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2018 DIGILAW 57 (ALL)

PRAMOD KUMAR v. STATE OF U. P.

2018-01-08

AJAY BHANOT, KRISHNA MURARI

body2018
JUDGMENT Hon’ble Ajay Bhanot, J.—There exists a Kshettra Panchayat in Block Mahewa called Kshettra Panchayat Mahewa, Block Mahewa, District Etawah. The said Kshettra Panchayat was constituted under the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as “ the Act”). The affairs and administration of the said Kshettra Panchayat are governed and regulated by the said Act. 2. The total number of elected members of the Kshettra Panchayat, Mahewa is 106. The petitioner was elected as Pramukh of Kshettra Panchayat, Mahewa, District Etawah in January 2016. 56 elected members of the Kshettra Panchayat, Mahewa formed the intention to express want of confidence in the petitioner. The aforesaid 56 members drew up a written notice with intention to make a motion of no-confidence and caused it to be served upon the Collector, Etawah. The Collector, Etawah upon receipt of the said notice of intention, made a notice on 13.10.2017, convening the meeting to consider the motion of no-confidence on 30.10.2017. The notice dated 13.10.2017 of the said meeting was sent to the members of the Kshettra Panchayat, Mahewa. 3. The petitioner being aggrieved by the action of the Collector has laid out a challenge to the no-confidence proceedings initiated against him and has assailed the notice dated 13.10.2017 issued by the Collector convening the meeting, to consider the motion of no-confidence on 30.12.2017. 4. We have heard Sri Shashi Nandan, learned Senior Counsel assisted by Sri Birendra Singh, learned counsel on behalf of the petitioner, Sri Rakesh Pande, learned counsel appearing for respondent 5 and learned Standing Counsel for respondents 1 to 4. 5. The only argument in support of the petition and against no-confidence proceedings raised by Sri Shashi Nandan, learned Senior Counsel for the petitioner was that the petitioner was not given the minimum of 15 days notice of the meeting to consider the motion of no-confidence which was held on 30.10.2017. The failure to provide notice of “not less than 15 days” of the meeting of no-confidence is in the teeth of the provisions of Section 15 (3) (ii) of the Act. The provision is mandatory and breach thereof would vitiate the proceedings of no-confidence. 6. On facts, it was contended that the impugned notice dated 30.10.2017 taken out by the Collector to convene the meeting of no-confidence was received by the petitioner on 16.10.2017. The provision is mandatory and breach thereof would vitiate the proceedings of no-confidence. 6. On facts, it was contended that the impugned notice dated 30.10.2017 taken out by the Collector to convene the meeting of no-confidence was received by the petitioner on 16.10.2017. The time period between the receipt of notice by the petitioner on 16.10.2017 and the date of the meeting to consider the motion of no-confidence i.e. 30.10.2017 is less than 15 days. 7. Per contra Sri Rakesh Pande, learned counsel for respondent 5 contends that action of the Collector is compliant with the provisions of Section 15 (3) (ii) of the Act. The mandatory period of notice of the meeting for no-confidence to the members of the Kshettra Panchayat is to be counted from the date of dispatch of notice to the members and not the date of receipt of such notice by the members. He further contends that while counting the period of notice of “not less than 15 days” as provided for in the Act, the terminal days namely the date of issuance of notice and the date of meeting are to be excluded. In this manner, in the facts of the case the statutory mandate of giving notice to the members of “not less than 15 days of such meeting has been given effect to. In support of his submissions Sri Rakesh Pande has relied upon judgments of this Court rendered in Satya Prakash Mani and others v. State of U.P. and others, (2005) 2 UPLBEC 1883 and Yadu Nath Pandey v. District Panchayat Raj Officer, (1986) UPLBEC 632. 8. Learned Standing Counsel has adopted the arguments of Sri Rakesh Pande and has defended the action of the Collector in similar terms. 9. From the submissions at the bar, it is evident that the controversy is primarily legal in nature. 10. However, certain facts have to be established before the legal propositions can be considered. 11. From the pleadings and documents in the record and the submissions of learned counsels at the bar the following facts which are relevant to a decision on the controversy stand established beyond doubt. The notice calling the meeting issued by the Collector under Section 15 (3) (ii) to the elected members of the Kshettra Panchayat bears the date 13.10.2017. The notice contained the details of the appointed date, time and place of the meeting. The notice calling the meeting issued by the Collector under Section 15 (3) (ii) to the elected members of the Kshettra Panchayat bears the date 13.10.2017. The notice contained the details of the appointed date, time and place of the meeting. It is not disputed that the aforesaid notice was dispatched to the members on 14.10.2017. The postal documents in the record also clearly attest to the fact that the notice was dispatched on 14.10.2017. The notice was received by the petitioner on 16.10.2017. The meeting of no-confidence was proposed to be held on 30.10.2017. 