IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 139/2008 Reserved on: 18.9.2008 Decided on: 29.10.2008 Yashpal. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. yes. For the Petitioner : Mr. Ajay Sharma, Advocate. For the Respondents : Mr. Rajinder Dogra, Additional Advocate General for respondents No.1 to 3. Mr. V.D. Khidta, Advocate for respondents No.4 & 5. Rajiv Sharma, J. Brief facts necessary for the adjudication of this appeal are that the petitioner was elected as a Chairman to the Panchayat Samiti, Nahan. Respondent No.3 received on 15th January, 2008, a copy of notice whereby a resolution of no-confidence was to be moved against the Chairman as well as Vice-Chairman of the Panchayat Samiti, Nahan. In sequel to the notice dated 15th January, 2008, respondent No.3 issued a 1 Whether the reporters of Local Papers may be allowed to see the judgment? yes. 2 notice on 16th January, 2008 whereby meeting of Panchayat Samiti was called on 23rd January, 2008 to consider the motion of no-confidence against the Chairman and Vice-Chairman. It appears from the record that on the basis of report from the Station House Officer, Nahan on 21st January, 2008, respondent No.3 cancelled the proposed meeting of 23rd January, 2008 on 22nd January, 2008. He sent a communication to the Director, Panchayati Raj on 22nd January, 2008 seeking guidelines from him in view of sub-rule (1) of rule 131 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. The Director informed respondent No.3 on 23rd January, 2008 that no-confidence motion against Chairman and Vice- Chairman was required to be convened within 15 days and in the present case on or before 30th January, 2008 so that meeting could be convened on 7 days notice as per Rule 131 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. The text of letter dated 23rd January, 2008 reads thus: “I am directed to refer to your letter No. PCN-SMR- (15)12/08-8813 dated 22nd January, 2008 and to say that under the provisions of rule 129 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 on receipt of notice of intention to move no confidence motion against the Chairman and Vice-Chairman of the Panchayati Samiti under rule 128, the District Panchayat Officer shall convene a meeting with a period of fifteen days from the date of receipt of such notice. Sub rule (1) of rule 131 of the rules ibid provides that the District Panchayat Officer shall issue, not less than seven days before the appointed date of meeting, a notice of such meeting and of the date and time appointed therefore to every elected member of the Panchayati Samiti (including the Chairman and the Vice-Chairman). The notice shall be in Form 33 and shall be served on the members of the Panchayati Samiti. 3 In view of the above provisions, the meeting for the purpose of consideration of no confidence motion against Chairman and Vice Chairman of Panchayat Samiti is required to convene within 15 days and in the instant case on or before 30th January, 2008. You are, therefore, advised to issue fresh notice latest by 23rd January, 2008 so that the meeting could be convened on 30th January, 2008 for meeting the condition of seven days notice as per the requirement of Rule 131 of txhe rule ibid.” Respondent No.3 issued a fresh notice on 23.1.2008 for convening the meeting on 30th January, 2008 under rule 131 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. The petitioner received the copy of this notice on 26th January, 2008. He approached this Court by way of present petition. The Court passed the following order on 28th January, 2008: “Issue notice of the respondents, which is accepted by Mr. P.M. Negi, Dy. Advocate General. Let a short reply be filed on or before the next date. Record be also produced. List on 15th February, 2008. Learned counsel for the petitioner submits that his client shall not discharge any functions as Chairman/President, Panchayat Samiti, Nahan, till the next date of hearing. He further submits that notice dated 23.1.2008 (Annexure P-70 was served upon him on 26th January, 2008 for a meeting to be convened on 30th January, 2008. According to him, statutory period of 7 days of prior notice, as stipulated under Rule 131 of of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 has not been complied with. In the meanwhile, no meeting of Panchayat Samiti, Nahan, in terms of notice dated 23rd January, 2008 shall be held on 30th January, 2008.” 