IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).No. 8150 of 2010(P) ------------------------------------- PETITIONER: ------------------- C.KRISHNA KUMAR, MEMBER (UNDER DISQUALIFICATION), WARD NO.8, KADAMBANAD GRAMA PANCHAYATH, PATHANAMTHITTA DISTRICT. BY SRI.V.CHITAMBARESH, SENIOR ADVOCATE, ADVS. SRI.T.C.SURESH MENON, SRI.JIBU P THOMAS, SRI.P.S.APPU, SRI.A.R.NIMOD, SRI.C.A.ANOOP. RESPONDENTS: ------------------------ 1. THE KERALA STATE ELECTION COMMISSION, REPRESENTED BY ITS SECRETARY, PALAYAM, THIRUVANANTHAPURAM. 2. THE SPECIAL GRADE SECRETARY, KADAMBANAD GRAMA PANCHAYATH, KADAMBANAD SOUTH P.O. PATHANAMTHITTA DISTRICT. R1 BY ADV. SRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMMN., R2 BY ADVS. SRI. K.SHAJ, SRI.SAJJU.S. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/06/2010, THE COURT ON 02/07/2010 DELIVERED THE FOLLOWING: W.P.(C). NO.8150/2010-P: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE NOTICE ISSUED BY THE R.2. DTD. 24/01/2009. EXT.P.2: COPY OF THE O.P. NO. 6/2009 ON THE FILE OF THE R.1. DTD. 04/02/2009. EXT.P.2: COPY OF THE WRITTEN STATEMENT SUBMITTED BY THE R.2. DTD. 20/08/2009. EXT.P.3: COPY OF THE ORDER IN O.P. NO. 6/2009 ON THE FILE OF THE R.1. DTD. 24/02/2010. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 8150 of 2010-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of July, 2010. JUDGMENT The petitioner is a member from Ward No.8 of Kadambanad Grama Panchayat. Aggrieved by the intimation given by the Secretary of the Panchayat that he has ceased to be a member in the Panchayat, under Section 37(2) of the Kerala Panchayat Raj Act, 1994 (hereinafter referred to as 'the Act'), he approached the State Election Commission by filing O.P.No.6/2009. The Commission, by the impugned order Ext.P4, upheld the communication issued by the Secretary, which is under challenge in this writ petition. 2. The intimation issued by the Secretary has been produced as Ext.P1, wherein it is mentioned that since the petitioner had not attended the meetings of the Committee of the Panchayat held after 16.10.2008 for a period of three months (five ordinarily meetings and one urgent meeting) in spite of receipt of notice, he has ceased to be a member under Section 35 (k) of the Act, from 16.1.2009. 3. Heard learned Senior Counsel for the petitioner Shri V. Chitambaresh, Shri Murali Purushothaman, learned Standing Counsel for wpc 8150/2010 2 the Election Commission and Shri K. Shaj, learned counsel for the second respondent. 4. Learned Senior Counsel for the petitioner submitted that the intimation itself is not in tune with the provisions of Section 35(k) of the Act. The notice has not been properly served for the meetings concerned, by the Secretary of the Panchayat which amounts to infraction of the procedure laid down in Rule 3(1)(d) of the Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996 (for short 'the Rules'). It is pointed out that certain notices have been served by affixture and the said method can be resorted to only if the the means of service of notice under Rule 3(1)(a), (b) and (c) are exhausted. The employee of the Panchayat who was deputed for serving notice, has clearly acted in violation of the provisions of these rules. 5. The first question raised is about the validity of the intimation given as Ext.P1. The relevant provision is Section 35(k) of the Act which along with the provisos, are reproduced below: “35. Disqualifications of members.-- Subject to the provisions of Section 36 or Section 102, a member shall cease to hold office as such, if he-- xxxxxxxxx xxxxxxxx wpc 8150/2010 3 (k) absents himself without the permission of the Panchayat concerned from its meeting or the meeting of the Standing Committee thereof for a period of three consecutive months reckoned from the date of commencement of his term of office or of the last meeting that he attended, or of the restoration to office as member under sub-section (1) of Section 37, as the case may be, or if within the said period, only in less than three meetings of the Panchayat or of the Standing Committee as the case may be, have been held, absents himself from three consecutive meetings held after the said date: Provided that no meeting from which a member absented himself shall be counted against him under this clause if.