Shiva Kirti Singh, J.:— Both the writ petitions were referred to Division Bench for resolving contradictory views taken by learned Single Judges of this Court in different judgments on the issue whether Section 44 of the Bihar Panchayat Raj Act, 2006 (hereinafter referred to as the Act) which is somewhat similar to the same section of the Bihar Panchayat Raj Act, 1993 is mandatory or not so as to render the notice for a meeting to consider a motion of “No Confidence” void if it does not mention the charges/allegations for the proposed motion.

2. The essential facts are not in dispute and it is not necessary to refer to the facts in detail for deciding the issue canvassed before us in course of hearing. It will suffice, to note that the writ petitioners have challenged the notice fixing the date of meeting for considering “No Confidence” motion against them on the ground that the concerned notice did not contain any reasons/charges which are required to be mentioned in the notice under sub-section (3)(b) of Section 44 of the Act. In C.W.J.C 12611 of 2008 the petitioners were elected Chairman and Vice-Chairman respectively of Nawadah Zila Parishad and in the other writ petition the sole petitioner is the elected Pramukh of Block Panchayat Samiti, Jokihat, Dis-trict-Araria. In both the cases the notices were issued on the requisition of required number of members, not by the elected office bearers but by the concerned Government Officials i.e the Deputy Development Commissioner, Nawadah-cum-Chief Executive Officer, Nawadah and the Block Development Officer, Jokihat-cum-Execu-tive Officer, Jokihat Block Panchayat Samiti, respectively. It is also not in dispute that the requisition submitted by the required number of elected members contained the allegations/charges for which a meeting to consider no confidence motion was sought. But the notice issued by the concerned officials did not communicate those allegations/charges. Since the petitioners were served with requisitions to convene the meeting to consider “No Confidence” motion, they have not alleged any prejudice to them on account of alleged defect in the notice. The petitioners of C.W.J.C No. 12611 of 2008 did not participate in the meeting held for considering the “No Confidence” motion but the motions were admittedly carried out with the support of required majority of members.

3. For the sake of easy reference the relevant statutory provisions are extracted hereunder:—

“Sub-section (3), of Section 44 of the Bihar Panchayat Raj Act, 1993:—

(3) The date, of the first meeting of the Panchayat Samiti, after its constitution shall be fixed by the Sub-Divisional Magistrate who shall preside at such meeting and the date of each subsequent ordinary meeting shall be fixed at the previous meeting of the Panchayat Samiti, provided that the Pramukh may for sufficient reasons, alter the day of the meeting of a subsequent date. The Pramukh may, whenever he thinks fit, shall, upon the written request of not less than-one-third of the total number of members and on a date within fifteen days from the receipt of such request call a special meeting. If the Pramukh fails to call a special meeting, the Up-Pramukh or one-third of the total number of members may call the special meeting for a day not more than fifteen days after presentation of such request and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting.”

“sub-section (3) of Section 44 of the Act, 2006:—

(3)(i) A Pramukh/Up-Pramukh of the Panchayat Samiti shall be deemed to have vacated his office forthwith if a resolution expressing want of confidence in him is passed by a majority of the total number of elected members of the Panchayat Samiti at a meeting specially convened for the purpose.

The requisition for such a special meeting shall: be presented to the Pramukh in writing with a copy to the Executive) Officer of the Panchayat Samiti, by not less than one third of the total number of members elected directly from the territorial constituencies of the Panchayat Samiti., The Executive Officer shall immediately bring the requisition to The notice of the Pramukh the Pramukh shall convene such meeting on a date falling within 15 days of such requisition. If the Pramukh fails to call the special meeting, the Up-Pramukh or one third of the total number of directly elected members may fix a date for such meeting and require the Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting. The Executive Officer shall necessarily issue such notice in time and convene the meet-ihg. No such meeting shall be post-poned once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion.

(ii) No confidence motion shall not be moved against the Pramukrjgpr the Up-Pramukh within the first two years period of theirtenure.

(iii) If the motion of no confidence brought against The Pramukh or the Up-Pramukh or both is once rejected, no fresh motion of no confidence against the Pramukh or the Up-Pramukh or both, as the case may be, shall be brought before the Panchayat Samiti within a period of one year from the date of such rejection of the motion.

