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Sureshchandra and ors. Vs. Birdichand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberSpecial Appeal Nos. 21 and 33 of 1964
Judge
Reported inAIR1965Raj229
ActsRajasthan Municipalities Act, 1959 - Sections 14(2)
AppellantSureshchandra and ors.
RespondentBirdichand and ors.
Appellant Advocate M.M. Tiwari, Adv.
Respondent Advocate M.M. Tiwari, Adv. for Respondent Suresh Chandra in Spl. Appeal No. 33 of 1964 and; J.S. Rastogi, Adv.
DispositionPetition dismissed
Cases ReferredIn Bhikamchand v. State
Excerpt:
.....period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which expires must be excluded and the act cannot be done before midnight of that day. subject to certain exceptions, the general rule is that, when an act may be done or a benefit enjoyed during a certain period, the act may be done or the benefit enjoyed upto the last moment of the last day of that period. what we have observed about air 1964 punj 135 applies to this case as well. this case also, in our view, fails in the first category of cases and is therefore no authority for dealing with a case like the present one. the question whether the..........passage in the halsbury's laws of england:'section 1. calculation of a prescribed period of time. days included or excluded. when a period of time running from a given day or event to another day or event is prescribed by law or fixed by contact, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last-mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of parliament or of the parties, as the case may be. expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the.....
Judgment:

1. These are two connected appeals and are both directed against the judgment of a learned single Judge of this Court dated 18th August, 1964 by which, on a writ petition under Article 226 of the Constitution by 13 electors of Kotputli municipality, the learned Judge set aside the elections and co-options of the members of Kotputli municipality who were elected or co-opted as a result of the general, election held in 1964. D. B. Special Appeal 21 of 1964 is by Sureshchandra and others, whose election or co-option was set aside and appeal No. 33 of 1964 is by the State of Rajasthan, the Collector and the Returning Officer. They can conveniently be disposed of together.

2. The sole ground on which the learned Judge held the election to be void was that the notification issued by the Government, dated 26th November, 1963 for inviting objections against the proposed delimitation of the wards did not conform to the mandatory requirements of Section 14(2) of the Rajasthan Municipalities Act, 1959 (hereinafter to be referred to as the Act), inasmuch as at least one month was not given to the electors to file their objections against the draft delimination order. The learned Judge in taking the view which he did followed his earlier decision in Ram Krishna v. State of Rajasthan, 1964 Raj LW 121. The only point that, therefore, arises for our consideration is whether the notification dated 26th November, 1963 fulfilled the requirements of Section 14(2) of the Act and whether Ram Krishna's case which was followed by the learned Judge laid down the law correctly. Section 14 of the Act runs as under:

'14. Delimitation order--(1) The State Government shall by order determine-

(a) the wards in which each municipality shall be divided for purpose of elections to the board;

(b) the extent of each ward; and

(c) the number of seats, if any, reserved for members of the scheduled castes or scheduled tribes, as the case may be, in any ward.

(2) The draft of the order under Sub-section (1) shall be published for filing objections thereto within a period of not less than one month and a copy of the same shall be sent to the board concerned for comments.

(3) The State Government shall consider any objection and the comments received under Sub-section (2) and the draft order shall, if necessary, be amended, altered or modified accordingly, and thereupon it shall become final.'

The notification under challenge was in the following terms:

^^t;iqj A ucEcj 26] 1963

la[;k ,Q434 ,ekbysdklh 1@63@4015%&&tSlkfd; jktLFkku E;qfufliSfyVht ,DV A 1951 A ,DV l- 38 lu~ 1951 dh /kkjk 14 dhmi&/kkjk 2 }kjk visf{kr gs] jkT; ljdkj mDr /kkjk dh mi&/kkjk 1ds v/khu tks vkKk ikfjr djus dk fopkj j[krh g mldk fuEufyf[kr izk:i- jktdh; xtVesa mlds iz'kklu dh rkjh[k ls ,d eghus dh vof/k ds Hkhrj&Hkhrj; mDr vkKk dsfo'k; e] vkifk;ka nk;j fd;s tkus gsrq ,rn~}kjk izdkf'kr fd;k tkrk gS A

jkT;ljdkj mi;qDr vof/k dh lekfIr ls iwoZ fdlh Hkh O;f ls izkIr gqbZ vkifk ijfopkj djsxh A ,slh vkifk;ka fyf[kr :i esa lEcfU/kr ftyk/kh'k ds tfj;s ljdkjdks Hkstk tkuh pkfg;s A**

