Writ Petition No.2708 of 2001

10th September, 2001

Petitioner Counsel: Shri. N.H.PATIL
Respondent Counsel: Shri. S.D.KALDATE, Shri. A.J.DALE, Shri. R.R.SURYAWANSHI

Cases Cited:
Someshwar Bapurao Nilakhe Vs. Nivritti Baburao Gholave, AIR 1973 Bom. 147 [Para 5]
AIR 1924 Madras 257 [Para 5]
Smt. Manjuli Vs. Civil Judge, Senior Division, Wardha, AIR 1970 Bom. 1 [Para 6]
The Commissioner of Income Tax, Bombay Vs. The New Citizen Bank of India Ltd., (1966) 68 Bombay LR 602 [Para 6]
Dhanu Singh Vs. Kesheoprasad, AIR 1923 Nagpur 246 [Para 6]
Tarun Prasad Chatterjee Vs. Dinanath Sharma, ,(2000) 8 SCC 649 [Para 8]
Harinder Singh Vs. S.Karnail Singh, AIR 1957 SC 271 [Para 10]
Ram Saroop and another Vs. Khaderan Kohar, AIR 1927 ALL 608 [Para 11]
Raja Pande Vs. Sheopujan Pande, AIR 1942 ALL 429 [Para 12]
Babu Lachmeshwar Prasad Shukul Vs. Babu Girdhari Lal Chaudhari, AIR 1939 Pat 667 [Para 13]
Rambir Narhargir Gosai Vs. Prabhakar Bhaskar Gadhaway, AIR 1955 Nag 300 [Para 14]
K.Soosalrathnam Vs. The Divisional Engineer, National Highways Circle, Tirunelveli and others, AIR 1995 Mad 90 [Para 15]
C.F.Angadi Vs. Y.S.Hirannayya, AIR 1972 SC 239 [Para 16]
Chandra Kishore Jha Vs. Mahavir Prasad, JT 1999(7) SC 256 [Para 17]

JUDGMENT

JUDGMENT:- How to count the period of seven days limitation under Section 35(2) of the Bombay Village Panchayats Act, 1958, (hereinafter called as "the said Act") is the point for consideration which arises in the present petition.

2. Heard the learned advocates for the parties and perused the record. Rule. By consent, the rule is made returnable forthwith.

3. The petitioner challenges the orders passed by the authorities below rejecting the petitions against the no confidence motion passed against the petitioner in a meeting stated to have been held on 27.03.2001. The ground of challenge to the resolution is that though the notice requiring the Tahsildar to convene the meeting to consider the no confidence motion against the petitioner was received from the Panchayat members by the Tahsildar on 19.03.2001 and the notice thereof convening the meeting was issued immediately, the meeting was actually held on 27.03.2001 and, therefore, it was held beyond the period of 7 days in contravention of the provisions of law contained in Section 35 of the said Act and hence the proceedings are bad in law. Reliance is sought to be placed on the unreported decision of this Court in Writ Petition No.575 of 2001, in the matter of Mandabai Balnath Rohom and others Vs. Ashok Fakira Chandar and others, delivered on 13.06.2001 in support of the contention that the meeting has to be held within seven days from the date of receipt of the notice by the Tahsildar. On the contrary, referring to Section 11 of the Bombay General Clauses Act, 1940, the learned Assistant Government Pleader has submitted that the proceedings, when are required to be taken on a particular day, in accordance with the said Act and Rules made thereunder, if that day happens to be a holiday, the proceedings can certainly be taken on the next day and applying the said provisions of Section 11 of the Bombay General Clauses Act, 1904, no fault can be found with the resolution, which has been passed in the meeting duly convened by the Tahsildar, on 27th March, instead of 26th March which was a holiday being Gudi Padwa day. Undisputedly the notice was received by the Tahsildar on 19.03.2001. The meeting to consider the motion was held on 27.03.2001. It is also an undisputed fact that 26.03.2001 was a holiday being a "Gudi Padwa" day.