- (i) due notice of that meeting was not given to him; or' (ii) the meeting was held after giving shorter notice than that prescribed for an ordinary meeting; or (iii) the meeting was held on a requisition of members; or: Provided further that no permission shall be granted by the Panchayat to a member for absenting himself from meetings of the Panchayat or of the Standing Committee for a continuous period of more than six months.” It is pointed out that going by the first limb of the section, the absence should be for the meetings of the Panchayat for a period of three consecutive months reckoned from the date of commencement of his term of wpc 8150/2010 4 office or of the last meeting that he attended. Herein, the last meeting he attended was on 16.10.2008. If three consecutive months are counted from October 2008, it will be over only by the end of January 2009. Herein, the notice Ext.P1 is dated 24.1.2009, prior to the expiry of the three months period. The date on which the last meeting was conducted is 12.1.2009. Therefore, it is submitted that the notice itself is illegal. Both parties relied upon various decisions of this Court in this context. I shall now refer to the principles discussed in the decisions cited at the Bar. 6. In Surabhi v. Special Tahsildar (Land Acquisition) Kasaragod, (2010 (1) KHC 68), the method of reckoning the period “three months” under Section 28A(1) of the Land Acquisition Act, was considered. It was held that the word 'month' has to be reckoned according to the British calender. Para 3 of the judgment is reproduced below: “Petitioner applied on 20th November, 2004 relying on an award passed by the Court on 21st August, 2004. Section 28A(1) of the LA Act provides that the written application under that provision shall be made within three months from the date of the award of the Court. The word 'month' is not defined in the LA Act. Therefore, the definition of that term in Section 3(35) of the General Clauses Act, 1897 applies. Hence, the month has to be reckoned according to the British calendar. Therefore, the period of three months for wpc 8150/2010 5 the purpose of an application under Section 28A (1) has to be reckoned according to the British calendar applying Section 3(35) of the General Clauses Act. The award of Court relied on by the petitioner was delivered on 21st August, 2004. By the proviso to Section 28A (1) of the LA Act, the date of pronouncement of the award by the Court shall be excluded in computing the period of three months. Therefore, the period of three months for the petitioner to apply under Section 28A(1) on the basis of the award relied on by her ends on 22nd November, 2004. The petitioner's application filed on 20th November, 2004 was, therefore, well within time.” This Court, thus relying upon Section 3(35) of the General Clauses Act, held that the period has to be reckoned according to the British calendar. But one important thing to be noticed is the wording of the section. Therein, going by the provisions of Section 28A(1), a written application has to be made within three months “from the date of the award” of the Court. 7. Daryoth Singh v. Union of India and others (AIR 1973 Delhi 58) is a case where an interpretation of a clause in a decree came up for consideration. The operative part of the decree is as under: “It is ordered that decree of ejectment in respect of Garden and land together with superstructure and two wells is passed against the wpc 8150/2010 6 defendant. It is further ordered that the decree shall not be executed till 15.7.1960 and the plaintiff shall pay Rs.4500/- to the defendant. So long the plaintiff does not pay Rs.4500/- to the defendant two months prior to 15.7.1960 he shall not be entitled to possession.” Therein, the deposit was made on 16.5.1960. It was contended that the deposit had to be made on 15.5.1960. This aspect was considered in para 15 of the judgment in the following words: “The deposit of the amount of Rs.4500/- was actually made on May 16, 1960. It has, therefore, to be seen whether the deposit was made “two months prior to 15.7.1960”. In its ordinary accepted sense the expression “month” means a “calendar month” and not a “lunar month”. As to how a calendar month is to be counted from a date which is not the first of the month has been described in paragraph 143 of Halsbury's Laws of England Volume 37 (Third Edition) in the following words: “When the period prescribed is a calendar month running from any arbitrary date the period expires with the day in the succeeding month immediately preceding the day corresponding to the date upon which the period starts; save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month the period expires at the end of the latter month”. Thus one month counted from July 15, 1960 would be on June 16 and the second month counted from June 16 would be on May 17, 1960. Evidently, therefore, the deposit made on May 16, 1960 was wpc 8150/2010 7 two months prior to July 15, 1960.” 