GANESH SUKHDEO GURULEversusTAHSILDAR SINNAR & ORS.

914                SUPREME[2018]
                           COURT 14REPORTS
                                   S.C.R. 914              [2018] 14 S.C.R.


A                        GANESH SUKHDEO GURULE
                                         v.
                         TAHSILDAR SINNAR & ORS.
                         (Civil Appeal No. 11916 of 2018)
                               DECEMBER 10, 2018
B
                   [A. K. SIKRI, ASHOK BHUSHAN AND
                           S. ABDUL NAZEER, JJ.]
             Maharashtra Village Panchayats Act, 1959 – s.35(3) –
      Majority for holding no- confidence motion – Computation of –
      Respondents moved a no-confidence motion against the appellant
C     – Special meeting of Gram Panchayat for consideration of no-
      confidence motion was held and out of 9 members of the Gram
      Panchayat only 8 members were present in the meeting – 6 members
      voted in favour of the motion and 2 members opposed to it – 1
      member who voted in favour of no-confidence motion was not
D     qualified to vote, so only 5 valid votes were voted in favour of no-
      confidence motion – No confidence motion was passed – A dispute
      application under 35(3-B) of the Maharashtra Gram Panchayat
      Rules, 1958 challenging the no-confidence motion passed was filed
      – Addl. Collector held that no-confidence motion was validly passed
      – Writ petition filed by the appellant was dismissed – On appeal,
E     held: s.35(3) of the Act refers to majority as “a majority of not less
      than two-third of the total number of the members who are for the
      time being entitled to sit and vote” – In instant case, total number of
      members being 9 and 1 member being disqualified to sit and vote,
      the computation of majority has to be on the basis of number 8,
F     two-third of the number 8 will be 5.33 – Furthermore, the words
      ‘not less than’ used in s.35(3) of the Act has to be given meaning
      and purpose – When majority comes to 5.33 votes “not less than
      5.33” 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
G     passing of the motion as mandated by s.35(3) – Thus, no-confidence
      motion was not validly passed and the order of the Addl. Collector
      as well as the High Court were erroneous – Maharashtra Gram
      Panchayat Rules, 1958 – r.35(3-B).

H
                                       914
GANESH SUKHDEO GURULE v. TAHSILDAR SINNAR & ORS.                      915


       Allowing the appeal, the Court                                 A
       HELD: 1. In the present case, Section 35(3) of the
Maharashtra Village Panchayats Act, 1959 refers to majority as
“a majority of 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
                                                                      B
indicates the majority of not less than two-third 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          C
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, two-third of the number eight will be 5.33.
[Para 9][918-G-H; 919-A]                                              D
       2. In so far as vote of one disqualified member, the same
can neither be computed for the no-confidence motion nor is
relevant for computing two-third 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          E
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). [Para 17][923-E-F]
       3. Thus, no-confidence motion was not validly passed and       F
the order of the Addl. Collector as well as of the High Court are
erroneous. It is held that motion of no-confidence was not passed
against the appellant since it was not passed by two-third of the
total number of the members who were for the time being entitled
to sit and vote. [Para 18][923-F-G]                                   G
       State of U.P. and another v. Pawan Kumar Tiwari and
       others, (2005) 2 SCC 10 : [2005] 1 SCR 21 – referred
       to.
       Jayram v. Secretary, U.D.D. Mumbai, 2010 (3) MH.
       LJ 465 ; Anant v. Chief Election Commissioner 2017
                                                                      H
       (1) Mh.L.J. 431 - referred to.
916                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


A                               Case Law Reference
      [2005] 1 SCR 21                    referred to             Para 11
             CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11916
      of 2018.
             From the Judgment and Order dated 22.11.2018 of the High Court
B     of Judicature at Bombay in WP No. 12185 of 2018.
             Ms. Deeplaxmi S. Matwankar and Ravindra Sadanand Chingale,
      Advs. for the Appellant.
             Sachin Patil and Kailas Bajirao Autade, Advs. for the Respondents.
             The Judgment of the Court was delivered by
C
             ASHOK BHUSHAN, J.
             1. 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
D     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.
             3. The brief facts of the case necessary for deciding the appeal
      are:
E              On 07.09.2018, respondents moved a no-confidence motion
      against the appellant. Tahsildar issued notice dated 07.09.2018 convening
      special meeting of Gram Panchayat for consideration of no-confidence
      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
F     voted in favour of the motion and two members were opposed to it. One
      of the members who voted in favour of no-confidence 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(3-B) of the Maharashtra Gram Panchayat Rules, 1958
G     challenging the no-confidence 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 no-confidence motion was 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
H     by the impugned judgment. Aggrieved by the judgment of the High Court
      this appeal has been filed.
GANESH SUKHDEO GURULE v. TAHSILDAR SINNAR & ORS.                              917
             [ASHOK BHUSHAN, J.]