3. The problem before us centres round a proper interpretation of the words 'within a period of not less than one month' occurring in Sub-section (2) of Section 14 of the Act reproduced above. It is contended by the learned counsel for the appellants that for determining as to whether a particular period fixed in a given case is not less than one month, the date on which the notification is issued is to be excluded, but the date on which the period of one month is to end, is not to be excluded. On the other hand it is contended by the learned counsel for the respondents that at least one month should intervene between the date of the notification and the last date on which the prescribed period is to terminate. In other words, it is urged that for a period to be 'not less than one month' within the meaning of Sub-section (2) of Section 14 of the Act, clear one month must intervene and this can be brought about only when both the date on which the notification is issued and the date upto which the objections are to be filed, are excluded.

4. The words 'clear days' or 'so many days at least' or the words 'Not less than so many days' have been construed in a line of decided cases which have been placed before us by either party, and we propose to deal with them. However, before we do that we will direct our attention to the following passage in the Halsbury's Laws of England:

'Section 1. Calculation of a prescribed period of time.

Days included or excluded. When a period of time running from a given day or event to another day or event is prescribed by law or fixed by contact, and the question arises whether the computation is to be made inclusively or exclusively of the first-mentioned or of the last-mentioned day, regard must be had to the context and to the purposes for which the computation has to be made. Where there is room for doubt, the enactment or instrument ought to be so construed as to effectuate and not to defeat the intention of Parliament or of the parties, as the case may be. Expressions such as 'from such a day' or 'until such a day' are equivocal, since they do not make it clear whether the inclusion or the exclusion of the day named may be intended- As a general rule, however, the effect of defining a period in such a manner is to exclude the first day and to include the last day.

Section 2. Period on expiration on which an act may be done.

Exclusion of last day: When a period is fixed before the expiration of which an act may not be done, the person for whose benefit the delay is prescribed has the benefit of the entire period, and accordingly in computing it the day from which it runs as well as the day on which expires must be excluded and the act cannot be done before midnight of that day.

On the other hand, in computing the ten days required for the notice of an appeal to the sessions, it has been held that, while the day of service should be excluded, the first day of the sessions should be included.

Expressions showing intention to exclude. In many statutes, statutory rules and bye-laws the intention to exclude both days and to give the person affected a clear interval of time between the two is put beyond all doubt by the insertion of words such as 'clear days', or 'not less than' so many days, or so many days 'at least'.

Section 3. Period within which an act must be done.

Exclusion of first day. The general rule in cases in which a period is fixed within which a person must act or take the consequences is that the day of the act or event from which the period runs should not be counted against him.

This general rule applies irrespective of whether the limitation of time is imposed by the act of a party or by statute; thus, where a period is fixed within which a criminal prosecution or a civil action may be commenced, the clay on which the offence is committed or the cause of action arises is excluded in the computation. So, also, where a statute provides that something may only be done within a certain period from the passing of the Act, the day on which the Act was passed is excluded; and many other instances may be cited. In particular, the rule excluding the day from which the period runs has been applied in construing the statutory provision whereby the fact that goods seized by the sheriff are allowed to remain in his hands for twenty-one days constitutes an act of bankruptcy on the part of the owner, the date of the seizure being omitted in the computation.

The court has no power to extend a period of time limited by statute for doing an act unless the statute so provides.

Last day of period. Subject to certain exceptions, the general rule is that, when an act may be done or a benefit enjoyed during a certain period, the act may be done or the benefit enjoyed upto the last moment of the last day of that period. Hence, a notice required to be given within so many days from or before a given date must be at the latest given on the last of such days.'

In Maxwell on Interpretation of Statutes there are the following observations--(11th Edition at page 340):

'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. In other cases, it would seem, the rule is to exclude the first and include the last day.'

5. It will be thus seen from the above passages that there are two distinct categories of cases. In one category fall the cases where an act has to be done on or after the expiration of particular prescribed period and the other category comprises of cases where a thing is permitted to be done within a stated period. It has been held that where an act could be done only after the expiry of a stated period both the terminal days of the period are to be excluded. But in the second category of cases while the first terminal day is excluded the last day of the prescribed period is to be included and it is permissible to do the act only before the last day expires.

