Writ Petition for the same purpose by a defeated candidate had been dismissed by the High Court.”

13. But, the question here is whether the petitioner has such a remedy and whether the petitioner has otherwise made out a case for issuance of a writ of quo warranto. An elected Councillor has a remedy by way of filing an election petition. Also this very question has been considered by this Court in the decisions referred to hereinbefore and stands answered in favour of the petitioner. In the decision in Shaiju v. State Election Commission (2003 (1) KLT 658), a Division Bench of this Court has held as follows:

“26. There is no quarrel with the proposition that an election has to be questioned in accordance with the prescribed procedure. When two candidates contest an election, the loser has to normally seek the remedy before the prescribed forum. For this purpose, he has to follow the procedure as laid down under the relevant law. The obvious purpose is to ensure that when an election petition is filed the parties prove their contentions by producing the relevant evidence. The Court or the prescribed authority proceeds in accordance with the prescribed procedure. The basic rationale in all these decisions is that the disputed questions of fact cannot normally be settled in proceedings under Article 226 of the Constitution. The counsel for the petitioner has not disputed the rationale of the view taken in the above cases. However, these decisions cannot be read as laying down an absolute bar on the High Court to examine a matter in the exercise of its jurisdiction under Article 226 of the Constitution. The power of the High Court under Article 226 is wide. The Court can examine any alleged violation of a statute. It can issue not only one of the prerogative writs as contemplated under the English jurisprudence, but also any direction or order that it may deem fit in the circumstances of a case. Still further, the High Court has the power of judicial review over the action of every authority in the State. The facts having not been disputed by the respondents, we find no ground to limit the power of this Court or to deny the remedy to the petitioner.”

Here, it is undisputed that the Deputy Chairperson did not take the oath before the elected Chairperson, but he took oath before somebody else. Thus. I hold that the Writ Petition as filed seeking a writ of quo warranto against the third respondent is maintainable.

14. Learned senior counsel, Shri M. Pathros Mathai, appearing for the petitioners in W.P.(C) No. 30262/05, reiterated the contentions of Shri P. Gopinatha Menon. He would further add that this is a case where a person has been elected by the Councillors and he was put in a situation where if the provision as to the person before whom the oath is to be taken is construed as a mandatory provision, he would be called upon to perform an impossible task. Impossibility relieved him from the performance of the act enjoined in Section 143 (2). Shri M. Pathros Mathai relied on the maximum “Lex Non Cogit Ad Impossiblia” and referred to Broom’s Legal Maxims in this regard. He would further contend that what is mandatory is only the taking of the oath as prescribed and the person before whom the oath is taken can only be treated as directory. He contends that the will of the people should not be thwarted. He would further invoke the principle laid down by the Apex Court in Tirath Singh v. Bachitlar Singh and Ors. (AIR 1955 SC 830) wherein the Apex Court has held as follows:

“Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the sentence.”

An interpretation which produces an absurd, anomalous or patently unjust situation, is to be avoided, it is contended. He also placed reliance on the decision in P.N. Vallarasu v. M.G. Ramachandran (1983 ELR 378) (supra) and Virji Ram Sutaria v. Nathalal Premji Bhavandia (AIR 1970 SC 765) (supra). He would point out that in fact, the person before whom the oath was taken was none other than the person before whom the Chairperson was to take the oath and that the view that it is mandatory cannot be accepted.

15. Shri V.K. Beeran, learned Additional Advocate General, appearing on behalf of the first respondent in W.P.(C) No. 30262/05 would contend that the provisions are very clear and that a conspectus of the provisions of the Act reveals that the Chairperson is the indispensable Chief Executive of the Municipality. He would also rely on the decision of the Allahabad High Court in Shabbir v. State (ILR 1964 (1) Allahabad 620) and contended that the person before whom the oath is taken is indeed mandatory. In the said decision a Division Bench of the Allahabad High Court held as follows:

“We will now consider the second and the third submissions of the learned Counsel. A study of the various provisions in the Constitution dealing with the making of oath reveals that the founding fathers were jealous that the oath should be made and subscribed in the presence of the head of the State and for that purpose, made imperative provisions. The Vice President, the Judges of the Supreme Court, the members of Parliament and the Comptroller and Auditor General of India have to make and subscribe oath before the President. The Judges of the High Courts and the Members of the State Legislatures have to make and subscribe oath before the Governor concerned. The Central Ministers and the Ministers in States have to make oath before the President and the Governor concerned respectively. The President of the Union and the Governors of the States have to make and subscribe oaths before the Chief Justice of India and the Chief Justice of the State concerned respectively. It is clear from the relevant provisions of the Constitution that it has been deliberately provided that oath should be made and subscribed before the Head of the State except in the case of Heads themselves who obviously cannot make and subscribe oath before themselves. There is good reason behind this rule. The oath or a solemn affirmation creates a moral obligation and consciousness in the mind of one who takes it of the solemn and serious duties he is called upon to discharge and of his undertaking that he would do so conscientiously, diligently and according to the Constitution and the laws. The origin of the oath can be traced to a religious source. The idea was to invoke God so that its breach may be visited with divine wrath. It has also a secular aspect, the same being impeachment or dismissal in the case of high dignitaries and punishment for perjury according to the laws of the land in the case of witnesses for its infringement. The gravity and solemnity of the oath is enhanced if it is made and subscribed before the highest Officer of the State. Its value is reduced if the person before whom it is made does not enjoy that highest status. It is admitted on all hands that much depends upon the impressive manner in which an oath is made for its subjective potency. Therefore, the presence of the President or the Governor as the case may be at the time of making and subscribing oath is not a mere formality but has much deeper significance.”