4 The order dated 28th January, 2008 was modified by the Court on 15th February, 2008, which reads thus: “Reply filed. Rejoinder be filed within 15 days. List thereafter. In modification of earlier order, it is clarified that it is open for the authorities including respondent No.3 to issue a fresh notice in accordance with law for convening the meeting, for the purpose which is the subject matter of the writ petition.” Respondent No.3 after the modification of the order by this Court issued a fresh notice dated 16.2.2008 for convening a meeting on 25th February, 2008 to consider the no-confidence motion. The petitioner received copy of notice on 21st February, 2008. In the meantime, the Court passed the following orders on 22nd February, 2008 in CMP No. 153/2008: “CMP No.153/2008 Heard. No case is made out for interim order. Put up before the court after Winter Vacation. The meeting may be held as scheduled, which shall be subject to the writ petition.” In sequel to notice dated 16th February, 2008, the meeting was convened on 25th February, 2008. The no-confidence motion was moved and passed, which led to the issuance of office order dated 25th February, 2008. Thereafter fresh elections were held for the post of Chairman and Vice-Chairman on 11th March, 2008. The petitioner sought amendment of the writ petition for impleading respondents No.4 and 5. The application was allowed. The petitioner was permitted to file amended writ petition. The respondents filed replies to the amended writ petition. 5 Mr. Ajay Sharma, Advocate has strenuously argued that the petitioner was not served with a seven days notice as stipulated under sub rule (1) of rule 131 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. His precise contention is that the notice was issued under rule 131 (1) of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 on 16th February, 2008 and he has received the copy of the same on 21st February, 2008 and the meeting was convened on 25th February, 2008. His further contention is that respondent No.3 has abdicated his statutory function by seeking guidelines/clarification from Director, Panchayati Raj i.e. respondent No.2 on 22nd January, 2008. He further contended that the meeting to be convened for 23rd January, 2008 could not be deferred merely on the basis of FIR registered at Police Station, Nahan. He has strongly relied upon Annexure P-1 whereby Smt. Sunita Devi has denied that she was illegally confined by the petitioner. He lastly contended that once the meeting was to be convened and if could not be convened for whatsoever reason, the motion deemed to have been defeated. Mr. Rajinder Dogra, Additional Advocate General has argued that the requirement of seven days notice is directory and not mandatory. He also contended that once respondent No.3 has received the communication from the office of Sub Divisional Magistrate about the registration of FIR, he was bound to postpone the meeting on 22nd January, 2008. He further contended that respondent No.3 had merely sought clarification from respondent No.1 and Annexure P-5 dated 23rd January, 2008 cannot be treated as a dictation by the higher authorities the manner in which the subordinate has to discharge his duties. 6 Mr. V.D. Khidta, Advocate has adopted the arguments of the learned Additional Advocate General and in addition thereto he has relied upon the affidavit filed by Smt. Sunita Devi dated 17th July, 2008. I have heard the learned counsel for the parties and perused the record carefully. It will be pertinent to take note of Rules 128, 129, 130, 131 and 132 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997. These rules read thus: “128. No confidence motion against Chairman and Vice- Chairman of Panchayat Samiti and Zila Parishad[Section 129(2)].- A notice of intention to move a resolution requiring the Chairman or Vice-Chairman or both, of Panchayat Samiti or Zila Parishad as the case may be, to vacate offices shall be given in Form-32. Such notice shall be signed by not less than majority of its total elected members having right to vote of the Panchayat Samiti or Zila Parishad, as the case may be, and shall be addressed to:- (a) the Chairman, if the resolution is to be moved against the Vice-Chairman; (b) the Vice-Chairman, if the resolution is to be moved against the Chairman, and (c) the District Panchayat Officer, if the resolution it to be moved against both the Chairman and the Vice- Chairman of a Panchayat Samiti and to the Deputy Commissioner in case of both the Chairman and the Vice-Chairman of the Zila Parishad. 129. Meeting to be convened with 15 days.