4. Section 35(1) of the said 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. There is no doubt that in terms of the provisions contained in Section 35 of the Bombay Village Panchayats Act, 1958 and the Rules made thereunder in relation to the procedure for consideration of the no confidence motion, the meeting for the same should be held by the Tahsildar within a period of seven days from the receipt of notice from the members disclosing the intention of the members to move the no confidence motion against the Sarpanch. In that regard, the decision in Mandabai Balnath Rohom's case is very clear. In Mandabai Balnath Rohom's case, it has been clearly held that Section 35(2) of the said Act requires that the Tahsildar shall not only issue the notice convening the meeting within seven days but also shall convene the meeting itself within seven days to deal with the matter pertaining to the no confidence motion from the day of receipt of notice by him under Section 35(1) of the said Act. Therefore, the point which arises for consideration is how to count the said period of seven days limitation under Section 35(2) of the said Act. In other words, what is the day on which the period of seven days limitation commences and what is the day on which day it expires ?

5. Section 35(2) of the said Act clearly provides that the period of seven days is to be counted "from the date of receipt of notice under Section 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. That is the law laid down by this Court in the case of Someshwar Bapurao Nilakhe Vs. Nivritti Baburao Gholave, reported in AIR 1973 Bombay 147. Similar view was taken by Madras High Court in In re Court Fees reported in AIR 1924 Madras 257, wherein it was held that where a statutes fixes only the terminus a quo of a state of things which is envisaged as to last indefinitely, the common law rule obtains that you ought to neglect fractions of a day and the statute or regulation or order takes effect from the first moment of the day on which it is enacted or passed, that is to say, from midnight of the day preceding the day on which it is promulgated; where, on the other hand, a statute delimits a period marked both by a terminus a quo and a terminus ad quem, the former is to be excluded and the latter to be included in the reckoning. The rule is applicable whenever time has to be computed from a day specified and whenever certain period of limitation is fixed for performance of doing of an act. Section 12(1) of the Limitation Act, 1963 and Section 10 of the Bombay General Clauses Act, 1904 are based upon the said general rule. The said Section 12 applies to suits, appeals and applications referred to in the Limitation Act. Though the provisions of Section 12(1) would not be attracted in the matter in issue, yet the provisions of Section 10 of the Bombay General Clauses Act, 1904 would be applicable. The said Section 10 provides that in any Bombay Act or Maharashtra Act, it shall be sufficient for the purpose of excluding the first in a series of days or any other period of time, to use the word "from" and for the purpose of including the last in a series of days or any other period of time to use the word "to". The said provision is in pari materia with Section 9 of the General Clauses Act, 1897. These provisions give statutory recognition to the well established principles applicable to the construction of statutes that ordinarily, in computing time, the rule observed is to exclude the first and to include the last day of the specified period.

6. This Court in the case of Smt. Manjuli Vs. Civil Judge, Senior Division, Wardha and others, reported in AIR 1970 Bombay 1 has held that in computing the period of limitation for election petition, the day on which the election results are declared is to be excluded. Again in the case of The Commissioner of Income Tax, Bombay Vs. The New Citizen Bank of India Ltd., reported in (1966) 68 Bombay LR 602, it was held that date of receipt of an order by the party is to be excluded for the purposes of Section 65(1) of the Income Tax Act, 1922 and the party must be given clear 60 days time, as Section 9 of the General Clauses Act applies to the case. In Dhanu Singh Vs. Kesheoprasad and others, reported in AIR 1923 Nagpur 246, the appellant had sued the respondents therein for joint possession of a plot of land acquired by the defendants. On the 29th November, 1920 a decree of joint possession was passed in favour of the appellant subject to his paying one hundred rupees as contribution within six months from the date of decree. The period of six months expired in the vacation when the Courts were closed, and the appellant therein deposited the money in the court on the day the Court had reopened after vacation. It was held that in view of Section 10 of General Clauses Act, the payment was in time.

