w w w . L a w y e r S e r v i c e s . i n



George Elamplakkadu@Vakkachan Powathil v/s A.V. Mathew@Samkutty Vettupalam & Others


Company & Directors' Information:- AVINDIA PRIVATE LIMITED [Strike Off] CIN = U74999MH1968PTC014022

Company & Directors' Information:- A M MATHEW AND COMPANY PRIVATE LIMITED [Active] CIN = U65923TZ1955PTC000010

Company & Directors' Information:- A V GEORGE AND CO PRIVATE LTD [Active] CIN = U51109KL1937PTC000027

Company & Directors' Information:- A V GEORGE AND CO INDIA PVT LTD [Active] CIN = U74999KL1946PTC001390

    W.P.(C). No. 12626 of 2019 (C)

    Decided On, 19 August 2020

    At, High Court of Kerala

    By, THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN

    For the Petitioner: Jacob P. Alex, Joseph P. Alex, P. Manu Sankar, Advocates. For the Respondents: R3, Murali Purushothaman, Standing Counsel, R1, M. Abdul Rasheed, R2, George Varghese(Perumpallikuttiyil), Rajan G. George, Manu Sreenath, Advocates.



Judgment Text

1. The petitioner, who is a member of the 2nd respondent Vechoochira Grama Panchayat, elected from Ward No.7, in the election held in November, 2015, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari to quash Ext.P3 order dated 09.04.2019 of the 3rd respondent Kerala State Election Commission in O.P.No.47 of 2017, a petition filed by the 1st respondent herein under sub-section (1) of Section 4 of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 for declaring that the petitioner herein, who was arrayed as the respondent in that original petition, committed defection and hence disqualified to continue as member of Vechoochira Grama Panchayat; and for declaring him as disqualified to contest as candidate in any election to the local authorities for a period of six years.2. On 26.04.2019, when this writ petition came up for admission, this Court admitted the matter on file and issued notice to respondents 1 and 2 by speed post. The learned Standing Counsel for State Election Commission entered appearance for the 3rd respondent.3. On 26.04.2019, this Court granted an interim order, whereby the petitioner is permitted to function as member of the Vechoochira Grama Panchayat, however, subject to the condition that he shall not have any right to vote in the meeting of the Panchayat and to draw any financial benefit in his capacity as a member of the Panchayat and shall not hold any office in the Panchayat in his capacity as a member. The said interim order, which was operative for a period of three months, which was extended from time to time, was extended until further orders on 31.10.2019.4. A counter affidavit has been filed by the 1st respondent, opposing the reliefs sought for in this writ petition.5. Heard the learned counsel for the petitioner, the learned counsel for the 1st respondent, the learned counsel for the 2nd respondent and also the learned Standing Counsel for the 3rd respondent State Election Commission.6. The petitioner, who is an elected member of the 2nd respondent Grama Panchayat, from Ward No.7, is before this Court feeling aggrieved by Ext.P3 order of the 3rd respondent State Election Commission in O.P.No.47 of 2017. He is a member of National Congress Party (NCP), who contested election on the symbol 'Clock'. NCP was a constituent of Left Democratic Front (LDF), which was ruling the Grama Panchayat, with the support of an independent member. While so, Kerala Congress (Mani) brought a 'no-confidence motion' against the Vice President of the Grama Panchayat, on 02.09.2019. In that no-confidence motion, the members of Communist Party of India (CPI) and also the petitioner, who belongs to NCP, abstained from voting. The 1st respondent herein, an elected member from Ward No.9 of the Grama Panchayat, who contested the election as an independent candidate, filed O.P.No.47 of 2017 (Ext.P1) before the Election Commission alleging that the petitioner herein violated the whip issued by NCP and thus voluntarily given up membership of that political party.7. On receipt of notice in Ext.P1, the petitioner herein submitted an objection dated 23.01.2018 (Ext.P2). Before the State Election Commission, Exts.A1 to A7 were marked and PWs.1 to 6 were examined on the side of 1st respondent herein. On the side of the petitioner herein, RWs.1 to 3 were examined. Exts.X1, X1(a) and X2 were marked through witnesses.8. After considering the pleadings and evidence on record, the State Election Commission arrived at a conclusion that the 1st respondent, being a member of the 2nd respondent Grama Panchayat, is entitled to file original petition under clause (a) of sub-section (1) of Section 3 of the of the Kerala Local Authorities (Prohibition of Defection) Act. From the evidence of PWs.2 to 4 and the admission of RW1, the State Election Commission found that the contention of the petitioner herein that no whip was issued by PW4 District President of NCP cannot be accepted. From the evidence of PWs.1 to 3 and Exts.A1, A5 and A7, the State Election Commission found that Ext.A4 whip was affixed on the front door of the house of the petitioner herein and as such, the whip was served on him by affixture. The petitioner herein, who is a signatory to Ext.X2 notice of no confidence motion, could not offer any justification for his absence in the