K.N.Singh, J. - (1.) A Full Bench of this Court consisting of three Judges referred this petition to a larger Bench as in their opinion certain observations made and conclusions drawn by a Full Bench of this Court in Mahesh Chandra v. Tara Chand, AIR 1958 All 374 (FB) required reconsideration. The Full Bench was of the opinion that in this case a question of gravity and general importance was involved with regard to the principles on which this Court, while exercising its jurisdiction under Article 226 of the Constitution, can in its discretion, refuse relief to the petitioner, even though it may be established that there was non- compliance of a provision of law mandatory or directory in nature. In view of the observations made by the Full Bench this writ petition has been referred to a larger Bench for decision.
(2.) BRIEFLY , the facts giving rise to the petition are that Sardar Gyan Singh petitioner was President of the Municipal Board, Dhampur, District Bijnor, which is constituted of sixteen elected members and the President. The petitioner was not an elected member of the Board but by virtue of Section 49 of the U. P. Municipalities Act. 1916, he was ex-officio member of the Board. On 24th October, 1973, two members of the Board presented a notice of intention to move a motion of no-confidence in the present (sic) (President ?-Ed.) to the District Magistrate, Bijnor, together with a copy of the motion signed by ten members of the Board including those who personally presented the same to the District Magistrate. On 8th November, 1973, the District Magistrate convened a meeting of the Board for consideration of the motion of no-confidence to be held at the office of the Board on 24th November, 1973, at 11 A. M. which was to be presided over by Irshad Husain, Munsif Magistrate, Nagina. The District Magistrate sent notices by registered post to all the members of the Board informing them about the date, time and place of the meeting. No registered notice of the meeting was, however, sent to the petitioner at his place of residence, instead a copy of the notice was endorsed to the President of Nagar Palika, Dhampur, (Municipal Board, Dhampur) for information and necessary action. This notice was sent by ordinary post and it was received in the office of the Nagar Palika on 14th November, 1973. The District Magistrate further directed publication of the notice in 'Lokmat' and 'Chingari', two local newspapers published from Bijnor. He further directed that a copy of the notice be pasted on the Notice Board of the Municipal Board as well as on the Notice Board of the Tahsil and Collectorate. The direction of the District Magistrate was complied with and the notices were posted on the notice Boards of the Nagar Palika, Dhampur, Tahsil of Dhampur, and Collectorate at Bijnor. They were further published in 'Lokmat' and 'Chingari', the two local newspapers. On 23rd November, 1973, i.e., one day prior to the holding of the meeting the petitioner filed the present petition before this Court under Article 226 of the Constitution for the issue of writ of mandamus directing the District Magistrate not to hold meeting of the Board convened for considering the no-confidence motion against him. The petition was admitted and the notices were made returnable to a Division Bench. On the stay application the Bench refused to stay the holding of the meeting, instead it granted a limited stay order that if the motion of no-confidence is carried at the meeting it shall not be deemed to have come into existence within the meaning of Section 44-A read with Section 47-A of the U. P. Municipalities Act and no proceedings shall be taken for the election of a new President. The meeting of the Board was held on 24th November, 1973, which was presided over by the Munsif, Nagina. In all ten members of the Board attended the meeting, the petitioner, however, did not attend the meeting. All the ten members unanimously voted in favour of the no-confidence motion with the result the motion was carried. The petitioner thereafter got the petition amended and added a prayer for the quashing of the proceedings of the meeting of the Board held on 24th November, 1973, and for the issue of a writ of mandamus directing the respondents not to interfere with the petitioner's functioning as President of the Municipal Board, Dhampur.
(3.) SRI K. C. Saxena, learned counsel for the petitioner, submitted that the provisions of Section 87-A (3) of the U. P. Municipalities Act (hereinafter referred to as 'the Act') are mandatory, its non-compliance vitiated the motion of no-confidence even if declared to have been carried by the members of the Board. Since no registered notice was sent to the petitioner at his place of residence the mandatory provision of sub-section (3) of Section 87-A of the Act was disregarded, consequently the motion of non- confidence is rendered void. Learned Standing Counsel and Sri V. K. Khanna appearing for the respondents urged that the provisions of Section 87-A (3) are directory in nature and it was sufficiently complied with inasmuch as the District Magistrate had sent notice addressed to the petitioner which was received in his office on 14th November, 1973. The petitioner had full knowledge and information about the meeting and as such he was not prejudiced by the non-service of the notice through registered post.;