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REPORTABLE

IN     THE      SUPREME      COURT      OF     INDIA

CIVIL      APPELLATE      JURISDICTION

CIVIL      APPEAL      NO.11916      Of     2018  

GANESH SUKHDEO GURULE       ...APPELLANT(S)  

VERSUS

TAHSILDAR SINNAR & ORS.    ...RESPONDENT(S)

J     U     D     G     M     E     N     T

ASHOK      BHUSHAN,J.

This appeal has been filed against the judgment

dated 22.11.2018 of the High Court of Bombay dismissing

the writ petition filed by the appellant.  

2. We have heard learned counsel for the appellant as

well as the counsel for the respondent No.4 who has

appeared on caveat. The interest of respondent No.4 and

other private respondents being common we have not

issued notice to other respondents.

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3. The brief facts of the case necessary for deciding

the appeal are:

On 07.09.2018, respondents moved a no­confidence

motion against the appellant. Tahsildar issued notice

dated 07.09.2018 convening special meeting of Gram

Panchayat for consideration of no­confidence motion on

14.09.2018. On 14.09.2018 out of nine members of the

Gram Panchayat  only eight members were present in the

meeting. Six members voted in favour of the motion and

two members were opposed to it. One of the members who

voted in favour of no­confidence motion was not

qualified to vote, namely,  Smt. Sushila Prakash Darade

who had not filed her caste certificate after election,

hence, she was disqualified to continue to be a member

or to vote in any meeting. A Dispute Application under

35(3­B) of the Maharashtra Gram Panchayat Rules, 1958

challenging the no­confidence motion passed was filed.

The Addl. Collector, Nasik passed an order dated

16.10.2018 approving the special meeting dated

14.09.2018 holding that no­confidence motion was

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validly passed. Against the order passed by the Addl.

Collector, a writ petition was filed by the appellant

which has been dismissed by the High Court by the

impugned judgment.   Aggrieved by the judgment of the

High Court this appeal has been filed.

4. Learned counsel for the appellant submits that

total members of Gram Panchayat being nine and one

member being disqualified to vote the two­third

majority has to be computed on the basis of eight

members which comes to 5.33 and there being only five

valid votes in favour of  no­confidence motion, motion

cannot be held to be passed. One of the members who

voted in favour of no­confidence motion i.e. Smt.

Sushila Prakash Darade being disqualified to sit and

vote cannot be counted in favour of no­confidence

motion, two­third majority being 5.33, at least six

votes were required for passing the no­confidence

motion. It is submitted that caste certificate being

not submitted by Smt. Sushila Prakash Darade within six

months as required by law she automatically became

disqualified to sit or vote in the meeting of Gram

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Panchayat.

5. The submissions made by the counsel of the

appellant were refuted by the counsel for the

respondent. It is submitted that there being only eight

members present and one being disqualified, two­third

majority shall be computed from seven and five votes

caste in favour of the no­confidence motion, the motion

shall be treated to be validly passed. It is contended

that provision of Section 35(3) of the Maharashtra

Village Panchayats Act, 1959 has to be read to mean

that majority of not less than two­third of total

number of members present and voting, thus, there being

only 8 members present, majority is to be computed from

7 excluding one disqualified member. He submits that

motion of no­confidence was validly passed against the

appellant and rightly upheld by the High Court.

6.Learned counsel for the parties relied on few

judgments which shall be referred to while considering

the submissions.

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7. Section 35 of the Maharashtra Village Panchayats

Act deals with motion of no­confidence. Section 35(1)

and Section 35(3) which are relevant for the present

case are as follows:

“35. Motion of no confidence. ­ (1) A motion of no confidence may be moved by not less than [one third] of the total number of the members   who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanchor the Upa­ Sarpanch after giving such notice thereof to the Tahsildar as may be prescribed. [Such notice once given shall not be withdrawn.

