Antikabai Sahebrao Nikalje vs The Additional Collector

R.V. Ghuge, J.—Heard Shri S.J. Salunke, the learned Advocate for the petitioner, learned A.G.P. on behalf of the State and Shri N.L. Jadhav, learned Advocate appearing on behalf of the caveator respondent No. 5.

The petitioner is challenging the judgment and order passed by the learned Additional Collector, Ambajogai in dispute No. 2014/VP/Appeal/03, dated 07-10-2014. The petitioner was a Sarpanch and has suffered a ''no confidence'' motion. The election to the Babhalgaon Grampanchayat was held in November 2012. The post of Sarpanch was reserved for a member of the Scheduled Caste (SC) category. The petitioner belongs to the said category and was elected as the Sarpanch.

By a notice dated 04-03-2014, signed by four members out of seven, ''no confidence'' motion was moved against the petitioner. Notice was served on the Tahsildar on 04-03-2014. He 9665.2014 WP issued notice to the members on the same day and convened the special meeting under Section 35 (2) of the Maharashtra Village Panchayat Act, 1958 (here-in-after referred to as ''MVP Act'') on 11-03-2014.

The petitioner claims that she had not been served with the special meeting notice and was, therefore, unaware about the said meeting held on 11-03-2014. The meeting was held on the said date and ''no confidence'' motion was carried by six is to zero vote count.

The petitioner challenged the motion and the special meeting under Section 35(3-b) of the Maharashtra Village Panchayat Act, before the Additional Collector, Ambajogai.

The contention of the petitioner that false and bogus documents were created to indicate service of notice upon her, were turned down by the Additional Collector in his judgment dated 27-05-2014. The petitioner preferred Writ Petition No. 4696 of 2014 and this Court quashed and set aside the order of the Additional Collector dated 27-05-2014 and directed the Additional Collector, Ambajogai to rehear the parties and give them an adequate opportunity.

Pursuant to the directions of this Court, all the parties were reheard and by the impugned judgment dated 07-10-2014, the Additional Collector, Ambajogai rejected the appeal filed by the petitioner.

Grievance of the petitioner is as follows :-

a] Notice of special meeting was not served upon her and false documents were created.

b] The meeting was called on 11-03-2014, where as the date of notice of ''no confidence'' motion was 04-03-2014, thereby rendering the meeting beyond seven days and hence unsustainable.

c] Rule 17 of the Meeting Rules mandates a proposer and seconder to the motion which were missing in the notice dated 04-03-2014, rendering it illegal.

It is, therefore prayed that the petition be allowed and the impugned judgment of the Additional Collector dated 07-10-2014 be quashed and set aside.

Learned A.G.P. appearing on behalf of the State submits that the petitioner had refused to accept the notice dated 04-03-2014 by which a special meeting was convened on 11-03-2014. A panchanama was, therefore, prepared which indicates that the copy of the notice was pasted on the residence of the petitioner. The meeting was held on the scheduled date and the motion of ''no confidence'' was passed by more than 2/3rd majority. The Additional Collector has given a sufficient hearing to the petitioner and has delivered a well reasoned judgment. No interference is, therefore, called for.

Shri N.L. Jadhav, learned Advocate submits that the documents pertaining to serving of notice on the petitioner, the panchanama and the affixing of the notice on the residence of the petitioner, are acts of statutory authorities and they have a presumptive value. There are no allegations against any specific officer as regards any animosity or enmity against the petitioner.

The petitioner herself chose to remain absent. Allegations of fake documents have been raised for the first time in this petition. The day of receiving the notice by the Tahsildar, is to be excluded while computing seven days period for holding the special meeting. He, therefore, submits that the special meeting was rightly conducted on the 7th day i.e. 11-03-2014 and the motion was carried by six is to zero vote count.