meeting held on 02.09.2017. Therefore, the State Election Commission concluded that, as borne out from the evidence and circumstances, the absence of the petitioner herein on 02.09.2017 was deliberate and he failed to comply with the direction of the party in issuing Ext.A4 whip. The conduct of the petitioner herein, in abstaining from attending the meeting held on 02.09.2017 defying the direction of his party would clearly demonstrate that he became disloyal to the party, which elected him as a member of the 2nd respondent Grama Panchayat. The above acts would amount to defection, inviting disqualification under both the limbs of clause (a) of subsection (1) of Section 3 of the said Act, as alleged and the case put forward against him by the 1st respondent herein is clearly established. Therefore, the State Election Commission in Ext.P3 order concluded that the petitioner herein has committed defection and he has voluntarily given up membership of the party which elected him as member, as provided by clause (a) of sub-section (1) of Section 3 of the said Act, and therefore, he became subjected to disqualification for being a member of the 2nd respondent Grama Panchayat. The State Election Commission by Ext.P3 order dated 09.04.2019 allowed O.P.No.47 of 2017 and the petitioner herein was declared as disqualified for being a member of the 2nd respondent Grama Panchayat, as provided by clause (e) of sub-section (1) of Section 3 of the said Act. He was further declared as disqualified for contesting as a candidate in an election to any local authorities for a period of six years from the date of Ext.P3 order, as provided by sub-section (3) of Section 4 of the said Act.9. Going by the averments in O.P.No.47 of 2017, on 01.09.2017, the District President of NCP issued whip to the petitioner herein to vote in favour of the no confidence motion against the Vice President, in the meeting of election scheduled on 02.09.2017. The petitioner purposefully did not receive the whip from the District President of NCP and willfully absconded from his residence to avoid it. Hence the whip was affixed on the premises of his house. Thereafter, the same was intimated to the Returning Officer and the Secretary of the 2nd respondent Grama Panchayat. The averments to that effect in paragraphs 4 and 5 of O.P.No.47 of 2017 read thus;“4. While so, on 01.09.2017, the District President of Nationalist Congress Party issued whip to the respondent to vote in favour of no-confidence motion against the Vice President election scheduled to be held on 02.09.2017 in Vechoochira Grama Panchayat.5. The respondent purposefully did not receive the whip from the District President of Nationalist Congress Party and willfully absconded from his residence to avoid it. Hence the whip has been affixed on the premises of his house. Thereafter, the same was intimated to the Returning Officer and Secretary of Vechoochira Grama Panchayat.”10. In paragraphs 7 and 8 of Ext.P2 objection, the petitioner herein denied the averments in paragraphs 4 and 5 of O.P.No.47 of 2017. Paragraphs 7 and 8 of Ext.P2 objection read thus;“7. Averments in Paragraph No.4 of the OP are false and hence denied. President of nationalist party has not issued whip to the respondent and no valid whip was communicated to the respondent about the no-confidence motion against the Vice President. Political parties or NCP never take a decision to move no-confidence motion against the Vice President with the support of Kerala Congress (M). The NCP party was not discussed with the respondent before issuing alleged as alleged by the petition.8. Averments in Paragraph 5 & 6 of the OP are false and hence denied. The respondent never absconded from his residence. It is a trustless allegation. There was no whip issued to the respondent. The respondent abstained from the meeting of no-confidence motion from the side of LDF and CPI members also abstained from the meeting. From itself, it is evident that LDF has not taken a decision to support the no-confidence motion.”11. The Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for brevity, 'the Act') was enacted to prohibit defection among members of local authorities in the State of Kerala and to provide for disqualification of the defecting members for being members of the local authorities. Clause (iva) of Explanation to Section 2 of the Act, inserted by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2012 defines the term 'direction in writing' to mean a direction in writing, signed with date, issued to a member belonging to, or having the support of, a political party, by the person authorised by the political party from time to time to recommend the symbol of the said political party for contesting in election, for exercising the vote favourably or unfavourably or to abstain from voting.12. Section 3 of the Act deals with disqualification on ground of defection. As per clause (a) of sub-section (1) of Section 3, notwithstanding anything contained in the Kerala Panchayat Raj Act, 1994 (13 of 1994), or in the Kerala Municipality Act, 1994 (20 of 1994), or in any other law for the time being in force, subject to the other provisions of this Act, if a member of local authority belonging to any political party voluntarily gives up his membership