Xxx xxx xxx

(3) If the motion is carried by  a majority of not less than two­third of the total number of the members  who are for the time being entitled to sit and vote at any meeting of the panchayat or the Upa­Sarpanch, as the case may be, [shall forthwith stop exercising all the powers and perform all the functions and duties of the office and thereupon such powers, functions and duties shall vest in the Upa­Sarpanch in case the motion is carried out against the Sarpanch; and in case the motion is carried out against both the Sarpanch and Upa­Sarpanch, in such officer, not below the rank of Extension Officer,  as may be  authorised by the  Block Development Officer, till the dispute, if any, referred to under sub­section (3B) is decided:”

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8. The main issue which arises for consideration is

that what shall be two­third majority for holding the

no­confidence motion to be passed in the Panchayat in

the facts  of the present case. Admittedly  there are

nine members in the Village Panchayat. Out of nine

members in the meeting held on 14.09.2018, eight

members were present. Out of eight members present, one

member was disqualified to sit and vote by virtue of

she having not submitted her caste certificate after

the election. She was one out of six members who have

voted  in favour of   no­confidence  motion.  There are

five valid votes in favour of  no­confidence motion as

two against it. The statute provides for special

majority for passing a motion. The  Shackleton  on the

“Law and Practice of Meetings” in paragraph 7.32 while

dealing with special majority states:

"In cases where special majorities are prescribed, the provisions of the relevant statute or rules or rules must be carefully observed. Thus, where under an old Act a motion was  to be “determined  by a majority consisting of two­thirds of the votes of the ratepayers present” at a meeting, and 37 were present, the votes of 20 ratepayers in favour of the motion (the remainder abstaining) were

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deemed to be insufficient to comply with the statute.”

9. In the present case statute, Section 35(3) refers

to majority as “a majority of not not less than two­

third of the total number of the members who are for

the time being entitled to sit and vote at any meeting

of the Panchayat”. The above expression clearly

indicates the majority of not less than   two­third of

the “total number of the members who are for the time

being entitled to sit and vote”. The key words in the

expression are members who are for the time being

entitled to sit and vote at a meeting in the Panchayat.

The computation of majority thus refers to “entitlement

to sit and vote at any meeting”. Thus, the number of

members who are entitled to sit and vote in a meeting

have to be taken into consideration for computing the

majority. Total number of members being nine and one

member being disqualified to sit and vote, the

computation of majority has to be on the basis of

number eight,   two­third of the number eight will be

5.33. The Submission of the respondent is that the

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two­third majority has to be computed out of the

members present and voting i.e. seven excluding one

member who was unqualified to vote and five is more

than  two­third of seven, the majority has been rightly

passed. The interpretation put by the learned counsel

for the respondent cannot be accepted in view of the

clear  language of  statute. The crucial words in the

statute are members “who are for the time being

entitled to sit and vote”. This, expression cannot be

treated to be expression  members present and voting.

The submission of the respondent that for computation

of majority number of seven members should be treated,

cannot be accepted.

10. The next submission pressed by the respondent is

that for applying the principle of rounding off 5.33

votes have to be rounded as to five. Thus, five votes

are sufficient to accept majority for the purpose of

passing no­confidence motion. Whether 5.33 votes can be

rounded up into 5 votes or requirement is at lest six

votes is the real issue. When there are  clear words in

the statute i.e. “not less two­third of the total

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number of members” applying the principle of rounding

off, 5.33 vote cannot be treated as 5. Vote of a person

cannot be expressed in fraction. When computation of a

majority comes with fraction of a vote that fraction

has to be treated as one vote, because votes cannot be

expressed in fraction. The principle that figure less

than .5 is to be ignored and figure more than .5 shall

be treated as one, is  not  applicable in the statutory

scheme as delineated by Section 35. Provision of

Section 35(1) which provides for requirement for moving

motion of no­confidence by not less than one­third of

the total number of the members who are for the time

being entitled to sit and vote at any meeting of the

Panchayat, is the same expression as used in sub­

section (3). Obviously, requirement of not less than

one­third number for moving motion has to be computed

from total number of the members who are entitled to

sit and vote.  Thus, the same expression having been

used in sub­section (3) of Section 35 both the

expressions have to be given the same meaning. Thus,

one­third of total number of members who are entitled

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to sit and vote have to be determined on the strength

of members entitled to vote at a particular time. The

same meaning has also  to be applied while  computing

two­third majority.