12. The procedure for tabling the motion of no-confidence of a Pramukh is laid down in Section 15 of the Act. The provisions relevant for a judgment on the issues at hand are extracted hereunder for ease of reference : “15. Motion of non-confidence in Pramukh—(1) A motion expressing want of confidence in the Pramukh or any of a Kshettra Panchayat may be made and proceeded with in accordance with the procedure laid down in the following sub-sections. (2) [A written notice] of intention to make the motion in such form as may be prescribed, signed by at least half of the total number of [elected members of the Kshettra Panchayat] for the time being together with a copy of the proposed motion, shall be delivered in person, by any one of the members signing the notice, to the Collector having jurisdiction over the Kshettra Panchayat. (3) The Collector shall thereupon: (i) convene a meeting of the Kshettra Panchayat for the consideration of the motion at the office of the Kshettra Panchayat on a date appointed by him, which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him; and (ii) give to the [elected member of the Kshettra Panchayat] notice of not less than fifteen days of such meeting in such manner as may be prescribed.” 13. The letter of the statute is the most reliable guide to the intention of the legislature. The process of logical reasoning is an assured method of understanding the workability of the statute. We will adopt the method of understanding the law from the letter and use the process of logical or deductive reasoning to determine the workability of the provisions. 14. The process of logical reasoning is an assured method of understanding the workability of the statute. We will adopt the method of understanding the law from the letter and use the process of logical or deductive reasoning to determine the workability of the provisions. 14. The calculation of the statutory period of notice of not less than 15 days to the members has to be made with two fixed reference points in time. The notice period will run between these two fixed reference points. The date of the event, which is the meeting to consider the motion, is set in the notice and cannot be altered. This is one certain and fixed reference point in time. 15. It is the statutory responsibility of the Collector convening the meeting to ensure that the time line provided by law, of not less than 15 days notice to the members is adhered to. This statutory time line can be observed and the provisions of law can be complied with, by the Collector, if the Collector has control over events. The Collector has full control over the date of dispatch of notice. The date of dispatch of notice is certain and fixed by the Collector and hence another reliable point of reference in time. The time period of notice of meeting to members, can be calculated in advance and with certainty with this reference point in time. 16. On the other hand the date of receipt of notice by various members is not fixed but flexible. The date of receipt of notice is variable since different members may receive the notice on different dates. Further the receipt of notice is subject to the vagaries of the postal department over which the Collector convening the meeting has no control. Another element of uncertainty which attends the date of receipt of notice is deliberate avoidance of service by some members. This would make the date of receipt of notice indeterminable and the calculation of the time period of notice impossible. This situation would be anomalous, as the Collector would have an obligation to comply with the statute but not the power to do so. For the scheme of the Act to work well the responsibility to comply with the statute must be paired with the power to implement the law and the same should vest in the office of the Collector. 17. For the scheme of the Act to work well the responsibility to comply with the statute must be paired with the power to implement the law and the same should vest in the office of the Collector. 17. The date of dispatch of notice is a constant whereas the date of receipt of notice by individual members is variable. The latter being uncertain cannot be treated as a fixed and reliable reference point in time. The former will achieve the intention of the legislature, while the latter will defeat the aim of the legislature. 18. Consequently the notice not less than 15 days of the meeting to the members has to be reckoned from the date of dispatch of notice to the Collector and not the date of receipt of such notice by the members. 19. This issue can be looked at from another legal perspective. A perusal of the provisions of Section 15 (3) (ii), require the Collector to ‘give’ to the elected members of Kshettra Panchayat notice of not less than 15 days of such meeting. The word ‘give’ in fact gives away the intendment of the Legislature. The word ‘give’ stands in contradiction to the word ‘receipt’. The Legislature has purposely chosen to employ the word ‘give’ and has deliberately eschewed the word ‘receipt’. 20. It will also be appropriate to reproduce how “giving of notice” has been defined by this Court in the case of Devendra Singh v. State of U.P. and others (Writ C No. 51900 of 2017) on the strength of good authority: “The ‘giving of notice’ is distinguished from ‘receiving of the notice’. It provides that a person notifies or gives notice to another by taking such steps as may be reasonably required to inform the other in the ordinary course, whether or not such person actually comes to know of it. ‘A person ‘receives’ a notice when it is duly delivered to him or at the place of his business.” 21. From this point as well, the requirement of giving not less than 15 days notice of such meeting has to be counted from the date when the notice is given or dispatched and not when it is delivered to the members. 22. The issue can also be considered independently from another legal stand point, with the aid of Section 27 of the General Clauses Act, 1897. 