of such political party, or if such member, contrary to any direction in writing issued by the political party to which he belongs or by a person or authority authorised by it in this behalf in the manner prescribed, votes or abstains from voting,- (i) in a meeting of a Municipality, in an election of its Chairperson, Deputy Chairperson, a member of standing Committee or the Chairman of a standing committee; or (ii) in a meeting of a Panchayat, in an election of its President, Vice President, a member of a Standing Committee; or the Chairman of the Standing Committee; or in a voting on a no-confidence motion against one of them except a member of a Standing Committee, he shall be disqualified for being a member of that local authority. Clause (b) of sub-section (1) of Section 3 deals with an independent member belonging to any coalition and clause (c) of sub-section (1) of Section 3 deals with an independent member not belonging to any coalition.13. Sub-sections (2) and (3) of Section 3 of the Act, added by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013, read thus;“3. Disqualification on ground of defection.- (1). xxx xxx(2) The direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members concerned in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.(3) Where any dispute arises regarding the direction issued under the Section between the political party or coalition concerned and the member authorised in this behalf as prescribed under sub-section (2), the direction in writing issued in this regard by the person authorised by the political party from time to time to recommend the symbol of the political party concerned for contesting in election shall be deemed to be valid.”14. In exercise of the powers conferred by sub-section (1) of Section 7 of the Act, the Government of Kerala in consultation with the State Election Commission made the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 (for brevity, 'the Rules'), in supersession of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 1998. Rule 4 of the Rules deals with the manner in which a political party or coalition may give direction to its members. Sub-rule (1) of Rule 4, after its amendment by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014, reads thus;“4. The manner in which a political party or coalition may give direction to its members.- (1) If a political party or coalition gives any direction in respect of the casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3, it shall be in writing and such a direction shall be given,-“MALAYALAM”(ii) In the case of a member who belongs to a coalition or considered to be in it; by the member whom the members of the said coalition and the members considered to be included in it in the local authority concerned elected for the purpose, on majority basis from among themselves.15. By the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2005, sub-rule (3) of Rule 4 of the Rules was renumbered as sub-rule (2) and the words “Copy of the direction in writing shall also be given to the Secretary” added thereto, at the end. Sub-rule (2) of Rule 4, after its amendment, reads thus;“(2) While issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary”16. In the instant case, no materials were placed before the State Election Commission to prove compliance of sub-section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules, that a copy of the direction in writing (whip) was also given to the Secretary of the 2nd respondent Grama Panchayat.17. The learned Standing Counsel for the 3rd respondent State Election Commission and also the learned counsel for the 1st respondent would contend that, though the first limb of subsection (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules is mandatory in nature, the second limb of the said provisions, which require that a copy of the direction in writing shall be given to the Secretary of the Local Self Government Institution concerned, is only directory in nature. Per contra, the learned counsel for the petitioner and also the learned counsel for the 2nd respondent would contend that the second limb of subW. section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules, is mandatory in nature.18. In Lizy Valsalan v. Suja Salim and another [2015 (3) KHC 968], a decision relied on by the learned counsel for the 2nd respondent, a Division Bench of this Court held that sub-rule (2) of Rule 4 of the Kerala Local Authorities (Disqualification of Defected Members) Rules clearly indicates that a direction under sub-rule (1) if send by registered post, it shall be done along with acknowledgment due. While effecting service by affixture, it has to be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary. The very purpose of informing the Secretary of such a direction is to ensure proof regarding existence of a valid direction (whip) in terms of clause (i) of sub-rule (1) of Rule 4. It is true that the reason for sending the direction under sub-rule (1) of Rule 4 by registered post acknowledgment due is for the purpose of intimating the direction to the concerned member. But, by not receiving the registered article, the member should not be permitted to circumvent a valid direction. The very purpose by which the rule making authority had