Chhangani, J. - (1.) THIS is a special appeal against the judgment and order dated 24. 4. 61 of Bhargava, J. sitting single whereby he allowed the writ application of respondents No. 1 to 5, set aside the proceedings of the Panchayat Jaisinghdesar (Magra) dated 4. 1. 1961 and quashed the co-option of the appellants No. 1 to 3 and issued a mandate to the Collector, Bikaner to appoint an officer to convene a special meeting for the co-option of the Panchas as required by proviso under sub-sec. 9 (2) of the Rajasthan Panchayat Act.
(2.) THE facts necessary and relevant for the disposal of the present appeal are simple and fall within a narrow compass. Elections for Gram Panchayat Jaisinghdesar (Magra) were held on 8. 12. 1960. Respondent No. 7 Harbhaj was elected Sarpanch. Respondents No. 1 to 5 and Shri Shivlal, Shri Goverdhan and Shri Anopsingh, who were opposite parties in the writ application, but no longer parties to the present appeal, in all eight persons, were elected as panchas. THE total strength of the Gram Panchayat is 12 and three more Panchas, two women and one another, were required to be co-opted under sec. 9 (1) of the Rajasthan Panchayat Act (hereinafter called the Act ). THE Sarpanch took his oath on 13. 12. 1960. On 27. 12. 60 he issued a notice fixing 4th January. , 1961 for holding a meeting for the co-option of the Panchas. THE first three appellants Laduram, Smt. Phoosi and Smt. Kesar were co-opted as Panchas. Some other persons had filed nominations for co-option but they were rejected. THE candidates whose nomination papers were rejected, it is admitted, have filed election petitions challenging the co-option and they are said to be still pending. Meanwhile, respondents No. 1 to 5 who are the elected Panchas submitted an application under Art. 226 of the Indian Constitution to this Court challenging the co-option of the first three appellants for the Gram Panchayat Jaisinghdesar (Magra ). THEir case was that the co-option of the appellants to the Gram Panchayat was void because the Sarpanch had no authority to issue a notice on 27. 12. 60 and to convene the meeting for their co-option on 4. 1. 1961. THE said meeting, according to the petitioners, was held in contravention of sec. 9 (2) of the Act as amended by Act No. 25 of 1960. It was contended that the Sarpanch-respondent No. 7 was declared elected on 8. 12. 1960 and it was incumbent upon him to have convened the special meeting of the newly elected Panchas for the purpose of co-option within 15 days after his election in the manner prescribed by rule 51 of the Rajasthan Panchayat and Nyaya Panchayat Election Rules (hereinafter called the Rules ). It was further contended that sec. 9 (2) of the Act is mandatory in nature and after the Sarpanch fails to convene such a meeting within 15 days, the officer appointed by the Collector in this behalf has to convene such a meeting. THE respondents No. 1 to 5 had also taken other objections in the writ application for getting the co-option set aside but the judgment of the learned single Judge turned upon only the point mentioned above. THE writ application was opposed by the appellants on various grounds : viz (1) that the petitioner had an adequate alternative remedy by way of an election petitioner and that election petitions having already been filed, this Court should not interfere in its extra-ordinary jurisdiction; (2) that the provisions of sec. 9 (2) of the Act were only directory and not mandatory and the power of the Sarpanch to convene the meeting even after the expiry of 15 days from the date of his election did not come to an end; (3) that the new Panchayat commenced functioning on 22. 12. 60 and that the notice issued on 27. 12. 60 calling the special meeting on 4-l-1961 was clearly within 15 days from the commencement of the term of the new Panchayat. Learned single Judge observed that the writ application challenged the entire proceedings of the co-option of the non-petitioners and that the application was not directed against any individual co-opted member and, in this view of the matter, he applied the principle laid down by this Court in Prabhu Dayal vs. THE Chief Panchayat Officer, Jaipur (l) wherein it was held that the writ application was competent when the election was challenged on the ground of a fundamental deficiency in carrying out the mandatory rules relating to the holding of the election. THE learned Judge further, after referring to the provisions of sec. 9 (2) of the Act and Rule 51 (5) of the Rules and the right of an officer to be appointed by the Collector to convene the meeting for the co-option of the Panchas concluded as follows: - "to hold that the Sarpanch even after the expiry of 15 days retains the authority and jurisdiction to convene such a special meeting would mean that there will be two parallel authorities functioning in the same field viz. , the Sarpanch and the officer appointed by the Collector and an anomalous situation would arise. On the other hand if sec. 9 (2) is held to be mandatory no such anomaly would arise. " He preferred to hold the provisions to be mandatory relying upon the following observations of their Lordships of the Supreme Court in N. T. Veluswami THEvar vs. G. Raja Nainar (2) : - "when on a