16. Shri N. Reghuraj, learned Counsel appearing on behalf of the sixth respondent would contend that it may not be open to the petitioners to draw any assistance from Section 11(3). It is contended that the first petitioner is not competent to convene a meeting. He would draw a distinction between functions and powers and contend that even assuming for the sake of argument, that it is open to the Deputy Chairperson to exercise the powers of the chairperson in a situation as presented by the facts of this case, the Deputy Chairperson can only exercise the powers under Section 11(3), but he cannot exercise the functions of the Chairperson. It was in this context that he relied on the provisions of Section 14 which deals with the functions of the Chairperson. Section 14 includes the function of concerning the meeting of the Council. He would contend that the provisions of the Act provide for a definite sequence of events from which a pattern emerges which would leave none in any manner of doubt that the absence of the Chairperson for the reason that none is elected can only lead to the ringing of the death knell of the Municipality. He would submit that while Section 5 of the Act provides for perpetual succession of a Municipality, Section 7 would show that the Municipality will exist for a period of five years unless earlier dissolved. He also would adopt the arguments of the learned Additional Advocate General in regard to Section 18 and the mandatory requirement of Section 143 (2) that the oath should be taken before the Chairperson after he is elected. He would lastly submit that this Court should refuse to interfere in this case, as by the intervention of this Court in favour of the petitioners, no fruitful purpose would be achieved and on the contrary that any writ issued can only be a futile one, having regard to the ground realities and the provisions of the law contained in the Act and the Rules. He also submitted that having regard to the form of the oath, as provided in law, the oath as taken by the third respondent is not in conformity with law.

17. It is pertinent to refer to the following provisions of the Act:

10. Mayor or Chairman of a Municipality–

(1) There shall be a Chairman in every Town Panchayat and Municipal Council and a Mayor in every Municipal Corporation who shall be elected by the elected Councillors of the respective Municipalities from among themselves, in such manner as may be prescribed. The Chairperson shall be a full-time functionary of the Municipality.

11. Deputy Chairpersons of the Municipalities —

(1) There shall be a Vice-Chairman in every Town Panchayat and Municipal Council and a Deputy Mayor in every Municipal Corporation who shall be elected by the elected Councillors of the respective Municipalities from among themselves in such manner as may be prescribed.

(2) A Deputy Chairperson shall be deemed to have vacated his Office –

(i) On his ceasing to be a Councillor on the expiry of his term of Office or otherwise; or

(ii) On his election as Chairperson.

(3) Where the Office of a Chairperson is vacant, the Deputy Chairperson shall exercise the powers and discharge the duties of the Chairperson until a newly elected Chairperson assumes office.

(4)(a) Where the Office of a Chairperson is vacant and there is vacancy in the Office of Deputy Chairperson or the Deputy Chairperson has been continuously absent from jurisdiction for more than fifteen days or is incapacitated, the Chairman of the Standing Committees in the order referred to in Sub-section (1) of Section 20 shall, until a new Chairperson or Deputy Chairperson is elected and assumes Office, or the Deputy Chairperson returns to jurisdiction or recovers from his incapacity, as the case may be, shall exercise the powers and perform the functions of the Chairperson.

(b) Where a Chairperson has been continuously absent from jurisdiction for more than fifteen days or is incapacitated and there is vacancy in the Office of the Deputy Chairperson or the Deputy Chairperson has been continuously absent from jurisdiction for more than fifteen days or is incapacitated and the Chairmen of the Standing Committees in the order referred in Sub-section (1) of Section 20 shall exercise the powers and perform the functions of the Chairperson until the Deputy Chairperson returns to jurisdiction or recovers from his incapacity, as the case may be.

(c) Where there are no Chairmen of Standing Committees to hold the Office of the Chairpersons as provided under Clauses (a) and (b), an elected Councillor nominated by the Government shall exercise the powers and perform the duties of the Chairperson of the Municipality for the period referred to in the said clause.

12. Election of the Chairperson and Deputy Chairperson —

(1) The meeting to elect the Chairperson or Deputy Chairperson shall be convened within three weeks from the date of publication of the names of the elected Councillors, by the State Election Commission, on such date as may be fixed by the State Election Commission.

(2) The State Election Commission shall designate or nominate an Officer of the Government as the Returning Officer for the election of the Chairperson or Deputy Chairperson.

(3) It shall be the duty of the returning Officer to do all such acts and things as are necessary for the efficient conduct of the election, in the manner prescribed.

(3 A) Election shall be by means of open ballot and the Councillor who casts his vote shall write his name and affix his signature on the reverse side of the ballot paper.

(4) The State Election Commission shall publish the result of the election of the Chairperson and Deputy Chairperson, in such manner as may be prescribed.

(5) Where the Chairperson or the Deputy Chairperson could not be elected at an election conducted in accordance with this Act, a fresh election shall be conducted within forty-five days for the election of the Chairperson or Deputy Chairperson, as the case may be.

(6) Where any dispute arises as to the validity of the election of the Chairperson or Deputy Chairperson of a Municipality any Councillor of that Municipality may file a petition before the District Court having jurisdiction over the area of the headquarters of that Municipality, for decision and such decision shall be final.

(6A) The validity of election of the Chairperson or Deputy Chairperson shall not be called in question on the ground of any vacancy of the Office of the Councillors or any of the Councillor was absent in the election meeting.

(8) Any casual vacancy in the Office of the Chairperson or Deputy Chairperson of a Municipality shall be reported by the Secretary to the State Election Commission, in such manner as may be prescribed, and the State Election Commission shall, in accordance with the provisions of this Act, take steps for the election of a Chairperson or Deputy Chairperson, as the case may be.