imposed on a further stipulation to provide a copy of the direction to be given to the Secretary is to ensure existence of a valid direction by the political party to its members. Paragraph 27 of the said decision reads thus;“27. One contention that has been specifically urged by the respondents, is that the whip has not been served on them, and the evidence indicates that the whip was served only after the time and date on which the meeting was held. Rule 4(2) of the Rules clearly indicates that a direction under sub-rule (1) if send by registered post, it shall be done along with acknowledgment due. While effecting service by affixture, it has to be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary. The very purpose of informing the Secretary of such a direction is to ensure proof regarding existence of a valid direction (whip) in terms of Rule 4(1)(i). It is true and as rightly contended by learned counsel for respondents that the reason for sending the direction under Rule 4(1) by registered post acknowledgment due is for the purpose of intimating the direction to the concerned member. But, by not receiving the registered article, the member should not be permitted to circumvent a valid direction. The very purpose by which the rule making authority had imposed on a further stipulation to provide a copy of the direction to be given to the Secretary is to ensure existence of a valid direction by the political party to its members. Even assuming that the registered parcel was not received by any of the respondents, in the meeting held on 08.05.2012, the Secretary had informed them about the existence of the whip. The respondents intimated the Secretary that the whip need not be read over during the meeting. These are all additional facts which give an indication that the respondents were aware of the whip issued by the political parties. Further, it is also evident that without the support of LDF and other independent members, it was not possible for the respondents to form a quorum to pass the no confidence motion. When these factual aspects had been taken note of by the Commission and arrived at a clear finding that the respondents were aware of the existence of the whip though not specifically served on them and contrary to such direction, they had acted against the interest of their political party, we do not think that the learned Single Judge was justified in interfering with the said finding of fact.”19. The term 'direction in writing' is defined for the first time by inserting clause (iva) of Explanation to Section 2 of the Act, by the Kerala Local Authorities (Prohibition of Defection) Amendment Act, 2013. By the said Amendment Act, sub-sections (2) and (3) were added to Section 3 of the Act. As per sub-section (2) of Section 3, the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the members in the manner as may be prescribed and copy of such direction in writing shall be given to the Secretary of the Local Self Government Institution concerned.20. As already noticed, Rule 4 of the Rules deals with the manner in which the political party or coalition may give directions to its members. As per clause (i) of sub-rule (1) of Rule 4, prior to its amendment by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2005, if a political party or coalition gives any direction in respect of casting of vote in an election or in a voting as has been mentioned in clause (a) or clause (b) of Section 3 of the Act, it shall be in writing and such a direction shall be given in the case of a member who belongs to a political party or is considered to be included in it, by the member whom the members of the said political party and the members considered to be included in it, in the local authority concerned, elect for the purpose, on majority basis from among themselves. After the amendment of clause (i) of sub-rule (1) of Rule 4, by the Amendment Rules, 2005, such direction in writing (whip) shall be issued by the person authorised by the political party from time to time to recommend the symbol of the said political party for contesting in the election, in the manner specified in clause (i). The said clause was amended further by the Kerala Local Authorities (Disqualification of Defected Members) Amendment Rules, 2014. After the amendment by the Amendment Rules, 2005, as per sub-rule (2) of Rule 4, while issuing a direction under sub-rule (1) directly, the person who gives it shall obtain a receipt from the member and while sending it by registered post it shall be done along with acknowledgment due and while effecting it by affixing it shall be done in the presence of at least two witnesses. Copy of the direction in writing shall also be given to the Secretary.21. The very purpose by which the rule making authority had imposed on a further stipulation in sub-rule (2) of Rule 4 to provide a copy of the direction in writing to be given to the Secretary is to ensure existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4. Sub-section (2) of Section 3 of the Act mandates that a copy of the direction in writing issued for the purpose of clauses (a) and (b) of sub-section (1) shall be given to the Secretary of the Local Self Government Institution concerned. As per sub-section (1) of Section 4, if any question