construction of statute two views are possible, one which results in an anomaly and the other not, it is the duty of a court to adopt the latter and not the former, seeking consolation in the thought that the law bristless with anomalies. " He further observed that "time was "made the essence of the act because a further provision was made that on his (Sarpanch's) failure to call such a meeting within the prescribed time, the Collector shall appoint another officer who shall likewise convene such a special meeting. THE designation of time in sec. 9 (2) is to be regarded a limitation on the power of the Sarpanch. " Dealing with an argument that statutes providing a time for the performance of an official duty should be construed as directory as otherwise the public interest would suffer, the learned Judge observed that "in the present case, the law does not allow the public interests to suffer and an alternative authority has been created to function in case of failure of the Sarpanch to do the act within the specified time. " THE learned Judge further held that the considerations based upon the Sarpanch having taken oath on 13. 12. 1960 and the date of the commencement of the Panchayat being 22. 12. 1960 have no bearing on the point involved in the present case. He further held that "the Sarpanch under sec. 9 (2) acts as a persona designata and convening of a meeting for co-option is not one of the functions of the Sarpanch under this Act so that the provisions of sec. 15 of the Act may be attracted. " THE principle laid down in Ganga Dutt vs. Bhagwan Das Taparia (2a) relied upon by the appellants was not extended to the present case on the ground that the decision in that case turned upon the language of sec. 26 (2) of the Rajasthan Town Municipalities Act which is different from the language of sec. 9 (2) of the Act. On these findings, the writ application was allowed. This order of the single Judge has been challenged by the present appellants. Mr. Chandmal appearing for the appellants advanced four contentions, namely, (l) that Rule 78 of the Rules provides a remedy by way of an election petition to challenge the co-option and that election petitions had been filed by Smt. Sona, Smt. Jamna and Bishna who had filed nomination papers and whose nominations were rejected and in these circumstances, the learned Single Judge ought not to have entertained the writ application; (2) that the provisions of sec. 9 (2) and the proviso thereto are of a directory nature and the Sarpanch does not lose his power to convene the meeting for co-option under sec. 9 (2) on the expiry of 15 days after the date of his election but continues even thereafter until exhausted by the exercise of this power by an officer to be appointed by the Collector and that such an officer should be treated as having only concurrent authority and power; (3) that the term of the new Panchayat having started from 22. 12. 1960 and the Sarpanch having taken oath on 13. 12. 1960, the period of 15 days under sec. 9 (2) should have been calculated with reference to either of these dates and so calculated the notice to convene the meeting was within time ; and (4) that the result relating to co-option was not materially affected because of the delay in holding the meeting for co-option of the Panchas. Mr. Chandmal also referred to the following two decisions of this Court Bhagirath vs. The Collector, Nagaur (3), Kalawati vs. Munsiff Bayana (4 ). Mr. Lekhraj repudiated the above contentions and supported the interpretation of the learned Single Judge with reference to the objects of enacting the relevant provisions and the back-ground in which they were introduced by the Legislature and referred to certain speeches of the members of the Rajasthan Legislative Assembly during the debate in connection with the relevant enactment. In support of contention No. 1, Mr. Chandmal has contended that the facts in Prabhu Dayal's case (l) were different and the principle laid down in that case cannot be extended to the facts of the present case. We do not propose to deal with this argument as, in our opinion, the existence of an alternative remedy was not necessarily sufficient to prevent the learned Single Judge from entertaining the writ application. It is well settled law that the fact that the aggrieved party has another and adequate remedy is only one factor to be taken into consideration in deciding whether to issue or decline to issue writ but it cannot be allowed to operate as absolute bar and it cannot be accepted that a writ of certiorari will lie only where there is no other equally effective remedy. The rule requiring the exhausting of statutory remedies before the grant of writ is a rule of policy, convenience and discretion rather than a rule of law. The learned Single Judge had the jurisdiction to entertain the writ application and in the facts and circumstances of the case, we see no justification to interfere with the judgement of the Single Judge on this ground. The contention No. 3 also merits no consideration. We had an occasion to consider the meaning and scope of sec. 15 of the Act in D. B. Civil Special Appeal No. 18 of 1962 "jyoti Bai and another vs. The Civil Judge, Nagaur" and after careful examination of the scheme and