Neeraja Rajendranath Mishra vs The Kalyan Dombivali Municipal ...
2003 Latest Caselaw 161 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule. Mr. A.S. Rao, learned counsel, appears and waive service of rule on behalf of respondent Nos. 1 to 3. Mr. R.D. Rane, learned Additional Government Pleader, appears and waives service of rule on behalf of respondent No.4. Mr. S.A. Ahmed, learned counsel, appears and waives service of rule on behalf of respondents 5 to 13.

2. In the facts and circumstances, the matter is taken up for final hearing today.

3. This petition is filed by the petitioner for an appropriate writ, direction or order quashing and setting aside the Resolution dated January 4, 2003

(Exhibit D) purportedly passed by the Kalyan Dombivali Municipal Corporation School Board. Respondent No.1 herein.

4. The petitoner was holding the post of Vice Chairman of the first respondent-School Board. It is the case of the petitioner that on December 20, 2002, on confidence motion was sought to be moved against her, and notice to that effect was issued, which was received by the petitoner on the next day, i.e., on December 21, 2002. No confidence motion was actually carried out on January 4, 2003, which is challenged in the present petition.

5. Two contentions have been raised by the learned counsel for the petitioner. Firstly, though the provision of Sub-section (2) of Section 10 of the Bombay Pre-Primary and Primary Education Act, 1947 (hereinafter referred to as "the Act") requires a notice of at least two weeks, no such notice as contemplated by Sub-section (2) of Section 10 was given, and hence, the action was illegal. Secondly, such a notice must be given along with a Resolution passed, and a copy of such Resolution must also be supplied to the person concerned so as to afford reasonable opportunity of showing cause as to why the said Resolution should not be passed. Since the Resolution was passed on December 30, 2002, and t he notice was issued on December 20, 2002 before passing of such Resolution, the action was illegal.

6. So far as the second contention is concerned, we express no opinion in view of the fact that the first ground raised is well-founded, and must be upheld. Section 10 of the Act provides for no confidence motion. Sub-section (2), which is relevant, reads as under:-

"10.(1)..

(2) A chairman or a Vice-chairman shall be removable form office by a resolution passed to that effect, provided that at least two-thirds of the total number of members of the school board vote in favour of such resolution or where the number of such members voting in favour of such resolution is less than two-thirds but more than one-half of the total number of members of the school board, sanction is accorded by the State Government for such removal and provided further that before such resolution is passed, the chairman or vice-chairman is given at least two weeks notice of such resolution and a reasonable opportunity of showing cause why such resolution should not be passed."

7. It is an undisputed fact that the notice was issued on December 20, 2002. According to respondent Nos. 1 to 3, the petitioner received the said notice on the next date, i.e., December 21, 2002, though, according to the petitoner, she received the said notice along with the Resolution on December 30, 2002. But even if it is assumed, for the sake of argument, that the petitioner received the notice dated December 20, 2002 on the next date, i.e., December 21, 2002, and that a copy of the Resolution need not be served along with the notice, then also, in our opinion, it cannot be said that the resolution passed against the petitioner was in consonance with the provision of Sub-section (2) of Section 10 of the Act.

8. It is contended on behalf of respondent Nos. 7 to 13 that notice was served at the office of the School Board on December 20, 2002, and hence, it must be presumed that the petitioner was aware of such notice and the action sought to be taken against her. In our view, however, when the Administrative officer has stated that the notice was served on December 21, 2002, the relevant date would be December 21, 2002. Again, the phraseology of Section 10 of the Act is that such a notice should be given to the chairman of vice-chairman, as the case may be.

9. The question, therefore, is whether notice of "at least fourteen days", as contemplated by Sub-section (2) of Section 10, was given to the petitioner. The learned counsel for the petitioner, relying on a decision on a Division Bench of the High Court of Nagpur in Rambharoselal Gahoi v. State of M.P. and Ors., AIR 1955 Nag 35, submitted that when expression such as "clear days" or "at least so many days" is used, both terminal days must be excluded from calculating such period.

10. Referring to Maxwell on Interpretation of Statutes, the Division Bench observed that when the rules require that particular clear days notice should be given for no confidence motion, excluding both terminal days, the days are to be calculated and if it is not the period prescribed by the section or rule, then the action cannot be said to be legal, valid or in accordance with law.

11. In the instant case, the statute requires at least two weeks notice. Hence, the date on which the notice was given, i.e., served upon the petitioner, i.e., December 21, 2002, must be excluded. Similarly, the date on which the action was taken, i.e., January 4, 2003, also requires to be excluded. In our view, there is no distinction between "at least" and "clear" days, as contended by the learned counsel for respondent No.1 to 3. If both the days are excluded, the period would be less than two weeks.

12. The learned counsel for respondent Nos. 1 to 3, relying on a decision of this Court in Sangeeta W/o Ramesh Ranvir v. Presiding Officer/ Tahsildar and Ors., , contended that it was not service of notice but sending of notice which is relevant. It may, however, be observed that in that case, Court interpreted the provisions of Rule 5 of the Bombay Village Panchayats (Meetings) Rules, 1959, which provided for sending of notice or notice caused to be sent to the person concerned. The expression used in the present statute and in the Bombay Village Panchayats (Meetings) Rules, 1959 are totally different. Since the notice was given to the petitioner on December 21, 2002, and the no confidence motion was carried out on January 4, 2003, which was the 14th day, the action must be held to be illegal.

13. The petition, therefore, deserves to be allowed by quashing and setting aside the impugned action. The consequential order passed by the State Government also deserves to be quashed and is set aside. We may state that we are not expressing any opinion on merits of the matter.

14. Rule is accordingly mae absolute with no order as to costs.