11. Learned counsel for the appellant has placed

reliance on two judgments, one, of this Court in State

of U.P. and another vs. Pawan Kumar Tiwari and others,

(2005) 2 SCC  10. In  the above case, this Court was

considering applicability of percentage of reservation

in the context of U.P. Public Services (Reservation for

Scheduled Casts, Scheduled Tribes and Other Backward

Classes) Act, 1994. The percentage prescribed for the

reservation category in the State of U.P. noticed in

paragraph 2 of the judgment. Respondent belonging to

general category was at the top of the waiting list. He

filed a writ petition directing the State to issue a

letter of appointment to the respondent. The High Court

held that 50 % of general category which was 46.50

ought to have been treated as 47. The High Court had

allowed the writ petition and held the respondent

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entitled for appointment as 47th general category

candidate. The appeal filed by the State was dismissed

by this Court. Paragraph 2,6 and 7 of the judgment are

as follows:

“2. The percentages of reservation, as applicable and as was actually applied, are set out in the following table:

Category Percentage (prescribed)

Percentage worked out

to

Number of posts reserved

General 50% 46.50 46 Scheduled Castes

21% 19.53 20

Other Backward Classes

27% 25.11 26

Scheduled Tribes

2% 1.86 1

6. The High Court has found mainly two faults with the process adopted by the State Government. First, the figure of 46.50 should have been rounded off to 47 and not to 46; and secondly, in the category of freedom fighters and ex­servicemen, total 3 posts have been earmarked as horizontally reserved by inserting such reservation into general quota of 46 posts which had the effect of pushing out of selection zone three candidates from merit list of general category.  

7. We do not find fault with any of the two reasonings adopted by the High Court. The rule of rounding off based on logic and common sense is: if part is one­half or more, its

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value shall be increased to one and if part is less than half then its value shall be ignored. 46.50 should have been rounded off to 47 and not to 46 as has been done. If 47 candidates would have been considered for selection in general category, the respondent was sure to find a place in the list of selected meritorious candidates and hence entitled to appointment. ”

12. The judgment of this Court in the above case was on

rounding off the vacancies. The reserved post being 50%

of the total number of posts reservation in no manner

can exceed 50%. In the facts of aforesaid case, there

were total 93 posts, 47 was   treated more than 50%.

Hence, the post for general category which was 46.50

was rounded off to 47 by the High Court which was

approved by this Court. The said case related to

computation of vacancies for particular category as per

1994 Act which principle cannot be applied in

computation of a special majority as required by the

statute in question.

13. Another judgment is a Full Bench judgment in Jayram

vs. Secretary, U.D.D. Mumbai, 2010 (3) MH. LJ 465,

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which is relied by learned counsel for the respondent,

by referring to the judgment of this Court in  Pawan

Kumar Tiwari (supra)  the Full Bench of Bombay High

Court held that there is no justification that

fraction below 0.5 be ignored in allotting the seats to

registered or recognised parties on the basis of groups

as per statutory scheme delineated by Bombay Provincial

Municipal Corporations Act, 1949. Referring to the

judgment of this Court in Pawan Kumar Tiwari (supra) in

paragraph 31, the Full Bench of Bombay High Court has

rightly held that rounding off was not the ratio or

principle on which Pawan Kumar Tiwari case was decided.

Paragraph 31 of the judgment is quoted below:

"31. Mr. Anturkar, learned Counsel vehementaly contended that rule of rounding off is now well recognised and is based upon the logic and common sense. For this he relied upon  State  of U.P.  vs. Pawan Kumar Tiwari, (2005) 2 SCC 10. In that case, 93 posts of Civil Judges, J.D. were advertised and 50% of the posts were reserved for different categories and  50% were for the general or open category. In view of this percentage 46.50 seats would be available for reserved category and 46.50 for general category. The State Government rounded off the number of posts available for general category at 46 and for the reserved category at 47. The High