the various provisions of the Act and the Rules, came to the conclusion that oath under sec. 15 is necessary only for performing functions laid down in Chapter III of the Act and not to the functions relating to co-option of the Panchas. Sec. 9 (2) clearly enjoins that the period of 15 days is to be calculated from the date of the election and the date of the taking of oath or the date of the commencement of the Panchayat are immaterial for the purposes of sec. 9 (2) of the Act. The answer to the 4th contention to a great extent, turns upon the decision of contention No. 2. It is thus contention No. 2 which deserves consideration. The question posed for our consideration is whether the provisions of sec. 9 (2) are mandatory and imperative in the sense that a Sarpanch can convene a meeting for co-option only within 15 days after the date of his election and thereafter he ceases to have any authority to convene a meeting which can be convened only by an officer to be appointed by the Collector. At the outset we will notice the two single bench decisions of this Court relied upon by Mr. Chandmal for a contrary view. In Bhagirath vs. The Collector, Nagaur (3), the controversy was with regard to the mandatory or directory nature of Rules 50,51,53 and 54 of the Rules. The learned Judge held that the provisions of RR 50 and 51 cannot be regarded as mandatory. In coming to this conclusion, the learned Judge made observations to the following effect : "there seems to be no reason why there should be insistence on full compliance of the provisions of Rule 50 or 51 so long as the Panchas get to know time and place of the meeting and the purpose for which it has been called. The observations made in relation to similar language of the rules have been emphasised by Mr. Chandmal for holding the provisions of sec. 9 (2) of the Act as directory. We may also refer to the following observations made in the judgment : "the contention on behalf of the petitioners is that the Sarpanch ceased to have the authority to hold the meeting for co-option when he did not send a copy of the notice to the Collector so as to reach him within the prescribed time. The provision of this sub-rule also appears to me to be directory and not mandatory. If the Collector had appointed some other officer to convene the meeting for co-option, the power of the Sarpanch to hold such a meeting would have come to an end, but so long as no such attempt was made the power of the Sarpanch to hold a meeting for co-option continued. " These observations support Mr. Chandmal to the extent that the authority of a Sarpanch to convene a meeting does not necessarily come to an end on the expiry of 15th day after his election and continues even thereafter if in the meanwhile the Collector does not appoint an officer to convene a meeting. They however contemplate an automatic exhaustion of a Sarpanch's power with the appointment of such officer. Mr. Lekhraj in this connection pointed out that the Act and the Rules contemplate a prompt and timely appointment of an officer and contended that this circumstance taken with a premise of an automatic exhaustion of the Sarpanch's power on appointment of an officer by the Collector should justify an inference as to the mandatory nature of the provisions of sec. 9 (2) and that it will be proper to conclude that the power should come to an end automatically on the expiry of the 15th day. We may atonce refer to Rule 51 (5 ). It reads a follows: "if the Collector does not receive a copy of such notice within three days after the dale on which the Sarpanch was declared to have been elected or the date of the return under rule 41, whichever may be later, the Collector shall appoint any other officer to convene such special meeting of the panchas newly elected, Provided that such special meeting shall not be convened before the expiry of fifteen days referred to in sub-sec. (2) of sec. 9 of the Act. " It is clear from this Rule that the Collector can and may appoint an officer even before the expiry of 15 days and, therefore, it would be hardly proper to hold that the appointment of an officer by the Collector, must necessarily bring to an end the power of the Sarpanch to convene a meeting. We do not find adequate justification for the learned Judge's observation to this effect. Consequently, we see no force in the argument of Mr. Lekhraj based on this premise. We may also add that except for these observations (with which we are not in agreement) the decision of the case holding rule 51 similarly worded, directory supports Mr. Chandmal's contention that the provisions of sec. 9 (2) should be construed directory. The facts of the case Kalawati vs. Munsif Bayana (4) were these: The election of the Panchas and Sarpanch of the Panchayat took place on 10. 12. 1960. On 12. 12. 1960 the Sarpanch issued notices convening a special meeting for the co-option of two women on 18. 12. 60. No co-option took place in this meeting and the meeting had to be adjourned as there was apprehension of a breach of peace. No date for holding the adjourned meeting was fixed at that time. The Sarpanch issued notices on 28. 12. 1960 convening a special meeting for co-option on 30. 12. 