JAi CHARAN LAL

STATE OF U.P. & ORS.

May 5, 1967

[M. HIDAYATULLAH AND C. A. VAIDIALINGAl\I Jn

U.P. Municipalities Act (2 of 1916), s. 81-A-(3) and (5)-"'Nor earlier than 30 days", meaning of-"'Send by registered post not less than 7 clear aays" Scope. of-"Adjourn'", meaning of.

Under ' 87A(3) of the Uttar Pradesh Municipalities Act.

J9i6. when a notice of intention to make a motion of non-confidence in the President of a Municipality is <lelivereil by tho requisite number of members of the Municipal Board, to the District Magistrate, the District Magistrate shall convene a meeting on a date not earlier tlzan thirty, and not later than thirty-five days from the date on which the notice was delivered to him.

He shall send by registered post, not Jess than seven clear days nefore the date of the meeting, notice• of the date and time of the meeting to all members.

Under s. 87A(4) he shall arrange with the District Judge for a judicial officer to preside at the meeting.

If the presiding judicial officer doc!i not attend the meeting, it stands automaticall} adjourned to a date and time to be appointed by h:m later. and, i.nder s. 87A(5), if the judicial officer is unable to preside at the meeting, he may, after recording his reasons, adjourn the meeting to such other date and time as he may appoint.

In the present case, the notice by the members \\'US delivered to the District Magistrate on October. 26, 1966.

He issued registered notices on November 17, 1966, fixing November 25, 1966 as the date of the me-zting.

The District Judge had nominated the Additional Civil Judge to preside at the meeting, but the latter made an order on November 22, 1966 intimating that he would be unable to preside on the 25th and adjourning the meeting to December 5, 1966.

The appellant, who wa' the President of the Municipal Board and against whom the notice of non-confidence was directed, filed a writ petition in the High Court for stay of the meeting but before it was heard the resolution of non-confidence was passed unanimously by the members on December 5, 1966.

The appellant prayed that the High Court may quash the resolution, but the High Court declined to exercise its discretionary powers as the resolution had already been pa; sed by the necessary majority.

Jn appeal to this Court it was contended that,

(!) there was a breach of s. 87-A(3), because, (a) : excluding November 18, 1966, the presumable date of receipt of the registered notice issued by the District Magistrate, and November 25, 1966, the date of the meeting, seven clear days did not intervene as required by the section, and (b) : the expression "not earlier than thirty days" means

"not less than thirty days and on that basis, excluding both the terminal days, namely October 26, 1966 and November 25, 1966 thirty clear days, as required by the section, did not intervene; and (2) there was also a breach of s. 87-A(S), becall<e, the presiding judicial officer was not empowered to adjourn the meeting in advance but could only do so on the date of the meeting if he was unable to preside.

SUPRBM!i COURT REPORTS

[1%7] 3 S.C.R.

HELD: ( 11 There was no hreach or s. 87-A(3)

(a) Since the expression in the section is "hall send lhc notice" the critical <late is the date of dc:-.pittch of the notice nnd not the date of its receipt.

As the notice \Va'i sent on the 17th and the n1ceting wa' called on the :!5th. excluding the l\.i./o dates, seven clear days did intervene.

!9X5A-BJ

(b) Tht: cxprcs'iions ,; not earlier than 30 Jays"' ind ·not Jc"ls than 30 days" c.111not he euuatc<l.

Just as '"not later than thirty-five days'' would not exclude the 35th day. "not earlier than 30 days" would not exclude the Jllth day. "Not earlier than 30 days" means that it should not he 29th day. hut there is nothing to show that the language excludes the 30th <lay fron1 computation.

If the provision were "not earlier than thiriy days and not later than thirty days" it is obvious that only the .10th day could he meant.

Therefore, in the present case, although October ~~ h"d lo he excluded. Novcniher 25. the date on which the 111l'cting Y•<ts to he called. ncc<l not he excluded and the date of the meeting cannot r., described "' earlier than 30 day•. 1985F-H; 986A-C]

If. H. Raia !1ari11d,,,. St'11g/i v . .\'. Kamat'/ St'11glt & Or.1'., A.J:R, 1957 S.C. 271. followed.

