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Anokhmal Bhurelal Vs. Chief Panchayat Officer, Rajasthan, Jaipur and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberWrit Petn. No. 171 of 1955
Judge
Reported inAIR1957Raj388
ActsRajasthan Panchayat Election Rules, 1954 - Rule 4; General Clauses Act, 1897 - Sections 9
AppellantAnokhmal Bhurelal
RespondentChief Panchayat Officer, Rajasthan, Jaipur and ors.
Advocates: V.P. Tyagi, Adv.; R.A. Gupta, Adv.
DispositionPetition allowed
Cases ReferredRamkrishna Bhau v. Shrawan Kisan
Excerpt:
.....panchayat circle may be one ward for the election of the panchas. we are satisfied that rule 4 is a mandatory provision and must be strictly followed before an election in a panchayat circle takes place. the language of rule 4 in stating the period of seven days contemplates clearly that a period of seven days must be regarded as the period preceding the date of election. 'at least seven days before the date of election' clearly means that 7 days' period must intervene between the date of the announcement of the notice and the date of election. the use of the words 'at least seven days before the date of election' in rule 4 clearly indicate that the law contemplates exclusion of the date of election in the computation of the interval of 7 days for the purpose of that rule......10, sub-section (4) of the prevention of crime act. 1908, provided that 'not less than 7 days' notice muse be given to the proper officer of the court and to the offender. it was observed by channel j. :'the question whether the words 'not less than seven days' mean clear days is a troublesome one to answer, as there have been decisions upon similar words which are not exactly in accord. those decisions depend upon particular statutes, and may therefore all be right and yet being about apparently conflicting results. we have come to the conclusion that the decision most nearly in point is that in chambers v. smith, (1843) 12 m & w 2 (i) referred to by chitty j. in (1885) 29 ch d 204 (c), where he reviewed the authorities. if chambers v. smith (d the words were 'not being less.....
Judgment:

Ranawat, J.

1. This is an application under Article 226 of the Constitution of India.

2. The petitioner is one Anokhmal of village, Choru, in Tehsil Uniara, district Tonk. His case is that a village panchayat was established at Choru under the provisions of the Rajasthan Panchayat Act, and the elections of Panchas and Sarpanch of the said Panchayat were held on the 21st of October, 1955, and respondents Nos. 3 to 17 were declared elected. It is stated on behalf of the petitioner that notice under Rule 4 of the Panchayat Election Rules of 1954 (hereinafter to be referred to as the Rules) was published by the Returning officer on the 14th Of October, 1955. and a copy thereof was affixed on the notice board of the Panchayat the same day. Copies of the said notice were also circulated in the villages constituting the Choru Panchayat through Patwaris on the 15th of October, 1955.

Thus the case of the petitioner is that the notice under Rule 4 of the Rules was not announced7 days before the date of election and the proceedings of election are, therefore, challenged tobe invalid. The prayer of the petitioner is that the proceedings of election be declared to be invalid and the Chief Panchayat Officer be directedto hold fresh elections Of the Panchayat. It hasalso been stated by the petitioner that he raisedan objection in this behalf before the ReturningOfficer at the time of election, but it was not considered and the proceedings of election were conducted if spite of the objection having been raised by him.

3. No replies have been filed by the opposite parties. The record of election has, howeverbeen placed before this Court by Shri Bam AvtarDeputy Government Advocate.

4. The fact that notice of, election under Rule 4 was announced on the 14th of October, 1955, and that election was held on the 21st of October. 1955, as stated by the petitioner, is supported by the record of the proceedings of election. The only point which Reserves consideration is whether a contravention of Rule 4 has taken place in this case.

5. 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.'