1960. On that date, certain persons were co-opted. The co-option was challenged before the Election Tribunal which held that the Sarpanch had no power to convene a special meeting for co-option beyond 15 days from the date of his election as Sarpanch in view of the provision of sec. 9 (2) of the Act. The order of the Tribunal was challenged by means of writ application. The learned Single Judge set aside the order of the Tribunal and held as follows : - "a perusal of sec. 9 of the Panchayat Act as well as the relevant rules relating to co-option of Panchas contained in Chapter II of the Election Rules (Rules 50 to 55) goes to show that the intention of the Legislature is that a Panchayat should be completely constituted as soon as possible after the election of the Panchas and Sarpanch. The provision contained in sec. 9 and the relevant rules merely prescribe or regulate the way in which this co-option is to be done. A reading of sub-sec (3) of sec. 9 goes to show that it is only when the Panchayat fails to co-opt the requisite number of persons within one month of the first special meeting convened for co-option that the Collector has power to fill the vacancies by nomination. The intention of the Legislature appears to be that the Sarpanch should ordinarily convene the meeting for co-option and if he fails to convene it within 15 days of his election, then alone an officer appointed by the Collector in this behalf can convene the special meeting. In the present case the first special meeting for co-option was convened on 18. 12. 60. That was within 15 days of the election. It was open to the Sarpanch to adjourn the meeting for sufficient reason. Further it is not a matter of substance whether the meeting is convened by the Sarpanch or by the officer appointed by the Collector. It cannot be inferred from the wordings of sec. 9 that the power of Sarpanch to convene the special meeting for co-option comes to an end on the expiry of 15 days from the date of his election. " This case lends full support to Mr. Chandmal's contention. Mr. Lekhraj however, contends that this case does not take note of the anomaly indicated in the judgment under appeal as also of the object and scheme of the Act and that consequently, the decision under appeal should be preferred to this decision. In view of the elaborate arguments at the bar, an exhaustive and cirtical examination of the relevant provisions has become necessary. Now, a reference to the text books on Interpretation of Statutes clearly brings out that the determination of the question whether a particular provision is mandatory or directory is, in many instances extremely difficult. There can be no fixed rule that will give an exact answer to the question of mandatory provisions. The various special rules deduced from the authorities offer no more than a clue or guide to the character of a statutory provision. These rules are so weighed with exceptions that it is difficult to fix their value. Each individual case has to be decided on the basis of its facts. A realistic approach to the problem is to utilize the recognised aids to construction with a view to ascertaining the actual legislative intent. In Hari Vishnu Kamath vs. Ahmad Ishaque (5), Venkatarama Ayyar, J. delivering he judgment of the court stated at page 245, page (26) as follows: - "it is well-established that an enactment in form mandatory might in substance be directory, and that the use of the word "shall" does not conclude the matter. The question was examined at length in-'julius vs. Bishop of Oxford, (1880)5 AC 2 14, and various rules were laid down for determining when a statute might be construed as mandatory and when as directory. They are well-known and there is no need to repeat them. But they are all of them only aids for ascertaining the true intention of the legislature which is the determining factor, and that must ultimately depend on the context. " In Shatrushal Singh vs. Noor Mohammed (6), Sarjoo Prosad C. , J. laid down the following guiding principles: - "the language of the rule in question or the provision of law has to be examined in each case specially in the context and scheme of the legislation and the matter has to be approached in the light of certain well known standards or tests. The mere use of the words "shall" does not make any difference if the context suggests that the legislature did not intend that any disobedience of minor rules of procedure should defeat its main purpose. The primary consideration therefore, is the language of the rule itself, examined in the light of the scheme and purpose of the legislation in the context of which the rule occurs. Secondly, it has to be seen whether on the face of the rule there is any penalty provided in which case the penalty may require to be enforced. Thirdly, one has to interpret the rule having regard to the balance of convenience which may result in case it is held to be directory or mandatory. Lastly the well known doctrine of construction should be borne in mind that where the legislature requires a thing to be done by any public authority or person, then if there is substantial compliance with the rule, it should be held to be sufficient. The legislature could not have intended to cause harassment to parties concerned where due to unavoidable reasons, the