Ganesh Kisanrao Mahalle vs State Of Maharashtra And Ors.
2003 Latest Caselaw 373 Bom

JUDGMENT

R.M.S. Khandeparkar, J.

1. Rule. By consent, the rule is made returnable forthwith. Perused the records.

2. The petitioner challenges the notice dated 5-3-2003 issued by the respondent No. 2 whereby the date of the special meeting of Murtizapur Panchayat Samiti called for discussion and decision on the no confidence motion against the Chairman of the Samiti has been changed from 14-3-2003 to 21-3-2003. Originally the notice fixing the date of such special meeting was issued on 3-3-2003 pursuant to the requisition submitted by eight members of the said samiti. The said requisition was submitted on 3-3-2003 itself. It is the contention of the petitioner that considering the provisions of Section 72 of the Maharashtra Zilla Parishad and Panchayat Samitis Act, 1961, hereinafter called as "the said Act", the Collector has no authority, either to postpone or adjourn the special meeting or to change the date of such meeting once convened and hence the impugned notice dated 5-3-2003 is bad in law and therefore, cannot be acted upon. It is his further contention that the provisions of law contained in Sub-section (5) of Section 72 of the said Act clearly debars the Collector from either adjourning or postponing the special meeting once scheduled to take place pursuant to the issuance of the notice in that regard by the Collector under Sub-section (3) thereof. On the other hand the impugned notice is sought to be justified on behalf of the respondent contending that the mandate of Section 72 of the said Act is that pursuant to service of such requisition by the majority of the members of the Samiti, it is the duty of the Collector to issue notice convening the meeting of the Samiti and such notice is required to be issued within seven days from the receipt of such requisition and such meeting should be held within thirty days from the date of issuance of such notice and all these mandates have been duly complied with by the Collector by issuing impugned notice and hence, it cannot be held to be bad in law. Referring to the provisions regarding bar of adjournment of the meeting under Sub-section (5) of Section 72, it is sought to be contended on behalf of the respondents that the same applies only after the actual meeting takes place and not prior to that. It is the contention of the respondents that Sub-section (5) cannot be read in Sub-section (3) and provisions of law contained in Sub-section (3) cannot be allowed to be interpreted in the manner suggested by the petitioner. Attention is also drawn to Sub-section (4) of Section 72 which provides that the Collector or any officer authorised by him shall preside over the meeting pursuant to the notice under Sub-section (3) and therefore, it is contended that the provisions of law contained in Sub-section (5) would apply only after the stage of actual commencement of the meeting. Reliance is sought to be placed in a decision of the Apex Court in the matter of Jayantibhai Manubhai Patel and Ors. v. Arun Subodhbhai Mehta and Ors., in support of the contention that the Collector enjoys the power to postpone the date of meeting convened, subject to that the notice in that regard has to be issued within seven days from the date of receipt of the requisition and the meeting should be convened within thirty days from the date of issuance of such notice.

3. Upon hearing the learned advocates and on perusal of the records, the following questions arise for consideration :

(i) Whether the Collector is entitled to change the date of special meeting once fixed by issuing notice under Section 72(3) of the said Act for such meeting pursuant to the receipt of requisition from 1/3 members of the Samiti?

(ii) Whether the prohibition against adjournment of the special meeting provided under Sub-section (5) of Section 72 of the said Act, also prohibits the Collector from changing the date of such special meeting?

(iii) In case the answer to the first question is in affirmative and to the second in the negative, then to what extent such changes would be permissible?

4. Section 72 of the said Act is on the subject of motion of no confidence against the Chairman and Deputy Chairman of the Panchayat Samiti. It prescribes the procedure to be followed for requisitioning the special meeting for discussing such motion and also the effect of passing of such motion as well as rejection thereof. Sub-section (2) thereof provides that the requisition for such meeting shall be signed by not less than one third of the total number of members who are for the time being entitled to sit and vote at any meeting of the Panchayat Samiti and shall be delivered to the Collector and the same shall be made in such form and in such manner as may be prescribed by the State Government. The provision for convening the meeting pursuant to such requisition being delivered to the Collector is to be found in Sub-section (3) thereof and the same reads thus;

"The Collector shall within seven days from the date of receipt of the requisition under Sub-section (2) convene a special meeting of the Panchayat Samiti. The meeting shall be held on a date not later than thirty days from the date of issue of the notice of the meeting." The special meeting so convened is required to be presided over by the Collector or any other officer authorised by him in that behalf and Collector or such authorised officer enjoys the same powers as those of the Chairman of the Samiti while presiding over the Panchayat Samiti meeting except the right to vote. This has been clearly provided for in Sub-section (4) of Section 72. Sub-section (5) thereof does not permit the meeting to be adjourned and it reads thus : "The meeting called under this section shall not, for any reason, be adjourned."