- On receipt of notice under rule 128, the Chairman, Vice- Chairman, the District Panchayat Officer or the Deputy Commissioner, as the case may be, to whom the notice has been addressed, shall convene a meeting with a period of fifteen days from the date of receipt of the notice. 7 130. Failure to convene meeting.- If on receipt of the notice the Chairman or Vice- Chairman as the case may be, fails to call a meeting within the period specified in rule 129, all or any of members of the Panchayat Samiti or Zila Parishad, as the case may be, who had given notice of the intention to move a resolution under rule 128 may forward to the District Panchayat Officer or Deputy Commissioner, as the case may be, a copy of the notice together with a copy of motion requesting him to convene a meeting of the Panchayat Samiti or Zila Parishad, and the District Panchayat Officer or the Deputy Commissioner, as the case may be, shall, within 15 days of the receipt of such request, convene a meeting of the Panchayat Samiti or Zila Parishad, as the case may be, for the consideration of the motion at such date and time as may be appointed by him. 131. Notice of meeting.- (1) The Chairman or Vice- Chairman or the District Panchayat Officer or the Deputy Commissioner, as the case may be, shall issue, not less than seven days before the appointed date of meeting, a notice of such meeting and of the date and time appointed therefore, to every elected member of the Panchayat Samiti or Zila Parishad (including the Chairman and the Vice-Chairman). The notice shall be in Form 33 and shall be served on the members of the Panchayat Samiti or Zila Parishad, as the case may be, in the manner given below:- (a) by giving or tendering such notice to the elected member; (b) by leaving such notice at his last known place of residence or business or by giving or tendering the same to some adult member or servant of his family, if any member is not found; (c) if any member does not reside in the Panchayat Samiti area or Zila Parishad area and his address elsewhere is known t o the Chairman or Vice-Chairman or the District Panchayat Officer or the Deputy 8 Commissioner, by sending the same to him by registered post; (d) if service is not practicable through any of the means specified in clauses (a) and (c) by affixing the same at some conspicuous part of the member’s place of residence or business. (2) The copy of the notice of meeting shall be sent to the Deputy Commissioner or Sub-Divisional Officer (Civil) for making arrangement to maintain law and order. 132. Defeat motion.- If within two hours after the time appointed for the meeting, the quorum is not present, the meeting shall stand dissolved and motion shall be deemed to have been defeated.” The sequence of events as noticed above by this Court gathered from the pleadings of the parties is that respondent No.3 has received a notice of no-confidence motion to be moved against the petitioner on 15th January, 2008. Respondent No.3 issued notice on 16th January, 2008 for convening the meeting on 23rd January, 2008. He received a communication from the office of Sub Divisional Magistrate, Nahan about the registration of FIR by the husband of Smt. Sunita Devi. He adjourned the meeting on 22nd January, 2008 vide Annexure P-3. He sought guidance from respondent No.2 vide letter dated 22nd January, 2008. Respondent No.2 called upon respondent No.3 on 23rd January, 2008 to issue fresh notice of the meeting for 30th January, 2008. The notice was issued on 23rd January, 2008, which was received by the petitioner on 26th January, 2008. In view of the interim order passed by this Court on 28th January, 2008, the meeting dated 30.1.2008 could not be convened. The order dated 28.1.2008 was modified by this Court on 15th February, 2008. A fresh notice was issued by respondent No.3 on 16th February, 2008 whereby the meeting was convened for 25th February, 2008. The notice 9 has been received by the petitioner on 21st February, 2008. The motion was carried on 25th February, 2008 which led to the ouster of the petitioner from the post of Chairman and new elections were held on 11th March, 2008 whereby respondents No.4 and 5 were elected as Chairman and Vice-Chairman of the Panchayat Samiti, Nahan. Mr. Ajay Shrma has also argued during the course of hearing that once the meeting stood deferred, in view of the language employed in rule 132 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997, the motion shall be deemed to be defeated. In the present case, no meeting was convened