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PETITIONER: JAI CHARAN LAL

       Vs.

RESPONDENT: STATE OF U.P. & ORS.

DATE OF JUDGMENT: 05/05/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. VAIDYIALINGAM, C.A.

CITATION:  1968 AIR    5            1967 SCR  (3) 981

ACT:     U.P.Municipalities  Act  (2 of 1916), s.  87-A-(3)   and (5)__"Not  earlier  than  30  days",  meaning  of-"Send   by registered   post  not  less  than  7  clear   days"   Scope of--"Adjourn", meaning of.

HEADNOTE:     Under  s.  87A(3) of the Uttar  Pradesh   Municipalities Act,  1916, when a notice of intention to. make a motion  of non-confidence  in  the  President  of  a  Municipality   is delivered  by  the  requisite  number   of  members  of  the Municipal  Board, to the District Magistrate,  the  District Magistrate   shall   convene  a  meeting  on  a   date   not earlier  .than 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 less than  seven  clear day,; before the date of the meeting,  notices  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 does   not  attend-the  meeting,  it  stands   automatically adjourned to a date and time. to be appointed by  him later, and, under 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  ease, the notice by  the  members  was 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 meeting.’  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 was 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 decided to exercise  its discretionary  powers  as the resolution  had  already  been

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passed by the necessary majority. In appeal to this Court it was contended that, (1)  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, 71966 thirty clear days, as required by the section, did not intervene; and (2) there was also a  breach of s. 87-A(5), because, 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 w,rs unable to. preside. 9 8 2 HELD:(1) There was no breach of s. 87-A(3). (-a) Since the expression in the section is "shall send  the notice"  the  critical date is the date of despatch  of  the notice  and not the date of its receipts As the  notice  was sent  on  the 17th and the meeting was called on  the  25th. excluding  the  two dates, seven clear days  did  intervene. 1985A-B! (b)  The  expressions  "not earlier than 30 days"  and  "not less  than 30 days" cannot he equated.  Just as  "not  later than tbirty-five days" would not exclude the 35th day,  "not earlier than 30 days" would not exclude the 30th day.   "Not earlier than 30 days" means that it should not he 29th  day, but there is nothing to show that the language excludes  the 30th  day  from  computation.  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. Therefore,  in the present case, although October 26 had  to be excluded.  November 25, the date on which the meeting was to  be  called,  need not be excluded and the  date  of  the meeting  cannot described as earlier than 30 days.  [985F-H; 986A-C] H.   H.  Raja  Harinder Singh v. S. Karnail  Singh  &  Ors., A.I.R. 1957 S.C. 271, followed. Smt.   Haradevi   v. State of Andhra and Anr.   A.I.R.  1957 A.P. 229, overruled. (2) There was   no. breach of s. 87-A(5). The  judicial  officer’s power to adjourn the meeting  to  a later date could be exercised by him not only at the meeting but  also.  before, if he is in a position to  say  that  he would  not  be able to preside.  The  word  "adjourn"  means postpone, and the consequence of automatic adjournment under sub-s.  (4)  shows. that the presiding  officer  could  take action  in advance and postpone the meeting to a  subsequent date. [987A-D] Krishna  Chanadra Gupta v. Praying Narain & Ors (1961)  All. L.J. 226, overruled.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 199 of 1967. Appeal  by special leave from the judgment and order  date[] December 6, 1966 of the Allahabad High Court in Civil  Misc. Writ No. 4287 of 1966. A.   K. Sen, L. N Mathur, B. Dutta and 0. C. Mathur, for the appellant. C.   B. Agarwala and 0. P. Rana, for respondent Nos. 1-3.