5. In terms of Sub-section (6) of Section 72 of the said Act, the name of the members voting for and against the motion are to be read in the meeting and recorded in the minute book kept under Section 188 read with Sub-section (13) of Section 111 of the said Act. Further Sub-section (7) thereof prohibits bringing of fresh motion of no confidence within the period of six months from the date of the meeting rejecting such motion.

6. If one peruse the provisions of law contained in Section 72 of the said Act, it would immediately reveal that Sub-sections (2) and (3) thereof relate to the stage prior to the meeting for consideration of no confidence motion, while Sub-sections (1) and (4) to (6) relate to the conduct of the meeting and Sub-section (7) relates to the consequences of rejection of such no confidence motion in the meeting. In fact Sub-section (2) speaks of pre-requisite for exercise of powers of convening the special meeting by the Collector to decide about no confidence motion. Therefore, Sub-section (2) relates to the stage prior to the exercise of powers by the Collector to convene the special meeting in relation to the no confidence motion sought to be moved by more than one-third of members of the Samiti.

7. Sub-section (3) thereof deals with the power of the Collector to convene the special meeting of the Samiti to discuss and decide about the no confidence motion. It gives sufficient discretion to the Collector to fix the date for such meeting, subject of course to the condition that such meeting shall be held within one month from the date of issuance of the notice by him fixing the date of such meeting and that such notice should be issued within seven days from the date of receipt of requisition from one-third members of the Samiti in that regard. The said sub-section on the face of it nowhere provides any bar or prohibition against change of date of the special meeting either once such date of the meeting is fixed or the notice in that regard is issued to the members. The condition imposed upon a Collector pursuant to the receipt of the requisition relating to the no confidence motion is in the nature of the requirement of convening special meeting to discuss and decide the same, and prescribing a period of limitation within which the notice is required to be issued and the such meeting to be held. Accordingly, the maximum period allowed for issuance of notice fixing date of the meeting is seven days from the date of receipt of the requisition. The maximum period allowed for convening and holding such special meeting is thirty days from the date of issuance of such notice. Apart from these two conditions, Sub-section (3) does not speak of any other restriction or condition upon exercise of powers to convene the special meeting by the Collector for consideration of no confidence motion sought to be moved by the members of the Samiti.

8. It is well settled that the power to issue an order includes the power to amend or add or vary such order by the statutory authority who is empowered to issue such order. This is very clear from Section 21 of the Bombay General Clauses Act, 1904 which corresponds to Section 21 of the General Clauses Act, 1897. Undoubtedly, the power to amend or vary is exercisable in the right manner and subject to like conditions as govern the making of the original order. In Ravi Kiran Jain v. Bar Council of U.P. through its Secretary and Ors. while rejecting the petition contending that once Bar Council had fixed various dates for the conduct of election, it had exhausted its power and thereafter it had no authority in law to refix the dates or to postpone the elections, it was held by the High Court that the Bar Council may exercise its powers under Rule 4 of the Election Rules, 1968 to fix dates for holding the election, and it may exercise that power as and when occasion may arise. The principles laid down in Section 21 of the General Clauses Act would be fully applicable in interpreting the said Rule 4 as it is well accepted principle of legislation that whenever power is conferred on an authority to issue an order that power would include power to amend, vary or rescind its orders subject to the like sanctions and conditions, if any. Section 21 of the General Clauses Act embodies a rule of construction, the nature and extent of its application would necessarily depend upon the provision of law which confers power to issue order and to fix dates. In the said case of R.K. Jain v. Bar Council, U.P. it was specifically observed that;

"The power of the Bar Council to fix time, place and the date of the election is not exhausted merely on the issue of notification of the programme. It can alter, modify or rescind its order fixing the various dates; otherwise preposterous result would follow. Take a case where the Bar Council may have fixed dates for holding elections, but due to natural calamities like earthquake, floods or grave emergencies such as the country may be at war, the election program cannot be adhered to, in that situation the Bar Council may consider it necessary to change the entire election programme."