S111t. Hanulcl'i v. StC1te of Andhra anti Anr. A.l.R. 1957 A.P. 229.

o\crrulcd.

( 2) There wa' no hrc;1ch of s. 87-A ( 5).

'The judicial olliccr's power to adjourn the meeting to a later date could be excrci'icJ hy hin1 not only ;:it the meeting hut aho hefore, if he is in a position to ay that he would not he able I<> pre.ddc.

The word "adjourn" n1c;111r,; postpone, anJ the con!-.cqucncc of automatic .adjourn n1cnt under -.uh-'i. I 4) show'i th:it 1hc presiding officer could take action in a<lvancc ~{t)ll no ... tponc the meeting IO a subscquen1 date. r987A-D]

Krishna C'/1u11tlra Gupta v. l'rllyt1g .'Vllnlin & Ors., ( 1961) All. LJ. 22..6. overruled.

CIVIL APPELLATE JuRtsmcnoN: Civil Appeal No. 199 of 11967.

Appeal by special leave from the judment and order dated f' December 6. 1966 of the Allahabad High Court in Civil Misc.

Writ No. 4287 of 1966.

A. K. Se11, L. N. Math11r, 8. D11tta and 0. C. Math11r, for the appeJlant.

C. B. Aan•'"'" and 0. P. Rana, for respondent Nos. 1-3. (,.

S. P. Si11ha and M. I. Khawaja, for respondents Nos. 5-13.

The Judgment of the Court was delivered by

Hidayalullah, .I.

This is Hn apneal by special leave aaainst the judgment and order of the High Court of AJlahabad. December

6. 1966, in Civil MisceJlaneous Writ Petition No. 4287 of 1966.

The appellant, Jai Charan !.:al Anal was elected as a member of the Municipal Board, 'Sikandrao in December, 1964.

He w.; s

~ J

JAi CHARAN LAL v. U.P. (Hitlayatullah, J.)

9M~'

J;1ter elected as the President of the Board.

On October 26, 1966 a notice of intention to move a motion of non-confidence in thto appellant was presented by certain members of the Board to the District Magistrate, Aligarh.

The District Magistrate issued notices to the members on November 17, 1966 fixing November 25, 1966 as the date for the meeting of the Board to consider the non-confidence motion.

Thi> was done under s. 87-A of the IJttar Pradesh Municipalities Act, 1916. On November 22, 1966. the petitioner filed a petition under Art. 226 of the Constitution in the High Court of Allahabad asking that the meeting be stopped.

The case was listed before the High Court on Decemb<'r

I, I 966.

Before this date the meeting of the Board was aJiour11ed to December 5, 1966, under circumstances to which

J~.tailed reference will be made presently.

The High Court directed that the petition should be listed fm• December 6, l 96<i.

By that date the ad.journed meeting was held on December 5.

I 966. and the non-confidence motion was passed unan.mously I 0 out of 15 members who were present voted in its favour and none against it.

The appellant thereupon asked the High Coun to qua<; h the resolution of the Board.

The High Court by th~· order unde1 appeal declined to do so on the ground that even if there were some irregularities in calling the meeting, the reso Jution, having been passed by the necessary J)la.iority, the case was not fit for the exercise of its discretionary powers.

In this appeal the question has been raised that the meetin)! it-elf was contrary to the provisions of s. 87-A of the U.P. Municipalities Act and the resolution therefore being ultl'<I 1ire.v and illegal was void.

This argument is based upon the procedure which is laid down in s. 87-A of the Act.

We may now refer to those provisions.

Section 87-A deals with motion of non. confidence against the President.

It begins by stating that subicct to the provisions of the section such a motion shall only be

mad~ in accordance with the procedure, laid down in the section.

Suh-section ( 2) requires that a written notice of intention to make a motion of non-confidence on the Pre>ident must be signed bv 'uch number of members of the Board as constitute not less than one-half of the total strength of the Board and must he accompimied bv a copy of the motion which it is proposed to make and should be delivered in person by any two of the member., 'igning the not'ce to the District Magistrate. Tli's was done.