In this light we may now examine the cases that have been placed before us. In Anokhmal v. Chief Panchayat Officer. Rajasthan, Jaipur, ILR (1956) 6 Raj 1044: (AIR 1957 Raj 388) a Division Bench of this Court had to consider the words 'at least 7 days before the dale of election' occurring in Rule 4 of the Panchayat Election Rules which runs as follows:

'Rule 4 of the Rules is as follows:

The Returning Officer shall at least seven days before the date of election, announce for the information of the Panchayat Circle by notice and in such other manner as the Chief Panchayat Officer may direct the number and names of wards, if any, the number of panchas to be elected from each ward and from the entire Panchayat Circle and the date, time and place of election.'

The learned Judges had held that in computing the period of 7 days both the date on which the notification is issued and the date of the election should be excluded. The learned Judges placed reliance on four English decisions in support of their view. These were eases where meetings were required to be held after the expiry of a certain period. Those cases therefore come under the first category dealt with in Halsbury's Laws of England. Anokhmal's case, ILR (1956) 6 Raj 1044: (AIR 1957 Raj 388) obviously deals only with the first category of cases and not with the second category of cases. In the present case Section 14(2) of the Act is designed to provide a period within which objections could be filed against the proposal for delimitation of wards. Consequently it is permissible to file the objections only within the prescribed period. Anokhmal's case, ILR (1956) 6 Raj 1044: (AIR 1957 Raj 388) is thus of no help in considering the provisions of Section 14(2) of the Act which are materially different from the provisions that fell for consideration in that case. In Ramakrishna's case, 1964 Raj LW 121 in construing the notification issued under Section 14(2) the learned. Judge observed as follows:

'This notification was not in accordance with Section 14(2) inasmuch as clear one month's time was not given for filing objections. The notification required objections to be filed within one month of the date of its publication whereas Section 14(2) provides that a period of 'not less than one month' shall be given for filing objections.

A number of electors of the Municipality including one Vanktesh Pareek filed an objection before the Collector on 11-7-60 at 9-30 A.M. That objection was not considered by the State Government on the ground that it had been filed beyond the time fixed in the notification issued under Section 14(2) inviting objections. This fact appears from the relevant file of the Government of Rajasthan which was requisitioned by this Court. The objections made by the electors against the proposed delimitation was that unequal wards with unnatural boundaries had been deliberately formed with ulterior motives.

It will thus be seen that there was a violation of Section 14(2) inasmuch as clear one month was not allowed for filing objections and there was violation of Section 14(3) inasmuch as the objection which was filed within the time allowed under Section 14(2) was not considered.'

From the essentials of the reasoning of the learned Judge disclosed by the above passage it is not clear that he considered previous available authorities on the subject. In Harinder Singh v. Karnail Singh, (S) AIR 1957 SC 271 their Lordships of the Supreme Court had to ascertain the true character of the words 'not later than fourteen days' and the words 'within a period of fourteen days' in connection with the filing of an election petition, that is the time within which an election petition could be presented. Their Lordships observed that both the expressions meant the same thing. The observations made by their Lordships were as follows:

'This argument proceeds on an interpretation of Section 10 of the General Clauses Act which, in our opinion, is erroneous. Broadly stated, the object of the section is, to enable a person to do what he could have done on a holiday, on the next working day. Where, therefore, a period is prescribed for the performance of an act in a Court or office, and that period expires on a holiday, then according to the section the act should be considered to have been done within that period, if it is done on the next day on which the Court or office is open. For that section to apply, therefore, all that is requisite is that there should be a period prescribed, and that period should expire on a holiday. Now, it cannot be denied that the period of fourteen days provided in Rule 119(a) for presentation of an election petition is a period prescribed, and that is its true character, whether the words used are 'within fourteen days' or 'not later than fourteen days'. That the distinction sought to be made by the appellant between these two expressions is without substance will be clear beyond all doubt, when regard is had to Section 81 of the Act. Section 81 (1) enacts that the election petition may be presented 'within such time as may be prescribed', and it is under this section that Rule 119 has been framed. It is obvious that the rule-making authority could not have intended to go further than what the section itself had enacted, and if the language of the Rule is construed in conjunction with and under the coverage of the section under which it is framed, the words 'not later than fourteen days' must be held to mean the same thing as 'within a period of fourteen days'. Reference in this connection should be made to the heading of Rule 119 which is 'Time within which an election petition shall bo presented'. We entertain no doubt that the Legislature has used both the expressions as meaning the same thing, and there are accordingly no grounds for holding that Section 10 is not applicable to petitions falling within Rule 119.'