9. In Jayantibhai Patel's case the Apex Court had occasion to deal with the matter arising under the Bombay Provincial Municipal Corporations Act in relation to the powers of Mayor to convene meeting as well as its powers to postpone or cancel the same. In a said case, pursuant to the formation of the Corporation, the elections were held in 1985 and on 30-6-1987, the appellants No. 1 and 2 in the appeal before the Apex Court were elected as Mayor and Deputy Mayor of the Corporation. On 21-5-1988 a notice was issued by the said appellants to convene a meeting of the members of the Corporation on 31-5-1988 to elect new Mayor and Deputy Mayor as the term of the said appellants was to come to an end on expiry of the period of one year from the date of their election to the said post. On 31-5-1988 the appellant No. 1 gave instruction by a letter to the Secretary of Corporation to postpone the meeting of the Corporation as the appellant had to go to Gandhinagar for certain urgent work of the Corporation. Pursuant to the said letter and instructions contained therein, the appellant No. 3 thereof issued a letter addressed to the members of the Corporation that the meeting scheduled for 1-6-1988 had been postponed. The said letter was circulated to all the members of the Corporation. In spite of the said letter postponing the meeting, 19 members of the Corporation assembled at the place indicated in the notice dated 21-5-1988 and elected the respondent Nos. 1 and 2 therein as Mayor and Deputy Mayor of the Corporation. The appellant Nos. 1 and 2 refused to hand over the charge to the respondent Nos. 1 and 2, pursuant to which the latter filed a writ petition in the Gujarat High Court. The said writ petition was dismissed by a learned single Judge taking the view that as the Mayor in exercise of the powers conferred upon him under the Bombay Provincial Municipal Corporations Act can issue a notice for convening the meeting and that he is also entitled to the power to cancel or rescind the notice under the provisions of Section 21 of the Bombay General Clauses Act, 1904 and held that the appellant No. 1 as the Mayor was exercising a statutory power vested in him and therefore, no fault could have been found with the decision of cancellation of notice and postponing the meeting convened by him. In the Letters Patent Appeal in the High Court, the Division Bench of the Gujarat High Court, the said decision of the learned single Judge was set aside by placing reliance upon a decision of the Apex Court in Chandrakant Khaire v. Dr. Shantaram Kale wherein it was observed that;

"A properly convened meeting cannot be postponed. The proper course to adopt is to hold the meeting as originally intended and then and there adjourn it to a more suitable date. If this course be not adopted, members will be entitled to ignore the notice of postponement, and, if sufficient to form a quorum, hold the meeting as originally convened and validly transact the business thereat."

10. The said decision of the Division Bench was challenged in the said appeal of Jayantibhai Patel's case before the Apex Court, after considering the provisions of Section 19 and section 453 of the Bombay Provincial Municipal Corporations Act, 1949 as well as Section 21 of the Bombay General Clauses Act, 1904 it was observed by the Apex Court that the question in Chandrakant Khaire's case was relating to an adjournment of a meeting whereas in Jayantibhai Patel's case the question related to the cancellation of a notice convening the meeting and therefore, the decision in Chandrakant Khaire's case could not have been applied to the facts of Jayantibhai Patel's case. It was further observed that in Chandrakant Khaire's case the Court was not really concerned with a situation where a meeting had not commenced at all and the notice convening the meeting had been cancelled by the person authorised to issue the notice convening the meeting. Further, after taking note of the dictionary meaning for the term 'adjournment' revealed from Stroud's Judicial Dictionary as well as Webster's Comprehensive Dictionary, International Edition, Concise Oxford Dictionary, and Chambers Twentieth Century Dictionary it was observed that;

"It appears to us that strictly speaking, unless the object of the context of enquiry otherwise warrants the term 'adjournment' in connection with a meeting which has already convened and which is thereafter postponed and not to a case where a notice convening a meeting is cancelled and subsequently, a notice for holding the same meeting on a later date is issued, as in the case before us."