Sub-sections (3), (4), (5) and (6) then provide as follows:-

"(3) The District Magistrate shall then convene a meeting for the consideration of the motion to be held at the office of the Board. on the date and at the time appointed by him which shall not be earlier than thirty and not later than thirty-five days from the date on which the notice under sub-section (2) was delhered

to him.

He shall send by registered post not less than seven clear days before the date of the meeting a notice

of such meeting and of the date and time appointed therefore, to every member of the board at his place of residence and shall at the time cause such notice to be published in such manner as he may deem fit. Thereupon every member shall be deemed to have received the notice.

( 4) The District Magistrate shall arrange with the Di\trict Judge for a stipendiary civil judicial officer to preside at the meeting convened under this section, and no other person shall preside, thereat. If within half an hour from the time appointed for the meeting, the judicial officer is not present to preside at the meeting, the meeting sh:!ll stand adjourned to the date and the time to be appointed and notified to the members by that officer under sub-section ( 5).

( 5) If the judicial officer is unable to preside at the meeting, he may, after recording his reasons adjourn the meeting to such other date and time as he may appoint, but not later than fifteen days from the date appointed for the meeting under sub-section ( 3) He shalJ without delay communicate in writing to the Dhtrict Magistrate the adjournment of the meeting. It shall not be necessary to send notice of the date and the time of the adjourned meeting to the members individually, but the District Magistrate shall give notice of the date and the time of the adjourned meeting by publication in the manner provided in sub-section (3)

( 6) Save as provided in sub-section ( 4) and ( 5) a meeting convened for the purpose of considering a motion under this section shall not for any reason be

ad.iourned".

The contentions of the appellant are based upon the provisions of sub-ss. ( 3) and ( 5.) and it is contend.ed that there has been a breach of these provisions and therefore the resolution is void.

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 -0f the meeting as required by the latter part of sub-section (3) Jn 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

JAI CHAP.AN LAL v. U.P. (Hidayatullah, !.) 985

the next day the learned counsel excludes the date of receipt ot the notice and the date of the meeting and says that seven days did not intervene.

In our judginent 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.

The next contention is that the District Magistrate had to convene the meeting for the consideration of the motion on a date which was not earlier than thirty days from the date on which the notice under sub-section (2) was delivered to him.

As the notice was delivered to the District Magistrate on October 26, the learned counsel contends that the date fixed for the meeting, namely, November 25 was earlier than thirty days because according to hiln the 30th day should be excluded in addition to the date on which the notice was handed. In other words, the learned coupsel wishes to exclude both the terminal days, i.e.. October .26 and November 25 and wants to count thirty clear days in lietween. . He contends that the expression "not earlier than thirty days" is equal to the expression "not less than thirty days" and, therefore, thirty clear days must intervene between the two terminal days.

In support of his contention the learned counsel relies , upon a ruling reported in Sm. Haradevi v.

State of A1ulhra and Another(') in which the expression "not

earlier than three days" was equated to the expression "not less than three days" that is to say, three clear days.

He also relies upon certain other rulings which deal with the expression "not less than so many days".

In our judginent the expression "not earlier than thirty days" is not to be equated to the expression "not less than thirty days". It is no doubt true that where the expression is "not less than so many days" both the terminal days have toi be excluded and the number of days mentioned must be clear days but the force of the words "not earlier than thirty days" is . not the same. "Not earlier than thirty days" means that it should not be the 29th day, but there is nothing to show that the language excludes the 30th day from computation. fn other words, although October 26 had to be excluded the date on which the meeting was to be called need not be excluded provided by doing so one did not go in breach of the expression "not earlier than thirty days.". The 25th of November was the 30th day counting from October 26 leaving out the initial day and therefore !t cannot be des7ribed as erlier than thirty days.

In other words, 11 was not earlier than thirty days from the date on which the

rll A.LR. 1957 A.P. 229

notice under sub-section (2) was delivered to the District Magistrate. This reading is also borne out by the o.ther expression 'not later than thirty-five days" which is <1sed in the section. In this Court(') the expression "not later than 14 days" as used in rule 119 under Representation of the 'People Act was held to mean the same thing as "within a period of fourteen days".

In that expression the number of days, it was held, should not exceed the number fourteen.