public authority or person was not able to perform the duty strictly according to schedule. " At a later stage of the judgment, the learned Chief Justice referred to Ajit Kumar vs. State of West Bengal (7) and made observations which may be usefully quoted here:- "we may at this stage refer to a decision in Ajit Kumar vs. State of West Bengal (7) where the principles for determining the mandatory or directory nature of rule or statutory provision have been appropriately formulated and with which we respectfully agree. It was recognised there that the question whether a particular provision is mandatory or directory is, in many instances, extremely difficult. The language employed is not always a sure index. or instance, the mere fact that the word "shall" has been used, does, not necessarily justify the conclusion that the provision is imperative, nor is it possible to lay down any hard and fast rule in the matter. Broadly speaking, however, it was held, that there are three fundamental tests which are often applied with remarkable success in the determination of this question. They are based on considerations of the scope and object, sometimes called the scheme and purpose of the legislation in question ; on consideration of justice and balance of convenience; and also on a consideration of the nature of the particular provision, namely, whether it affects the performance of a public duty or relates to a right, privilege or power. In the former case, the Act is generally directory, in the later, mandatory. " These principles were quoted with approval in Fall Bench decision of this Court in Jaiwant Rao vs. The State of Rajasthan (8) where the relevant passages from Crawford and Maxwell were also quoted. It is in the light of these guiding principles that the relevant provisions have to be examined. Now, sec. 9 of the Act reads as follows: - Sec. 9 - Co-option of certain Panchas : - (1) As soon as may be after the election of Panchas and Sarpanch for a Panchayat, there shall be co-opted in the prescribed manner by the Panchas so elected from amongst persons qualified under this Act to be elected as Panchas: - (i) two women, if no woman has been elected to the Panchayat, (ii) one woman, if only one woman has been so elected, (iii) one person belonging to the scheduled castes, if no such person has been elected to the Panchayat, and (iv) one person belonging to the scheduled tribes, if no such person has been so elected and the population of such tribes in the Panchayat circle exceeds five percent of the total population thereof. (2) Within fifteen days after his election the Sarpanch shall convene, under due notice in the prescribed manner, a special meeting of newly elected Panchas to co-opt persons referred to in sub-sec. (1) : Provided that if the Sarpanch does not convene such special meeting within the aforesaid time, any officer appointed by the Collector in this behalf shall likewise convene such special meeting. (3) If, within one month of the first meeting of the Panchayat convened for such co-option the Panchayat fails to co-opt the requisite number of persons, the Collector shall nominate such person or persons and every person so nominated shall be deemed to have been duly co-opted. (4) The persons so co-opted or deemed to be co-opted shall be additional Panchas of the Panchayat and shall in all respects and for all purposes be deemed to be duly elected Panchas. The learned counsel for the parties have also referred to Rule 51 of the Rules without joining any controversy as to when and to what extent the rules can be referred for the purposes of interpreting the section. We will refer to these rules assuming that the rules can be referred to. Rule 51 reads as under: - Rule 51 - Special meeting for co-option : - (1) The person elected as Sarpanch shall immediately issue a notice in Form V for the special meeting referred to in sub-sec. (2) of sec. 9. 2. The notice referred to in sub-rule (1) shall be sent to all the Panchas elected as aforesaid at their addresses a given in the return under rule 41 and a copy each of the notice shall be endorsed to the Collector, (3) A copy of such notice shall also be exhibited on the notice board of the Panchayat office or in any conspicuous place at the headquarters of the Panchayat, where no Panchayat office is established. (4) The notice shall specify the dates on which nominations may be made for co-opting the requisite number of Panchas. (5) If the Collector does not receive a copy of such notice within three days after the date on which the Sarpanch was declared to have been elected or the date of the return under rule 41. whichever may be later, the Collector shall appoint any other officer to convene such special meeting of the Panchas newly elected : - Provided that such special meeting shall not be convened before the expiry of fifteen days referred to in sub-sec. (2) of sec. 9 of the Act. Sec. 9 of the Act has been radically amended by Act No. 25 of 1960. Prior to its amendment, it had given certain discretionary powers to the Government, to appoint suitable persons of scheduled castes as additional Panchas. The present section has been enacted to ensure minimum representation of certain classes of persons, such as (1) two