arises as to whether a member of a local authority has become subject to disqualification under the provisions of the Act (on the ground of defection) a member of that local authority or the political party concerned or a person authorised by it in this behalf may file a petition before the State Election Commission for decision. Serving of a copy of the direction in writing (whip) to the Secretary of the local authority concerned is the only method by which a member of that local authority belonging to any other political party to come to know about the whip.22. The very object of the Act is to prohibit defection among members of local authorities in the State and to provide for disqualification of the defecting members for being members of the local authorities. As per sub-section (2) of Section 4 of the Act, the State Election Commission shall, after making such enquiry as it deems necessary, decide whether such member has become subject to such disqualification or not and its decision shall be final. As per sub-section (2) of Section 5, the State Election Commission, while trying a petition filed under sub-section (1) of Section 4 of the Act have the powers of a Civil Court while trying a suit under the Code of Civil Procedure, 1908 in respect of the matter enumerated thereunder in clauses (a) to (e). What is envisaged under sub-section (2) of Section 4 is an enquiry to find out whether a member of a local authority has become subject to disqualification on the ground of defection under the provisions of clause (a) or clause (b) or clause (c) of sub-section (1) of Section 3 of the Act. Clause (a) of sub-section (1) of Section 3 deals with two distinct grounds on which a member of local authority belonging to any political party become subject to disqualification on the ground of defection, i.e., (i) for voluntarily giving up his membership of such political party; and (ii) for acting contrary to the direction in writing (whip) issued by such political party. In a petition filed under sub-section (1) of Section 4, on the ground that a member of a local authority belonging to any political party acted contrary to the direction in writing (whip) issued by such political party, the petitioner has to place on record a copy of the direction in writing (whip) issued by the political party; and in the enquiry conducted under sub-section (2) of Section 4, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4.23. As per sub-section (3) of Section 4 of the Act, where the State Election Commission decides that a member has become subject to disqualification under sub-section (2), he shall ceas to be a member from the date of such decision and shall be disqualified for contesting as a candidate in an election to any local authority for six year from that date. When the statute prescribes serious consequence once the State Election Commission decides that a member has become subject to disqualification under subsection (2) of Section 4, the provisions under clause (i) of sub-rule (1) of Rule 4 has to be scrupulously followed while giving the direction in writing; and such direction has to be given to the members concerned and also the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4.24. In Joseph K.M. v. Babychan Mulangasseri and others [2015 (1) KHC 111] a Division Bench of this Court held that, it is to check erosion of the values in democracy the Tenth Schedule to the Constitution of India and the Kerala Local Authorities (Prohibition of Defection) Act, 1999 were brought into force. The Tenth Schedule to the Constitution of India deals with disqualification on the ground of defection of a member of either House of the Parliament and that of a member of the Legislative Assembly or the Legislative Council of a State. The constitutional validity of the Constitution (Fifty-second Amendment) Act, 1985, in so far as it seeks to introduce Tenth Schedule to the Constitution was under challenge before a Constitution Bench of the Apex Court in Kohoto Hollohan v. Zachillhu [(1992) Supp. 2 SCC 651]. The Apex Court observed that the object underlying the provisions in the Tenth Schedule is to curb the evil of political defections motivated by lure of office or other similar considerations which endanger the foundations of our democracy. The remedy proposed is to disqualify the member of either House of Parliament or of the State Legislature who is found to have defected from continuing as a member of the House, on the grounds of disqualification specified in paragraph 2 of the Tenth Schedule.25. In Hari Vishnu Kamath v. Ahmad Ishaque [AIR 1955 SC 233], in the context of Rule 47(1)(c) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951, a Constitution Bench of the Apex Court held that, 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 v. Bishop of Oxford [(1880) 5 App. Cas. 214], 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. The practical bearing of the distinction between a provision which is mandatory and one which is directory is that, while the former must be strictly observed, in the case of the latter it is sufficient that it is substantially complied with.26. In Commissioner of Income Tax v. Dhanalakshmi Weaving Works [(2000) 24 ITR 13 (KER)], a Division Bench of this Court, in the context of