(8A) The State Election Commission may declare the Office of the Chairperson or Deputy Chairperson, as vacated on his own motion where the person has not entered upon his office, without sufficient cause, by taking oath or affirmation within a period of fifteen days from the date he was declared elected as such as Chairperson or Deputy Chairperson.

14. Functions of the Chairperson – The Chairperson of a Municipality shall —

(a) convene the meetings of the Council;

(b) exercise the powers and discharge the duties specifically conferred or imposed on him by this Act; and

(c) exercise overall supervision over the working of the Municipality and shall co-ordinate the functions of the Municipality, the Secretary and the Committees thereof.

15. Powers of Chairperson–

(1) Subject to the provisions of this Act, the Chairperson shall have powers of inspection and may give such directions and orders as he thinks fit with regard to the implementation of any resolution of the Council or Committees in the discharge of any function of a Municipality and the Secretary shall be bound to comply with such direction.

(2) Except as otherwise provided in this Act or thereunder, the administrative powers to implement the provisions of this Act and the resolutions passed by a Council, shall be vested in the Chairperson and he shall be directly responsible for the proper discharge of the functions imposed by or under this Act.

(3) Without prejudice to the generality of the foregoing provisions the Chairperson shall –

(a) preside over and control the proceedings of the meetings of the Council of the Municipality of which he is the Chairperson;

(b) supervise and control the acts done and steps taken by the Officers and employees of the Municipality, prepare the confidential report of the Secretary and also review the confidential reports prepared by the Secretary in respect of other employees;

(c) meet the contingent expenses to such extent, as may be fixed by the Government from time to time;

(d) authorise the payment and repayment of money relating to the Municipality;

(e) cause to be prepared the statements and reports required to be prepared by or under this Act;

(f) exercise such other powers and perform such other functions that may be conferred or entrusted under the provisions of this Act or the rules made thereunder.

(4) The Chairperson may, in emergent circumstances, direct the execution of any work or performance of any act, in respect of which sanction of the Council is necessary and in his opinion the immediate execution or performance of which is necessary for the safety of the public and may also direct that the expenses incurred for the execution of such work or performance of such act be paid from the fund of the Municipality;

Provided that –

(a) no act shall be done under this section in contravention of any decision of the Council prohibiting the execution of any work in the performance of any particular act; and

(b) the steps taken under this Sub-section and the reasons therefor shall be reported at the next meeting of the Council and its approval obtained.

(5) The Chairperson shall call the Secretary or any Officer or employee under the control of Municipality including the Government Officer or employee transferred by the Government to the service of the Municipality to discuss with him on any matters relating to the functions and administration of the Municipality which are vested in or delegated to the Municipality by or under this Act, and it shall be the duty of such Officer or employee to attend such discussion or the meetings convened by the Chairperson.

(6) The Chairperson shall have the power to suspend from service any Officer or employee in the service of Municipality, if necessary, other than the Secretary and other Government Officers in the Gazetted rank, transferred to the service of the Municipality, where disciplinary action have to be taken against them, on grounds of gross negligence of duty, dereliction of duty and violation of rules and standing orders;

Provided that the Chairperson shall place the order of suspension before the Council in its next meeting and get the order ratified by the Council, failing which the order shall stand invalid.

(7) The Chairperson shall have the power to call for from the Secretary or any other Officer under the Municipality, any file and record in writing relating to the administration of the Municipality and issue directions and orders thereon in accordance with the provisions of this Act, rules or standing orders made thereunder.

Provided that the Chairperson shall not call for the files and records which are related to the exercise of statutory functions regarding Municipal Administration vested only in the Secretary or any other Officer.

(8) The Chairperson shall refer to the Government for decision at once, any resolution passed by the Council which in his opinion has not been legally passed or is in excess of power conferred by this Act or any other law or it carried out is likely to endanger human life or health or public safety.

18. No doubt, the reliance placed on the decision of the Madras High Court in P.N. Vallarasu v. M.G. Ramachandran and Ors.(1983 ELR 378) may not be fully apposite. That was a case where the Article which applied was Article 173(a) and the question which arose was whether the candidate who was abroad, but confined to bed should take the oath before the Doctor nominated by the Consulate General or before the Doctor as contemplated under Clause (c) of the Notification issued by the Election Commission. In C.K. Ramaswamy, Secretary to Government, Legislative Council Department, Madras v. G. Vasantha Pai and Ors.(ILR 1979 (1) Madras 180), the question which arose was no doubt under Article 188. Article 188 provided for taking of the oath before the Governor or a person specified by the Governor. The Governor appointed a person before whom the oath was to be taken and the question which fell for consideration was in view of the disinclination of the elected candidate to take the oath before the appointee of the Governor, whether in view of the peculiar facts which arose therein, the taking of the oath even though not in the oral form before the Governor, but by evincing of his intention to take the oath by issuing written communication to the Governor would suffice. The court took the view that the Governor continued to have concurrent power and in the peculiar facts, when the returned candidate was prevented by the appellant in the case from proceeding to subscribe to the oath before the Governor, there was substantial compliance and the declaration given by the learned Single Judge was to be sustained.

19. Section 10 provides that there shall be a Chairperson and that the Chairperson shall be a full time functionary of the Municipality. Section 11 provides that there shall be a Deputy Chairperson. Section 18 provides for delegation and devolution of the functions of the Chairperson. He may delegate any of his functions to the Deputy Chairperson unless prohibited by the Council. Section 18 reads as follows:

“18. Delegation and devolution of functions of Chairperson —

(1). The Chairperson may, by order in writing, delegate any of his functions to the Deputy Chairperson:

Provided that he shall not delegate any of his functions which the Council expressly prohibits him from delegating.