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Court found fault with the process and held that the number of posts available for general category could not be rounded off at 46, but should have been rounded off at 47. The Supreme Court dismissed the appeal of the State Government and held that if the seats for reserved category are fixed at 47, it would cross the limit of 50% and therefore it could not be upheld and as such number of posts available for reserved category could be fixed at 46 and that for general category should have been fixed at 47. Their Lordships observed as follows in para 9:­

“9.  There  is  yet  another  reason why  the judgment of the High Court has to be maintained. The total number of vacancies was 93. Consequent upon the allocation of reservation and calculation done by the appellants, the number of reserved seats would be 47, leaving only 46 available for general category candidates. Meaning thereby, the reservation would exceed 50% which would be unconstitutional. The total number of reserved seats could not have been more than 46 out of 93. ”

In fact, in this case, both the groups had 46.5 and if the same formula would be applied, then in each case .50 could have been rounded off to 1 and each of the group would be entitled to 47 seats. In that case, the total number would become 94, while the total vacancies available were only 93. Thus, rounding off is not the ratio or principle on which that case was decided. It was decided mainly on the question as to whether reserved categories may get seats more than 50% quota. Therefore the authority in Pawan Kumar Tiwari's case could not be used in support of the view taken in Vasant Gite.”

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14. Further, in paragraph 34 Full Bench of Bombay High

Court  itself held  that there is no justification to

ignore fraction below 0.5 in the context of allocation

of registered or recognised parties or groups who are

entitled to number of seats. The above judgment of the

Bombay High Court in no manner supports the case of

respondent rather supports the appellant's contention.

15. Learned counsel for the appellant in so far as

disqualification of one of the members who had not

filed her caste certificate relied on  Anant vs. Chief

Election Commissioner, 2017 (1) Mh.L.J. 431, before the

Full Bench the issue was raised as to whether on non­

submission of caste certificate within six months

period disqualification is automatic. Answering the

reference Full Bench held that the provision for

requiring submission of caste certificate within a

period of six months for election is mandatory and

disqualification would be automatic. In paragraph 100

of the judgment the Full Bench held the following :

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“100. In the result, we hold that the time limit of six months prescribed in the two provisos to Section 9A of the said Act, within which an elected person is required to produce the Validity Certificate from the Scrutiny Committee is mandatory.  

Further, in terms  of second proviso to Section 9A if a person fails to produce Validity Certificate within a period of six months from the date on which he is elected, his election shall be deemed to have been terminated retrospectively and he shall be disqualified for being a Councillor.

Such retrospective termination of his election and disqualification for being a Councillor would be automatic and validation of his caste claim after the stipulated period would not result in restoration of his election.

The questions raised, stand answered accordingly. ”

16. It is further relevant to note that this Court in

Special Leave Petition (C)Nos. 29874­29875 of 2016

(Shankar s/o Raghunath Devre (Patil) vs. State of

Maharashtra & Ors.) has approved the view taken by the

Full Bench vide its judgment dated 23.08.2018 by

holding that the requirement of submitting caste

certificate is mandatory.

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17. Thus, in so far as vote of one member, Smt. Sushila

Prakash Darade, the same can neither be computed for

the no­confidence motion nor is relevant for computing

two­third majority as per the statutory scheme. The

words 'not less than' used in Section 35(3) of the Act

has to be given meaning and purpose. When majority

comes to 5.33 votes “not less than 5.33 votes” have to

be given meaning, hence, 5.33 can never be rounded off

to 5, fraction has to be treated as one because votes

cannot be treated as fraction. Hence, 5.33 votes to be

read as 6 votes for passing of the motion as mandated

by Section 35(3).

18. We are, thus, of the view that no­confidence motion

was not validly passed and the order of the Addl.

Collector as well as of the High Court are erroneous.

It is held that motion of no­confidence was not passed

against the appellant since it was not passed by less

than two­third of the total number of the members who

were for the time being entitled to sit and vote. The

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proceedings dated 14.09.2018, order of the Addl.

Collector approving the proceedings as well as the

judgment of the High Court dismissing the writ petition

are set aside. The appeal is allowed accordingly.

.........................J. ( A.K. SIKRI )

..........................J.     ( ASHOK BHUSHAN )

..........................J. NEW DELHI, ( S. ABDUL NAZEER ) December 10, 2018.