Section 201(1A) of the Income Tax Act, 1961 held that for ascertaining the intention of the Legislature, the Court may consider, inter alia, the nature and design of the statute and the consequences which would follow from construing it one way or the other; the impact of other provisions whereby the necessity of complying with the provisions in question is avoided; the circumstances, namely, that the statute provides for a contingency of non-compliance with the provisions; the fact that the non-compliance with the provisions is or is not visited by some penalty; the serious or trivial consequences that flow therefrom; and above all, whether the object of the legislation will be defeated or furthered. If the object of enactment is defeated by holding the same directory, it will be construed as mandatory whereas it by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, the same will be construed as directory. A directory provision may be distinct from a discretionary power. The former gives no discretion and is intended to be obeyed, but a failure to obey it does not render a thing duly done in disobedience of it a nullity. The latter, i.e., discretionary power, leaves the donee of the power free to use or not to use it at his discretion. Another mode of showing a clear intention that the provision enacted is mandatory is by clothing the command in a negative form.27. In Rani Drigraj Kuer v. Raja Sri. Amar Krishna Narain [AIR 1960 SC 444], a Three-Judge Bench of the Apex Court, in the context of Section 56 of the U.P. Court of Wards Act, 1912 held that, in order that one section may be rendered otiose by a certain interpretation of another, that interpretation must make the two sections deal with the same subject matter; the two must then be serving the same purpose. The argument is founded on the basis that read as an imperative provision Section 56 would not be otiose, that is, then it would be serving a purpose different from that which Section 55 served. A provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A directory provision however gives no discretionary power to do or not to do the thing directed. A directory provision is intended to be obeyed but a failure to obey it does nor render a thing duly done in disobedience of it, a nullity.28. In Sharif-ud-Din v. Abdul Gani Lone [(1980) 1 SCC 403] the Apex Court held that the difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. The fact that the statue uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. Where however, a provision of law prescribes that a certain act has to be done in a particular manner by a person in order to acquire a right and it is coupled with another provision which confers an immunity on another when such act is not done in that manner, the former has to be regarded as a mandatory one. A procedural rule ordinarily should not be construed as mandatory if the defect in the act done in pursuance of it can be cured by permitting appropriate rectification to be carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that a failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow.29. In May George v. Special Tahsildar [(2010) 13 SCC 98], the Apex Court held that, while determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. It may also be necessary to find out the intent of the legislature for enacting it and the serious and general inconveniences or injustice to persons relating thereto from its application. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things. In order to declare a provision mandatory, the test to be applied is as to whether non-compliance of the provision could render entire proceedings invalid or not. Whether the provision is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed. The issue is to be examined having regard to the context, subject matter and object of the statutory provisions in question. The Court may find out as what would be the consequence which would flow from construing it in one way or the other and as to whether the Statute provides for a contingency of the non-compliance of the provisions and as to whether the non-compliance is visited by small penalty or serious consequence would flow therefrom and as to whether a particular interpretation would defeat or frustrate the legislation and if the provision is mandatory, the act done in breach thereof will be invalid.30. In State of U.P. v. Babu Ram Upadhya [AIR 1961 SC 751] a Constitution Bench of the Apex Court held that, for ascertaining the real intention of the Legislature, the Court may consider, inter alia, the nature and the design of the statute, and the consequences which would follow from construing it the one way or the other, the impact of other provisions whereby the necessity of complying with the provisions in question is avoided, the circumstance, namely, that the statute provides for a contingency of the non-compliance with the provisions, the fact that the non-compliance with the provisions is or is not visited by some penalty, the serious or trivial consequences that flow therefrom, and, above all, whether the object of the legislation will be defeated or furthered.31. In Raza Buland Sugar Co. Ltd., Rampur v. Municipal Board, Rampur [AIR 1965 SC 895] and in State of Mysore v. V.K. Kangan [(1976) 2 SCC 