8. In fact, a similar question came up for consideration before the Apex Court in Bibi Salma Khatoon v. State of Bihar and others {(2001) 7 SCC 197}.The interpretation of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land), Act 1961 arose for consideration. Therein, the crucial provision considered is Section 16 (3)(i) which is reproduced below: “16.(3)(i) When any transfer of land is made after the commencement of this Act to any person other than a co-sharer or a raiyat of adjoining land, any co-sharer of the transferor or any raiyat holding land adjoining the land transferred, shall be entitled, within three months of the date of registration of the documents of transfer, to make an application before the Collector in the prescribed manner for the transfer of the land to him on the terms and conditions contained in the said deed: Provided that no such application shall be entertained by the Collector unless the purchase money together with a sum equal to ten per cent thereof is deposited in the prescribed manner within the said period.” The facts of the case show that the sale deed was registered on 30.1.1998 and the application before the Collector to enforce the right of pre-emption was filed on 30.4.1998. The question arose, what is meant by the word wpc 8150/2010 8 'month' and how the computation has to be made. “Their Lordships held thus in para 8: “In Halsbury's Laws of England, 4th Edn. para 211 method of computation of month is given as follows: “211. Calendar month running from arbitrary date .-- When the period prescribed is a calendar month running from any arbitrary date the period expires upon the day in the succeeding month corresponding to the date upon which the period starts, save that, if the period starts at the end of a calendar month which contains more days than the next succeeding month, the period expires at the end of that succeeding month. If a period of one calendar month includes the last day of February there must be 29 or 28 days, according as the year is or is not a leap year.” Thus computed, the application filed by the appellant on 30.4.1988 is within limitation -- a period of three months of the date of the registered sale deed dated 30.1.1988.” 9. In Radhakrishnan v. Join Registrar (2008 (2) KLT 385), this Court considered a similar issue, i.e. regarding the meaning of the words 'month' and 'consecutively'. The question arose under the Kerala C- operative Societies Act, 1969 and under Section 33(1) thereof. The crucial provision under Section 33(1) reads thus: “where the committee fails to hold wpc 8150/2010 9 its regular meeting consecutively for six months”. The last meeting of the committee was held on 7.4.2007. Action was taken under Section 33(1) of the Act on the ground that no meetings were held consecutively for six months. The order appointing the Administrator was passed on 24.10.2007 and the contention was that it was passed before the expiry of six months. It was also contended by the petitioner that actually a meeting was held on 31.10.2007. In para 10, this Court laid down thus: “With or without the support of the decisions referred to on behalf of the petitioner, it can be safely concluded that the term “month” and the words “six months” in S.33(1) mean “month” or “six months” as per the British calendar. The word “consecutively” is different from the term “continuously”. “Consecution” is a train of consequences; a series of things that follow one another, succession of similar intervals in harmony. “Consecutive” is the adjective form of consecution and it means, “following in regular order or one after another, expressing consequence. Therefore, a regular period of a month understood as defined in the General Clauses Act has to consecutively occur for six times to attain the status “consecutively for six months” enjoined by S.33(1) of the Act. Hence, if a meeting is held in a month reckoned according to the British Calendar, the meeting for the next consecutive month can be held on any day in the next month reckoned as per the British Calendar and in so calculating, if a meeting has been held in wpc 8150/2010 10 a particular month, the vice of S.33(1) of the Act would be attracted only on failure to hold a meeting on any of the days of its 6th consecutive month. Hence, a meeting having been, indisputably held on 7.4.2007, i.e. in April, 2007, S.33(1) can be invoked on the case in hand only if no meeting was held till the end of October, 2007, i.e. 31.10.2007. Therefore, the issuance of the impugned Ext.P7 order on 24.10.2007, i.e. before the expiry of six months, is without jurisdiction and is, hence, void.” It was held that the section can be invoked in the case in hand only if no meeting was held till the end of October, 2007, i.e. 31.10.2007 and therefore issuance of the order Ext.P7 dated 24.10.2007 is before the expiry of six months which is without jurisdiction. The meaning of the term “consecutive” was also considered therein. It was also held that the word “month” and the words “six months” mean “month” or “six months” as per the British Calendar. 