11. Thus it was clearly held by the Apex Court in Jayantibhai Patel's case that the case before it in Chandrakant Khaire v. Dr. Shantaram Kale was not a case where a notice convening a meeting was cancelled and later a notice convening another meeting was issued, but it was a case where a meeting duly convened and commenced and it was alleged that the Municipal Commissioner had adjourned it without there being any resolution to that effect and therefore, it was not applicable to Jayantibhai Patel's case. It was ruled that, "the powers of the Mayor of the Corporation, on the other hand, are statutory in nature and they are derived from the Bombay Municipal Corporation Act....... the Mayor had the implied power to cancel a meeting or postpone a meeting which was duly convened before the said meeting commenced and to convene the same on a subsequent occasion." The Apex Court had also referred to its earlier decision in the matter of Mohd. Yunus Saleem v. Shiv Kumar Shastri, . In that case the facts were that a parliamentary constituency from which election to Lok Sabha took place in 1971 consisted of five assembly constituencies. The polling at two of these was scheduled to take place on March 1 and at the other three on March 3, 1971. The polling at the first two constituencies took place as scheduled but on March 2, there was a communal riot, as a result of which the Election Commissioner postponed the poll at the other three constituencies from March 3 to March 9. The polling took place in the said constituencies on the postponed dates and the first respondent was declared elected. The appellant challenged the election contending that the Election Commission had no power to alter the date of the poll at the remaining constituencies. Rejecting the contention, it was held that Section 30 of the Representation of the People Act gives necessary powers to the Election Commissioner to alter the date of the poll. It is to be borne in mind that Section 30 of the Representation of the People Act provides that the Election Commissioner shall by notification in the official gazette appoint inter alia the date or dates on which a poll shall, if necessary, be taken and also the date before which the election shall be completed. The said section by itself provide for change of dates of election as such. It was further ruled that the principles underlying Section 21 of the General Clauses Act would clearly apply considering the scope of the powers of the Mayor of the Municipal Corporation and there is no reason to take the view that the principles of Section 21 of the Bombay General Clauses Act would not apply to the said powers of the Mayor and therefore, the Mayor had power to cancel the notice convening the meeting before the commencement of the meeting with a view to convene the meeting on a later date.

12. The law laid down by the Apex Court on the subject, therefore clearly supports the contention on behalf of the respondent that even though Section 72(3) does not speak of power to change a date, nevertheless in view of Section 21 of the Bombay General Clauses Act, 1904, the Collector would be entitled to change the date of the meeting. Undoubtedly, Sub-section (5) prohibits adjournment of the meeting; however, that does not relate to the power of the Collector to change the date of the meeting and the arguments in that regard advanced on behalf of the petitioner stands completely replied by the decision of the Apex Court in Jayantibhai Patel's case. The power to change the date of the meeting by cancelling the notice and issuing a fresh notice in that regard in exercise of power under Sub-section (3) of Section 72 is different from the one pertaining to the restriction on the power of adjournment of the meeting specified in Sub-section (5). As rightly submitted by the advocate for the respondents the occasion to comply with the restriction under Sub-section (5) can arise only after the meeting is actually assembled and commenced and not prior to the said stage. Sub-section (5) is preceded by Sub-section (4) which speaks of the power of the Collector to preside over such meeting. The provision regarding power of adjournment apart from being the power in the statute book after the provision relating to the meeting being convene, commenced and presided over by the Collector, the Apex Court has made it abundantly clear in Jayantibhai Patel's case that the issue relating to notice convening the meeting cannot be mixed up with the conduct of the meeting. The question of adjournment of meeting would relate to the conduct of meeting while the issue relating to the change of the date of the meeting would relate to the power of issuance of the notice convening the meeting. The occasion for adjourning the meeting cannot arise unless the meeting actually commences. Indeed the Apex Court has clearly observed that the term 'adjournment' is to be understood in connection with the meeting which has already convened and commenced and thereafter postponed and not to a case where merely a notice convening a meeting is cancelled and subsequently a fresh notice is issued fixing the later date for such meeting. Being so, the prohibition against adjournment of the meeting cannot be held to be applicable to the power of the Collector in relation to issuance of notice fixing the date for meeting under Sub-section (3). The restriction specified in Sub-section (5) would apply only when the Collector presides over such meeting in terms of Sub-section (4) and not prior to the said stage. The restriction imposed under Sub-section (5) prohibiting adjournment of meeting cannot be imported or read in Sub-section (3) of Section 72 of the Act. Being so considering the power bestowed upon the Collector to issue notice fixing the date of meeting in terms of Sub-section (3) of Section 72 of the said Act, such power would include power to amend or modify or change the date of special meeting subject to condition that exercise of such power shall be in the same manner and with the same restrictions to be observed as had specified in the said section while exercising the said power for issuance of the original notice fixing the date of the meeting. In other words, though the Collector would be entitled to change the date of meeting, such change will have to be communicated by issuing notice within seven days from the date of receipt of the requisition and the meeting will have to be held within the period of thirty days from the date of issuance of the original notice.

