Bapna, C. J. - (1.) THIS is a petition under Art. 226 of the Constitution.
(2.) THE case of the petitioner is that he was elected Chairman of the Municipal Board, Didwana, sometime in 1956. Some of the members did not favour his continuing in office and a motion of no confidence was moved against him in a meeting of the Board held on 26th of May 1957. It came to be passed by a bare majority of 6 to 5. As it was not passed by two-thirds majority, the matter was brought before another meeting of the Board on 4. 9. 1957. This Board has 12 members including the Chairman. Six members voted for the motion and six including the Chairman voted against the motion. THE motion was lost by the casting vote of the Chairman. THE persons in favour of the to confidence motion moved the Government and the Secretary to Government, by order of 7th Jan. , 1958, conveyed the views of the Government that the no confidence motion should be taken to have been passed and the Vice Chairman should take over from the Chairman and that re-election of the Chairman should take place at once. THE Collector of Nagaur, in pursuance of the said order of the Government, by order of 21st of January 1958 fixed 5th February 1958 for the election of the new Chairman. THE sub-divisional Magistrate, Didwana, was appointed as the nominee of the Collector to preside over the meeting. The contention of the petitioner is that the motion of no confidence must be taken to have fallen through at the meeting of 4th September 1957 and, therefore, the provisions of sec. 22 (9) (b) were not fulfilled. The facts are not disputed. Learned counsel for the respondents contended that the provisions of sec. 26 (10) should not be taken to be applicable to a motion of this kind and if the provisions of sec. 22 (9) (b) were read in that light, not less than one-half of the members had expressed their want of confidence in the two successive meeting and that should be considered to be sufficient compliance of sec. 22 (9) (b) of the Act. In our opinion, the view of law urged by the respondents and accepted by the Government is not correct. The resolution of no confidence must be passed and not merely voted upon by not less than half the members. Sec. 26 (1) provides for the passing of the resolution. It says that all questions shall be decided by a majority of votes of the members present and voting, the presiding authority having a second or casting vote in all cases of equality of votes. The question, which was before the Board, was not one in which the chairman may have been debarred from voting under sub-sec. 11 of sec. 26. The provisions of sub-sec. 10 are applicable to all questions that may come for decision before the Board and the question of no confidence has also to be decided according to the majority of votes of the members present and voting and there is no reason to debar the president from having a second or casting vote in case of equality of votes when that right has been conferred upon him by law. In the circumstances of this case, the motion of no confidence cannot be taken to have been passed on the 4th of September 1957. The order of the Government that the no confidence motion should be taken to have been passed is hereby set aside. The consequent order of the Collector for holding a fresh election of the Chairman is also set aside. The petition is allowed accordingly. Respondents Nos. 4 to 9 will pay the costs of the petition. A copy of this judgment will be sent to the Secretary, Local Self Government Department. . ;