895 : AIR 1975 SC 2190] the Apex Court held that as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law-maker and that has to be gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other.32. In Salem Advocate Bar Association v. Union of India [(2005) 6 SCC 344] the Apex Court held that the use of the word 'shall' in Order VIII, Rule 1 of the Code of Civil Procedure, 1908 by itself is not conclusive to determine whether the provision is mandatory or directory. The use of the word 'shall' is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the context of Order VIII, Rule 1, strict interpretation would defeat justice. The said decision was followed by this Court in Madhavikutty Amma and another v. Thatha and others [2015 (2) KHC 76].33. In V.A. Jose and another v. The Joint Registrar of Co-operative Societies (General) and others [2007 (1) KHC 92] a Division Bench of this Court held that, 15 clear days notice contemplated in the last part of Rule 43A(ii) of the Kerala Cooperative Societies Rules, 1969 is to inform the members of the convening of the meeting of the no-confidence motion. The main object of giving the notice is to make it possible for them so as to arrange their other business as to be able to attend the meeting. Legislature has not provided any consequence that is to follow if 15 clear days notice has not been given. In the absence of any prejudice caused to the petitioner and that no consequences have been provided in the statute if 15 clear days notice is not given, the Division Bench held that the provision is directory.34. In Roopesh v. State of Kerala and others [2019 (4) KLT 219] this Court held that Section 45(2) of the Unlawful Activities (Prevention) Act, 1967 as well as Rule 3 and Rule 4 of the Unlawful Activities (Prevention) (Recommendation And Sanction of Prosecution) Rules, 2008 employ the word 'shall' when it speaks about the time frame within which sanction should be granted. The provisions enumerated above leave no manner of doubt that within 7 days of the receipt of evidence gathered by the Investigating Officer under the Code of Criminal Procedure, 1973, the Authority appointed under Section 45 of the Act shall make its report to the State Government and the State Government, in turn, have to take a decision regarding sanction for prosecution within seven working days after receipt of recommendation of the Authority. The word 'shall' is ordinarily mandatory, but in the context or if the intention is otherwise, it may be construed to be merely directory. The construction ultimately depends on the provision itself keeping in view the intendment of the enactment and the context in which, the word 'shall' has been used. Where the consequence of failure to comply with any requirement of a provision is not provided by the statute itself, the consequence has to be determined with reference to the intention of the legislature, nature and purpose of the enactment and the effect of the noncompliance.35. In ITC Limited v. Blue Coast Hotels Ltd. [(2018) 15 SCC 99] the Apex Court found the language of sub-section (3A) of Section 13 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 to be clearly impulsive. It states that the secured creditor "shall consider such representation or objection and further, if such representation or objection is not acceptable or tenable, he shall communicate the reasons for non-acceptance" thereof. The Apex Court found no reason to marginalize or dilute the impact of the use of the imperative 'shall' by reading it as 'may'. As held in State of U.P. v. Manbodhan Lal Shrivastava [AIR 1957 SC 912] the word 'shall' invariably raises a presumption that the particular provision is imperative. There is nothing in the legislative scheme of Section 13(3A) which requires the Court to consider whether or not, the word 'shall' is to be treated as directory in the provision. As the Section stood originally, there was no provision for the above mentioned requirement of a debtor to make a representation or raise any objection to the notice issued by the creditor under Section 13(2). As it was introduced via sub-section (3A), it could not be the intention of the Parliament for the provision to be futile and for the discretion to ignore the objection/representation and proceed to take measures, be left with the creditor. There is a clear intendment to provide for a locus poenitentiae which requires an active consideration by the creditor and a reasoned order as to why the debtor's representation has not been accepted. Moreover, this provision provides for communication of the reasons for not accepting the representation/objection and the requirement to furnish reasons for the same. A provision which requires reasons to be furnished must be considered as mandatory. Such a provision is an integral part of the duty to act fairly and reasonably and not fancifully. The Apex Court was not prepared in such circumstances to interpret the silence of the Parliament in not providing for any consequence for non-compliance with a duty to furnish reasons. The Apex Court held that the provision must nonetheless be treated as 'mandatory'.36. In view of the law laid down in the decisions referred to supra, for determining when a statute might be construed as mandatory and when as