- (1.) R. R. K. Trivedi and M. Katju, JJ. In this petition, counter affidavit has been filed. Learned counsel for the parties have agreed that this petition may be decided finally at this stage.
(2.) FACTS, in brief, giving rise to this petition are that respondent No. 3 Jag Nayak Singh was elected President of Zila Panchayat, Fatehpur, on 22. 5. 1995. The number of elected members of the Zila Panchayat was 34. One member Smt. Padma Devi Verma, however, tendered her resigna tion from the membership of Zila Panchayat on 28-12-1995 which was ac cepted on 15-12-1996. The order accepting resignation is Annexure 2 to the writ petition. Thus, the strength of the elected mem bers of the Zila Panchayat was reduced to 33. On 16-12-1996, 19 elected members of the Zila Panchayat delivered a written notice of their intention to make a motion of no confidence in the respondent No. 3 as President of the Zila Panchayat to the Col lector, Fatehpur. Along with this notice, the proposed motion and nineteen affidavits of the signatories of the notice were also filed. On the basis of this notice District Magistrate, Fatehpur in accordance with the provisions contained in Section 28 (3) of U. P. Kshettra Panchayat and Zila Panchayat Adhiniyam, 1961 (hereinafter referred to as the Act), convened a meeting of Zila Panchayat on 13-1-1997. On 13-1-1997 in all 18 elected members participated in the meeting and after debate on the motion of no confidence it was put to vote by secret ballot. Out of 18 members present and voting, 17 voted in favour of the motion whereas one member voted against it. The remaining IS members did not participate in the meeting. The meeting was presided over by learned 4th Additional District Judge, Fatehpur. The Presiding Officer passed an order on same day declaring that the motion of no confidence brought against respondent No. 3 has failed as it was not supported by more than 50% of the members as required under Section 28 (11) of the Act. Aggrieved by the aforesaid order petitioners, who are elected members of the Zila Panchayat, have filed this petition. Shri Dinesh Dwivedi, learned coun sel appearing for petitioners, has submitted that the presiding officer committed a manifest error of law in declaring that the motion of no confidence has not been car ried out. It is submitted that the effective strength of the elected members of the Zila Panchayat, on the date the motion of no confidence was put for consideration, was 33. In favour of the motion 17 elected mem bers cast their votes and thus it was carried out with the support of more than half of the total number of members of the Zila Panchayat for the time being present. It has been submitted that the presiding officer illegally calculated the requisite number of the votes to carry out the motion of no confidence on the basis of 34 elected mem bers. He ignored the fact that one elected member had resigned and calculation ought to have been done on the basis of 33 elected members. For his submission learned coun sel has placed reliance in case of Jivendra Nath Kaur etc. v. Collector/district Magistrate, Lucknow and another (1992) 2 UPLBEC1052, Wahid Ullah Khan v. District Magistrate, Nainital and others, AIR 1993 Allahabad 249 (FB) and Mangala Prasad Jaiswal v. District Magistrate and others, AIR 1971 Allahabad 77 (FB ). Shri T. P. Singh, learned counsel ap pearing for respondents, on the other hand, submitted that the Act was originally drafted in Hindi and the Hindi word TAT-KALIN" has been used, which has been translated as "for the time being" in the English version of the Act. Learned counsel has submitted that "tatkalin" specifical ly refers to and relates back to the date of election and thus the presiding officer has rightly made calculation on the basis of the figure 34 which was the strength of the total elected members of the Zila Panchayat and the order does not suffer from any error of law. Learned counsel has further submitted that even if calculated on the basis of the strength of elected members as 33, the mo tion cannot be treated to have been carried out. It is submitted that half number of 33 will be 16 1/2 and as the figures relate to human beings, half number cannot be taken into account and thus a round figure of 17 should be taken and to represent more than half, the figure should be 18 by which the motion of no confidence should have been supported. If viewed from this angle, the order of the presiding officer does not suffer from any error of law.
(3.) LEARNED counsel has further sub mitted that after the meeting dated 13-1-1997 the vacancy which had occurred on account of the resignation of one member has been filled and the present strength is 34. The thrust of the submission of the learned counsel is that this subsequent event should be taken into account to con sider as to whether it is a fit case for inter ference by this Court under Article 226 of the Constitution. It is submitted that this Court should not interfere on the basis of technicalities involved. Reliance has been placed by the learned counsel in case of Mata Badal Pandey and another v. Board of Revenue, U. P. and others reported in 1974 U. P. T. C. 570 (FB ). LEARNED Counsel has also referred to the Words and Phrases Permanent Edition Volume 27 A wherein the word "more" has been defined. We have seriously considered the submissions of the learned counsel for par ties. However, in our opinion, the con troversy involved in this petition has already been settled by Hon'ble Supreme Court in case of Jivendra Nath Kaul etc. (supra) and there is no doubt that the view taken by the presiding officer was contrary to law. It shall be appropriate to reproduce the relevant paragraph from the aforesaid judgment: ". . . . . . . . The High Court has not given natural meaning to the expressions contained in sub-sec tions (12) and (13) of Section 87-Aof the Act. The only meaning which can be given to the expression "half of the total number of members of the Board" is the members as existed on the date of its constitution. The total number of members on the date of the composition of the Municipal Board, Mugal Sarai was 16 and as such notwithstanding the removal of member/members the motion of no confidence could only be passed if the motion was supported by more than 8 votes. The High Court's interpretation is on the face of it contrary to the plain language of the sub-section. Similarly the High Court fell into grave error by not ap preciating the plain meaning of the words "for the time being" in sub-section (13) of Section 87-Aof the Act. "for the time being" means at the mo ment of existing position. These words indicate the actual membership in existence on the date of the motion of no confidence. The High Court on the basis of strained reasoning has given inter pretation which does not flow from the simple language of sub-sections (12) and (13) of Section 87-Aof the Act. We, therefore, held that the High Court judgment in Bhaiya Lal's case does not lay down the correct law and we over rule the same. ";