6. Rule 4 is mandatory and we may refer to the decision of this Court in Prabhudayal v. Chief Panchayat Officer, Jaipur, Civil Writ No. 15 of 1955. D/- 3-9-1956: (AIR 1957 Raj 95) (A). The observations in the judgment of that case are as follows:

'The first question that arises in these circumstances is whether Rule 4 is a mandatory rule which must be obeyed before an election is held, or is merely a directory provision. We are clearly of opinion that it is a mandatory rule for the simple reason that before the notice mentioned in Rule 4 is published, the electors do not know whether the entire Panchayat Circle will be divided into wards or not, and whether the election would take place for all the members of the Panchayat treating the entire panchayat circle as one ward. It is clean from Rule 4 that it is not necessary that a panchayat circle may be divided into wards, for the words 'if any' appear after the words 'the number and names of wards', and this clearly Indicates that, in certain circumstances, the entire panchayat circle may be one ward for the election of the panchas. Consequently, the voters of a panchayat circle only come to know, for the first time, by the notice under Rule 4 that their panchayat circle will be divided into a certain number of wards, and a certain number of Panchas will be elected from each ward. The rule also provides that this notice should be given to the electors at least seven days before the date of election. The reason for this is clear inasmuch as the electors must know sometime before they go to vote the number and particulars of the candidates for whom they would be required to vote. It is also necessary that the candidates, who are standing for election, should know whether they have to stand for the entire Panchayat Circle and have to canvass in that wide area, or whether they can stand in a certain ward out of the panchayat circle, and have to canvass only in that limited area. The learned Deputy Government Advocate also has not pressed before us that Rule 4 is merely a directory provision. We are satisfied that Rule 4 is a mandatory provision and must be strictly followed before an election in a panchayat circle takes place.'

We are in respectful agreement with the aforesaid decision given in Prabhudayal's case (A) and the point does not require further discussion to hold that the provision of Rule 4 is mandatory.

7. Now it has to be seen what is the mode of calculation of the period of 7 days for purposes of Rule 4. The rule provides that the Returning Officer shall, at least seven days before the date of election, announce for the information of the inhabitants of the Panchayat Circle by notice andin such other manner as the Chief Panchayat Officer may direct.....the date, time and place of election. It is not the case of any one of the parties that the Chief Panchayat Officer issued any direction regarding the manner of the publication of notice under Rule 4. In the present case, the Returning Officer sent the notice under Rule 4 to the office of the Panchayat on the 14th of October. 1955, for the information of the inhabitants of the Panchayat Circle and the notice was affixed on the notice board of the Panchayat the very same day.

Copies of the notice were also sent to different villages constituting the Panchayat Circle through Patwaris, which, we are told, reached the villages on the 15th of October, 1955. It is stated that there are 21 villages in Choru Panchayat and the population of the Panchayat Circle is about 5000. As the mode of publication has not been given in the Rules,, a reasonable manner of publication can be regarded as sufficient for the purpose of Rule 4. The Returning Officer, in the present case, thought it necessary to send copies of the notice of election to the Patwarts for affixing them in fine villages of the Panchayat Circle and also sent a copy thereof to the Panchayat Office.

This mode of publication, under the circumstances of this case, cannot be regarded as unreasonable and we would take the publication of the notice to be sufficient in the eye of law. Butt it remains to be seen whether the publication of notice under Rule 4 took place in the present case seven days before the date of election. The date of election was 21st of October, 1955, and the date of publication must be regarded as the 14th of October. 1955 the latest. If both 14th and 21st of October. 1955. are excluded in computing the period of seven days, there would be only 6 days and the law requires that the notice should be announced seven days before the date of election. Shri Rule A. Gupta has, however, urged on behalf of the Chief Panchayat Officer that the date of election may be excluded but the date of the publication of notice should not be excluded and by computing the period Of seven days in this manner it would be found there is no contravention of the said Rule 4. No authority has been cited in support of his contention by Shri R.A. Gupta.

8. The language of Rule 4 is clear that notice must be announced at least seven days before the date of election. In computing the period of seven days whether the date on which the notice is announced can or cannot be included is the question for decision. As regards the date of election, it is not disputed that it should be excluded. The language of Rule 4 in stating the period of seven days contemplates clearly that a period of seven days must be regarded as the period preceding the date of election. If part of a day is considered as a day, then and then only the date of publication can be computed as a day in computing the period of seven days. Shri Tyagi has referred to The Queen v. The Justices of Shropshire (1838) 8 Ad and E 173: 112 ER 803 (B); In re, Railway Sleepers Supply Co.. (1685) 29 Ch D 204 CC); The King v. Turner, 1910-1 KB 346 (D); In re. Hector Whaling Ltd., 1936-1 Ch 208 (E).

