SWARAN DASS ETC. Vs. DEPUTY COMMISSIONER AND ORS.

JUDGEMENT

(1.) WHETHER the prescription of one week's time in Rule 5(8)(b) of the Punjab Municipal Election Rules, for the notification of the names of the co -opted members, is mandatory in terms is the solitary, though somewhat significant question, which arises in this set of four Civil Writ Petitions. Learned Counsel for the parties are agreed that this judgment will govern all of them.

(2.) AS is evident from the above, the issue is primarily legal yet some reference to the relevant facts giving rise thereto is inevitable and it amply suffices to advert briefly to the averments in Swam Dass and Ors. v. Deputy Commissioner, Amritsar, etc. The Municipal Committee, Jandiala Guru is admittedly a B -Class Committee and elections therefore were held on June 10, 1979 whereby 13 Municipal Commissioners including the Petitioners were declared elected. The names of the elected members were duly notified in the official gazette and the first meeting of the newly constituted Committee was held on July 13, 1979 under Rule 5 of the Municipal Election Rules, 1952 (hereinafter called the Rules) for administering the oath of allegiance to the members and further for making a co -option thereto. In this meeting two women members Respondents Nos. 3 and 4 were declared co -opted under Section 13(b) of the Act by the convener of the Committee. However, their names were not notified within one week of this meeting, that is, by July 20, 1979 in accordance with the provisions of Section 24 of the Act read with Rule 5(8)(b) of the Rules. The pointed claim of the Petitioners is that Rule 5(8)(b) being mandatory, the Deputy Commissioner became functus officio after the expiry of one week of the meeting and therefore, could not notify the names of the co -opted Respondents Nos. 3 and 4 thereafter. Consequently, the subsequent notification of these names made on August 6, 1979, - -(vide Annexure P/3) is challenged as being wholly invalid and it is claimed that the right of co -option has lapsed with the result that the State Government must now nominate two women members to the Committee. This stand is strenuously controverted on behalf of the contesting Respondents. It is obvious that the controversy must revolve around the statutory provisions and at the very out -set Section 24 of the Punjab Municipal Act, 1911, and Rule 5(8) may be read:

(3.) INEVITABLY reliance was placed on the use of the word 'shall' in the above -quoted Rule 5(8) on behalf of the Petitioners for contending that both the issuance of the notification and the period within which it is to be done have been made mandatory thereby. This, however, need not detain one for long because by now it is a settled canon of interpretation that the use of the word 'shall' in a statute is not conclusive on the point of its being mandatory. Indeed there is a plathora of authorities that the words 'may' and 'shall' have been used sometimes like interchangeable terms in the statute. It has been authoritatively laid down that an enactment in form mandatory might in substance be directory and this was so held in Julius v. Bishop of Oxford, (1980) 5 A.C. 214, which has been approved by their Lordships in H.V. Kamath v. Ahmad Ishaque and Ors., A.I.R. 1965 S.C. 233, and repeatedly reiterated thereafter.