(iv) No confidence motion against the Pramukh or Up-Pramukh or both, as the case may be, shall not be brought during the last six months of the term of the Panchayat Samiti as mentioned in Section 39(1) of this Act.

(v) Such reasons/charges, on the basis of which no confidence motion has to be moved against the Pramukh or Up-Pramukh, shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion.

(vi) As soon as the meeting called under this section begins, the Presiding Member of this meeting shall read out the motion on which the meeting has been called to consider before the members present and declare it open for discussion. Any discussion on the motion shall not be adjourned.

(vii) During discussion, opportunity shall be given to the Pramukh/Up-Pramukh against whom no confidence motion has been moved for his defence before the Panchayat Samiti. The motion shall be put to vote on the same day after discussion and shall take place by secret ballot in the prescribed manner.

(viii) In case of no confidence motion against a Pramukh, the meeting shall be presided by the Up-Pramukh; in ease of motion against Up-Pramukh by the Pramukh and in case of motion against both Pramukh and Up-Pramukh, by any member elected from among the members of the Panchayat Samiti present in the meeting.

In case of the post of Up-Pramukh being vacant or his absence from the meeting convened for discussion on no confidence motion against the Pramukh or the post of Pramukh being vacant or his absence from the meeting convened for discussion op no confidence motion against the Up-Pramukh, as the case may be, shall be presided over by any member elected from amongst the directly elected members from the territorial constituency of the Panchayat Samiti present in the meeting.”

“sub-section (4) of Section 70 of the Act, 2006:—

(i) Adhyaksha and Up-Adhyaksha shall be deemed to have vacated his office forthwith if a resolution expressing want of Confidence in him is passed by a majority of the total number of directly elected members from territorial constituencies of the Zila Parishad at a meeting specially convened for the purpose. The requisition for such a special meeting shall be signed by not less than one fifth of the total number of directly elected members of the Zila Parishad and shall be delivered to the Adhyaksha with a copy to the District Magistrate. The Adhyaksha shall within seven days from the date of receipt of such requisition convene a special meeting of the Zila Parishad. The meeting shall be held on a day not later than fifteen days from the date of issue of the notice of the meeting. The meeting shall be presided over by the Adhyaksha if the motion is against the Up-Adhyaksha; if it is against the Adhyaksha the Up-Adhyaksha shall preside over the meeting and if it is against Adhyaksha and Up-Adhyaksha both then the District Magistrate shall preside over the meeting.

In case of the post of Up-Adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Adhyaksha or the post of Adhyaksha being vacant or his absence from the meeting convened for discussion on no confidence motion against the Up-Adhyaksha, as the case may be, the meeting shall be presided over by any member elected from amongst the directly elected members from the territorial constituencies of the Zila present in the meeting.

In case of failure to convene the meeting by the Adhyaksha, the District Magistrate shall convene the meeting in the same manner and the meeting shall be presided by him.

No such meeting shall be postponed once the notice for the same has been issued. No quorum shall be required for the special meeting convened to discuss no confidence motion.

(ii) During the first two years period of the tenure, no confidence motion shall not be moved against the Adhayaksha or the Up-Adhyaksha.

(iii) No confidence motion against the Adhyaksha or Up-Adhyaksha or both, shall not be brought within six months of the expiry of the term of the Zila Parishad.

(iv) Such reasons/charges, on the basis of which no confidence motion is to be moved against the Adhyaksha or Up-Adhyaksha, shall be clearly mentioned in the notice of the meeting called to consider the no confidence motion.

(v) As soon as the meeting called under this section commences, the presiding member at the meeting shall read out the motion on which, the meeting has been called to consider, before the present members and declare it open for discussion. Any discussion on the motion under this section shall not be adjourned.

(vi) During discussion, opportunity shall be given to the Adhyaksha or Up-Adhyaksha or both against whom no confidence motion is moved, for his defence before the Zila Parishad. The motion shall be put to vote on the same day after discussion which shall take place by secret ballot in the prescribed manner by the District Magistrate.

(vii) If the motion of no confidence against the Adhyaksha or the Upadhyaksha or both is once rejected, no fresh motion of no confidence against the Adhyaksha or the Up-Adhyaksha or both, as the case may be shall be brought before the Zila Parishad within a period of one year from the date of rejection of such motion.”

