GANESH SUKHDEO GURULE versus TAHSILDAR SINNAR & ORS. on 10 December 2018

1. This appeal has been filed against the judgment dated 22.11.2018of the High Court of Bombay dismissing the writ petition filed by theappellant.

2. We have heard learned counsel for the appellant as well as theDcounsel for the respondent No.4 who has appeared on caveat. The interestof respondent No.4 and other private respondents being common wehave not issued notice to other respondents.

3. The brief facts of the case necessary for deciding the appealare:

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On 07.09.2018, respondents moved a no-confidence motionagainst the appellant. Tahsildar issued notice dated 07.09.2018 conveningspecial meeting of Gram Panchayat for consideration of no-confidencemotion on 14.09.2018. On 14.09.2018 out of nine members of the GramPanchayat only eight members were present in the meeting. Six membersFvoted in favour of the motion and two members were opposed to it. Oneof the members who voted in favour of no-confidence motion was notqualified to vote, namely, Smt. Sushila Prakash Darade who had notfiled her caste certificate after election, hence, she was disqualified tocontinue to be a member or to vote in any meeting. A Dispute Applicationunder 35(3-B) of the Maharashtra Gram Panchayat Rules, 1958Gchallenging the no-confidence motion passed was filed. The Addl.Collector, Nasik passed an order dated 16.10.2018 approving the specialmeeting dated 14.09.2018 holding that no-confidence motion was validlypassed. Against the order passed by the Addl. Collector, a writ petitionwas filed by the appellant which has been dismissed by the High CourtHby the impugned judgment. Aggrieved by the judgment of the High Courtthis appeal has been filed.

4. Learned counsel for the appellant submits that total membersof Gram Panchayat being nine and one member being disqualified tovote the two-third majority has to be computed on the basis of eightmembers which comes to 5.33 and there being only five valid votes infavour of no-confidence motion, motion cannot be held to be passed.One of the members who voted in favour of no-confidence motion i.e.Smt. Sushila Prakash Darade being disqualified to sit and vote cannot becounted in favour of no-confidence motion, two-third majority being 5.33,at least six votes were required for passing the no-confidence motion. Itis submitted that caste certificate being not submitted by Smt. SushilaPrakash Darade within six months as required by law she automaticallybecame disqualified to sit or vote in the meeting of Gram Panchayat.

5. The submissions made by the counsel of the appellant wererefuted by the counsel for the respondent. It is submitted that therebeing only eight members present and one being disqualified, two-thirdmajority shall be computed from seven and five votes caste in favour ofthe no-confidence motion, the motion shall be treated to be validly passed.It is contended that provision of Section 35(3) of the Maharashtra VillagePanchayats Act, 1959 has to be read to mean that majority of not lessthan two-third of total number of members present and voting, thus,there being only 8 members present, majority is to be computed from 7excluding one disqualified member. He submits that motion of no-confidence was validly passed against the appellant and rightly upheldby the High Court.

6. Learned counsel for the parties relied on few judgments whichshall be referred to while considering the submissions.

7. Section 35 of the Maharashtra Village Panchayats Act dealswith motion of no-confidence. Section 35(1) and Section 35(3) whichare relevant for the present case are as follows:

“35. Motion of no confidence. - (1) A motion of no confidencemay be moved by not less than [one third] of the total number ofthe members who are for the time being entitled to sit and vote atany meeting of the panchayat against the Sarpanchor the Upa-Sarpanch after giving such notice thereof to the Tahsildar as maybe prescribed. [Such notice once given shall not be withdrawn.