on 23rd January, 2008 in view of order dated 22nd January, 2008. The meeting was adjourned for 30th January, 2008, however, the same could not be convened after the interim orders passed by this Court. The only meeting which has taken place as per the provisions of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 was of 25th February, 2005. The court will concentrate only whether the meeting convened on 25th February, 2008 was in conformity with sub rule (1) of rule 131 of the Himachal Pradesh Panchayati Raj (General) Rules, 1997 or not? It is evident from the language employed in sub-rule 1 or rule 131 that the Chairman or Vice-Chairman or the District Panchayat Officer or the Deputy Commissioner, as the case may be, shall issue, not less than seven days before the appointed date of meeting, a notice of such meeting and of the date and time appointed therefor, to every elected member of the Panchayat Samiti. The notice is required to be in form 33. The mode of serving the notice has also been provided under sub rule (1) of rule 131. Mr. Ajay Sharma has strenuously argued that expression ‘not less than’ seven days should be clear seven days before the appointed date of meeting. He submitted that the fresh notice was issued on 16th 10 February, 2008 and he has received the copy of the notice on 21st February, 2008 and the meeting was held on 25th February, 2008. The learned Additional Advocate General and Mr. V.D. Khidta have argued that requirement of seven days notice is directory and the petitioner knew that the meeting was to be convened for 25th February, 2008. Mr. Sharma has relied upon Damineni Sangayya and another versus State of Andhra Pradesh and others, AIR 1962 AP 462 to strengthen his argument that ‘not less than seven days’ before the appointed date of meeting shall be clear seven days. He also argued that in expression ‘not less than seven days’, there are terminal points and the period specified must be outside those two terminal points. The learned Single Judge of Andhra Pradesh High Court has interpreted the expression ‘not less than six weeks’ as under: “It now falls to consider whether under the terms of Section 57 (2) of the Act, there should be six clear weeks i.e. 42 days, exclusive of the date on which the applications for permits were made and the dte on which it is desired that they should take effect. In Maxwell on the interpretation of statutes (10th Edition page 351) it is stated: “Again, when so may ‘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”. The above principle is sustained by a long line of authority. The learned Advocate-General, however, suggests that that this is by no means an unalterable rule, but depends upon the indendment of the enactment and the purpose for which the time-lag between the two events is prescribed. He relied upon a few observations of Chitty J., in Re. Railway Sleepers Supply Co. (1885)-29 Ch.D. 204. In that case, the words ‘not less than 14 days’ occurring in section 51 of the 11 English Companies Act, 1862, before the meeting passing a special resolution and the meeting confirming it had to be construed. Chitty, J., held that the words ‘not less than 14 days’ mean that there should be an interval of 14 clear days exclusive of the respective days of the meetings. It is true that the learned Judge observed that the object of having 14 clear days was to assist the share-holders. But I cannot agree that the supposed intention of the Legislature was the governing factor in the decision. Nor can I assent to the contention that the words ‘not less than six weeks’ must be construed in the light of the requirement of S. 57 (3) and when so construed, it may not be necessary to have six clear weeks. When expressions ‘not less than so many days’ occur in enactments, it seems to me that there are two terminal points, and the period specified must be outside those two terminal points. The following passage in the judgment of Stone, C.J., in Commissioner of Income tax v. Ekbal and Co., AIR 1945 Bom 316 is well worth citation: “Time can be infinitely divided. There is no fraction of a second which is so short in duration that it cannot be divided into something smaller. In my judgment expressions ‘within 30 days’ and ‘not less than 30 days’ are two quite different things. ‘Within 30 days’ is within two points of time, one at which the period begins and the other at which it expires. On the other hand, ‘not less than 30 days’, is outside these two points of time. There must be an interval of not less than 30 days and that means 30 days clear : see (1855) 29 Ch.D. 204. The period must continue beyond the expiration of the stated time. Whereas ‘within’ the stated period must mean what it says, something less than the moment of expiration. In my opinion, therefore, the notice is invalid and the question referred to must be answered in the negative. The Commissioner must pay the costs of the reference.” 