In the sub-section we are dealing with the number of days that should not exceed thirty-five days.

On a parity of reasoning not earlier than thirty days would include the 30th day but not the 29th day because 29th day must be regarded as earlier than thirty days. If the provision were "not earlier than thirty days and not later than thirty days" it is obvious that .only the 30th day could be meant.

This proves that the fixing of the date of the meeting was therefore in accordance with law.

We respectfully disapprove of the view taken in the Andhra Pradesh case.

The third point arises under the following circumstances.

The District Magistrate had arranged with the District Judge for .a stipendiary judicial officer to preside over the meeting to be convened on November 25.

The District Judge had nominated .one Mr. R. R. Agarwal, Additional Civil Judge, Aligarh for this purpose.

Mr. R. R. Agarwal made an order on November 22, 1966 intimating that he was unable to preide over the meeting on November 25 and that the meeting would be adjourned to December 5.

The District Magistrate sent out notices on the same day intimating the members of the change of date.

It is -contended that this action of the Addi. Civil Judge, Aligarh violated the provisions of the fifth sub-section. The reason advanced is that the judicial officer is not empowered to adjourn the meeting in advance but he can only do so if he is unable to preside at the meeting, that is to say, on the day on which the meeting is to be held.

In support of this contention a ruling of the Allahabad High Court reported in Krishna Chandra Guvta v.

Pra)'a~ Narain and others(') is cited where at page 229 a Divisional Bench said that the authority under sub-s. (5) to adjourn the meeting is exercisable only on the date on which the meeting is convened and if that occasion does not arise the ad.iournment is improper.

Here again we find it difficult to accept the view expressed in the Allahabad High Court.

Sub-section ( 4) provides that if the presiding judicial officer does not attend the meeting. the meeting stands automatically adjourned after half an hour to a date and time to be appointed later and notified to the mem 'be rs 'b~ that officer under sub-section ( 5). It seems pointless

(I) H. H. R'4a Hiriwl'r Singh v. S. Karil.'lil Singh (I/Id other.~

A.l.R. 1957 S.C. 271. (l\ 1%1 All. 1....1. 226.

' \

JAI CHARAN LAL v; U, P. (Hidayatul/ah, J.) 987

therefore to think that if the judicial officer knows in advance that he would not be able to attend the meeting that he had not the power to adjourn the meeting in advance.

No visible profit results from such a construction. In fact, tile words of sub-s.

(5) are that if the judicial officer is unable to preside at the meeting he may, after recording his reasons, ad.iourn the meeting to such other date and time as he may appoint.

This can happen not only at the meeting but also before the date of meeting if the judicial officer is in a position to say that he would be unabl~ to preside at the meeting. If this were not so some unforeseen event which requires the presiding officer to be absent would frustrate the entire non-confidence motion becau>e the judicial otlicer would be unable to adjourn it in advance.

That the consequences under sub-section ( 4) would automatically flow also show that it should be possible for the presiding officer to adjourn a meeting which under the law would in any event be adjourned under sub-s. ( 4).

Jn our opinion it is not necessary that the judicial officer should be present at the meeting and then adjourn it for purposes of sub-s. (5). He can take action in advance.

This will be convenient all round because it will save members from attendance on that day.

This was done in this case and in our opinion the action was correct.

We do n0! read the word "ad.iourn" as being in any way different from the word "postpone" which is some times used.

The won! "adjourn" means that the officer can postpone the meeting to a subsequent date.

The High Court did not exercise its powers under Art. 226 of the Constitution and we must not be intended to have meant that wher.~ the High Court has refused to exerc'se its discretion this Court would always interfere.

This case was admitted in this Court merely to clear a dispute about the law which seems to have evoked different interpretations in the High Courts.

On .a. consideratio~ of the whole matter we are of opinion that the pet1t10n ws dev01d of. merit and although it was dismissd

ecause the High Court did not choose to exercise its discrcuonary powers tle result would have been the same if the High Court had gone mto the matter elaborately and correctly The appeal must therefore be dismissed.

We order accordingly.

fee. The appeal shall stand dismissed with costs.

One hearing.

V.P.S.

A ppea/ dismissed.