4. On behalf of petitioners in both the cases strong reliance has been placed upon the relevant provisions in sub-section (3) of Section 44 of the Act relating to Panchayat Samiti and sub-section (4) of Section 70 relating to Zila Parishads and upon a judgment by a Single Judge of this Court in the case of Chandeshwar Prasad v. The State of Bihar, reported in 2001 (4) PUR 616 and a Division Bench judgment of this Court in the case of Sindhu Devi v. State of Bihar, reported in 2002 (1) PLJR 281 in support of their stand that lack of mention of charges/allegations in the notice will render the notice invalid and void.

5. On behalf of petitioners it was further submitted that subsequent judgments by learned Single Judges in the case of Bindu Devi v. State of Bihar, reported in 2005 (4) PLJR 112 and in the case of Nirmala Singh v. State of Bihar, reported in 2006 (1) PUR 129 held somewhat similar but milder provisions in the Bihar Panchayat Raj Act, 1993 to be directory and do not lay down the correct law as they are per-incurium of the earlier judgments of this Court in the case of Chandeshwar Prasad (supra) and Sindhu Devi (supra).

6. In the case of Chandeshwar Prasad the learned Single Judge, in the context of 1993 Act noticed that while sending a notice for special meeting, the motion or proposition mentioned in the writ ten request of the members is also re quired to be mentioned in the notice. Thereafter, it was indicated in paragraph-10 that if there is any substantial breach of the provisions in Section 44(3) of that Act then the decision taken in the spe cial meeting will be vitiated. It was there after noticed that in fact the concerned respondents of that case had not annexed copy of the request mentioning the propo sition for calling the special meeting nor could they show that any such request was made to the Pramukh or Up-Pramukh. Even the notice/request addressed to the Executive Officer was also not annexed. The relevant documents were not annexed in spite of averment on behalf of petition ers of that case that the required notice for holding a special meeting was never served on the Pramukh or Up-Pramukh. Even the motion or proposition mentioned in the written request of the members which was required to be stated in the notice had not been so stated. As a cumulative effect of such facts the court held that there was no compliance of the requirements of calling of special meeting as provided under Sections 44(3) and (4) of the Act of 1993. Clearly, in that case no law was laid down that non-mentioning of the allegations/charges furnished by the requisitionists in the notice issued by the concerned officers will, ipso facto, invali date the special meeting and also the motion of no confidence carried out by majority of members.

7. In the case of Sindhu Devi (supra) the Division Bench, again in the context of 1993 Act, noticed the facts, particularly in paragraph-7 that on record there was not a whisper of what was the wrong done by the Pramukh and hence he had no opportunity to reply before being voted out of his office. In paragraph-9 it was observed that the law enjoins that the notice to convene a meeting for considering a motion of no confidence needs to indicate the object for which the meeting is proposed. It was further held in paragraph-11 that the law enjoins a fair opportunity to the person who faces a charge on an allegation for misconduct or misdemeanor to avail of the opportunity and give his defence before the Panchayat Samiti. Thereafter in paragraph-12 it was held that a bare notice without specifying allegations and calling a motion of no confidence is void at the threshold, a brute majority of members in absence of indicated misconduct cannot decide the fate of a Pramukh or an Up-Pramukh. This is not Democracy. In this case, the Court, on facts found no material to show that the Pramukh before holding of the meeting to consider the “No Confidence” motion against him had any knowledge of the allegations/charges for which motion of no confidence was to be considered.

8. Now coming to the later views taken by learned Single Judges of this Court in the case of Bindu Devi (supra) and again in the case of Nirmala Singh (supra), which also appear to be under the 1993 Act, it is necessary to mention at the outset that the earlier judgments discussed above were not cited, noticed or discussed, the Court, in the case of Bindu Devi (supra) held that the notice did not contain the reasons for the no confidence motion but it further held that “the object of giving reasons is to enable the members to know why the motion is being proposed and petitioners having had received the original requisition containing full reasons were made aware of the same and accordingly they did not suffer at all”. Thus, in the facts of the case, once the Court found that Pramukh and Up-Pramukh who were petitioners had been served with requests to convene a meeting and were aware of the charges/allegations against them, held that the notice, though defective would not come to their aid.