The Division Bench of this Court in the case of Nandkishor Deshmukh Vs. Presiding Officer/Tahsildar and Others, and the learned Single Judge of this Court in the case of Sou Seema Ashok Kamble Vs. The Collector and Others, has settled the issue as regards exclusion of the date of receipt of notice by the Tahsildar, while computing seven days for convening the special meeting. It has also been settled that the meeting can be convened on the 7th day and the same is in due compliance of Section 32(2) of the MVP Act.

This Court has followed the view taken by the Division Bench in the case of Nandkishor Shrimantrao Deshmukh (supra), while deciding the Writ Petition No. 5694 of 2014 in the matter of Sau. Pranita W/o Khanderao Chaure & others Vs. The Additional Collector, Ambajogai & Ors. The Division Bench of this Court in the case of Nandkishor Shrimantrao Deshmukh (supra), has laid down the law with regard to the manner in which the seven days are to be computed for entertaining a ''no confidence'' motion in a specially convened meeting. Paragraph Nos. 5 to 14 of the said judgment read as follows :-

"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.

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-9665.2014 WP 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.

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.

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. Section35(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 Patil Vs. State of Maharashtra and others = Pandhari Patil Vs. State of Maharashtra and others , relying on the decision given by this court earlier, in Someshwar Bapurao Nilakhe Vs. Nivritti 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.

The Division Bench of this court, in the case of Manjuli Vs. Civil Judge, Senior Division, Wardha and Others, 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."

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 Vs. Dinanath Sharma, , 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.

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 Patil Vs. State of Maharashtra and others . 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.

Similar situation arose before this court, in the case Sanjay Chavan and Others Vs. State of Maharashtra and Others, . This court, relying on the decision given by Apex Court, in the case Manohar Joshi Vs. Nitin Bhaurao Patil and Another, , 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."

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.

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."

The Full Bench of this Court in Letters Patent Appeal No. 312 of 2013 in Writ Petition No. 6967 decided on 09-10-2014 in the matter of Shri Tatyasaheb Ramchandra Kale Vs. Shri Navnath Tukaram Kakade and others has finally concluded that Rule 17 of the Meeting Rules is directory in nature and not mandatory. Paragraph No. 21 of the said judgment reads as under :-

"21.Finally to put the matter in perspective, the requirement of Rule 17 in the matter of proposing and seconding the motion cannot impinge upon the validity of the motion of no confidence which has otherwise been passed by fulfilling the requirement of Section 35(3) of the Bombay Village Panchayats Act, 1958. The infraction that has occurred on account of the motion not being formally proposed and seconded cannot invalidate the motion if the same has been passed by fulfilling the requirements of Section 35(3) of the BVP Act, as the said infraction does not affect the merits of the case. Hence we hold that Rule 17 is directory, and the test laid down in Section 44(3) of the BVP Act, namely whether the defects affects the merits of the case, would have to be applied, if a challenge is raised to such a motion. We accordingly answer the reference and remit the matter back to the Division Bench for the above Letters Patent Appeal being decided on merits."

Paragraph No. 21 of the said judgment therefore settles the issue that a notice moving a ''no confidence'' motion need not formally carry the names of the proposer and the seconder. As such, in the instant case, the notice was supported by four members out of the seven, of the Grampanchayat. In the light of the above view taken by this Court, the contentions of the petitioner do not deserve consideration.

In so far as the contentions of the petitioner to the extent of forged and fake documents having been created to indicate service of notice upon her are concerned, there was no such contention before the Additional Collector. Nevertheless, she had failed to produce on record any such material which could indicate that the notice for convening the special meeting was intentionally and deliberately not served upon her and that a false panchanama was prepared. This ground has been raised for the first time in this petition and was not the case of the petitioner in her earlier rounds of litigation. All said and done, unless it is proved otherwise, the documents prepared by statutory authorities have a presumptive value. The notice was affixed on her residence. The petitioner has been unable to place even before this Court, any such material which could have supported the allegations made by her. As such, even on this count, the petition fails.

In the light of the above, I do not find that the impugned judgment is erroneous or perverse. The petition is devoid of merit and is, therefore, dismissed.