Nandkishor S/O Shrimantrao ... vs Presiding Officer/Tahsildar And ...
2004 Latest Caselaw 236 Bom

JUDGMENT

V.G. Munshi, J.

1. Heard the learned Advocates for the parties. Rule. By consent, Rule made returnable forthwith.

2. This writ petition is directed, challenging the order passed by the Additional Divisional Commissioner, Aurangabad, in appeal filed under Section 35(3C) of Bombay Village Panchayats Act, 1958, on 5-1-2004, thereby setting aside the order passed by Collector, Jalna, on 17-10-2003, holding that, the no confidence motion passed in the Panchayat meeting on 6-8-2003 is legal and valid.

3. Before proceeding with the merits of the case, points to be decided, etc., it is necessary to acquaint ourselves with the facts and circumstances of the case with which we are concerned.

4. The petitioner, in the year 2001, was elected as Sarpanch of Gram Panchayat of village Dahigaon. The respondent Nos. 2 to 6, who were the members, on 30-7-2003, moved requisition/notice of no confidence motion against the petitioner. In pursuance to the said notice. Tahsildar, Jafrabad, convened a special meeting on 6-8-2003 and resolution of no confidence was passed in the said meeting.

5. The petitioner has challenged the said resolution mainly on the ground that, in view of the provisions of Section 35 of the Bombay Village Panchayats Act, 1958, and the Rules framed thereunder, the Bombay Village Panchayats Sarpanch and Upa-sarpanch (No Confidence Motion) Rules, 1975 (hereinafter called 'Act of 1958' and 'Rules of 1975'), it was incumbent upon the Tahsildar, Jafrabad, to convene a special meeting for the said purpose, within seven days from the date of receipt of such notice. The notice under Section 35(1) of the Act of 1958, read with Rule 2(1) of Rules of 1975 was given to and received by Tahsildar on 30-7-2003. In the present case, according to the petitioner, the said meeting was held on 6-8-2003, beyond seven days, against the mandatory provisions of law and, therefore, it is irregular and illegal.

6. In view of the provisions of Section 35(2) of the Act of 1958, read with Rule 2(3) of the Rules of 1975, the members of a Panchayat, who desire to move a motion of no confidence against the Sarpanch or, the Upa-Sarpanch, shall give notice thereof to the Tahsildar, in prescribed form. Section 35(2) of the Act of 1958 and Rule 2(3) of the Rules, of 1975, which are relevant for the purposes of deciding the matter in controversy between the parties, are reproduced as under:

"Section 35(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 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)."

"Rule 2(3) :

The Tahsildar shall, immediately on receipt of notice under Sub-rule (1) satisfy himself that the notice has been given by not less than one-third of the total number of members (other than associate members) who are for the time being entitled to sit and vote at any meeting of the panchayat and then convene a special meeting for the purpose within seven days from the date of receipt of such notice."

The petitioner has knocked the doors of this Court with a case that, the day i.e. 30-7-2003, on which the notice was received, by the Tahsildar, is to be included, while computing the required period of seven days and, therefore, meeting held on 6-8-2003, is beyond statutory period of seven days, is illegal and improper. Therefore, it is necessary to view the case of the petitioner, in the light of provisions of law.

7. Learned Advocate for petitioner Mr. Deshmukh has drawn our attention to the relevant provisions of Section 35(2) of the Act of 1958, Rule 3(2) of the Rules of 1975, and argued that, it is mandatory to convene a meeting within seven days from the receipt of such notice. It was further pointed out by learned Advocate that, Government even issued circular, on the basis of judgment and order passed in Writ Petition No. 2774 of 2002 and clarified that, it is incumbent upon Tahsildar to convene meeting within seven days. There is no specific provision in the Bombay Village Panchayat Act, 1958, as to how seven days should be counted. There cannot be any difference of opinion on the point that, the meeting is to be convened within seven days. The only point arises for consideration is, from which day the period of seven days of limitation is to be counted, under Section 35(2) of the Act of 1958.

8. When notice of motion of no confidence is moved under Section 35(1) of the Act of 1958, the Tahsildar has to convene meeting within seven days from the date of receipt of such notice, as provided under Section 35(2) of the Act of 1958. Section 35(2) of the Act has provided the starting point for counting seven days by inserting the word 'from' in the said clause. This Court in the case of Pandhari Shripat Patil v. State of Maharashtra and Ors., 2002(5) Mh.L.J. 171 = 2002(2) Mah.L.R. 66, relying on the decision given by this court earlier, in Someshwar Bapurao Nilakhe v. Nivrutti Baburao Gholave, , has held that, the word 'from' as a general rule, excludes the day from which the time is to be reckoned, except where the context requires the contrary rule to be adopted.