10. Herein, the question is whether the notice itself is valid or not. Shri Chitambaresh, learned Senior Counsel for the petitioner submitted that since “month” has to be reckoned as per the British Calendar, as the last meeting was held on 16.10.2008, the notice Ext.P1 which was issued prior to 31.1.2009, is invalid. Learned Standing Counsel appearing for the State Election Commission and the learned counsel for the second respondent wpc 8150/2010 11 submitted that the provision herein, viz. Section 35(k) emphasises one more fact for reckoning the period. It has to be reckoned from the date of commencement of his term of office or of the last meeting that he attended. Since the last meeting which the petitioner had attended is on 16.10.2008, the period has to be reckoned from that date and if that be so, the notice dated 24.1.2009 is perfectly within jurisdiction, as the period of three months was over. 11. It is clear from the principles laid down in the above decisions that the word “month” has to be reckoned. and the period has to be computed in the light of the language employed in the provision itself. When a particular date which is not the first of the month has to be reckoned, the first month will have to be computed by reckoning the said factor. When the period has to be counted from a date which is not the first day of the month, the method of computation as described in Halsbury's Laws of England has to be adopted which is the safest method. This is clear from the decisions in Daryoth Sigh's case (AIR 1973 Delhi 58), Bibi Salma Khatoon's case {(2001) 7 SCC 197) and Surabhi's case (2010 (1) KHC 68). In all these three cases the word “month” is qualified by the words “from the date” etc. Therefore, when the word “month” is followed wpc 8150/2010 12 by such an expression indicting the date from which it has to be computed, the principles stated in the above three decisions will squarely apply and the period will expire upon the day in the succeeding month corresponding to the date upon which the period starts. Evidently, in Surabhi's case (supra), this Court considered an identical situation like one herein, wherein under the Land Acquisition Act, viz. Section 28A(1), the application had to be made within “three months from the date of award of the court”. Therefore, the calendar month has to be reckoned from the date of the award. The Apex Court in Bibi Salma Khatoon's case (supra), also has considered a similar issue. Therefore, the said dictum alone will apply to the facts of this case. The decision of this Court in Radhakrishnan's case (2008 (2) KLT 385), was one considering a case where the wording of Section 33(1) of the Kerala Co-operative Societies Act, 1969 was not the like one in Section 35(k) of the Panchayat Raj Act. Therefore, it is in that context this Court said that when 'month' followed by the words, “consecutively six months” has to be reckoned based on British calendar, till the end of the six months period. 12. Herein, going by the facts of the case, the last meeting which the petitioner had attended, was on 16.10.2008. The notice Ext.P1 was issued wpc 8150/2010 13 on 24.1.2009. Therefore, reckoned from the date 16.10.2008, on which he last attended the meeting and even excluding one day, the period of three months will expire before 24.1.2009, the date of Ext.P1 notice. It is not as if the Secretary should have waited till the end of January, i.e. 31.1.2009. Therefore, the contention raised by the petitioner that the notice itself is without jurisdiction, cannot be accepted. 