9. In the case of Nirmala Singh (supra) the petitioners who were Pramukh and Up-Pramukh succeeded in showing that the notice for the meeting to consider no confidence motion was defective as no reasons in support of the motion had been mentioned which is a requirement of law. However, the Court held in paragraph-3 that the petitioners did not suffer on that account and no prejudice was caused to them because none of the petitioners attended the meeting. It was further noticed that after the meeting in which they were removed, again a meeting was held for filling up the vacancies caused due to their removal and both the petitioners participated in the said meeting treating that meeting to be valid one and in fact one of the petitioners of that case had again offered himself as a candidate for one of the posts. In view of such subsequent conduct of the petitioners and on the ground that they had not suffered any prejudice on account of defect in the notice furnished to them, the writ petition was dismissed.

10. The discussion of the aforesaid precedents clearly reveals that although in the 1993. Act the provisions were milder and did not explicitly require, as provided in the 2006 Act, to clearly mention the reasons/charges in the notice, still the Division Bench in the case of Sindhu Devi (supra) gave reasons and came to, a conclusion that mere notice without specifying allegations and calling motion of ‘no confidence’ is void at the threshold. This finding was derived by the Division Bench in the context of 1993 Act by highlighting that the law enjoins that the notice will indicate the object for the meeting proposed as mentioned in sub-section (3) of Section 44 and by referring to the true meaning of Democracy that it should not permit a brute majority to carry out motion of no confidence without recording or listing the allegations in the notice.

11. The subsequent Act of 2006 whose relevant provisions have been ex tracted earlier, has now cast an explicit obligation upon the Authority issuing the notice of meeting, be it the Pramukh or the Executive Officer to mention the rea sons/charges in the notice. The purpose of this provision is not confined to giving notice to the Pramukh or Up-Pramukh of the meeting for a no confidence motion alongwith reasons/charges so as to com ply with requirements of natural justice, rather the purpose is clearly a much larger one, to subserve the basic ideology and purpose of Democracy which require free flow of relevant facts to all the members of a democratically elected body if those members are to have any meaningful dis cussions or deliberations over the con cerned issues. The right of the members to have minimum fifteen days of notice alongwith reasons/charges so that they may come ready to participate meaningfully, in the meeting relating to a ‘no confidence motion’ has an important value which can not be denied either by the Pramukh or the Executive Officer who are obliged to give notice of such meeting once a valid requisition is made by the required number of elected members. This provision requir ing mentioning of reasons/charges in the notice of the meeting called to consider a no confidence motion serves the twin pur pose of promoting informed debate amongst the members and enabling the office bearer against whom the motion is directed to defend himself against the al leged charges. The Legislature has incor porated such a provision in the Act when it was not there in such clear terms in the earlier Act of 1993, with a purpose which must be given full meaning and play.

12. There is no vagueness or ambi guity in the language of the statute, be it sub-section (3)(b) of Section 44 or Subsection (4)(i) of Section 70 of the Act so as to call for any interpretation. The relevant provisions in categorical terms require that the reasons/charges for no confidence motion shall be clearly mentioned in the notice of the meeting. Besides serving the twin purpose indicated above, the provision serves to protect and promote the meaning and purpose of true Democracy which requires meaningful debates and discussions. They improve the understanding and capability of the elected members and also educate the grass root constituents of Democracy i.e the voters. Such laudable purpose which is sure to promote larger public good needs to be protected by all the constitutional authorities including courts. Hence,- it must be held that the relevant provisions noticed above are mandatory. Whether the notice of meeting called to consider “no confidence motion” has been issued by the elected office bearers or in default by the concerned officials, it must clearly mention the reasons/charges, failure to do so will render the notice and the consequent meeting void. Such clear and purposive provision by text and context should not be made ineffective by holding it directory so as to be violated with impunity. Violation of such a provision cannot be condoned on the ground that somehow the reasons/charges were known to the persons concerned or they did not care to know the reasons/charges. Allowing such a state of affairs to develop would go against the clear mandate of law and shall run counter to good and basic tenets of Democracy.