(2). Where the Chairperson is continuously absent from jurisdiction for more than fifteen days or is incapacitated, his functions shall, during such absence or incapacity, devolve on the Deputy Chairperson:

Provided that where the Chairperson is within the State during such absence and is on business connected with the affairs of the Municipality, his functions shall not devolve on the Deputy Chairperson.

(3). Where the Deputy Chairperson also is continuously absent from jurisdiction for more than fifteen days or is incapacitated or the Office of the Deputy Chairperson is vacant, the Chairperson shall, by an order in writing, delegate his functions to Chairman of Standing Committee shall, in the order specified in Sub-section (1) of Section 20.

(4). Every order made under Sub-section (3) shall be communicated forthwith to the Council.

(5). Where an order of delegation of functions of Chairperson made under Sub-section (3) is in force, no further delegation of any function shall be made in favour of any Chairman of Standing Committee other than the Councillor in whose favour such order was made.

(6). The discharge of the functions delegated under Sub-section (1) of Sub-section (3) and of the functions devolved under sub-s.(2), shall be subject to such restrictions, limitations and conditions, as may be laid down by the Chairperson and shall also be subject to his control and revision.

(7). The Chairperson may, by an order in writing, delegate to the Secretary the powers and functions vested in him to meet the expenses relating to administration.”

Section 143 reads as follows:

“143. Oath or affirmation —

(1). The Government, after each general election shall nominate a member elected as Councillor for convening the first meeting of the Municipality and before convening such meeting he shall make and subscribe an oath or affirmation in the form specified in the Third Schedule for the purpose before the Officer nominated by the Government in this behalf.

Provided that the member nominated by the Government shall, as far as possible, be the eldest among the Councillors elected in the Municipality.

(1A). All other Councillors shall before assuming charge of their Office, make and subscribe an oath or affirmation, in the form set out for this purpose in the Third Schedule, before the Councillor nominated under Sub-section (1), on the date specified by the Government and before the date fixed by the State Election Commission for conducting the election of the Chairperson under Sub-section (1) of Section 12.

(18). A Councillor who was not able to make an oath or affirmation under Sub-section (1 A) or a Councillor elected in the bye-election may make such oath or affirmation before the Chairperson.

(2). The Chairperson and the Deputy Chairperson shall also, before entering upon their Offices, make and subscribe an oath or affirmation in the form set out in the said Schedule. The Chairperson shall make and subscribe such oath or affirmation before the Officer authorised by the Government in this behalf, and the Deputy Chairperson shall make and subscribe such oath or affirmation before the Chairperson after the Chairperson has been elected.

(3). No Councillor who has not taken an oath or affirmation under Sub-section (1 A) or under Sub-section (1B) shall vote or take part in the proceedings of any meeting of the Municipality, nor shall be included as a member of any of the Committees constituted by the Municipality.

(4). The Government may by notification in the Gazette, declare the Office of Councillor as vacated in his own motion where such a Councillor has not assumed charge of his Office by making an oath or affirmation without sufficient cause within a maximum period of thirty days from the date by which he was elected as a Councillor.”

20. In U.P. State Electricity Board v. Shiv Mohan Singh and Anr, (2004 (3) KLT 686 (SC) : (2004) 8 SCC 402), the Apex Court has held as follows:

“Ordinarily, although the word “shall” is considered to be imperative in nature but it has to be interpreted as directory if the context of the intention otherwise demands. If the language used in a statute is capable of bearing more than one construction, the true meaning thereof should be selected having regard to the consequences resulting from adopting the alternative constructions. A construction resulting in hardship, non-fulfilment of the purpose for which a statute has been brought in force should be rejected, and it should be given that construction which avoids such results.”

The object of the construction of a statute is to ascertain the will of the legislature. As held in Shamrao v. Parulekar and Ors. AIR 1952 SC 324, “the object of construction of a statute being to ascertain the will of the legislature, it may be presumed neither injustice nor absurdity was intended. If therefore literal interpretation will produce such a result and the language admits of an interpretation which could be avoided, then such an interpretation may be adopted.”

21. It must, however, not be forgotten that this is a principle which must be employed with considerable care. Lord Moulton in All E.R. 1911 to 13 (Page 241):

“The argument ab inconvenienti is one which requires to be used with great caution…. There is a danger that it may degenerate into mere judicial criticism of the propriety of the acts of legislature. We have to interpret statutes according to the language used therein and though occasionally, the respective consequences of two rival interpretations may guide us in our choice in between them, it can only be where taking the Act as a whole, and viewing it in connection with the existing state of the law at the time of the passing of the Act we can satisfy ourselves that the words cannot have been used in the sense to which the argument points.”

Courts have taken the view that if serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment if a statute is held to be mandatory, the provision will be construed as directory See AIR 1927 PC 142, State of U.P. and Ors. v. Babu Ram Upadhya AIR 1961 SC 751, and AIR 1965 SC 895.

22. No doubt, in a statute, if the consequences of nullification on failure to comply with a statute is provided thereunder, the provision can be regarded as mandatory. In AIR 1962 SC 554, Sub-sections.(l) and (2) of Section 47 of the Punjab Municipal Act, 1911 provided for certain formalities, for contracts or transfers made by the Municipal Committee to be followed. Section 47(3) provided that,
“In no contract or transfer of the description mentioned in this section executed otherwise than in conformity with the provisions of this section shall be binding on the Committee.”

The Court held as follows:

“It is settled law that provisions of a statute in those peremptory terms could not but be construed as mandatory.”

Employment of negative words are generally another indication of the intention of the legislature that a statute is mandatory. In CRAW FORD on Statutory Construction, it is stated as follows:

“Prohibitive or negative words can rarely, if ever be directory. And this is so even though the statute provides for no penalty for disobedience. No doubt, it is not to be understood that the mere imposition of apenalty without expressly providing for nullification for non-compliance may not necessarily persuaded the court to hold the provision to be mandatory”.