22. The issue can also be considered independently from another legal stand point, with the aid of Section 27 of the General Clauses Act, 1897. For ease of the reference, Section 27 of the General Clauses Act, 1897 is quoted here under : “27. Meaning of service by post Where any 13 [Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, where the expression “serve” or either of the expressions “give” or “send” or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.” 23. Section 27 of the Act has to be read with Section 15 (3) (ii) of the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961, in order to get a more authoritative interpretation and a clear understanding of the latter provision. 24. A presumption of service or giving of notice can be drawn on the foot of Section 27, upon satisfaction of certain prerequisites. The prerequisites of presumed service and the requirement to give notice under Section 15, will be satisfied by posting a prepaid and properly addressed letter. The relevant date to count the period of notice, is the date of dispatch of notice. 25. Finally the issue can be resolved in the light of the case law on point. This Court has settled the controversy in a number of judgments. There is complete consensus of judicial opinion on the point and the Courts have spoken in one voice that the date from which the period of notice of not less than 15 days will be reckoned is the date on which the notice to convene the meeting of no confidence is dispatched and not the date of receipt of notice by members. Some of the authorities in point which have adopted this interpretation and have entrenched the aforesaid proposition of law are discussed here under. 26. Some of the authorities in point which have adopted this interpretation and have entrenched the aforesaid proposition of law are discussed here under. 26. In the case of Jai Charan Lal v. State of U.P. and others, AIR 1968 SC 5 , the Hon’ble Supreme Court considered the provisions of notice of no confidence motion to the members under the U.P. Municipalities Act, 1916. In particular Section 87-A (3) of the said Act fell for consideration in the said case before the Hon’ble Supreme Court. The import of the word ‘’send’ was given effect to while rejecting the argument that the critical date is not the date when the notice is dispatched but the date on which the notice is received. The Supreme Court laid down the law in the following terms in para 5 of the judgment which is quoted hereunder : “5. Three arguments in this connection have been raised before us and we shall mention them now. the First contention is that the notice which was sent out by the District Magistrate by registered post did not allow seven clear days before the date of the meeting as required by the latter part of sub-section (3). In advancing this argument the learned counsel for the appellant contends that the critical date is not the date on which the notice is despatched but the date on which the notice is received. Since the notice was despatched on the 17th and presumably reached the next day the learned counsel excludes the date of receipt of the notice and the date of the meeting and says that seven days did not intervene. In our judgment this is an erroneous reading of the sub-section. The sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word “send” shows that the critical date is the date of the despatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of the section.” 27. In the case of Ramashraya and etc. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of the section.” 27. In the case of Ramashraya and etc. v. District Panchayat Raj Officer and another, (1997) 3 UPLBEC 1872 , the provisions relating to notice of no-confidence to members under the U.P. Panchayat Raj Act, 1947 read with the U.P. Panchayat Rules, 1947 were in issue. Section 14 of the U.P. Panchayat Raj Act employs the word ‘’notice shall be given’. This is similarly worded to the U.P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961. The Hon’ble High Court laid down the law in holding that period of 15 days of notice to the members is related to issuance of notice and not linked to the service of notice. The relevant portions of the judgment are extracted hereunder : “45. What Section 14(1)contemplates is that at least 15 days previous notice must be given to remove the Pradhan by a majority of 2/3rd of the members present and voting. According to Rule 33-B a written notice of intention to move a motion for removal of the Pradhan or Up-Pradhan under Section 14 of the Act shall be necessary. It shall be signed by not less than one half of the total members of the Gram Panchayat and shall state reason for moving the motion and it shall be delivered in person at least by three members signing the notice to the District Panchayat Raj Officer. Nowhere, except in Rule 37 mode or the manner of the notice to be served has been indicated. Actual period of 15 days occurring in Section 14 of the Act is meant for issuance of the notice and it has no relevance with the service of the notice. 47. In all the cases before me fifteen days previous notice was given. But in few cases notices might have been served later on. Hence it cannot be said that 15 days previous notice was not given. 47. In all the cases before me fifteen days previous notice was given. But in few cases notices might have been served later on. Hence it cannot be said that 15 days previous notice was not given. According to Section 14 and Rule 33-B, the period is to be computed from the date of the issue of the notice and not from the date of service, because it is always possible that a person may evade the service for a longerperiod of frustrate the holding of the meeting for passing the motion of no confidence.” 