(1.) The appellants, who are eight elected members of Municipal Council, Kurali, District Mohali, and moved no confidence motion for removal against respondent No. 5 Harmesh Rana, President of the Municipal Council, Kurali, have filed the instant Letters Patent Appeal against the order dated July 16, 2012, passed by the learned Single Judge, whereby Civil Writ Petition No. 22496 of 2011, filed by respondent No. 5, has been allowed and the resolution dated 28.11.2011 (Annexure P-3) passing the no confidence motion against him has been set aside, being illegal, as it was not passed by two-third of the members of the Municipal Council, as required by Section 22 of the Punjab Municipal Act, 1911 (hereinafter referred to as 'the Act'). Undisputedly, Municipal Council, Kurali, consists of 14 members, i.e. 13 elected members and 1 ex-officio member being Member of the Legislative Assembly of the area. On 26.7.2008, respondent No. 5 was duly elected as President of the Municipal Council. As per Section 21 of the Act, tenure of the President is 5 years, until and unless he is removed from the office in accordance with the provision contained in Section 22 of the Act. Section 22 provides that whenever a President vacates his seat or tenders his resignation in writing to the Committee/Council, he shall be deemed to have vacated his office. This provision further provides that the President may be removed from his office by the State Government on the ground of abuse of his powers or of habitual failure to perform his duties. He can also be removed in pursuance of a resolution requesting his removal passed by two-third of the members of the Committee/Council.
(2.) In the present case, the appellants moved a requisition for calling a meeting to consider no confidence motion against respondent No. 5, the President, as he was not discharging his duties in the interest of the Municipal Council. The meeting was called on 28.11.2011 and in that meeting, nine members, including eight elected members and one ex-officio member, supported the no confidence motion against respondent No. 5 and the resolution for his removal (Annexure P-3) was passed. After passing of the said resolution, in view of the proviso to Section 22 of the Act, respondent No. 5 was not allowed to function as President of the Council, as he was deemed to be placed under suspension, and the resolution was sent to the Government for further action.
(3.) Respondent No. 5 filed the writ petition for quashing of the said resolution on the ground that it was not passed by two-third of the members of the Municipal Council, which is a mandatory requirement for passing such resolution under Section 22 of the Act. According to the learned counsel, two-third of the members of the Municipal Council comes to ten, whereas the resolution was passed by nine members. The appellants contested the said writ petition on two grounds, firstly that when the resolution was moved and passed in the meeting on 28.11.2011, one seat of the Municipal Council was lying vacant due to the death of one of its elected members. Therefore, the two-third of the members of the Municipal Council is to be calculated out of 13 members, i.e. 12 elected members and 1 ex-officio member, which comes out to be less than 9. Thus, the resolution was rightly passed. Secondly, it was contended that even if it is taken that two-third of the members of the Municipal Council is to be calculated on the basis of strength of the Municipal Council, then it works out to be 9.33 and fraction of .33 being less than .50 is to be ignored and cannot be rounded off and taken as one whole. Therefore, the resolution supported by 9 members has to be considered as passed by two-third of the members of the Municipal Council.