9. In the case of (1938) 8 Ad & E 173 (B) the statute required notice on the grounds of appeal 'fourteen days at least' before the first day of sessions at which the appeal was intended to Be tried. It was held that

'where an act is required by statute to be done so many days at least before a given event,the time must be reckoned, excluding both the day of the act and that of the event.'

In 1885-29 Ch D 204 (C) the facts were that at an extraordinary general meeting of the company duly convened and held on the 25th of February. 1885, a special resolution was passed for the reduction of the capital of the company, and at another extraordinary general meeting convened and held on the 11th of March, 1885, that resolution was confirmed. A petition was presented for the sanction of the Court to the proposed reduction of capital and a motion was made on behalf of certain shareholders that all further proceedings under the petition might be stayed on the ground that the resolution was not passed and confirmed as a special resolution at such interval as was required by Section 51 of the Companies Act of 1862. Section 51 required that

'a resolution passed by a company........ shall be deemed to be special whenever a resolution has been duly given, and such resolution has. been confirmed.......at a subsequent general meeting, of which notice has been duly given, and held at an interval of not less than fourteen days, nor more than one month, from the date of the meeting at which such resolution was first passed.'

It was observed by Chitty J.:

In the case before me the first meeting was held on the 25th of February and the second meeting on the 11th of March, therefore, excluding the days of the meetings, only thirteen clear days elapsed between the two meetings. The general rule of law in the computation of time is that fractions of a day are not reckoned. Sir William Grant in Lester v. Garland, (1808) 15 Ves 248 (F) observed:

'Our law rejects fractions of a day more generally than the civil law does. The effect is to render the day a sort of indivisible point; so that any act done in the compass of it, is no more referable to any one, than to any other portion of it: but the act and the day are co-extensive: and therefore the act cannot properly be said to have passed, until the day is passed.'...... It is not material, to my mind, to answer these questions beyond saying that it is plain at all events that the statute prescribes the interval which is to elapse between the date of the first meeting and the earliest time when the second meeting can be held. 'An interval of not less than fourteen days' is equivalent to saying that fourteen days must intervene r elapse between the two days. Lord Tenterden's test, which is cited with approval by Lord Wensleydale in Webb v. Fairmaner (1838) 3 M & W 473 at p. 477 (G) and Young v. Higgon, (1840) 6 M & W 49 at p. 54 (H) was to reduce the time to one day. Now supposing the statute had said at an interval of not less than one day; if the first meeting were held say on the 1st of January, the second meeting could not properly be held on the 2nd of January, for one day must intervene, therefore, the 3rd of January would be the earliest day, and adding thirteen more days to make the fourteen the second meeting could not be held before the 16th in the case of (1838) 8 Ad & E 173 (E) the statute required that notice of the grounds of appeal was to be given, fourteen days at least, before the first day of the sessions, and it was decided that the fourteen days at least mean fourteen clear days.'

10. In 1910-1 KB 346 (D) one of the questions that was decided was:

'Was the service of the notice on October 4, the sessions being held on October 11, a sufficient notice within Section 10 of the Act?'

Section 10, Sub-section (4) of the Prevention of Crime Act. 1908, provided that 'not less than 7 days' notice muse be given to the proper officer of the Court and to the offender. It was observed by Channel J. :