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(3) If the motion is carried by a majority of not less than two-third of the total number of the members who are for the time A

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Abeing entitled to sit and vote at any meeting of the panchayat orthe Upa-Sarpanch, as the case may be, [shall forthwith stopexercising all the powers and perform all the functions and dutiesof the office and thereupon such powers, functions and dutiesshall vest in the Upa-Sarpanch in case the motion is carried outagainst the Sarpanch; and in case the motion is carried out againstBboth the Sarpanch and Upa-Sarpanch, in such officer, not belowthe rank of Extension Officer, as may be authorised by the BlockDevelopment Officer, till the dispute, if any, referred to undersub-section (3B) is decided:”

8. The main issue which arises for consideration is that what shallCbe two-third majority for holding the no-confidence motion to be passedin the Panchayat in the facts of the present case. Admittedly there arenine members in the Village Panchayat. Out of nine members in themeeting held on 14.09.2018, eight members were present. Out of eightmembers present, one member was disqualified to sit and vote by virtueDof she having not submitted her caste certificate after the election. Shewas one out of six members who have voted in favour of no-confidencemotion. There are five valid votes in favour of no-confidence motion astwo against it. The statute provides for special majority for passing amotion. The Shackleton on the “Law and Practice of Meetings” inparagraph 7.32 while dealing with special majority states:E“In cases where special majorities are prescribed, the provisionsof the relevant statute or rules or rules must be carefully observed.Thus, where under an old Act a motion was to be “determined bya majority consisting of two-thirds of the votes of the ratepayerspresent” at a meeting, and 37 were present, the votes of 20Fratepayers in favour of the motion (the remainder abstaining) weredeemed to be insufficient to comply with the statute.”

9. In the present case statute, Section 35(3) refers to majority as“a majority of not not less than two-third of the total number of themembers who are for the time being entitled to sit and vote at any meetingGof the Panchayat”. The above expression clearly indicates the majorityof not less than two-third of the “total number of the members who arefor the time being entitled to sit and vote”. The key words in the expressionare members who are for the time being entitled to sit and vote at ameeting in the Panchayat. The computation of majority thus refers to“entitlement to sit and vote at any meeting”. Thus, the number of membersHwho are entitled to sit and vote in a meeting have to be taken into consideration for computing the majority. Total number of members beingnine and one member being disqualified to sit and vote, the computationof majority has to be on the basis of number eight, two-third of thenumber eight will be 5.33. The Submission of the respondent is that thetwo-third majority has to be computed out of the members present andvoting i.e. seven excluding one member who was unqualified to voteand five is more than two-third of seven, the majority has been rightlypassed. The interpretation put by the learned counsel for the respondentcannot be accepted in view of the clear language of statute. The crucialwords in the statute are members “who are for the time being entitled tosit and vote”. This, expression cannot be treated to be expressionmembers present and voting. The submission of the respondent that forcomputation of majority number of seven members should be treated,cannot be accepted.

10. The next submission pressed by the respondent is that forapplying the principle of rounding off 5.33 votes have to be rounded asto five. Thus, five votes are sufficient to accept majority for the purposeof passing no-confidence motion. Whether 5.33 votes can be roundedup into 5 votes or requirement is at lest six votes is the real issue. Whenthere are clear words in the statute i.e. “not less two-third of the totalnumber of members” applying the principle of rounding off, 5.33 votecannot be treated as 5. Vote of a person cannot be expressed in fraction.When computation of a majority comes with fraction of a vote that fractionhas to be treated as one vote, because votes cannot be expressed infraction. The principle that figure less than .5 is to be ignored and figuremore than .5 shall be treated as one, is not applicable in the statutoryscheme as delineated by Section 35. Provision of Section 35(1) whichprovides for requirement for moving motion of no-confidence by notless than one-third of the total number of the members who are for thetime being entitled to sit and vote at any meeting of the Panchayat, is thesame expression as used in sub-section (3). Obviously, requirement ofnot less than one-third number for moving motion has to be computedfrom total number of the members who are entitled to sit and vote. Thus,the same expression having been used in sub-section (3) of Section 35both the expressions have to be given the same meaning. Thus, one-third of total number of members who are entitled to sit and vote have tobe determined on the strength of members entitled to vote at a particulartime. The same meaning has also to be applied while computing two-third majority.

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920 SUPREME COURT REPORTS [2018] 14 S.C.R.