13. One can also advantageously refer to a decision of the Division Bench of Orissa High Court in the matter of Govind Chandra Pradhan v. S.D. O., Sadar and others, . Therein the validity of the order of the S.D.O., Cuttak postponing the meeting alleged to have been called on 10-8-1963 for the purpose of a vote of no-confidence against the Chairman and also the validity of the subsequent meeting of 2-9-1963 in which such a vote of no confidence was passed against the Chairman was sought to be challenged. The Orissa High Court after considering the provisions of section 46B of Orissa Zilla Parishad and Panchayat Samiti Act, 1959 and more particularly Sub-section (2) (c) and (f) thereof which provided that the Collector or Sub Divisional Officer, as the case may be, on receipt of such requisition, shall fix the date, hour and place of such meeting and give notice of the same to all members with a right to vote, along with a copy of requisition and of the proposed resolution at least seven days before the date so fixed, and that no such meeting shall stand adjourned to a subsequent date and no item of business other than the resolution for recording want of confidence in the Chairman or the Vice Chairman, shall be taken up for consideration at the meeting, held that:--

"All actions taken by him prior to his presiding over the meeting which are dealt with in Clauses (a), (b) and (c) must be held to relate to the 'convening' of such meeting. Clause (c) says that the competent officer on receipt of requisition, shall fix the date, hour and place of the meeting. This statutory power to fix a date for the purpose of holding a meeting must necessarily include the power to alter that date, by virtue of Section 22 of the Orissa General Clauses Act. Hence, though in the first instance, the Sub Divisional Officer, Sadar might have given notice to the effect that the meeting will be held on a particular date and time he has the statutory authority to alter the date if the exigencies of the situation require it. It is true that once he commences the proceeding by presiding over the meeting, the stage of convening the meeting is closed and the stage of conducting the business of the meeting is reached. It is at the latter stage that Clause (f) quoted above begins to operate and he has no jurisdiction to adjourn the meeting."

The law, therefore is very clear that the power of the Collector to fix the date includes the power to change the date while adhering to the conditions imposed in that regard under Sub-section (3) of Section 72 of the said Act, and the restrictions in relation to the adjournment of the meeting under Sub-section (5) would arise only after commencement of the meeting and not prior to that.

14. In the case in hand, undisputedly the requisition was received by the Collector on 3-3-2003 and on the very day he had issued notice convening the meeting on 14-3-2003. However, on 5-3-2003, within two days thereafter the Collector issued fresh notice fixing another date for the meeting to be held on 21-3-2003 instead of 14-3-2003. It cannot be disputed that the notice dated 5-3-2003 was issued within seven days from the date of receipt of the requisition and the meeting convened is within thirty days, not only from the issuance of the notice but also within thirty days from the date of receipt of the requisition. Being so, we do not find any violation of the statutory provisions by the Collector in relation to the act of issuance of notice fixing the date for consideration of no-confidence motion.

15. There is yet another reason which would justify non interference in the impugned notice. The notice dated 5-3-2003 was issued on the very day and the petitioner was aware of the same on the very day. By an earlier notice dated 3-3-2003, the meeting was sought to be convened on 4-3-2003 whereas by virtue of the impugned notice dated 5-3-2003, the meeting was convened to be held on 21-3-2003. In spite of the fact that the petitioner was aware of the notice of 5-3-2003 on the very day, the petitioner choose to file the present petition only on 17-3-2003, i.e. after the expiry of date 14-3-2003. In other words, while contending that the Collector had no power to postpone the meeting from 14-3-2003 to 21-3-2003, due care was taken by the petitioner to approach this Court after the expiry of the date 14-3-2003, undoubtedly with intention of frustrating the requisition submitted by the majority of members of the Samiti.

16. Once the eight members out of twelve members of the Samiti had expressed desire to move no confidence motion against the Chairmanship of the petitioner, it was incumbent for the Collector to place such requisition before all the members of the Samiti by convening the meeting in that regard. Being so, if at all the petitioner wanted to challenge the act on the part of the Collector, certainly nothing prevented him from approaching this Court immediately after 5-3-2003. There is absolutely no explanation for not approaching this Court prior to 17-3-2003 and on this count alone, the petition is also liable to be dismissed.

17. In the result, therefore the petition fails and is hereby dismissed with no order as to costs.