9. The Division Bench of this court, in the case of Smt. Manjuli v. Civil Judge, Senior Division, Wardha and Ors., while dealing with the issue of limitation for filing election petition after declaration of result, clarified the meaning of words and phrases - "within fifteen days". Section 15(1) of the Bombay Village Panchayats Act (No. III of 1959) provided limitation "within 15 days after the date of declaration of the result of election. As there is no specific provision in the Village Panchayats Act, reference, therefore, was made to Section 11 of the Bombay General Clauses Act, 1904 and it was held that, "in computing limitation of 15 days, date of declaration of result is to be excluded."

10. Reference of Section 9 of General Clauses Act, 1897, was made in order to know the exact meaning of the word 'from' used in Section 35(2) of the Act. It is reproduced as under :

9. Commencement and termination of time. -- (1) If any (Central Act) or Regulation made after the commencement of this Act, it shall be sufficient for the purpose of excluding the first of a series of days or any other period of time, to use the words from, and, for the purpose of including the last in a series of days or any other period of time, to use the words "to".

The Apex Court, while dealing with the issue of computation of period of limitation under Section 81 of Representation of the People Act, 1951, in the case of Tarun Prasad Chatterjee v. Dinanath Sharma, AIR 2001 SC 36, in view of Section 9 of the General Clauses Act, explained the meaning of the word "from". It was held that, word 'from' is used, indicating the beginning. The first day of the period, therefore, is to be excluded in view of Section 9 of General Clauses Act.

11. This Court, earlier, had an occasion to deal with the provisions of Section 10 and Section 11 of the Bombay General Clauses Act, 1904, in the case of Pandhari Shripat Patil v. State of Maharashtra and Ors., 2002(5) Mh.L.J. 171 = 2002(2) Mah.L.R. 66. The Court considered the similar issue of limitation, about Tahsildar convening meeting, when no confidence motion was moved by some of the members, as provided under Section 35(2) of the Act. It was held that, "Considering the provisions of law contained under Section 35(1) and (2) of the said Act, which clearly provide a fixed period of seven days and also provide for starting point from the date of receipt of notice under Section 35(1) of the said Act, and applying provisions of Section 10 of the Bombay General Clauses Act, 1904, the day of receipt of the said notice under Section 35(1) of the said Act will have to be excluded while computing the period of seven days. Undisputedly, notice was received by the Tahsildar on 19-3-2001. So, the Tahsildar could have convened the meeting within seven days therefrom i.e. seven days to be counted from 20th March onwards."

Therefore, in the present case also we have to exclude the day on which notice was received by the Tahsildar, while computing the period of seven days.

12. Similar situation arose before this court, in the case Sanjay Pandurang Chavan and Ors. v. State of Maharashtra and Ors., 2003(3) Mh.L.J. 596. This court, relying on the decision given by Apex Court, in the case Manohar Joshi v. Nitin Bhaurao Patil and Anr., , held that, "........For these reasons, it is really not necessary to ponder upon the other issue i.e., as to whether the meeting was convened and held within 7 days from the date of receipt of the notice by the Tahsildar. Without going into the controversy, the following dates will speak for itself. The notice was received on 25-6-2001 and the Tahsildar has issued notice on 26-6-2001, for calculating 7 days, the day of receipt of notice has to be excluded and on excluding that day, the meeting was held on 7th day i.e. 2-7-2001, which in my judgment, is valid and proper."

13. In view of the decisions given by the Apex Court and this court, as referred to above, the question of calculating the period of notice is no more res integra. Giving same meaning to the word 'from', it is to be held that, the day of receipt of notice by Tahsildar is to be excluded while computing period of seven days.

14. In the present case before us, the Tahsildar, admittedly, received notice of no confidence motion on 30-7-2003 and the meeting was convened and held on 6-8-2003. The Tahsildar rightly excluded the day of receipt of notice i.e. 30-7-2003 and was further right in convening and holding meeting within seven days from 31-7-2003, i.e. on 6-8-2003. Therefore, there was proper compliance of Section 35 of the Bombay Village Panchayats Act.

15. The order of Additional Commissioner, Aurangabad, dated 5-1-2004, impugned in this petition, does not suffer from any illegality and does not call for any interference by this court. In the result, petition must fail and, accordingly dismissed.

Rule discharged.

No order as to costs.