- (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. " Both these provisions lay down that a Pradhan of Gram Panchayat can be removed if a Motion of No- confidence is passed against him "by a majority of two-thirds of the members present and voting. " In view of these provisions, theques-tion for consideration in this petition is as to whether 7 out of 11 members constitute two-thirds of the majority or not. It may be repeated that this Gram Panchayat consists of 11 members in all. All the 11 members were present and voted in the meeting held for consideration of Motion of No-con fidence against O. P. No. 3. 7 out of 11 voted in favour of Motion of No-confidence and 4 voted against the said Motion. Two-thirds of 11 comes to 7. 33 and the remaining one-third comes to 3. 66.
(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. It was contended on behalf of the petitioner that according to ordinary mathematical principle less than half is to be ignored and more than half is to be treated as one and therefore, 7 members constitute two-thirds majority. This argu ment loses sight of the fact that if rounding up is done to 7 it will not constitute two-thirds of a majority. It was also urged that in case two-thirds of a majority is to be taken as 8 out of 11 members present and voting, one-third would be reduced to 3 which ac cording to mathematical calculation is not correct as one-third of 11 comes to 3. 66 or 4. In this case '--'hat has to be considered in the light of the provisions of Section 14 (1) and Rule 33- B (5) (viii), is as to whether Motion of No-confidence has been passed by a majority of two-thirds or not. Since two-thirds of majority out of 11 members cannot be less than 8 and as only 7 members voted in favour of Motion of No-confidence, it cannot be said that it has been carried out.;