'The question whether the words 'not less than seven days' mean clear days is a troublesome one to answer, as there have been decisions upon similar words which are not exactly in accord. Those decisions depend upon particular statutes, and may therefore all be right and yet being about apparently conflicting results. We have come to the conclusion that the decision most nearly in point is that in Chambers v. Smith, (1843) 12 M & W 2 (I) referred to by Chitty J. in (1885) 29 Ch D 204 (C), where he reviewed the authorities. If Chambers v. Smith (D the words were 'not being less than fifteen days', and the Court in the first instance held that what I may call the ordinary rule applied, namely, that where a certain number of days are specified they are to be reckoned exclusive of one of the days and inclusive of the other unless clear days are expressed. But although that is the rule, the difficulty is to ascertain whether clear days are expressed by the language of the particular statute. In Chambers v. Smith (I) the Court, after having in the first instance thought that the words 'not less than fifteen days' were to be construed according to what I have called the ordinary rule, namely, inclusive of one of the days and exclusive of the other, on reconsideration came to the conclusion that they were to be construed as meaning fifteen clear days. The words upon which that decision was based are the nearest to be found in the authorities to those which we have to construe in the present case, and we therefore come to the conclusion that the provision of 'not less than seven days' notice has to Be given means 'seven clear days' notice, and we so answer the question.'

11. In 1936-1 Ch 206 (B) Bennett J. observed:

'The first point to be decided is what is meant by the phrase 'not less than twenty-one days' notice' contained in Sub-section (2) of Section 117 of the Companies Act. , 1928. In the interests of everybody it is of importance that there should be no doubt as to the meaning of a phrase in a section of almost daily use. I do not think there is any doubt about its meaning, and I propose to found my decision on (1910) 1 KB 346 (D) and (1843) 12 M & W 2 (I) and to decide that the phrase means tewenty-one clear days exclusive of the day of service and exclusive of the day oh which the meeting is to be held'.

12. We have also been referred to Commissioner of Income-tax v. Ekbal & Co., AIR 1945 Bom 316 (J) which was a case of reference under Section 66 (1) of the Income-tax Act, 1922, and the question raised therein was whether a notice Eiven under Section 22(2) of the Act was a valid notice or not. It was observed in that case:

'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 an 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 30days must elapse from the date of the receipt of the notice before the obligation of the assessee to tend the retain becomes effective,''

The answer to the question was therefore given in the negative and the notice was held to be invalid. The language of Rule 4 is not similar to the language of Section 22 of the Income-tax Act. In Rule 4 the language used is 'at least seven days' before the date of election. The language of the provision of the statute that came up for consideration in (1838) 8 Ad & E 173 (B) is very much similar to the language of Rule 4 and the observation, referred to above of the learned Judges in that case may serve as of assistance in this case. 'At least seven days before the date of election' clearly means that 7 days' period must intervene between the date of the announcement of the notice and the date of election. In other words 'seven days' clear interval is required by the law to lapse between the date of the announcement of notice and the date of election. The general rule of law of the computation of time is that fractions of a day are not reckoned. Bose J. in Ramkrishna Bhau v. Shrawan Kisan, AIR 1944 Nag 356 (K) observed that:

'In the first place, it is accepted that the day on which the copies are applied for and the day on which they are delivered are both to be excluded. Why? Because the law takes no account of the fractions of a day.'

The learned Judge accepted the general rule ct law that has been stated above. Having regard to the said general rule of law the interval between the date of the publication and the date of election in the present case cannot be considered to be more than 6 days, because the act of announcement has to be considered as co-extensive in time with the day on which it was announced. The date of announcement in the present case is as stated earlier, 14th of October, 1955 and the date of election is 21st of October, 1955. Excluding the date of announcement and the date of election the interval comes to 6 days only.

The use of the words 'at least seven days before the date of election' in Rule 4 clearly Indicate that the law contemplates exclusion of the date of election in the computation of the interval of 7 days for the purpose of that rule. We are of opinion that seven clear days' interval is required between the date of announcement of the notice and the date of election under Rule 4. and as in the present case the interval comes to only six days even if 14th of October, 1955, is taken to be the date of announcement, a case of contravention of Rule 4 has been made out. Dis-regard of the provision of Rule 4 which is a mandatory provision renders the proceedings of election illegal. We are, therefore, constrained to hold that the election, in the present case, cannot be regarded as valid on account of disregard of the mandatory provision of Rule 4.

13. This petition succeeds. The proceedings of election of the Panchas and Sarpanch held on the 21st of October, 1955 of Village Panchayat, Choru are quashed and a direction is issued to the Chief Panchayat Officer to hold fresh elections in accordance with the provisions of law. Under the circumstances of the case we make no order as to costs.


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