As held in S.K. Das J. L. Kapaur v. A.K. Sarkar (AIR 1963 SC 1417), if the statute having regard to its object and purpose and scope “is found to be directory, penalty may be incurred for non-compliance, but the act or thing done is regarded as good.” (See also the decision of the Apex Court in AIR 1997 SC 1952).

23. Even the use of negative words, however, need not in all circumstances have the inevitable consequence of it being available for construction only as a mandatory provision. Examples are provisions relating to solemnisation of marriages being couched in negative words being construed as not mandatory. No doubt, the provisions did not expressly provide for the consequence that the marriage in breach of the provision would be invalid. But, apparently, what persuaded the court was considerations of general inconveniences (See Smt. Lila Gupta v. Laxmi Narain (AIR 1978 SC 1351). Likewise, the provisions of the proviso to Section 33(2)(b) of the Industrial Disputes Act, 1947, was cast in the negative form. The Apex Court proceeded to hold that a dismissal order passed without obtaining the permission as mandated in the proviso was not void and the dismissal could not be set at naught, if the dismissal was well merited (See Punjab Beverages Pvt. Ltd. v. Suresh Chand (AIR 1978 SC 995). But, affirmative words have been construed as implying the negative. As held by Viner’s Abr. Vol. 15th Negative. A.P 1.2,p.54Q. “every statute limiting anything to be stated to be in one form, although it be spoken in the affirmative, yet it includes in itself a negative.”

24. It is settled law that the use of the word “shall” generally gives the provisions an imperative import. As held by Subba Rao, J. (As His Lordship then was) in State of U.P. and Ors. v. Babu Ram Upadhya (AIR 1961 SC 751), “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 the whole scope of the statute.” Denman J. would hold, “a balance must be struck between the inconvenience of some others rigidly adhering to, and the convenience of some others departing from its terms.” Performance of a public duty within a stipulated time as generally been held to be not mandatory. Section 17(1) of the Industrial Disputes Act, 1947 which provides for publication of the award within thirty days, has been held to be not mandatory (See Remington Rand of India Ltd. v. The Workmen (AIR 1968 SC 224).

25. It is in the perspective of the above principles, that the question which falls for decision must be considered. Negative words are not employed in Section 143 (2) of the Act. But, at the same time, express words are used with the employment of the word “shall” as regards the taking of the oath by the Deputy Chairperson. As a matter of fact, there can be no ambiguity flowing as regards the manner of taking the oath or the person before whom the oath is to be taken.

26. It is clear that the phraseology used, namely the employment of the word “shall” cannot conclude the issue as to whether a provision is mandatory. The nature of the proceeding, its design and the consequences which follow from its non-observance, are to be considered. The primary duty of the Court is to glean the intention of the legislature. The Court should bear in mind the mischief which would follow by interpreting the provision as mandatory. The Court should not be oblivious of the public inconvenience or general inconvenience that would follow if it is held to be mandatory. If the object of the enactment is defeated by holding the provision as directory, a mandatory interpretation must follow. The context of the provision is not to be ignored. As already stated, the consequences which flow if interpreted as mandatory or directory, must be borne in mind. It is only in the case of a directory provision, that validity can be premised on the basis of substantial compliance,

27. The provisions of the Kerala Municipality Act would show that the Chairperson is the Chief Executive. He is the repository of vast powers as provided in the provisions of the Act and the Rules. The Deputy Chairperson will exercise the functions of the Chairperson in the event of there being a delegation under Section 18. He is also to exercise the functions during the absence of the Chairperson for more than fifteen days or in the event of his incapacitation as contemplated under Sub-section (2) of Section 18. One of the principal contentions raised was built around Section 11(3). On the one hand, on behalf of the Deputy Chairperson, it was contended that it would cover a situation where a vacancy arises in the Office of the Chairperson on account of there being no elected Chairperson, as in the facts of this case. On the other hand, the contrary contention is that the said provision will not apply as the sequence of the provisions and the wording of the Section and the meaning of the word “vacant” would show that the Deputy Chairperson cannot exercise the powers under Section 11(3), unless a vacancy arises after a person was elected as Chairperson and he demits Office by resignation or a vacancy arises by reason of his death. Support is also sought to be drawn from the words “newly elected Chairperson”. There is a presumption against redundancy, unless there are compelling reasons. The legislature is not presumed to commit mistakes, nor waste words. Every word must receive meaning. I am of the view that Section 10 provides that there shall be a Chairperson and Section 11 figures after providing for there being a Chairperson in Section 10. The provision clearly contemplates a Chairperson filling the vacancy and thereafter by some events, such as, resignation, death, or the passing of a No Confidence Motion under Section 19( 11) of the Act, a vacancy arising in which event it becomes the duty of the Deputy Chairperson to exercise the powers and discharge the duties of the Chairperson. In this view, I am fortified by the intention as evinced by the words “newly elected Chairperson”. It clearly contemplates that there was somebody who was already elected as Chairperson. It is only till another person is elected as Chairperson who would become the newly elected Chairperson, that the Deputy Chairperson can exercise the powers and duties of the Chairperson. Therefore, it will not extend to a situation where nobody has been elected as the Chairperson. As a matter of fact, this is a situation which is not contemplated under Sub-section (3) of Section 11. Section 11 (3) does not expressly empower the Deputy Chairperson to exercise the functions of the Chairperson. It is clear, at any rate, that the third respondent cannot claim that he can exercise the functions/powers or discharge the duties of the Chairperson on the basis of Section 11(3).