7. In Halsbury's Laws of England, 37th Edition Vol.3, it is stated thus :

"Days included or excluded - when a period of time running from a given day or even to another day or event is prescribed by law or fixed as contract, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last-mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as "from such a day" or "until such a day" are equivocal, since they do not make it clear whether the inclusion or exclusion of the day named may be intended. As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day."

8. In recent decision by the Apex Court, in the matter of Tarun Prasad Chatterjee Vs. Dinanath Sharma, reported in (2000) 8 SCC 649, it has been 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. In order to exclude the first day of the period, the crucial thing to be noted is whether the period of limitation is delimited by a series of days or by any fixed period and this is intended to obviate the difficulties or inconvenience that may be caused to some parties. The Apex Court has further held that in order to apply Section 9 of the General Clauses Act, the first condition to be fulfilled is whether a prescribed period is fixed "from" a particular point. When the period is marked by terminus a quo and terminus ad quem, the canon of interpretation envisaged in Section 9 of the General Clauses Act, 1897 requires to exclude the first day.

9. 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 the laid held 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 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 19.03.2001. So the Tahsildar could have convened the meeting within seven days therefrom i.e. seven days to be counted from 20th March onwards. The period of seven days in that case would expire on 26th March. But the meeting was held on 27th March 2001. Therefore, the contention of the petitioner is that it falls on eighth day and not on seventh day, whereas applying the provisions of Section 11 of Bombay General Clauses Act, 1904, respondents insist that it was within the prescribed period.

10. Section 11 of the Bombay General Clauses Act, 1904 provides that, where, by any Bombay Act or Maharashtra Act made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open, provided that nothing in this Section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 applies. The provisions of law contained in Section 11 of the Bombay General Clauses Act, 1904 are in pari materia with those in Section 10 of the General Clauses Act, 1897. The Supreme Court in Harinder Singh Vs. S.Karnail Singh and others, reported in AIR 1957 SC 271 has, while considering the scope of Section 10 of the General Clauses Act, 1897, held that :

"Broadly stated, the object of the section is, to enable a person to do what he would have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the Section, the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that Section to apply, therefore, all that is requisite is that there should be a period prescribed and that period should expire on a holiday."

11. In Ram Saroop and another Vs. Khaderan Kohar, reported in AIR 1927 ALL 608, an application for setting aside the decree was made, together with tender of the decretal amount on 3rd December 1926, but the amount was actually paid into the treasury on 6th December, 1926. The lower court accepted the payment as good. The Rules required payment to be made within three days of the tender. Considering the fact that 5th December 1926 was a holiday, it was held that the payment on the subsequent day was within the period of three days.

12. Full Bench of Allahabad High Court in Raja Pande Vs. Sheopujan Pande & others, reported in AIR 1942 ALL 429 has held that if the period of three months prescribed by Section 9(1)(c) of Provincial Insolvency Act, 1920 expires on a day when the Court is not sitting, then the petition can be validly presented on the next day when the Court is sitting.

13. In a matter before the Full Bench of Patna High Court in the case of Babu Lachmeshwar Prasad Shukul and others Vs. Babu Girdhari Lal Chaudhari & others, reported in AIR 1939 Pat 667, the appellant in case of Federal Court appeal was allowed to deposit printing cost of the appeal on the day on which the High Court was reopened after annual vacation, by applying the provisions of law contained in Section 10 of the General Clauses Act. While justifying the same, Justice Agarwala had ruled that the expression "an act directed or allowed to be done or taken in an office" is used in the said Section 10 in contradistinction to an act directed or allowed to be done or taken in a Court, and that therein "Office" does not include the office of a Court, for when a litigant is required to do a particular act to further his suit or appeal, it is really in the Court that he is required to do it although for the sake of convenience and to save the time of Judges, it is in fact done in the office of the Court. The office of the Court is merely the hand with which the court performs some of its functions. If that be so, the fact that the office of a Court remains open while the Court itself is closed for judicial business will not deprive a litigant of the extended time for doing an act to which Section 10 of General Clauses Act applies.