28. In the case of Satya Prakash Mani and others v. State of U.P. and others, (2005) 2 UPLBEC 1883 , this Hon’ble Court once again conclusively decided the issue, whether the relevant date for counting the period of ‘’not less than 15 days’ notice is the date of giving notice or date of its receipt by members. The Hon’ble Court laid down the law as follows. “34. Even if it is taken that some members had received notice that gave less than 15 days time for the meeting from the date of receipt, the meeting cannot be invalidated. The relevant thing is date of giving the notice and not of the date of receipt by the members. The notice is given on the date when it is affixed on the notice board or is despatched to the members. 35. The counsels for Smt. Jaiswal cited Kunwar Hart Raj v. District Magistrate (the Hari Raj case), to show the date of receipt is the important date. This case relates to the interpretation of Section 87-A (3) of the Municipalities Act which required seven days clear notice before the date of meeting. Notice in the Hari Raj case was dated 24.1.1991 and meeting was to be held on 30.1.1991. This gave only six days notice between issue of notice and holding of meeting. It is in view of this that the Court had invalidated the meeting. In the present case the notice was affixed on the notice board on 30.11.2004. They were despatched on 1.12.2004. This is the date when notice was given. The meeting was to be held on 20th December, 2004. Thus there was clear notice of 15 days to every one. There is no illegality on this account.” 29. In the present case the notice was affixed on the notice board on 30.11.2004. They were despatched on 1.12.2004. This is the date when notice was given. The meeting was to be held on 20th December, 2004. Thus there was clear notice of 15 days to every one. There is no illegality on this account.” 29. In the case of Devendra Singh v. State of U.P. and others (Writ C No. 51900 of 2017) this Hon’ble Court once again had the occasion to consider the issue of relevant date for counting the period of notice. This Court looked at the controversy from another perspective and upheld the entrenched position of law that the relevant date for computation of the notice period is the date of dispatch of notice calling the meeting and not its receipt by members. The relevant extracts of the judgment are reproduced here under : “Section 15(3)(ii) of the Act provides that the Collector shall “give” to the elected members of the Kshettra Panchayat notice of not less than fifteen days of the meeting. The issue is whether this period of fifteen days should be counted from the date the notice is despatched by registered post or should be counted from the date when they are actually received by the members. It needs to be remembered that once a written notice of intention to make the motion is submitted in person to the Collector, the Collector has to, in view of the provisions of Section 15(3)(i) of the Act, convene a meeting of the Kshettra Panchayat for consideration of the motion on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. Sub-section (3)(ii) of Section 15 of the Act, however, provides that the Collector shall “give” to the elected members of the Kshettra Panchayat notice of not less than fifteen days of the meeting. Rule 2 also provides that the notice shall be sent by registered post to every member of the Zila Panchayat at his ordinary place of residence. These factors have to be kept in mind for determining whether the period of fifteen days should be counted from the date the notice is dispatched by registered post or the date when it is actually received. These factors have to be kept in mind for determining whether the period of fifteen days should be counted from the date the notice is dispatched by registered post or the date when it is actually received. It would be very difficult for the Collector to comprehend, when he proceeds to give the notice contemplated under Section 15(3)(ii) of the Act by registered post, the date on which the notice will be received by the elected members. Can he, in such circumstances, be expected to fix a date by which all the elected members would have received the notice. The Collector has also to keep in mind that the meeting has to be held not later than thirty days from the date on which the notice under Section 15(2) is delivered to him. There would be no uncertainty if the period of fifteen days is counted from the date the notice is dispatched by registered post.” 30. The second submission of Sri Rakesh Pande, learned counsel now needs consideration, namely the manner of calculation of time period of “notice of not less than fifteen days of such meeting”. 31. The import and significance of the phrase ‘’not less than so many days’ came to be interpreted by this Court in the case of Yadu Nath Pandey v. District Panchayat Raj Officer, (1986) UPLBEC 632. In Yadu Nath Pandey (supra), a similarly worded provision for notice of no-confidence in the U.P. Panchayat Raj Act, 1947 read with the U.P. Panchayat Raj, Rules, 1947 came to be considered by this Court. This Court after relying upon legal authorities of high repute, essentially reiterated the settled position of law. This Court went on to hold that the provision for ‘’not less than so many days’, requires the exclusion of the two terminal days namely the date of the given event and the date of the act. This Court in Yadu Nath Pandey (supra) laid down the law by holding as under : 5. “In Maxwell on Interpretation of Statutes, Eleventh, Edition page 340, the significance of the words “at least” was considered and it was said : “Again when so many “clear days” or so many days “at least” are given to do an act, or “not less than” so many days are to intervene both the terminal days are excluded from the computation.” 