A11. Learned counsel for the appellant has placed reliance on twojudgments, one, of this Court in State of U.P. and another vs. PawanKumar Tiwari and others, (2005) 2 SCC 10. In the above case, thisCourt was considering applicability of percentage of reservation in thecontext of U.P. Public Services (Reservation for Scheduled Casts,Scheduled Tribes and Other Backward Classes) Act, 1994. TheBpercentage prescribed for the reservation category in the State of U.P.noticed in paragraph 2 of the judgment. Respondent belonging to generalcategory was at the top of the waiting list. He filed a writ petition directingthe State to issue a letter of appointment to the respondent. The HighCourt held that 50 % of general category which was 46.50 ought toChave been treated as 47. The High Court had allowed the writ petitionand held the respondent entitled for appointment as 47th general categorycandidate. The appeal filed by the State was dismissed by this Court.Paragraph 2,6 and 7 of the judgment are as follows:

“2. The percentages of reservation, as applicable and as wasactually applied, are set out in the following table:

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CategoryPercentagePercentage Number of (prescribed) worked out to posts reserved General 50% 46.50 46 Scheduled 21% 19.53 20 Castes Other 27%25.1126Backward Classes Scheduled 2%1.861Tribes E

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6. The High Court has found mainly two faults with the processadopted by the State Government. First, the figure of 46.50 shouldhave been rounded off to 47 and not to 46; and secondly, in thecategory of freedom fighters and ex-servicemen, total 3 postshave been earmarked as horizontally reserved by inserting suchGreservation into general quota of 46 posts which had the effect ofpushing out of selection zone three candidates from merit list ofgeneral category.

7. We do not find fault with any of the two reasonings adopted bythe High Court. The rule of rounding off based on logic andHcommon sense is: if part is one-half or more, its value shall beincreased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46as has been done. If 47 candidates would have been consideredfor selection in general category, the respondent was sure to finda place in the list of selected meritorious candidates and henceentitled to appointment. ”

12. The judgment of this Court in the above case was on roundingoff the vacancies. The reserved post being 50% of the total number ofposts reservation in no manner can exceed 50%. In the facts of aforesaidcase, there were total 93 posts, 47 was treated more than 50%. Hence,the post for general category which was 46.50 was rounded off to 47 bythe High Court which was approved by this Court. The said case relatedto computation of vacancies for particular category as per 1994 Actwhich principle cannot be applied in computation of a special majority asrequired by the statute in question.

13. Another judgment is a Full Bench judgment in Jayram vs.Secretary, U.D.D. Mumbai, 2010 (3) MH. LJ 465, which is reliedby learned counsel for the respondent, by referring to the judgment ofthis Court in Pawan Kumar Tiwari (supra) the Full Bench of BombayHigh Court held that there is no justification that fraction below 0.5 beignored in allotting the seats to registered or recognised parties on thebasis of groups as per statutory scheme delineated by Bombay ProvincialMunicipal Corporations Act, 1949. Referring to the judgment of this Courtin Pawan Kumar Tiwari (supra) in paragraph 31, the Full Bench ofBombay High Court has rightly held that rounding off was not the ratioor principle on which Pawan Kumar Tiwari case was decided.Paragraph 31 of the judgment is quoted below:

“31. Mr. Anturkar, learned Counsel vehementaly contendedthat rule of rounding off is now well recognised and is based uponthe logic and common sense. For this he relied upon State of U.P.vs. Pawan Kumar Tiwari, (2005) 2 SCC 10. In that case, 93 postsof Civil Judges, J.D. were advertised and 50% of the posts werereserved for different categories and 50% were for the generalor open category. In view of this percentage 46.50 seats wouldbe available for reserved category and 46.50 for general category.The State Government rounded off the number of posts availablefor general category at 46 and for the reserved category at 47.The High Court found fault with the process and held that thenumber of posts available for general category could not berounded off at 46, but should have been rounded off at 47. The A

