Bombay High Court
Jaysing S/O Bhimrao Ghuge, Sau. ... vs Motiram Ukanda Khillare, Ganesh ... on 4 December, 2002
Author: A Shah
Bench: A Shah, R Batta
JUDGMENT
A.P. Shah, J.
1. The point which arises for consideration
in this petition is whether the resolution of no
confidence passed against the respondent No. 1 in the
meeting dated 19.01.2000 is legal and valid.
2. Few facts relevant for the decision are
that the petitioners and respondent Nos. 1 to 3 are
elected members of Gram Panchayat of Sukanda. The
respondent No. 1 was elected as Sarpanch of the Gram
Panchayat. A motion for no confidence against the
Sarpanch was moved by the petitioners by submitting
requisition to the Tahsildar of Malegaon on 12.01.2000.
Pursuant to the requisition, the Tahsildar convened the
special meeting of the Gram Panchayat on 19.01.2000.
The motion was passed by majority of four versus three
and it was accordingly recorded in the proceedings book.
The respondent No. 1, Sarpanch moved an appeal under
Section 35 (3B) of Bombay Village Panchayats Act, 1958
before the Additional Collector, Washim, who held that
the meeting was not convened and held within seven days
as required by the provisions of Section 35 (2) of the
Bombay Village Panchayats Act, 1958 and, therefore, the
motion of no confidence violates section 35(2). The
appeal preferred by the petitioners before the
Additional Commissioner, Amravati Division, Amravati
under Section 35 (3C) came to be dismissed. Aggrieved
by the order of the Additional Commissioner, the
petitioners have approached this Court under Article 226
of the Constitution of India.
3. Section 35 of the Act, inter alia,
provides as follows :-
S. 35. Motion of no confidence. -
[(1) A motion of no confidence may be
moved by not less than [one-third] of the
total number of the members who are for
the time being entitled to sit and vote
at any meeting of the panchayat against
the Sarpanch or the Upa-Sarpanch after
giving such notice thereof to the
Tahsildar as may be prescribed. [Such
notice once given shall not be
withdrawn].
(2) Within seven days from the date of
receipt by him of the notice under
sub-section (1), the Tahsildar shall
convene a special meeting of the
panchayat for considering the motion of
no confidence at the office of the
panchayat at a time to be appointed by
him and he shall preside over such
meeting. At such special meeting, the
Sarpanch or the Upa-Sarpanch against whom
the motion of no confidence is moved
shall have a right to speak or otherwise
to take part in the proceedings at the
meeting (including the right to vote).
..."
It is not disputed before us that the provisions of
Section 35 (2) are mandatory and the said provisions
required the Tahsildar not only to issue the notice to
convene the meeting within seven days but also to
convene the meeting itself within seven days to deal
with the matter pertaining to the no confidence motion
in terms of notice issued by him under Section 35 (1) of
the Act.
4. The question is when can the period of 7
days from the date of receipt of the notice be said to
have commenced. There is a volume of authorities in
England showing that where a particular time is given
from a certain date within which an act is to be done,
the day on that date is to be excluded. (See
Goldsmiths Company .v. West Metropolitan Railway
Company (1904) 1 KB 1). This rule was followed in
Cartwright .v. Mac Cormack ((1963) 1 All ER 11 at page
13) where the expression "fifteen days from the date of
commencement of the policy" sin a cover note issued by
an insurance company was construed as excluding the
first date and the cover note to commence at midnight of
that day, and also in Marren .v. Dawson Bentley and Co.
Ltd. ((1961) 2 QB 135), a case for compensation for
injuries received in the course of employment, where for
the purpose of computing the period of limitation, the
date of the accident, being the date of the cause of
action, was excluded. In case of Haru Das .v. State of
W.B. following the said English
decisions, the Supreme Court has held that in computing
the period of three months from the date of detention
before the expiration of which the order or decision for
confirming the detention order and continuation of the
detention had to be made, the date of commencement of
detention must be excluded. There is no reason why the
aforesaid rule of interpretation followed consistently
and for so long should not be applied here.
5. It will be also useful to refer to section
9 of the Bombay General Clauses Act which deals with the
commencement and termination of time. It provides that
it shall be sufficient for the purpose of excluding the
first in a series of days or any other period of time,
to use the word "from" and, for the purpose of including
the last in a series of days or any other period of
time, to use the word "to". This means if the word
"from" is used. the first day is to be excluded and if
the word "to" is used, the last day is to be included.
This section applies to all State Acts made after the
commencement of Bombay General Clauses Act. In the
instant case, the meeting was required to be held within
seven days from the date of receipt of notice under
sub-section (1) of Section 35. The requisition was
received by the Tahsildar on 12.01.2000 and that day
will have to be excluded and thus the meeting which was
held on 19.01.2000 was within the period of seven days
as provided in 35 (1). Therefore, the authorities below
were clearly in error that there was breach of Section
35 (2). No other infirmity or illegality is pointed out
in respect of the said meeting.
6. In the result, the petition is allowed.
The impugned orders passed by the Additional Collector,
Washim dated 16.04.2000 and Additional Commissioner,
Amravati Division, Amravati are quashed and set aside.