12 In Sneath v. Valley Gold Ltd. 1893-1-Ch. 477, the expression ‘at least fourteen days before the date’ in connection with the debenture holders’ meeting, was construed as fourteen clear days’ between the issue of the circular calling for the meeting, and the meeting. In Rex v. Turner, 1910-1- KB 346, the same view was taken: in Browne v. Black, 1912-1 KB 316 the Court of Appeal, in construing the scope of the expression ‘one month’ under section 37 of the Solicitors Act, 1843, construed the expression as ‘one clear calendar month.’ In Re Hector Whaling Ltd. 1936-1 Ch. 208 Bennet J. held that the words ‘not less than 21 days’ occurring in Section 117 of the Companies Act,1929, mean ’21 clear days’ exclusive of the date of service of the notice and exclusive of the date on which the meeting is to be held. In Nagappa Chettiar v. Madras Race Club, 1949-1 Mad LJ 662: (AIR 1951 Mad 831 (2) after a review of some of the authorities herein cited, Satyanarayna Rao, J., held that the expression in section 81 (2) of the Indian Companies Act, 1913, means and can only mean 21 clear days, that is, exclusive of the date of service and the date of the meeting. In the light of the above authorities, I have no doubt in my mind that the expression ‘not less than six weeks’ occurring in section 57 (2) of the Motor Vehicles Act, means six clear weeks, i.e., 42 days, exclusive of the date of the applications and the date in which they are desired to take effect.” A Division Bench of the Punjab and Haryana High Court in Jai Bhagwan Sharma & another v. Matu Ram Bhola Ram & others AIR 1964 Punjab 135 has held that the words ‘not less than ten days’ in rule 3 (3) mean ten clear days. Their Lordships have held as under: “Mr. Anand Swarup, the learned counsel for the appellants, contends that the expression “not less than ten days” in R. 3 (3) does not mean ten clear days and that on a simple arithmetical calculation 29th July 1961 13 was not less than ten days before the first of the dates specified in the election programme i.e. 8th August 1961. It has been held by a Full Bench of this Court in Northern India Caterers Private Ltd. v. State of Punjab, ILR (1963) 1 Punj 761, : (AIR 1963 Punj 290) that the notice contemplated under section 4 (2) (b) of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1959, wherein it was provided that the notice to show cause against the proposed order on or before a specified date must be for a date “not earlier than ten days from the date of issue thereof” meant a notice of ten clear days. Tek Chand J., who delivered the judgment of the Court, made the following observations: “The expression ‘earlier than’ means ‘before or previous to’. If the words, instead of ‘not earlier than ten days’, had been ‘not less than ten days’ then the petitioners’ contention deserved to prevail as that would have meant ten clear days. According to another rule of reckoning, where the time requisite is from a particular date to another date, then the first terminal day is to be excluded from the computation and the last day is to be excluded.” Reference was made to In re Railway Sleepers Supply Co., (1885) 29 Ch D 204 in which Sec. 51 of the Companies Act, 1862, provided that interval of not less than fourteen days was to elapse between the meetings passing and confirming a special resolution of a company. This was construed to mean an interval of fourteen clear days exclusive of the respective days of meetings. Similarly in Mc Queen v. Jackson, (1903) 2 KB 163 it was provided by Sec. 19 (2) of the Sale of Food and Drugs Act, 1899, that “in any prosecution under the Sale of Food and Drugs Act the summons shall not be made returnable in less time than fourteen days from the date on which it is served.” 14 It was held that fourteen clear days must elapse between the dates of service and that of return. It is, therefore, quite obvious that in the present case ten clear days had to intervene between the date of publication of the election programme and the first of the dates specified in it, namely, 29th July 1961 and 8th August 1961. Admittedly in this view of the matter there was a