Sou Seema Ashok Kamble vs The Collector and Others

D.B. Bhosale, J.—Heard learned Counsel for the parties Rule. Ms Cardoza, learned AGP, waives service for respondent Nos. 1 and 2 and Mr Kadam, learned Counsel, waives service for respondent nos 4 to 12. By consent, rule is made returnable forthwith and heard finally.

This writ petition under Article 227 of the Constitution of India is directed against the orders dated 13.12.2006, passed by the Divisional Commissioner in appeal, and dated 26.9.2006, passed by the Collector, by which the petition against the no confidence motion passed against the petitioner in a meeting of the Grampanchayat held on 10.8.2006 has been dismissed.

The petitioner is the elected Sarpanch of Khutbav Grampanchayat. The members of the Panchayat gave a notice to the Tahsildar for moving a no confidence motion against the petitioner. The Tahsildar received the notice on 2.8.2006. The meeting to consider the no confidence motion against the petitioner was held on 10.8.2006. This Grampanchayat has 11 elected members out of which 9 members voted in favour of the motion and accordingly motion was carried by 2/3rd majority.

The submissions of Mr Salunkhe, learned Counsel for the petitioner, are two-fold. Firstly, though the notice requiring the Tahsildar to convene the meeting to consider the no confidence motion against the petitioner was received by the Tahsildar on 2.8.2006 the meeting was actually held on 10.8.2006, that is, beyond the period of seven days in contravention of the provisions of Sub-section (2) of Section 35 of the Bombay Village Panchayats Act,1958 (for short, "the Act") and hence the proceedings are bad in law, and secondly, on the ground that there was no bar to hold a meeting on a public holiday to consider the no confidence motion, it being a special meeting.

There is no dispute that the notice was received by the Tahsildar on 2.8.2006. In view thereof, the question that falls for my consideration is as to what is the day on which the period of seven days limitation commences and what is the day on which it expires? In other words, how to count the said period of seven days limitation u/s 35(2) of the Act. Mr Salunkhe, learned Counsel for the petitioner, submitted that the Tahsildar ought to have convened a meeting within seven days from the date of receipt of the notice, that is, on or before 8.8.2006 and since meeting was held on 10.8.2006, the no confidence motion is bad in law and it deserves to be set aside. In support of this contention, he placed reliance upon the judgment of this Court in Ganesh Raghunath Samel Vs. State of Maharashtra and Others, .

Before I consider the contentions urged by Mr Salunkhe and the judgment of this Court relied upon by him in Ganesh Raghunath Samels case, it would be advantageous to see the relevant provisions contained in Section 35 of the Act. Section 35(1) of the Act provides that 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. Sub-section 2) thereof provides that 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. Section 35(2) of the Act, thus, clearly provides that the period of seven days is to be counted "from the date of receipt of notice u/s 35(1)". 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 as held by this Court in Someshwar Bapurao Nilakhe v. Nivritti Baburao Gholave 1972 Mh.L.J.916. The Supreme Court had an occasion to consider similar provision in Tarun Prasad Chatterjee Vs. Dinanath Sharma, . The Supreme Court held that the principle contained in Section 9 of the General Clauses Act, 1897, is that when a period is delimited by statute or rule, which has both a beginning and an end, the word "from" is used indicating the beginning, the opening day is to be excluded. This Court in Pandhari s/o Shripat Patil v. State of Maharashtra 2002(5) Mh.L.J.171 had an occasion to consider the very same provision. The learned Single Judge in this case held that the provisions of law contained u/s 35(1) and (2) of the Act, which clearly provide a fixed period of seven days and also provide for starting point "from" the date of receipt of notice u/s 35(1) of the Act, and applying the principle laid down by the Supreme Court, as well as the provisions of Section 10 of the Bombay General Clauses Act, 1904, the day of receipt of the said notice u/s 35(1) of the said Act will have to be excluded while computing the period of seven days. It is thus clear that in Sub-section (2) of Section 35 the Legislature by using the word "from" has indicated that the day of notice will have to be excluded while computing the period of seven days. Even otherwise, this Court is of the considered opinion, that the word "from" in Section 35(2) of the Act excludes the day of notice. In the present case if the day of notice, that is, 2.8.2006 is excluded the seven days would expire on 9.8.2006 and since it (9.8.2006) was a public holiday the meeting was called on 10.8.2006.

The Division Bench of this Court in Ganesh Raghunath Samels case, in the backdrop of the facts of that case, in paragraph 6 held thus:

It is contended by the learned Counsel for the petitioner the reading of Sub-section (2) of Section 35 of the Act makes it clear that meeting for No Confidence Motion must be convened "within seven days" from the date of receipt by the person concerned of the notice under Sub-section (1) of the Act. It was, therefore, incumbent upon the Tahsildar to convene a meeting within seven days from the receipt of the notice, i.e. within seven days from September 20,2001. Once the said period of seven days had gone, Sub-section (2) of Section 35 of the Act cannot be pressed into service as the said period was over. In the case on hand, the meeting was convened on September 29,2001 which was illegal and contrary to law.

It is true that in Ganesh Raghunath Samels case seven days limitation was computed taking the day of notice into consideration. In other words, the day of notice was not excluded. However, from the facts of the case it is clear that the question as to from which date the limitation of seven days, as provided for u/s 35(2) of the Act, need to be reckoned, was not argued, considered and decided by the Division Bench.

Admittedly, in that case, the meeting was convened on the tenth day from the date of notice including the day of notice. Another Division Bench of this Court, however, while dealing with similar situation and the question, as in the present writ petition, in Nandkishor Deshmukh Vs. Presiding Officer/Tahsildar and Others, has taken a view that while computing the period of limitation the day of notice should be excluded. Paragraph 14 of the Judgment in Nandkishors case reads thus:

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.

Thus, in the present case, I have no hesitation in holding that the period of seven days had expired on 9.8.2006 and not on 8.8.2006 as contended by the petitioner.

The next question, therefore, as to whether the Tahsildar was right in holding the meeting on 10.8.2006 since 9.8.2006 was a local holiday in the district, assumes importance. Admittedly, 9th August was Rakshabandhan day and it was declared as public holiday. However, it is not necessary for me to deal with this question any further as the matter is no more res-integra as has been clearly answered by this Court in Pandhari s/o Shripat Patils case while dealing with the similar facts. After taking into consideration all the facts and the relevant provisions in the Act, the learned Single Judge in that case has observed that if the day on which the meeting is required to be held happens to be holiday or the office of the Panchayat is required to be kept closed, certainly the proceedings can be taken on the day following such day. It is further observed that in such cases, it cannot be held that the period of seven days would stand expired even if on arithmetical calculation the seventh day falls on holiday and the period would get extended till the next following working day in order to enable the parties to perform the act required to be performed within seven days. I do not find any reason to take a view different from the one taken by the learned Single Judge in Pandhari s/o Shripat Patils case. In the present case, the seventh day was 9.8.2006 and it was the holiday and 10.8.2006, being the next following working day, no fault can be found with the Tahsildar in convening the meeting on that day to consider the no confidence motion and hence the said meeting cannot be held to be illegal. Even if it is assumed that there is no bar in holding a meeting on holiday that cannot be a ground to set aside the no confidence motion which was passed on the next following working day, 9.8.2006 being the public holiday. In the circumstances, the writ petition is dismissed.