women, (2) one person belonging to the scheduled castes, and (3) one person belonging to the scheduled tribes (if the population of such tribe exceeds 5%), if the electorates fail to return the minimum number of women or persons of the scheduled castes or scheduled tribes, and the elected Panchas have to make up the deficiency by co-option. Sub-sec. (1) requires the Panchas and the Sarpanch to co-opt in the prescribed manner the specified category of Panchas as soon as possible. Sub- sec. (2) requires the Sarpanch to convene a meeting of the newly elected Panchayat for co-option within 15 days after the date of his election. The Legislature contemplated delay (inadvertent or motivated) in convening the meeting by the Sarpanch and therefore, enacted a proviso providing that in case of default by the Sarpanch to convene a meeting within the specified time, an officer appointed by the Collector in this behalf shall convene such special meeting. Now, we do not find any difficulty in holding that sub-sec. (2) relates to the performance of a public duty by the Sarpanch. Sarpanch is a public officer. The co-option having been entrusted to the Sarpanch and the elected Panchas, and the Sarpanch being the chief spokesman of the Panchayat has been properly entrusted with the duty of convening a meeting. We may also refer in this connection to Rule 53 which provides that Sarpanch shall preside over the meeting convened for co-option irrespective of the fact whether the meeting has been convened by himself or by an officer appointed by the Collector. It is only in his absence that the officer appointed by the Collector can preside. Rule 53 further provides that the presiding person shall examine the notices of the nomination and decide objections relating to them. It is evident that sub-sec. (2) merely contemplates the notifying of the date of meeting and issuing notices. It does not contemplate creation of any privilege or power. This further strengthens our conclusion that sub-sec. (2) contemplates the performance of a public duty. We may also add that the performance of a public duty under sub-sec. (2) has sufficient bearing on the rights of (1) specified type of persons who are entitled to be co-opted, (2) panchas who are to co-opt the specified type of persons and (3) general public interested in the timely constitution of the Panchayat and obviously these persons have no control in the matter of the performance of the duty. This being the nature of the provision, according to the well-recognised principles of interpretation of statutes, it should be construed as directory subject ofcourse to other considerations. The Single Judge has quoted a passage from Maxwell laying down that "as a general rule, a statute which specifies a time for the performance of an official duty will be construed as directory so far as the time for performance is concerned, with which we agree. He has, however, been influenced by the proviso to sub-sec. (2) and similar proviso to Rule 51 (5 ). He observed that "if sub-sec. 2 had stood alone without the proviso there would have been no difficulty in construing it as merely directory. "
(3.) WE may now consider the necessary intendment and effect of the proviso to sub-sec. (2 ). Sub-sec. (2) and the proviso both are affirmatively worded and there is no express provision laying down that after the 15th day of his election, the Sarpanch shall cease to have any authority or duty to convene a meeting. The language by itself is quite consistent with the view that the officer to be appointed is only a concurrent authority to convene the meeting and it does not necessarily imply that the intention of the legislature is to give exclusive authority to the Sarpanch for the first fifteen days and to an officer to be appointed by the Collector thereafter. Mr. Lekhraj referred to us a passage by Crawford on "statutory Construction" 1940 Ed. at page 335 reading as follows : - "so also, if the statute directs that certain acts shall be done in a specified manner, or by certain person, their performance in any other manner than that specified, or by any other person than one of those namely, is impliedly prohibited. " His argument is that an officer to be appointed by the Collector having been specified as an authority to convene the meeting, the Sarpanch cannot convene the meeting. WE regret that we cannot accept this argument. In the first place, the Sarpanch having been also specified, it is not a case of only the officer having been specified. Secondly, it is made clear at a later stage in the same book that the principle should be used only as a means of ascertaining the legislative intent where it is doubtful, and not as a means of defeating the apparent intent of the legislature. The passage relied upon by Mr. Lekhraj, therefore, does not provide much assistance. The other argument and which has prevailed with the learned Single Judge is based on an anomaly arising out of two parallel authorities functioning in the same field. Examining this argument, we may point out that there are numerous instances where the legislature created or recognised different authorities having concurrent jurisdiction to convene the meeting or even to exercise concurrent jurisdiction. Sec. 26 (2) of the