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Supreme Court dismissed the appeal of the State Governmentand held that if the seats for reserved category are fixed at 47, itwould cross the limit of 50% and therefore it could not be upheldand as such number of posts available for reserved category couldbe fixed at 46 and that for general category should have beenfixed at 47. Their Lordships observed as follows in para 9:- A

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“9. There is yet another reason why the judgment of the HighCourt has to be maintained. The total number of vacancieswas 93. Consequent upon the allocation of reservation andcalculation done by the appellants, the number of reserved seatswould be 47, leaving only 46 available for general categoryCcandidates. Meaning thereby, the reservation would exceed50% which would be unconstitutional. The total number ofreserved seats could not have been more than 46 out of 93. ”

In fact, in this case, both the groups had 46.5 and if the sameformula would be applied, then in each case .50 could have beenDrounded off to 1 and each of the group would be entitled to 47seats. In that case, the total number would become 94, while thetotal vacancies available were only 93. Thus, rounding off is notthe ratio or principle on which that case was decided. It wasdecided mainly on the question as to whether reserved categoriesmay get seats more than 50% quota. Therefore the authority inEPawan Kumar Tiwari’s case could not be used in support of theview taken in Vasant Gite.”

14. Further, in paragraph 34 Full Bench of Bombay High Courtitself held that there is no justification to ignore fraction below 0.5 in thecontext of allocation of registered or recognised parties or groups whoFare entitled to number of seats. The above judgment of the BombayHigh Court in no manner supports the case of respondent rather supportsthe appellant’s contention.

15. Learned counsel for the appellant in so far as disqualificationof one of the members who had not filed her caste certificate relied onAnant vs. Chief Election Commissioner, 2017 (1) Mh.L.J. 431,Gbefore the Full Bench the issue was raised as to whether on non-submission of caste certificate within six months period disqualificationis automatic. Answering the reference Full Bench held that the provisionfor requiring submission of caste certificate within a period of six monthsfor election is mandatory and disqualification would be automatic. InHparagraph 100 of the judgment the Full Bench held the following :

“100. In the result, we hold that the time limit of six monthsprescribed in the two provisos to Section 9A of the said Act, withinwhich an elected person is required to produce the ValidityCertificate from the Scrutiny Committee is mandatory.

Further, in terms of second proviso to Section 9A if a personfails to produce Validity Certificate within a period of six monthsfrom the date on which he is elected, his election shall be deemedto have been terminated retrospectively and he shall be disqualifiedfor being a Councillor.

Such retrospective termination of his election anddisqualification for being a Councillor would be automatic andvalidation of his caste claim after the stipulated period would notresult in restoration of his election.

The questions raised, stand answered accordingly. ”

16. It is further relevant to note that this Court in Special LeavePetition (C)Nos. 29874-29875 of 2016 (Shankar s/o Raghunath Devre(Patil) vs. State of Maharashtra & Ors.) has approved the view takenby the Full Bench vide its judgment dated 23.08.2018 by holding that therequirement of submitting caste certificate is mandatory.

17. Thus, in so far as vote of one member, Smt. Sushila PrakashDarade, the same can neither be computed for the no-confidence motionnor is relevant for computing two-third majority as per the statutoryscheme. The words ‘not less than’ used in Section 35(3) of the Act hasto be given meaning and purpose. When majority comes to 5.33 votes“not less than 5.33 votes” have to be given meaning, hence, 5.33 cannever be rounded off to 5, fraction has to be treated as one becausevotes cannot be treated as fraction. Hence, 5.33 votes to be read as 6votes for passing of the motion as mandated by Section 35(3).

18. We are, thus, of the view that no-confidence motion was notvalidly passed and the order of the Addl. Collector as well as of the HighCourt are erroneous. It is held that motion of no-confidence was notpassed against the appellant since it was not passed by two-third of thetotal number of the members who were for the time being entitled to sitand vote. The proceedings dated 14.09.2018, order of the Addl. Collectorapproving the proceedings as well as the judgment of the High Courtdismissing the writ petition are set aside. The appeal is allowedaccordingly.

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Ankit Gyan

Appeal allowed.H