2013(5) ALL MR 604
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

V.A. NAIK, J.

Shri Tanaji Bhauso Mane & Ors. Vs. Smt. Ushatai Balkrushna Mane & Ors.

Writ Petition No.11177 of 2012

1st August, 2013

Petitioner Counsel: Mr. Kishor Patil,Mr. R.M. Haridas
Respondent Counsel: Mr. F.F. Pathan,Mr. Shilpan Gaokar,Mr. Vaibhav Charalwar,U.U. & Argus,Mr. Uday Bobde,Mr. Akshay Bobde,Mr. Bharat Punekar,Shri S.D. Rayarikar

Bombay Village Panchayats Act (1958), S.35 - No confidence motion against woman Sarpanch - It required to be carried by majority of not less than 3/4th of total number of members who are entitled to sit and vote at special meeting - 5 out of 7 members voted in favour of motion - 3/4th of 7 members would be 5 1/4th - Carrying motion by not less than particular majority is mandatory and fraction cannot be ignored - If fraction is ignored, majority will be less than prescribed majority - Rule of rounding off cannot be applied for removal of Sarpanch if majority required for removal falls short by fraction - Resolution was not passed by majority of not less than 3/4th members of panchayat - Motion moved against Sarpanch failed.

1988 Mh.L.J. 378 Ref.to. [Para 4]

Cases Cited:
(2005) 2 SCC 10 [Para 5,7]
Anup Prakash Vyas Vs. University of Pune, 2013(3) ALL MR 319=2013 (2) Mh.L.J. 630 [Para 5,7]
Smt. Yamunabai Laxman Chavan & Ors. Vs. Smt. Sarubai Tukaram Jadhav & Ors., 2004(3) ALL MR 93=2004 (2) Mh.L.J. 1004 [Para 5]
1988 Mh.L.J. 378 [Para 6,7]


JUDGMENT

JUDGMENT :- Rule. Rule made returnable forthwith.

2. The petition is heard finally with the consent of the learned counsel for the parties.

3. By this petition, the petitioner impugns the order of the Tahsildar and the Special Officer dated 5th November, 2012 declaring that the no confidence motion moved against the respondent-woman Sarpanch had failed as it was not carried by two third majority.

4. In a special meeting conducted for the purpose of considering a no confidence motion against the respondent No.1- woman Sarpanch, 5 out of the 7 members of the Panchayat voted in favour of the motion. Since, the provisions of Section 35(3) provide that a motion against a woman Sarpanch is required to be carried by a majority of not less than ¾th of the total number of members who are entitled to sit and vote at the special meeting, by applying the provisions of sub section (3) of Section 35, the Tahsildar held that the motion moved against the respondent No.1-Sarpanch had failed as the motion was not carried by ¾th majority. The petitioner has impugned the order of the Tahsildar in the instant petition.

5. It is submitted on behalf of the petitioner by placing reliance on the judgments reported in (2005) 2 Supreme Court Cases 10 and [Anup Prakash Vyas Vs. University of Pune], reported in 2013 (2) Mh.L.J. 630 : [2013(3) ALL MR 319], that ¾th of the 7 members would be 5 ¼th and by applying the rule of rounding off the fraction of less than half ought to have been ignored and it ought to have been held that the motion was carried by ¾th majority. It is submitted that the rule of rounding off based on logic and common sense is not limited to a particular type of case as held by this Court in the judgment [Anup Prakash Vyas Vs. University of Pune], reported in 2013 (2) Mh.L.J. 630 : [2013(3) ALL MR 319] and hence, the rule of rounding off could have been applied while considering whether the motion of no confidence was passed by ¾ th majority. It is submitted by placing reliance on the judgment [Smt. Yamunabai Laxman Chavan & Ors. Vs. Smt. Sarubai Tukaram Jadhav & Ors.], reported in 2004 (2) Mh.L.J. 1004 : [2004(3) ALL MR 93] that a no confidence motion is the expression by the elected members of a legislative body of want of confidence or faith in the person or persons against whom the motion is moved, and since, the majority of 5 persons had lost faith in the respondent No.1-Sarpanch, it ought to have been held that the motion was duly carried by ¾th majority by ignoring the fraction of ¼th.

6. It is submitted on behalf of the respondent No.1 by placing reliance on a full bench judgment of this Court, reported in 1988 Mh.L.J. 378, that the issue stands covered as it has been held by the full bench in the said reported judgment that while counting the majority the fraction could not be ignored. The learned counsel submitted that the expression "not less than" in sub section (3) of Section 35 makes it clear that the motion cannot be carried by a majority that is less than the requisite number of members of the Panchayat. It is submitted that the provisions of Section 35(3) are mandatory and hence, the Tahsildar rightly held that the motion moved by the petitioners against the respondent No.1 had failed as it was not carried by a majority of ¾ members.

7. On hearing the learned counsel for the parties and on a perusal of the provisions of Section 35 of the Act, as also the judgments relied on by the learned counsel for the parties, it appears that the law laid down by this Court in the judgment [Anup Prakash Vyas Vs. University of Pune], reported in 2013 (2) Mh.L.J. 630 : [2013(3) ALL MR 319] that the rule of rounding off cannot be restricted to any particular kind of case or to cases of employment cannot be made applicable while considering whether a motion is carried by a majority, if the majority prescribed, falls short by a fraction. The respondent No.1 is duly elected as a Sarpanch by a democratic process and though the rule of rounding off is applied to the case of employment in the judgment reported in (2005) 2 Supreme Court Cases 10 and to a case of admission in the judgment reported in [Anup Prakash Vyas Vs. University of Pune], reported in 2013 (2) Mh.L.J. 630 : [2013(3) ALL MR 319] the rule of rounding off cannot be applied for removal of a Sarpanch if the majority required for the removal falls short by a fraction. In the full bench judgment of this Court, reported in 1988 Mh.L.J. 378, while considering the provisions of the Maharashtra Municipalities Act, this Court observed that the provision of carrying the motion by not less than a particular majority is mandatory and a fraction cannot be ignored as if the fraction is ignored, the majority will be less than the prescribed majority. This Court went on to add in the said reported judgment that the expression "not less than" being mandatory, the number of votes could not be less than the majority prescribed, though it could be more. Since, in the instant case, if the fraction of ¼th in 5¼th is ignored, the majority would be less than ¾th and since the motion is required to be carried by a majority of not less than ¾th of the number of members, who are for the time being, entitled to sit and vote in the special meeting, the fraction could not have been ignored in this case. The Tahsildar rightly held that the resolution was not passed by a majority of not less than ¾th of the members of the Panchayat, and hence, the motion moved against the respondent-Sarpanch had failed.

For the reasons stated hereinabove, the writ petition fails and is dismissed with no order as to costs.

Petition dismissed.