6. Obviously their Lordships were dealing with a case which fell in the second category dealt with in Halsbury's Laws of England. The period was prescribed within which an election petition could be filed. In other words the petition had to be filed before the expiry of that period.

7. In Badri Nath L. Tirath Ram v. State of Pepsu, AIR 1957 Pepsu 14 the learned Judges had to consider as to how the period allowed by a court tinder Section 149 C. P. C. for doing a thing had to be computed. In that case by an order dated 15th May, 1953 a certain court fee was allowed to be deposited within a month from that date. Applying Section 9 of the General Clauses Act the first day, that is, 15th May 1953 was excluded and so excluding it the court fee could according to learned Judges be deposited upto 15th June, 1953. In Shri Nath v. Gopi Chand, AIR 1964 All 416 a notice to vacate certain premises 'within thirty days' was given and a question arose whether this fulfilled the requirements of Section 106 of the Transfer of Property Act. The argument before the learned Judge was that the words 'within thirty days' meant 'less than thirty days'. The learned Judge negatived the suggestion and held that the tenant did get 'thirty days' time' to vacate and there was no difference between a notice asking a tenant to vacate within 30 days and in giving him 30 days' time. The above, cases, to our mind, come under the second category. 8. The learned counsel for the respondents invited our attention to Jai Bhagwan Sharma v. Matu Ram Bhola Ram, AIR 1964 Punj 135. In that case the election programme was published on 29th July, 1961 and the last date for making nominations was fixed for 8th August, 1961, and in terms of Rule 3(3) what was considered there were to be 'not less than ten days' for the announcement of the programme and the filing of nominations. The Court held that both the terminal days were to be excluded. This case again will come in the first category of cases dealt with in Halsbury's Laws of England as the last date for filing nominations was fixed and thus 10 clear days had to intervene. In Northern India Caterers Private Ltd. v. State of Punjab, AIR 1963 Punj 290 (FB) the learned Judges were dealing with a case where a notice was required to be given for a period of at least 10 clear days. They held in that case that the intention of the legislature appeared to be to give a notice of at least 10 clear days and consequently came to the conclusion that the notice in that particular case was of a shorter duration by a day. What we have observed about AIR 1964 Punj 135 applies to this case as well. In Miss Cama v. Banwarilal, AIR 1953 Nag 81 the learned Judges had to construe the word 'within' in relation to time and observed as follows:

'the word 'within' in relation to time means 'in the limits of' (a period of time), 'before the end of', and 'after not more than'. In Section 428(1) the expression 'at any time within 15 days' does not fix both the inward and outward limits of the period during which the election petition can be made. The date of notification is used in the expression 'from the date on which the election of a Councillor is notified under Section 16' only for the purpose of fixing the posterior limit and not for the purpose of indicating an anterior limit. The words 'at any time' make it clear that a voter is entitled to make an application at any time after the cause of action accrues.

X X X X X

This is a case of the second category. In re M/s. N. M. Hussain & Co., AIR 1953 Mad 602 the question that arose was whether the Accommodation Controller should have a clear week for making up his mind whether he should allot the house to a tenant i.e.--he should exercise his option. It was held that in computing the period the date of occurrence is to be excluded. This case, to our mind, is of no help at all, as the matter came up to be considered in connection with a criminal case where the learned Judge held that the accused could have a genuine belief that the words 'within a week' could mean that the Accommodation Controller must have exercised his option before the expiry of the period. To cut the gordian knot the learned Judge reduced the fine on account of the legitimate ignorance of the law, according to him, on the part of the accused.

9. In Nagappa Chettiar v. Madras Race Club, AIR 1951 Mad. 831 (2) the question was about the holding of a meeting of shareholders of a company and the issue was whether the meeting was held after giving the requisite notice. This case also, in our view, fails in the first category of cases and is therefore no authority for dealing with a case like the present one. In D. Sangayya v. State of Andhra Pradesh, AIR 1962 Andh Pra 462 the words that came up for consideration were 'be made not less than 6 weeks' occurring in Section 57(2) of the Motor Vehicles Act in connection with the making of an application for grant of permits in pursuance of a scheme of nationalisation. It was held by the learned Judge that 6 clear weeks, that is 42 days must elapse between the date of the application for permits and the date on which they are to take effect. In interpreting the words used in Section 57 of the Motor Vehicles Act the learned Judge followed Commr. of Income-tax v. Ekbal & Co., AIR 1945 Bom 316 and we may quote the relevant observations made in that case hereunder. Learned counsel for the respondent has placed reliance on this Bombay case. The relevant observations of the learned Judges were these:

'The 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 interval of not less than 30 days and that means 30 days clear. 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. The expression 'not less than 30 days' in Section 22(2) therefore means that 30 clear days must elapse from the date of the receipt of the notice before the obligation of the assessee to send the return becomes effective. Hence a notice requiring the assessee to send the return 'within 30 days' of the receipt of the notice is invalid because the assessee will not get 30 clear days before his obligation to send the return arises because, when a party is called upon to do an act 'within' a stated number of days he necessarily cannot get that number of days as 'clear' days.'

10. We have considered these observations with care and find that they do not quite square with the observations of their Lordships of the Supreme Court, made in (S) AIR 1957 SC 271, already referred to above. The Bombay case undoubtedly lends support to the submission of the learned counsel for the respondents but in view of the observations that were made by their Lordships of the Supreme Court we are unable to accept the proposition propounded therein.

11. To our mind, on analysis Section 14(2) is found to require the following things to be done:

(i) The Government must specify a period for filing objections:

(ii) That period must not be less than one month, and

(iii) the objections have to be filed within the prescribed period.

12. The learned counsel for the respondents vehemently argued that the words 'not less than month' must in the very nature of things mean 'more than one month', and therefore he argues that both the terminal days have to be excluded. We find ourselves unable to agree to this proposition. Supposing one were to say that a certain figure should not be less than 'X', then 'X' plus something is certainly 'not less' than 'X'. In other words, whatever is more than 'X' is 'not less' than 'X'. But a thing which is just equal to 'X' is also not less than 'X'. In other words, a period of just one month is certainly 'not less' than one month though it is not more than one month. The problem therefore is one of computing this period. We have the statutory rule enacted in Section 10 of the General Clauses Act that in counting a particular period specified by law, we have to exclude the first day. The question whether the last terminal day is to be excluded is not governed by any statutory principle like the first day. But in the very nature of things the problem is one of finding the legislatures intention and for that the language of the statute alone is the safe guide. Consequently, we are of the opinion that for determination of the question whether in a particular case the last date is or is not to be excluded we have primarily to look to the object of the statute, & for this, to our mind, the two broad categories dealt with in Halsbury's Laws of England should guide, broadly speaking, in dealing with the particular case in hand.

13. In Bhikamchand v. State, Civil Misc. Writ Petn. No. 1570 of 1964--(Raj) and similar other petitions in which we have delivered the judgment today, a similar question came up for consideration in connection with the issuing of a notification for inviting objections against a proposal for constituting market areas under the Rajasthan Agricultural Produce Markets Act, 1961 wherein Section 3 of that Act required that 'objections were to be filed within a period of not less than one month'. The notification that was issued stated that the objections were to be filed 'within one month' we made the following observations after referring to (S) AIR 1957 SC 271:

'In the present case the requirement of the expression 'within a period of not less than one month' as used in Section 3(2) of the Act, will be amply met, in our view, if the period for filing objections is exactly one month. In other words, the discretion was left with the Government to fix a period for the inviting of objections which could be one month or more, but it could not be less than one month. But where the period is provided is exactly one month it cannot he said to be less than one month within the meaning of Section 3(2) of the Act.

Now, turning to the language of the notification reproduced above, it permitted the filing of objections within one month. One would exclude the first day, according to Section 10 of the Raiasthan General Clauses Act, which corresponds to Section 9 of the General Clauses Act of the Central Legislature. It is further evident that the first day, thai is, the date of the notification has alone to be excluded. Viewed thus, and particularly in the 'coverage' of the parent provision of the Act, namely. Section 3. we are unable to hold that the notification that was issued suffered on the ground urged by the petitioners. Thus, we are unable to accept any of the two aforementioned contentions about the invalidity of the notification issued under Section 3 of the Act.'

14. Viewing the matter before us in this light we are of opinion that the notification that was issued in the present case under Section 11(2) of the Act does conform to the requirements of the Section and the same is not rendered illegal.

15. As we have already observed the learned single Judge has not borne in mind the two distinct categories of cases and indeed Ram Krishna's case, 1964 Raj LW 121 on which he has placed reliance, does not lay down the law correctly on this point.

16. The result is that we hereby acceptthe appeals and while setting aside the judgment of the learned Judge dated 18th August,1964 hereby dismiss the writ petition.


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