13. The other issue that is raised is regarding the manner of service of notice. Herein, the crucial dates on which the meetings were held, are 28.10.2008, 1.11.2008, 17.11.2008, 29.11.2008, 11.12.2008 and 12.1.2009, out of which the meeting dated 1.11.2008 was an urgent meeting. Therefore, that has to be excluded. The petitioner did not attend the meetings held on all these dates. The notices for the meetings held on 28.10.2008 and 29.11.2008 were served by affixture. As regards the meetings held on 17.11.2008, 11.12.2008 and 12.1.2009, he has admitted to have received notices also. 14. It is the contention of the learned Senior Counsel for the petitioner that the notice for the meeting held on 28.10.2008 was affixed and such affixture is bad in the light of the fact that the manner of service of notice as provided under the relevant rules, were not exhausted. Rule 3 wpc 8150/2010 14 (1)(d) of the Rules can be applied only if all the three methods of service under Rules 3(1)(a), (b) and (c) are exhausted. 15. Here, the Commission in its order, has taken the view that there is nothing wrong in the affixture done by the serving officer who was deputed for the same by the Secretary. The relevant evidence including oral and documentary, have been discussed by the Commission. It was held that there is nothing wrong in affixing the notice of the meeting at the residence of the petitioner when there was nobody to receive the notice. Accordingly, it is further held that the serving officer has followed the above rule. 16. Herein, some aspects which are relevant require consideration. Rules 3(1)(a) to 3(1)(d) are extracted below: “3. Serving of notice.-- (1) in case the Act or rules or bye-laws made thereunder requires the Panchayat to serve any notice or document to a person, such service or sending shall, unless otherwise provided in the Act or rules or bye-laws made thereunder, be done.-- (a) by service or sending of notice or document to such person; or (b) If such person cannot found out, by leaving such notice or document at his last known place of abode or business or by entrusting the same to some adult member or servant of his family and in the case of employees working in firms, factories, plants and workshops where admission to notice server is prohibited or where wpc 8150/2010 15 service of notice cannot be possible in the ordinary course, by entrusting the same to the head of the institution or to any authorised person, or (c) if such person's address elsewhere is known to the Secretary, by sending the same to that address by registered post; or (d) if none of the aforesaid means are available, by affixing the notice in some conspicuous part of his abode or work place.” Sub-rule (1)(a) provides for service of notice to the person concerned and sending of it also. The method under sub-rule (1)(b) is required when such a person cannot be found in the residence. The method under sub-rule 1(c) could be invoked if the person has got an address elsewhere. Sub-rule (1) (d) enables the service of notice by affixture if none of the above means are available. Herein, the serving officer went to the house of the petitioner and after recording that no member of the family was present, affixed the notice in the presence of two witnesses. 17. Learned Standing Counsel for the Commission submitted that actually the Rules, viz. Kerala Panchayat Raj (Manner of Service of Notices) Rules, 1996 may not apply here, as the said rules have been framed under clause (xv) of sub-section (2) of Section 254 of the Panchayat Raj Act and the only Rule applicable as regards the meetings of Panchayats, is “The Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995.” wpc 8150/2010 16 The said rules have been framed under Sections 157, 158 and 161 of the Kerala Panchayat Raj Act, 1994. Shri Chitambaresh, learned Senior Counsel for the petitioner points out that actually the Commission has considered the matter under the former rules, and hence the present contention is not available 18. The conduct of the meetings of Panchayats are governed by the provisions of 161 of the Act. It is provided under Section 161(1) of the Act that the meetings of a Panchayat at any level shall be held at such intervals, as may be prescribed. The Kerala Panchayat Raj (Procedure for Panchayat Meeting) Rules, 1995 is framed in exercise of the powers conferred by Sections 157, 158 and 161 of the Act read with Section 254 thereof. Rule 4 (1) of the above rules reads as follows: “The notice regarding the place, date and time of the meeting and subject to be discussed in the meeting shall be given to the members at least three clear days prior to the date fixed for beginning of the meeting: Provided that, in the above said clear days, declared holidays shall be included but the date of receipt of notice and the date of meeting shall not be included.” 19. In Ext.P1, the plea raised by