ARUNENDRA SINGH Vs. DISTRICT PANCHAYAT RAJ OFFICER UNNAO

JUDGEMENT

(1.) A. N. Gupta, J. Smt. Bidya Devi O. P. No. 3 is Pradhan of Gram Panchayat Kot-war, of Sumerpur Block of District Unnao. Total strength of the members of Gram Panchayat is 11. The petitioner is a member of Gram Panchayat and he is one of the persons who moved a Motion of No-con fidence against Smt. Bidya Devi. On 27-11- 96 District Panchayat Raj officer, Unnao issued and order issued an order fixing 17-12-% for consideration of the Motion of No-confidence and appointed Assistant Development Officer (Panchayat), Vikas Khand Asoha O. P. No. 2 as the Presiding Officer. All the 11 members of the Gram Panchayat voted in the meeting. 7 members cast their votes in favour of Motion of No confidence and 4 members cast their votes against the Motion of No-confidence. Sec tion 14 (1) of the U. P Panchayat Raj Act, 1947 provides that a Pradhan of Gram Panchayat can be removed from his office if a motion is carried out against him "by a majority of two-thirds of the members present and voting. " Similar provision exists in the corresponding Rule 33-B (5) (viii) which provides that "the Motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the members present and voting. " The Presiding Officer namely O. P. No. 2 declared that the Motion of No Confidence has not been carried out as it has not been supported or passed by a majority of two-thirds of the members present and voting. This writ petition has been preferred by the petitioner who is a member of the Gram Panchayat contending that 7 out of 11 is two-thirds of the majority and therefore, Motion of No Confidence has been carried out. A writ of certiorari has been prayed for quashing the said decision of O. P. No. 2 and a writ of mandamus has been prayed for directing the opposite parties not to allow O. P. No. 3 to function as Pradhan of Gram Panchayat concerned.

(2.) SECTION 14 (1) of U. P. Panchayat Raj Act reads as follows:- "14. Removal of Pradhan or Up-pradhan- (1) The (Gram Panchayat) may, at a meeting specially convened for the purpose and of which at least 15 days' previous notice shall be given, remove the Pradhan by a majority of two-thirds of the members present and voting. " The corresponding Rule 33-B (5) (viii) is as under:- "the Presiding Officer shall then declare the result of the voting. The motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the members present and voting. If the Presiding Officer declares the motion as carried, the Pradhan or Up-Pradhan, as the case may be, shall cease to function forthwith. "

(3.) A voter cannot be divided into frac tions or places and therefore, 7. 33 is to be rounded up either to 7 or to 8. If rounding up is done to 7, it will not be a majority of two- thirds. As mentioned above, Section 14 (1) of U. P. Panchayat Raj Act and cor responding Rule 33-B (5) (viii) provide that the Motion of No- confidence should be car ried out by a majority of two- thirds of the members present and voting. In view of this, rounding up has to be done to 8. Unless 8 members vote in favour of No-confidence motion, it cannot be said that the motion has been carried out because it does not make up the required two- thirds of the majority. A Full Bench of this Court in the case of Wahid Ullah Khan v. District Magistrate, Nainital and others, (1993) 2 UPLBEC1107 has held that out of 15 mem bers 8 and not 7 constitute a majority. That was a case of No-confidence motion against the Chairman of a Municipal Board in which 15 members had voted. Section 87-A (12) provided that the Motion of No-con fidence should be passed "by a majority con sisting of more than one-half of the mem bers of the Board. " Similar decision was given by a Division Bench of this Court in the case of Aminuddin alias Yamin v. State of U. P. (1991) 2 UPLBEC 1234. That was also a case of No-Confidence Motion against President of Municipal Board under the Municipalities Act and theprovision of Sec tion 87-A (12) of the U. P Municipalities Act, 1916 came up for consideration. In that case 48 members had voted, out of whom 24 voted in favour of Motion of No-con fidence. It was held that 24 members do not constitute a majority.