Pranita vs The Additional Collector

R.V. Ghuge, J.—Heard. Rule. Rule made returnable forthwith and heard finally by consent of the parties.

The issue raised for the consideration of this Court is as regards the manner in which seven days are to be calculated under Section 35(2) of the Maharashtra Village Panchayat Act, 1958 (here-in-after referred to as ''MVP Act'') in relation to passing of ''no confidence'' motion.

Contention of the petitioner is that ''no confidence'' motion was moved by six out of nine members of the Gram-panchayat Belgaon-Kelgaon, Tq. Kaij, Dist. Beed, against respondent No. 3 Sarpanch. In all there were nine members. The notice is dated 29-03-2014 and was served on the concerned Tahsildar on 29-03-2014.

On the same day 29-03-2014, the Tahsildar had issued the notice for convening a special meeting on 05-04-2014 for dealing with the ''no confidence'' motion. The motion was carried by six is to zero vote count. Three members were absent inclusive of respondent No. 3 against whom the no confidence motion was moved.

The 3rd respondent thereafter preferred an appeal bearing No. 2014/GP/Appeal/04. By Judgment and Order dated 25-06-2014, the Additional Collector, Ambajogai has allowed the appeal and has concluded that the special meeting convened on 05-04-2014 was illegal and unsustainable as it was convened after seven days. Naturally, the business transacted in the special meeting, of passing ''no confidence'' motion, was held unsustainable under Section 35(2) of the MVP Act. Aggrieved by the impugned judgment and order, the petitioners are before this Court.

Upon hearing the learned Advocates for the respective sides, I have gone through the petition paper book with their assistance. To ensure that there is a no confusion as regards the dates relevant for deciding this petition, I have confirmed the dates and events with the respective sides.

Section 35(1) and (2) of the M.V.P. Act read thus :-

"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 [Such notice once given shall not be withdrawn]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)."

In so far as the effect of sub Section (1) and (2) of Section 35 of the MVP Act is concerned, the issue is no longer res-integra. The Division Bench of this Court in the case of Nandkishor Deshmukh Vs. Presiding Officer/Tahsildar and Others, 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 special convened meeting.

In the Nandkishor case, the notice was received by the Tahsildar on 30-07-2003. The special meeting was convened on 06-08-2003. The Division Bench after considering the several reported judgments of this Court as well as the Apex Court has considered the provisions of the MVP Act (the erstwhile Bombay Village Panchayat Act, 1958) from paragraph Nos. 5 to 14. It would be of assistance to reproduce the said paragraphs Nos. 5 to 14 here-in-below :-

"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-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. 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 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."

As such, in the Nandkishor judgment (supra), the Tahasildar received the notice of ''no confidence'' motion on 30-07-2003 and he issued a notice so as to convene the special meeting on 06-08-2003. The Division Bench concluded that the date on which the notice is received ought to be excluded while calculating the seven days under Section 35(2) of the MVP Act. The meeting held on 06-08-2003 was, therefore, held to be properly convened as it was held on the 7th day after receiving the notice (emphasis supplied). It is, therefore, laid down in the Nandkishor judgment (supra) that the date on which notice is received by the Tahasildar, shall stand excluded while calculating the seven days under Section 35(2) of the MVP Act.

The learned Single Judge of this Court while deciding the case between Sou Seema Ashok Kamble Vs. The Collector and Others, , has relied upon the Nandkishor judgment (supra) as well as the judgment of the Apex Court in the case of Tarun Prasad Chatterjee Vs. Dinanath Sharma, . In the said case, while excluding the date on which the notice was received, the learned Single Judge noted that the 7th day fell on a public holiday and, therefore, the special meeting convened on the 8th day was in tune with the Section 35(2) of the MVP Act. Since the 7th day happened to be a public holiday, the special meeting convened on the 8th day was held to be in order.

In the instant case, it is not in dispute that notice was received by the Tahsildar on 29-03-2014. The special meeting was convened on 05-04-2014 which happened to be the 7th day after receipt of notice. The ''no confidence'' motion was passed by 6 : 0 vote count. In the light of the judgment of the Division Bench in the case of Nandkishor and the view taken by the Apex Court in the case of Tarun Prasad Chatterjee (supra), it is apparent that the impugned judgment and order dated 25-06-2014 passed by the Additional Collector, Ambajogai is rendered erroneous and perverse. The special meeting held on 05-04-2014 is legally convened and the ''no confidence'' motion passed therein is sustainable.

For the above reasons, the impugned judgment is quashed and set aside. This Petition is, therefore, allowed. Rule is made absolute accordingly with no order as to costs.