directory, the court has to ascertain the true intention of the legislature, which is the determining factor, and that must ultimately depend on the context. If the object of enactment is defeated by holding the same directory, it will be construed as mandatory; whereas if by holding it mandatory serious general inconvenience will be created to innocent persons without very much furthering the object of the enactment, the same will be construed as directory. While determining whether a provision is mandatory or directory, in addition to the language used therein, the Court has to examine the context in which the provision is used and the purpose it seeks to achieve. The provision is mandatory if it is passed for the purpose of enabling the doing of something and prescribes the formalities for doing certain things. Whether the provi

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sion is mandatory or directory, depends upon the intent of Legislature and not upon the language for which the intent is clothed.37. In the instant case, as held by a Division Bench of this Court in Lizy Valsan, the very purpose by which the rule making authority has imposed on a further stipulation in sub-section (2) of section 4 of the Act and sub-rule (2) of Rule 4 of the Rules to provide a copy of the direction in writing (whip) to the Secretary of the local authority is to ensure existence of a valid direction by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4. In view of the provisions under sub-section (1) of Section 4 of the Act, if any question arises as to whether a member of a local authority has become subject to disqualification on the ground of defection, any member of that local authority can file a petition before the State Election Commission for decision. In view of sub-rule (2) of Rule 4A of the Rules, such a petition has to be filed before the State Election Commission within a period of 15 days from the date on which a member of the local authority has become subject to disqualification. As per the proviso to sub-rule (2) of Rule 4A, the State Election Commission can entertain a petition beyond the said time limit, if the petitioner offers sufficient cause for the delay in filing that petition. Serving of a copy of the direction in writing (whip) to the Secretary of the local authority concerned is the only method by which a member of that local authority belonging to any other political party to come to know about the whip. In the enquiry conducted by the State Election Commission under sub-section (2) of Section 4 of the Act, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also to the Secretary of the local authority, in the manner prescribed in sub-rule (2) of Rule 4. Keeping in view the intendment of the enactment and the context in which the word 'shall' has been used in sub-section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules, conclusion is irresistible that the said provisions, which require that a copy of the direction in writing (whip) shall also be given to the Secretary, are mandatory in nature. The very object of the enactment will be defeated by construing the said provisions as directory.38. In such circumstances, it is held that sub-section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules, which require that a copy of the direction in writing (whip) shall also be given to the Secretary, is mandatory in nature. In a petition filed under sub-section (1) of Section 4, on the ground that a member of a local authority belonging to any political party acted contrary to the direction in writing (whip) issued by the political party, the petitioner has to place on record a copy of the direction in writing (whip) issued by the political party; and in the enquiry conducted under sub-section (2) of Section 4, the petitioner has to establish the existence of a valid direction in writing (whip) by the political party to its members, in terms of clause (i) of sub-rule (1) of Rule 4 and that, it was given to the members concerned and also to the Secretary of the local authority, in the manner prescribed in subrule (2) of Rule 4.39. In the instant case, no materials were placed before the State Election Commission to prove that a copy of the direction in writing (whip) was also given to the Secretary of the 2nd respondent Grama Panchayat, in compliance of sub-section (2) of Section 3 of the Act and sub-rule (2) of Rule 4 of the Rules. In the absence of any such materials, the State Election Commission went wrong in holding that the petitioner abstained from the meeting held on 02.09.2017, defying the direction of the political party which elected him as a member of the 2nd respondent Grama Panchayat and the said act of the petitioner amounts to defection, inviting disqualification under both the limbs of clause (a) of subW. section (1) of Section 3 of the Act. Therefore, the reasoning of the State Election Commission in Ext.P3 order dated 09.04.2019 cannot be sustained in law.40. In the result, this writ petition is allowed by setting aside Ext.P3 order dated 09.04.2019 of the 3rd respondent State Election Commission, thereby dismissing O.P.No.47 of 2017 filed by the 1st respondent before the said Commission.No order as to cost.
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