Rajasthan Town Municipalities Act, 1951 may be cited as an instance of the former and the exercise of revisional jurisdiction by the District Magistrate and the Sessions Judge under the Code of Criminal Procedure as an instance of the latter. We do not consider that the creation or recognition of an alternate authority must necessarily lead to any serious anomalous results. We do not see any harm why either of them should not exercise the power unless it is exhausted by the exercise of power by the other authority. Naturally, when one performs the duty, the other need not and cannot perform the same duty. It may also be mentioned here that to hold the provision directory is not tantamount to hold that there should not be any compliance with the provision. All that it means is that substantial compliance should be sufficient and there should not be any insistence on literal compliance. We may also add that there can be no difficulty in Holding in a given case after the officer appointed by the Collector convenes the meeting the Sarpanch's further action in convening the meeting may be held as bad on account of substantial non-compliance with the proviso to sub-sec. (2 ). At this stage, we may refer to Gangadutt Vs. Bhagwandas Taparia (2a) which interpreted sec. 26 (2) of the Rajasthan Town Municipalities Act, which is a provision of the similar nature. Sec. 26 (2) of the Rajasthan Town Municipalities Act reads as follows : - Sec. 26 (2)-"the chairman may, whenever he thinks fit, and shall upon the written request of not less than one third of the whole number of members and lor a date not more than fifteen days after the presentation of such request, call a special general meeting. If the chairman fails to call a special general meeting as provided in this sub-section, the vice-chairman or one-third of the whole number of members may call such meeting for a day not more than thirty days after the presentation of such request. " On the terms of this provision it was held that this did not lay down that if the chairman failed to call a special general meeting within the said 15 days he would be debarred from calling such a meeting even afterwards. The result of his failure to call a special meeting within the prescribed time is that a right accrues to the Vice Chairman or other members to call such a meeting after the expiry of fifteen days but it does not mean that the Chairman loses his right to call such a meeting according to the usual procedure. It is true that there is some difference in the language of sec. 26 (2) of the Rajasthan Town Municipalities Act and the provisions which we are considering but the principle recognising two alternate authorities who can concurrently exercise power to convene a meeting, can be relied upon to meet the argument based on anomaly. We also think that sub-sec. (1) requires the Sarpanch and the elected Panchas to make co-option as soon as possible and the Sarpanch being the chief representative of the Panchayat, he can reasonably be presumed to retain the duty to call a meeting in the absence of any specific prohibition until de facto exhaustion and in this view of the matter we see no difficulty in extending the principle of Gangadutt's case (2a) to the present case. The argument based upon anomaly does not appeal to us and we feel inclined to take a view different from the learned Single Judge. In this conclusion, the observations of Supreme Court in N. T. Veluswami Thavar's case (2) have no bearing in this case. Besides there are several other considerations which also point out in the same direction. In the first place, there are reasonable possibilities that the Collector may not appoint an officer under the proviso. Secondly, the officer so appointed may not convene a meeting in time. The present case is an instance where the Collector did not appoint any officer at all. The Sarpanch is vitally interested in the proper constitution of the Panchayat. To hold that even if the Collector does not appoint an officer for the purposes of convening a meeting the Sarpanch cannot discharge his duty of convening a meeting after the expiry of 15 days, will in our opinion amount to completely ignoring the basic duties of the Sarpanch and adversely affecting the rights of a number of persons who have no control in the matter of convening the meeting. The suggestion of Mr. Lekhraj that the persons aggrieved can approach the Government or this court for the issue of mandate to the Collector cannot persuade us to hold sub-sec. (2) mandatory. Thirdly, a literal compliance of sub-sec. (2) and the proviso is bound to present difficulty in cases where the special meeting cannot be held in consequence of a notice of the Sarpanch issued within 15 days being ineffective for want of service or various other reasons. In such a case, the Sarpanch might have issued a notice and complied with the provisions of Rule 51, the Collector in that case can have no justification to appoint an officer to convene the meeting, and if it is held that the Sarpanch also cannot call the adjourned meeting after the expiry of fifteen days, the result would be that no meeting can be convened at all. To avoid such a situation, it is necessary to construe sec. 9 (2) as directory. Fourthly, sec. 