13. The arguments advanced on behalf of the respondents that the provisions be treated as directory rest on the ground that such lapses in the notice may be resorted to deliberately only to avoid a valid meeting to consider a valid requisition for no confidence motion. It has been further submitted that for this reason the Legislature has not indicated as to what would be the consequences of non-compliance with such provision. In our considered view this argument and submission has no merits because we are of the clear view that failure of Panchayat Samiti or that of an Adhyaksha of Zila Parishad to issue a proper notice as required by law for considering a requisition for no confidence motion can, in proper circumstances be viewed as a misconduct in the discharge of his duties in the context of provisions for removal provided under sub-section (4) of Section 44 or sub-section (5) of Section 70 of the Act. In case of deliberate disregard of law noticed above, the Commissioner would be well advised to take action against them. In case of deliberate disregard of such salutary provision by the Executive Officer or the District Magistrate, as the case may be, the higher authorities of the Government or in appropriate cases the Courts will be free to take appropriate action in accordance with law. Only on account of such apprehensions the clear mandate of Legislature cannot be declared, as directory so as to allow its disregard.

14. Both the parties have cited a large number of judgments to assist this court on the issue whether the aforesaid provisions should be treated as directory or mandatory. It was submitted on the basis of judgment of the Supreme Court reported in AIR 1965 SC 895 (R.B Sugar Company v. Rampur Municipality) that use of the word, “shall” may prima facie make a provision appear mandatory but there cannot be any general rule and the issue whether a provision is directory or mandatory depends upon the facts of each case in which the object of the statute plays a determining role. The nature of the provision, its purpose, intention of the Legislature in enacting the provision as well as serious general inconvenience or injustice to persons are some of the relevant considerations in deciding such an issue whether the provision is to be held directory or mandatory. The language of the provision also plays an important role. Besides the aforesaid judgment, a recent judgment of the Supreme Court in the case of Bachahan Devi v. Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 was also relied upon to submit that in the present case since the word ‘shall’ has been used by the Legislature, the provision should be held to be mandatory which alone will help in achieving the purpose for which it was enacted by the Legislature. Reliance was also placed upon paragraph-101 in the judgment of the Supreme Court in the case of Central Bank of India v. State of Kerala, (2009) 4 SCC 94 to underline and highlight the principle that interpretation is best when textual interpretation matches with the contextual. Again it was submitted that the text and the context of the relevant provisions require the word ‘shall’ to be treated as mandatory. On the other hand, learned counsel for the respondents pointed out that in the case of P.T Rajan v. T.P.M Sahir, (2003) 8 SCC 498 : AIR 2003 SC 4603, the Supreme Court reiterated that use of the word ‘shall’ or ‘may’ is not decisive and that a statute may require a statutory functionary to perform a statutory duty within the time prescribed but still it will be directory because provision which is procedural in nature, even if it employs the word ‘shall’ may not be mandatory if no prejudice is caused due to such interpretation. This submission, in the context of statutory provision under consideration cannot be accepted because the provision does not relate to a simple time schedule or to a simple procedural matter. Generally a time schedule or procedural step does not go to the root of a proceeding unless it causes prejudice but a notice for “no confidence” motion and meeting for that purpose cannot be treated as a mere ministerial or procedural act. Mentioning of allegations or charges in such a notice are matters of immense substance on which meaningful and informed debate depends, which is necessary to protect and promote Democracy. On the outcome of such debate may depend the fate of an elected representative. Such matters of significance cannot be treated as matters prescribing only a procedure. These provisions are substantial provisions and breach of the same would go to the root of the matter and shall vitiate the notice at the threshold as held by the earlier Division Bench in the case of Sindhu Devi (supra): We find no good reasons to take a different view in the context of the Act of 2006 which has made the relevant provisions more stringent and explicit. The requirement to mention the charges in the notice was not deemed sufficient and the Legislature used the word “clearly” before the word “mention” Thus, the text as well as the context requires the provision to be treated as mandatory. We hold accordingly. The learned Single Judges while deciding the case of Bindu Devi (supra) and Nirmala Singh (supra) did not have the occasion to consider the provisions of 2006 Act nor the Division Bench judgment in the case of Sindu Devi (supra) was brought to its notice. Hence, these judgments cannot stand in the way of our view which we have taken above in the context of provisions of 2006 Act.

15. In view of aforesaid discussions and findings, the impugned notices must be held to be void because they admittedly do not contain any reasons/charges which is required to be mentioned in the notice as per law noticed above. Hence, the notices and the consequent meetings are found to be against law. As a result, the notices shall stand quashed. Any decision taken in the meeting held on the basis of impugned notices shall also stand quashed. The writ petitions accordingly stand allowed. There shall be no order as to costs.