28. A perusal of Section 143 would show that Sub-section (1) deals with a Member being nominated as the Councillor for convening the first meeting of the Municipality. The word used is “Municipality”, but the meeting which is to be convened is apparently the meeting of the Council. The said elected Member who is nominated by the Government is duty bound to subscribe an oath and affirmation before the nominee of the Government. Under Sub-section (1A), all other Councillors are to make and subscribe an oath or affirmation as provided before Councillor nominated under Sub-section (1). Sub-section (18) provides for a Councillor who was not able to make an oath or affirmation under Sub-section (1 A) or a Councillor elected in the bye-election to take the oath or affirmation before the Chairperson. A Councillor who does not take an oath or affirmation is prevented from voting or participating in the proceedings of any meeting of the Municipality. The words used are couched in negative language. He cannot even be included as a Member of any of the Committees. Section 143 (2), no doubt, provides that the Deputy Chairperson shall make or subscribe to such oath or affirmation before the Chairperson after the Chairperson has been elected. Considerable stress is laid on the words “after the Chairperson has been elected” to Contend that the provision is mandatory and the oath can be taken only after the Chairperson is elected. Shri Pathros Mathai, learned senior counsel would also submit that the provision should not be given a mandatory interpretation as even if there is a Chairperson who has been elected, there may be situations where he may refuse to attend to the Deputy Chairperson wishing to make and subscribe the oath or affirmation before him or the Chairperson who has been elected may be so incapacitated that he is unable to be effectively present to enable the oath being taken and subscribed before him. He would, therefore, contend that all these would show that what is really mandatory is the actual taking of the oath and subscribing to the same in strict conformity with the words used in the Third Schedule.

29. What is the design of the provision ? An oath has to be taken and subscribed before some person. This much cannot be disputed. The Councillor takes the oath before somebody appropriate to the position as a Councillor. A Judge of the High Court takes the oath under Article 219 before the Governor or somebody authorised by the Governor who is normally, the Chief Justice. The Vice President of India has to take the oath before the President. The President has to take oath in the presence of the Chief Justice of India or the senior-most Judge of the Supreme Court. As held by the Allahabad High Court, the person before whom the oath is taken is with the deepest significance. No doubt, the observation related to Constitutional Offices. It is in keeping with the Office that the person before whom the oath is to be made and subscribed. The person before whom the oath is to be taken is the deliberate exercise of a choice by the law giver. Having regard to the scheme of things, it cannot be in doubt that the Chairperson is the Chief functionary. It was after he comes into being that the Office of the Deputy Chairperson can have life. That apparently is the object of the provision that the Deputy Chairperson must take his oath before the Chairperson after he is elected. It is pertinent to note that Section 10 provides that there shall be a Chairperson. Sections 14 and 15 deal with the functions and the powers of the Chairperson. Section 11 deals with the Deputy Chairperson. A perusal of Section 11 would show that the Deputy Chairperson does not possess any independent power. I have already found that under Section 11(3), the Deputy Chairperson cannot exercise the powers when nobody has been elected as the Chairperson after the holding of the elections. If that is so, what is the role of the deputy Chairperson ? Under Section 18 of the Act, it is open to the Chairperson to delegate his functions to the Deputy Chairperson. Sub-section (2) of the very same provision contemplates the functions of the Chairperson who is continuously absent from jurisdiction for more than fifteen days or is incapacitated, devolving on the Deputy Chairperson during such absence or incapacity provided the Chairperson is not within the State during such absence and is on business connected with the affairs of the Municipality. This provision would show that the incumbent in the office of a Deputy Chairperson who is elected along with the Chairperson is meant to step in and exercise the powers of the Chairperson by virtue of delegation or by virtue of devolution. In other words, he does not appear to have an independent role, dehors either delegation or devolution which is possible only when there is a Chairperson besides stepping in under Section 11(3) in a case where a vacancy arises consequent upon the death or resignation, of the Chairperson who was elected, or the passing of No Confidence Motion against him. No doubt, under Sub-section (5) of Section 12, a fresh election has to be conducted within forty five days for the election of the Chairperson or the Deputy Chairperson as the case may be, where the Chairperson or Deputy Chairperson could not be elected at any election. No doubt, this would indicate that if two separate meetings are held to elect the Chairperson and the Deputy Chairperson as it happened in the facts of this case and the Chairperson is not elected, a fresh election has to be held to elect the Chairperson. It is also possible that the meeting convened to elect the Deputy Chairperson may result in the election of a Deputy Chairperson. But, a person enters upon Office only by taking oath and subscribing to the same as contemplated under Sections 143(2) and 12(8A). Therefore, even though he is elected, in as much as he does not have any substantial independent power or function going by the scheme of the provisions which I have adverted to, it would appear to me that the object of the provision is that the elected Deputy Chairperson cannot be sworn in except after the Chairperson is elected. This is for the reason that going by Section 11 read with Sections 14,15 and 18, the Deputy Chairperson cannot exercise any powers or discharge the duties as contemplated under the Act, except as already found by me. If that is the scheme of the Act, can it be said that the provisions of Section 143 (2) that the Deputy Chairperson should take oath after the Chairperson is elected, produces a manifest injustice or an absurd result. I think not.

30. Further, posing other tests which have been enunciated by the Courts, will any public convenience be achieved or grave inconvenience obviated by swearing in the Deputy Chairperson in a situation like this, when he cannot exercise any functions. In my view, neither is there any public inconvenience caused by not allowing the oath to be taken before the Chairperson is elected, nor is there any public convenience achieved by swearing in a Deputy Chairperson taking the oath before somebody in the absence of the elected Chairperson.