14. The Division Bench of Nagpur High Court in Rambir Narhargir Gosai Vs. Prabhakar Bhaskar Gadhaway and others, reported in AIR 1955 Nag 300, has held that the cross objection filed on the reopening day after the vacation during which the last day for filing if expired must be held to be in time. It was held that Section 4 of Limitation Act and Section 10 of General Clauses Act embody the general principles enshrined in two maxims "Lex non cogit ad impossibilia and Actus Curiae neminem gravabit" and even if Section 4 of Limitation Act is not applicable, the parties can invoke Section 10 of General Clauses Act. If neither of the provisions can assist, then the parties can still invoke the general principles embodied in the two provisions.

15. In K.Soosalrathnam Vs. The Divisional Engineer, National Highways Circle, Tirunelveli and others, reported in AIR 1995 Mad 90, it was noticed that as per tender notification the tender schedule could have been obtained between 13.06.1994 and 21.06.1994. However, though originally 21.06.1994 was a working day as on 07.05.1994 which was the day of issuance of tender notification, subsequently Government had declared 21.06.1994 as a holiday on account of Moharam. It was held that though Section 10 of the General Clauses Act cannot in terms apply to the said case, the last date for obtaining the schedules should get extended to the next working day, if last date originally fixed becomes a holiday subsequently, on the general principles underlying the said Section.

16. In C.F.Angadi Vs. Y.S.Hirannayya, reported in AIR 1972 SC 239, where under a compromise decree, the plaintiff was required to deposit certain amount in the Court by a certain date in order to enforce his right of getting a sale deed executed, but the last date as fixed under the decree happened to be a holiday, the plaintiff had deposited the amount on the following day, there it was held that the deposit by the plaintiff was in substance and in effect a deposit made and acceptance of the deposit by the executing court did not amount to variation of the terms of decree.

17. In Chandra Kishore Jha Vs. Mahavir Prasad and others, reported in JT 1999(7) SC 256, it was noticed that an election petition under Patna High Court. Rules could have been presented in the open Court upto 16.05.1995 till 04.15 p.m. in the manner prescribed by Rule 6 either to the Judge or the Bench as the case may be to save the period of limitation. That, however, was not done, because neither designated election Judge before whom the election petition could be formally presented in the open Court nor the Bench hearing Civil Applications and motions was available on 16.05.1995 after 3.15 p.m. after the Obituary Reference since the Chief Justice of the High Court had declared that "the Court shall not sit for the rest of the day" after 3.15 p.m. Considering that law does not expect a party to do the impossible - impossibilium nulla obligatio est - it was held that the election petition could not have been filed on 16.05.1995 during court hours, as for all intent or purposes the court was closed on 16.05.1995 after 3.15 p.m. and that since Indian Limitation Act does not apply to an election petition, Section 10 of the General Clauses Act would apply and as it was not possible for the appellant to have presented the election petition to the designated election Judge or in his absence to the Bench hearing Civil applications and motions in the open court on that date, which was the last day of the prescribed period of limitation and, therefore, the presentation of the election petition on the very next date i.e. 17.05.1995, in the open court, would be considered, by virtue of Section 10 of General Clauses Act, as presentation of the election petition within the prescribed period of limitation.

18. Apparently, therefore, 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. 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 the holiday, 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. In the case in hand it is an undisputed fact that 26.03.2001 was a holiday on account of "Gudi Padwa" day. It is also an undisputed fact that on account of holiday, the office of the Panchayat was closed on the said day. Being so, no fault can be found with the Tahsildar convening the meeting on 27.03.2001 to consider the no confidence motion and hence the period of seven days required to be complied with under Section 35 of the said Act, cannot be said to have been flouted by the Tahsildar by holding the meeting on 27.03.2001. The provisions contained in Section 35 of the Bombay Village Panchayats Act are to be read with Section 11 of the Bombay General Clauses Act, 1904.

19. In the result, therefore, the impugned orders do not suffer from any illegality and do not call for any interference by this Court in its writ jurisdiction. Hence the petition fails and is accordingly dismissed. Rule is discharged with no order as to costs. Interim relief stands vacated.

Petition dismissed.