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S.   P. Sinha and M. I. Khoweja for respondents Nos., 5-13. The Judgment of the Court was delivered by Hidayatullah, J. This is an appeal by special leave  against the  judgment  and  order of the High  Court  of  Allahabad, December  6, 1966, in Civil Miscellaneous Writ Petition  No. 4287 of 1966. The  appellant, Jai Charan Lai Anal was elected as a  member of the Municipal Board, Sikandrao in December, 1964.  He was 983 later elected as the President of the Board.  On October 26, 1966  a  notice  of  intention to  move  a  motion  of  non- confidence in the 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.   This was done under s. 87-A of the  Uttar  Pradesh Municipalities  Act,  1916.   On  November  22,  1966,   the petitioner   tiled  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 December 1, 1966.  Before this date the meeting  of the   Board  was  adjourned  to  December  5,  1966,   under circumstances  to  which  detailed reference  will  be  made presently.  The High Court directed that the petition should be listed for December 6, 1966.. By that date the  adjourned meeting was held on December 5. 1966, and the non-confidence motion was passed unanimously. 10 out of 15 members who were present  voted  in  its favour and  none  against  it.   The appellant  thereupon  asked  the High  Court  to  quash  the resolution of the Board.  The High Court by the order  under appeal  declined to do so on the ground that even  if  there were  some irregularities in calling the meeting, the  reso- lution,  having been passed by the necessary  majority,  the case  was  not  fit for the exercise  of  its  discretionary powers. In this appeal the question has been raised that the meeting it-,elf  was  contrary to the provisions of s. 87-A  of  the U.P.  Municipalities Act and the resolution therefore  being ultra  vires 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 nonconfidence against  the  President.   It begins  by  stating that subject to the  provisions  of  the section such a motion shall only be made in accordance  with the  procedure, laid down in the section.   Sub-section  (2) requires  that  a  written notice of intention  to  make.  a motion  of non-confidence on, the President must be  sip-nod by  ,such number of members of the Board as  constitute  not less  than one-half of the total strength of the  Board  and must  be  accompanied by a copy of the motion  which  it  is proposed to makeand should be delivered in person by any two of   the  members  signing  the  notice  to   the   District Magistrate.  This 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 land 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               delivered               984               to him.  He shall send by registered post  not

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             less than seven clear days before the data  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 it 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  District 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               shall stand adjourned to the date and the time               to be appointed and notified to the members by               that officer Linder 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 lie may  appoint,               but not later than fifteen days from the  date               appointed  for the meeting  under  sub-section               (3).   He shall without delay  communicate  in               writing   to  the  District   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               Iindividually,  but  the  District  Magistrate               shall give notice of the date and the time  of               the  adjourned meeting by publication  in  the               manner provided in subsection (3).               (6)   Save  is provided in subsection (4)  and               (5)  a  meeting convened for  the  purpose  of               considering a motion under this section  shall               not for any reason be adjourned". The  contentions  of  the  appellant  are  based  upon   the provisions of sub-ss. (3) and (5 ) and it is contended  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 of the meeting as required by  the  latter part  of  subsection (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 985 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 subsection.   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

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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  him the  30th  day  should  be excluded  in  addition to the date on which the  notice  was handed.   In  other  words, the learned  counsel  wishes  to exclude  both  the  terminal  days,  i.e.,  October  26  and November 25 and wants to count thirty clear days in between. 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 Sin.  Haradevi  v. State of Andhra and Another(1) 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  judgment 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 to 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.  In  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 it cannot be described  as earlier  than  thirty  days.  In other  words,  it  was  not earlier than thirty days from the date on which the (1)  A.I.R. 1957 A.P. 229 986 notice under sub-section (2) was delivered to  the-District- Magistrate.   This.  reading is also bome out by  the  other expression  "not later than thirty-five days" which is  used 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

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preside  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  Addl.  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 Gupta v. Prayag Narain and others(3) 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 adjournment 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 members by that officer under sub-section  (5).   It seems pointless (1)  H.  H.  Raja  Harinder Singh v. S.  Karnail  Singh  and others A.I.R. 1957 S.C. 271. (2)  1961 All.  L.J. 226. 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, the words of sub-s. (5) are that 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.  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 unable 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  because  the judicial  officer 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).   In 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  not read  the word "adjourn" as being in any way different  from the  word  "postpone" which is some times  used.   The  Word "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  where  the  High Court has  refused  to  exercise  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  consideration of the whole matter we are  of  opinion that  the petition was devoid of merit and although  It  was dismissed because the High Court did not choose to  exercise

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its discretionary powers the result would have been the same if  the High Court had gone into the matter elaborately  and correctly.   The  appeal must therefore  be  dismissed.   We order accordingly. The appeal shall stand dismissed with costs. One hearing. 9 Sup.  Cl/67-2,500-10-6-68GIPF.