31. What are the consequences of interpreting it either way, i.e. mandatory or directory ? The consequence of swearing in a Deputy Chairperson if there is no elected Chairperson is merely that an elected Office bearer takes charge without any functions or powers. One of the consequences of interpreting it as a mandatory provision is that it may have the effect of thwarting the democratic process and it may be open to the parties to create an impasse by deliberately refusing to field a candidate for the reserved post of Chairperson even though they have candidates who belong to the said Community. Another consequence of holding it to be mandatory, is that the democratically elected Deputy Chairperson is kept out of office. If it is interpreted as directory, no doubt, it avoids a situation where an impossible act is contemplated. The other consequence of it being interpreted as directory, is that it introduces an uncertainty as to the person before whom the oath is to be made and subscribed. If it is held to be directory, it may be open to the elected person to take the oath theoretically before any person. Let us extend the principle to the case of High Court Judge. Can he say that he has entered upon the Office after taking the oath before an Assistant Registrar of the High Court ? Can the Vice President of India make a claim that he has taken the oath before a Government Secretary instead of the President. In other words, one of the consequences of the oath being permitted to be taken before any person is that there can be no certainty as to before the person it is to be taken. The other factor, no doubt, is the language used is not negative. No doubt, it is only one of the indications to be borne in mind by the Court. One of the contentions raised by Shri Pathros Mathai is that it may be open to the Council to exercise the functions assigned by or under the Act or any other law to the Chairperson. Section 29 reads as follows:

“29. Administration of Municipality–

Subject to the provisions of this Act, the Administration of the Municipality shall vest in the Council, and the Council shall, if necessary, be entitled to exercise, in the manner prescribed, the functions expressly assigned by or under this Act or any other law to the Chairperson, the Secretary, a Standing Committee or any other Committee.”

It is to be noted that the Section does not specifically empower the Council to exercise the functions assigned to the Deputy Chairperson. This is apparently for the reason that there is no independent function or power to be exercised by a Deputy Chairperson. No doubt, the Deputy Chairperson is the Ex-officio Member and the Chairman of the Standing Committee for finance vide Section 20(1) of the Act. The Chairperson is to be the Member of all the Committees Ex-officio and he has the powers of a Member except the right to vote. The powers of the Standing Committee on Finance in regard to a Municipal Council, is as provided in Clause (d) of Section 22(1) of the Act. No doubt, it includes the power to dispose of appeals on taxation. The Deputy Chairperson is also, no doubt, to be the Member of the Steering Committee under Section 23. No doubt, under Section 29 of the Act, it is open to the Council to exercise the powers of the Chairperson, if necessary. Learned senior counsel, Shri M. Pathros Mathai would contend that therefore, even in the absence of an elected Chairperson, it is open to the Council to * exercise the functions of the Chairperson. Under Section 18(2) of the Act, if a Chairperson is out of station for less than fifteen days, there is no automatic devolution of his power upon the Deputy Chairperson and it may be, if it becomes necessary, open to the Council to exercise his functions. It could also be said that the powers of the Chairperson can be exercised even if there is an elected Chairperson or his delegate in the form of the Deputy Chairperson or other person acting as Chairperson under Section(11). What is the meaning of the word “necessary”? It is defined as,

“that must be; that cannot be otherwise; unavoidable; indispensable; under compulsion; not free; that cannot be left out or done without; (Chambers 20th Century Dictionary).”

In fact, Rule 3 of the Kerala Municipality (Procedure for Meeting of the Council) Rules, 1995, provides that the Chairperson shall convene the meeting of the Council at least once in a month and also according to necessity that may arise, on such days. Section 15(8) mandates that the Chairperson shall refer to the Government any resolution which is not legally passed or otherwise mentioned in the said provision. Can the Council exercise that function of the Chairperson also in regard to its resolutions? The Council can also exercise, if necessary, the powers of the Standing Committee or any other Committee under Section 29. Section 29 apparently contemplates exercise the powers of the Chairperson by the Council, when there is an elected Chairperson. I am doubtful whether the power can be exercised on a general or continuing basis by the Council in the absence of a Chairperson. But, the question is of the powers and functions of the Deputy Chairperson, if there is no Chairperson which I have dealt with earlier and entered my fmdings.

Rule 7 provides as follows:

“Rule 7: Requisition for convening of meeting —

(1) The Chairman shall if so requested in writing by not less than one-third of the members in the Council existing at that time, convene the meeting of the Council.

Provided that the notice requesting the convention shall contain a date other than a public holiday for convening the meeting and the subject or subjects to be considered in the meeting and such notice shall be given to the Chairperson or in his absence to the Secretary or in the absence of both, to the Officer having charge of the Office at that time, ten days prior to the date proposed in the notice for prior to the date proposed in the notice for convening the meeting, at the Municipal Office on working hours:

Provided further that the Chairperson may, if so thinks fit, accept a notice with less than ten days”.

32. One of the principal tests employed to find out whether a provision is mandatory or directory is the existence of a provision which works as a penalty providing for consequences for non-compliance. Section 12(8A) vests power with the Commission to nullify the election of the Deputy Chairperson, if he does not enter upon his Office by taking the oath within fifteen days of his being declared elected. It is open to him to plead sufficient cause. No doubt, as to before whom he is to take oath is not expressly mentioned in Section 12(8A). But, on a harmonious construction, it is clear that the oath is to be taken before the Chairperson under Section 143 (2). Section 143 (2) provides that the Chairperson and the Deputy Chairperson shall, before entering upon their Offices, make and subscribe an oath or affirmation in the form set out in the Third Schedule, and that it shall be done in the case of the Deputy Chairperson, before the Chairperson after he is elected. No doubt, Section 12(8 A) does not expressly say that the oath, if not taken before the Chairperson, then, either the oath is invalid or that the Deputy Chairperson cannot exercise his powers as Deputy Chairperson. But, it does say that if the oath is not taken, and in my view, before the Chairperson, the election itself can be nullified, unless there is sufficient cause. I feel that when there is no elected Chairperson, it would be a sufficient cause for the Deputy Chairperson not to take the oath. It is not as if the Section provides that if the oath is not taken by the elected Deputy Chairperson within fifteen days, the election shall stand nullified. Section 12(8A) vests a power with the Commission. Its purpose is to ensure that the elected incumbent enters upon Office after taking the oath as mandated within fifteen days unless it is for sufficient reasons not possible.