8 contemplates failure on the part of the electors of a Panchayat circle or ward thereof to elect the requisite number of Panchas and provides for appointment of a person or persons by an officer incharge of the Panchayat. It further provides that such person or persons shall be deemed to be duly elected Panch or Panchas. Rule 43 provides that the officer-in-charge of the Panchayat may invite recommendations from the Collector in this behalf. The possibility cannot be over-ruled that this process may require a period even exceeding 15 days. In such a case, the Sarpanch will be debarred from convening any such meeting. Fifthly, sec. 8-A and Rules 55 and 55-A contemplated bye-co-option and co-option to the Panchayats in certain circumstances which were functioning on the date when present sec. 9 was introduced by amendment Act No. 25 of 1960 and there being no provision for convening a meeting of this type, sec. 9 (2) has to be interpreted to authorise the convening of such meeting. All these considerations taken together justify a view to hold the provision as directory and they also show that the balance of convenience is in favour of holding the provision as directory. We should also add that on a proper consideration of the language of the provisions under consideration in the light of the foregoing discussions there is no Sufficient justification to treat the proviso as prescribing a penalty divesting a Sarpanch of his authority and duty to convene a meeting. We may now take up the argument of Mr. Lekhraj based on the objects of enacting of sub-sec. (2) and proviso and the legislative back-ground. It was pointed out that in the Rajasthan Panchayat Amendment Bill No. 14 of 1960 which eventually resulted in the promulgation of Act No. 25 of 1960, clause (7) of the Bill proposed the substitution of sec. 9 (2) in different terms. Sub-sec. (2) was proposed as follows: - "as soon as may be after his election, the Sarpanch shall convene under due notice in the prescribed manner a special meeting of the newly elected Panchas to co-opt persons referred to in sub-sec. (1 ). " There was no proviso as was eventually enacted in the Act. When the Bill came up for consideration, the members of the Legislative Assembly took serious objections to the expression "as soon as may be". The members highlighted the possibility of abuse of power by the Sarpanch to promote his or his party's interest and required suitable amendment to ensure expeditious and impartial co-option, through the agency of an independent returning officer. It was in response to such criticism that sub-sec. (2) and the proviso as they stand were introduced. According to Mr. Lekhraj, the amendment has two objects in view, (1) to secure prompt and early constitution of the Panchayat, and (2) to prevent abuse of power by the Sarpanch and to ensure impartial co-option. For promoting these objects, Mr. Lekhraj argues, it will be proper to construe these provisions as mandatory. Now, so far as the first object is concerned, we may observe without any hesitation that the object will be better achieved if both the Sarpanch and the officer to be appointed by the Collector can have concurrent jurisdiction subject to the condition of exhaustion of the power of one by the exercise of the power by the other otherwise there are chances of the constitution of the Panchayat being delayed on account of the Collector not appointing an officer in time and the officer not convening the meeting. The argument of Mr. Lekhraj that the Collector or the Officer appointed by him may not act promptly if he has the knowledge that the Sarpanch retains the authority to call the meeting even after the expiry of 15 days, does not appeal to us. We cannot act on such considerations. Coming to the other object pointed out by Mr. Lekhraj, we are unable to agree with him. Sub-sec. (2) or the proviso does not contemplate any such object. It is true that the members of the Legislative Assembly referred in their speeches to the possibilities of the abuse of his (Sarpanch's) position in the matter of convening the meeting and pointed out the desirability of impartial co-option, but it is not permissible to conclude that the legislature eventually intended to achieve the object of impartial co-option by this proviso. The proviso only empowers an officer to be appointed by the Collector to convene the meeting. He is not to be treated as a returning officer. Rule 53 shows that even though he notifies the meeting, he cannot preside in the presence of the Sarpanch. His presence at the meeting is also not necessary. In these circumstances, the ensuring of impartiality of co-option is not reasonably related to the proviso to sec. 9 (2 ). We are also unable to see how the impartiality of co-option can be ensured in these circumstances by merely depriving the Sarpanch of his authority to call a meeting and authorising an officer appointed by the Collector to convene a meeting when the Sarpanch has to preside and the officer need not be present in the meeting. We may also add that it is doubtful whether the speeches made by the members of the Assembly in the course of the debate are admissible as extrinsic aids to the interpretation of the proviso and to discover its meaning. ;