6. This statement is base on many cases cited by Maxwell. 7. The most significant words in Sub-section (1) of Section 14 are “at least” Explaining the meaning of these words Mrouds in Judicial Dictionary Vol. I Third Edition, has said, where time is to be computed so as many days “at least” that means clear days R.V. Salop, 7 LJMC 56; Mitchell v. Forster; Young v. Higgony; Norton v. Salisbury; Freeman v. Read, cited Calender Month; Robinson v. Robinson; Howes v. Turner, 1 Code of Civil Procedure 670; Mercantile Trust v. International Co., 1893 1 Ch 484, n. 489 cp, R.V. St. Mary, Warwick, 21 LTCS 74, cited year. 8. The intention of the Legislature by using the word “at least” in Sub-section (1) of Section 15 was that 15 days clear notice should be given. The phrase ‘clear words’ means that the time to be reckoned exclusive of both the first and the last days. 9. In Rambharose Lai Ghaoi v. State of M.P., 1955 AIR (Nag) 35, a Division Bench was required to consider about similar controversy. It said: “The Rule of law is that some words such as many ‘clear days’ or so many days “at least” are used, the two terminal days must be excluded. The pertinent rule framed under the Act says that notice of such a motion shall be given to the President “at least” ten days before moving it “and hence under the rule ten clear days should elapse between the notice of a resolution of no confidence and the motion of no-confidence.” 10. In our opinion, where an act is required by the Statute to be done so many days “at least” before a given event, the time must be reckoned excluding both the day of the act and that of the event. If 15 days notice has not been given, the resolution passed before the expiry of the period of 15 days, notice would be void. We have already held above that in computing 15 days both the first and the last days have to be excluded. In the instant case, notice was given on 3rd June, 1986 for holding the no-confidence meeting on the 18th June, 1986. If both the days the initial and the last are excluded, that would not give 15 clear days. We have already held above that in computing 15 days both the first and the last days have to be excluded. In the instant case, notice was given on 3rd June, 1986 for holding the no-confidence meeting on the 18th June, 1986. If both the days the initial and the last are excluded, that would not give 15 clear days. That would mean that only 14 days time was given to the members of the Gaon Sabha giving of 14 days, when the law requires 15 days, would be a contravention of Sub-section (1) of Section 4 and the business transacted would be null and void.” 32. No-confidence motion is a hybrid of an election and a meeting. No-confidence motion is conducted like a meeting and carries the consequences of an election. Some relevant procedures which are applicable to meetings can be applied to no-confidence motions as well. The manner of calculation of notice period in meetings is one such procedure which is imperative and can be safely imported into proceedings of no-confidence. 33. Shackleton on the Law and Practice of Meetings is an authority of high repute and wide acceptance. The relevant extracts relating to calculation of the time during which the notice period runs, in the 9th Edition of the said authority by Ian Shearman are quoted hereunder: “ It is clear where the regulations provide for a stated period of notice to be given, this requirement must be met or the meeting will be invalid......... Under many regulations affecting the service of notices it is provided that “clear days” must be given, that is to say that the notice shall be exclusive of the day on which it is served, and of the meeting. It is established that, even in the absence of specific provision, “days” means clear days, since it has been held that the words “at least 14 days before the date” of a meeting means 14 clear days between the date of the advertisement or notice calling the meeting and the day of the meeting, and interval of “not less than fourteen days” between two meetings, means an interval of 14 clear days, exclusive of the respective days of meeting.” 34. In the light of the above discussion we hold that the period “15 clear days of notice” will be reckoned from the date of dispatch of the notice calling the meeting to the date of the proposed meeting of no confidence. Further while counting the period of notice, the two terminal dates namely date of dispatch of notice calling the meeting and date of meeting shall be excluded. 35. In view of the aforesaid entrenched propositions of law, the facts of the case may now be examined. The date of dispatch of notice calling the meeting in the instant case i.e. 14.10.2017 will be the relevant date to reckon the period of 15 days of notice. The date of meeting convened to consider the vote of motion of no-confidence is 30.10.2017. Excluding the terminal days of the date of dispatch of the notice calling the meeting i.e. 14.10.2017 and the date of the meeting i.e. 30.10.2017, a clear 15 days of notice of meeting has been provided to the members. 36. In the light of the above discussion the provisions of Section 15 (3) have been duly complied with in the instant case. The notice dated 30.10.2017 issued by the Collector convening the meeting to consider the motion of no-confidence is valid and legal and we uphold the same. 37. The writ petition is accordingly dismissed.