33. I am of the view that the provision in controversy is mandatory. Having found that the provision is mandatory, the further question which arises is the effect of the principle enshrined in the maxim “Lex Non Cogit Ad Itnpossiblia”. It means impossibility excuses. The Apex Court in two References under Article 143 dealt with the maxim. In In Re Presidential Poll ((1974 (2) SCC 33), one of the main questions which fell for consideration was the effect of the dissolution of the Gujarat Assembly on the duty under Article 62 to hold the election to elect the President before the expiry of the term. Answering the same, the Apex Court proceeded to hold as follows:

“13. In determining the question whether a provision is mandatory or directory, the subject matter, the importance of the provision, the relation of that provision to the general object intended to be secured by the Act will decide whether the provision is directory or mandatory. It is the duty of the Courts to get at the real intention of the Legislature by carefully attending the whole scope of the provision to be construed. “The key to the opening of every law is the reason and spirit of the law, it is the animus imponentis, the intention of the law maker expressed in the law itself, taken as a whole.

15. The impossibility of the completion of the election to fill the vacancy in the Office of the President before the expiration of the term of Office in the case of death of a candidate as may appear from Section 7 of the 1952 Act does not rob Article 62(1) of its mandatory character. The maxim of law impotentia excusat legam is intimately connected with another maxim of law lexnon cogit ad impossiblia. Impotentia excusat legam is that when there is a necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. “Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him.” Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.”

This was referred to with approval by His Lordship Justice Arijit Pasayat in In the Matter of Special Reference No. 1 (Gujarat Assembly Election Matter) (2002 (3) KLT (SC)(SN) 150 : (2002) 8 SCC 237) (See paragraphs 148 and 151). His Lordship Justice Arijit Pasayat after having referred to the aforesaid paragraphs, further held as follows:

“Situations may be created by interested persons to see that elections do not take place and care-taker Government continues to be in Office. This certainly would be against the scheme of the Constitution and the basic structure to that extent shall be corroded.”

34. What is the effect of the said doctrine on the facts of this case? It is undisputed that the Deputy Chairperson took the oath before the Returning Officer on 6.10.2005. The meeting scheduled to elect the Chairperson stood adjourned to another day for electing the Chairperson. In fact, Section 12(5) which has already been referred to, provides that where the Chairperson or the Deputy Chairperson could not be elected at an election, a fresh election should be conducted within 45 days of the election of the Chairperson or the Deputy Chairperson as the case may be. It is for conducting such an election that the meeting was adjourned. Therefore, it cannot be held that the man-made situation rendered the making of the oath by the Deputy Chairperson before the Chairperson himself impossible, particularly as the meeting to elect the Chairperson stood adjourned to another day. The deliberate decision of the political parties which had candidates who could stand for election as Chairperson cannot be characterised as an act of God. Even if the situation otherwise suffices to invoke the doctrine of impossibility, it cannot be a matter of doubt that as on 6.10.2005, it could not be held that the election of the Chairperson was an impossibility, even going by the time limit indicated in Section 12 (5) of the Act. In such circumstances, I do not think that there is any scope for applying the said doctrine to support the taking of the oath by the Deputy , Chairperson before a person other than the elected Chairperson. It is, therefore, clear that the third respondent has. not legally entered upon the Office of the Deputy Chairperson for the reason that he has not taken the oath as provided in law. Also, it is clear that he had no authority to convene the meeting of the Council, or to act as Deputy Chairperson.

35. In such circumstances, I am constrained to allow W.P.(C) No. 28913/05 by holding that the oath taken by the third respondent therein, does not conform to the mandate of Section 143 (2) of the Act. In this view of the matter, it is declared that the third respondent has not legally entered upon the Office of the Deputy Chairperson, as he has not made and subscribed to the oath as required in law, and therefore, there will be a direction that the third respondent shall not act as the Deputy Chairperson of the respondent Municipality, unless he takes the oath in accordance with law. I have not pronounced on the question relating to the allegation based on the votes cast by two Members, which is pending consideration before the concerned Court.

36. As far as the other Writ Petition, namely W.P.(C) No. 30262/05 is concerned, the principal question therein was whether the view taken in Ext.Pl that the Deputy Chairperson has not taken the oath as mandated in law, is correct. I have already found that the first petitioner who is the third respondent in W.P.(C) No. 28913/05, has not made and subscribed to the oath as required in law. No express provision was brought to my notice empowering the first respondent to pass Ext.P1. The matter was engaging the attention of this Court. But, it is no doubt, contended by the learned Additional Advocate General that the State was not even made a party in the earlier writ petition. There is no pleading that the principles of natural justice were violated. No doubt, Ext.P1 does not show that the version of the first petitioner was called for or that he was heard. Whatever that be, in view of the fact that I have already found in W.P.(C) No. 28913/05 that the third respondent has not made and subscribed to the oath as provided in law and he cannot act under Section 11 (3) of the Act, and that he cannot act as the Deputy Chairperson, I think, it will be an exercise in futility to grant any relief to the petitioners. Accordingly, W.P.(C) No. 30262/05 is dismissed. However, I make it clear that in view of the stand of the petitioners, I have not pronounced on reliefs, C to E.