       4. Learned counsel for the appellant submits that total members        A
of Gram Panchayat being nine and one member being disqualified to
vote the two-third 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 no-confidence motion, motion cannot be held to be passed.
One of the members who voted in favour of no-confidence motion i.e.
                                                                              B
Smt. Sushila Prakash Darade being disqualified to sit and vote cannot be
counted in favour of no-confidence motion, two-third majority being 5.33,
at least six votes were required for passing the no-confidence 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 Panchayat.          C
        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, two-third
majority shall be computed from seven and five votes caste in favour of
the no-confidence motion, the motion shall be treated to be validly passed.   D
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 two-third 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 no-
confidence was validly passed against the appellant and rightly upheld        E
by the High Court.
       6. Learned counsel for the parties relied on few judgments which
shall be referred to while considering the submissions.
       7. Section 35 of the Maharashtra Village Panchayats Act deals
with motion of no-confidence. Section 35(1) and Section 35(3) which           F
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-            G
      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 two-
      third of the total number of the members who are for the time           H
918                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


A           being entitled to sit and vote at any meeting of the panchayat or
            the Upa-Sarpanch, 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 Upa-Sarpanch in case the motion is carried out
            against the Sarpanch; and in case the motion is carried out against
B
            both the Sarpanch and Upa-Sarpanch, 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
            sub-section (3B) is decided:”
             8. The main issue which arises for consideration is that what shall
C     be two-third majority for holding the no-confidence 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
D     of she having not submitted her caste certificate after the election. She
      was one out of six members who have voted in favour of no-confidence
      motion. There are five valid votes in favour of no-confidence 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:
E
                “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 two-thirds of the votes of the ratepayers
            present” at a meeting, and 37 were present, the votes of 20
F           ratepayers in favour of the motion (the remainder abstaining) were
            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
G     of the Panchayat”. The above expression clearly indicates the majority
      of not less than two-third 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
H     who are entitled to sit and vote in a meeting have to be taken into
GANESH SUKHDEO GURULE v. TAHSILDAR SINNAR & ORS.                               919
             [ASHOK BHUSHAN, J.]

consideration for computing the majority. Total number of members being        A
nine and one member being disqualified to sit and vote, the computation
of majority has to be on the basis of number eight, two-third of the
number eight will be 5.33. The Submission of the respondent is that the
two-third majority has to be computed out of the members present and
voting i.e. seven excluding one member who was unqualified to vote
                                                                               B
and five is more than two-third 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          C
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    D
of passing no-confidence 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 two-third of the total
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     E
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 no-confidence by not             F
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, is the
same expression as used in sub-section (3). Obviously, requirement of
not less than one-third 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 sub-section (3) of Section 35          G
both the expressions have to be given the same meaning. Thus, one-
third of total number of members who are entitled 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 two-
third majority.                                                                H
920                 SUPREME COURT REPORTS                         [2018] 14 S.C.R.


A           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
B
      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
C     have been treated as 47. The High Court had allowed the writ petition
      and held the respondent 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
D            actually applied, are set out in the following table:
                  Category         Percentage          Percentage       Number of
                                   (prescribed)       worked out to       posts
                                                                        reserved

                   General            50%                 46.50             46
E                Scheduled            21%                 19.53             20
                  Castes
                   Other              27%                 25.11             26
                 Backward
                  Classes
                 Scheduled             2%                 1.86              1
                   Tribes
F
                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 ex-servicemen, total 3 posts
             have been earmarked as horizontally reserved by inserting such
G            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
H            common sense is: if part is one-half or more, its value shall be
             increased to one and if part is less than half then its value shall be
GANESH SUKHDEO GURULE v. TAHSILDAR SINNAR & ORS.                            921
             [ASHOK BHUSHAN, J.]

      ignored. 46.50 should have been rounded off to 47 and not to 46       A
      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     B
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         C
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, which is relied
by learned counsel for the respondent, by referring to the judgment of      D
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
                                                                            E
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    F
      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        G
      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 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        H
922                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


A            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:-
B
                “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
C               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
D            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
E            Pawan Kumar Tiwari’s case could not be used in support of the
             view taken in Vasant Gite.”
              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
F     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,
G     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
H     paragraph 100 of the judgment the Full Bench held the following :
GANESH SUKHDEO GURULE v. TAHSILDAR SINNAR & ORS.                              923
             [ASHOK BHUSHAN, J.]

         “100. In the result, we hold that the time limit of six months       A
      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     B
      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     C
      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. 29874-29875 of 2016 (Shankar s/o Raghunath Devre
(Patil) vs. State of Maharashtra & Ors.) has approved the view taken          D
by the Full Bench vide its judgment dated 23.08.2018 by holding that the
requirement of submitting caste certificate is mandatory.
       17. Thus, in so far as vote of one member, Smt. Sushila Prakash
Darade, the same can neither be computed for the no-confidence motion
nor is relevant for computing two-third majority as per the statutory         E
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).                 F
       18. We are, thus, of the view that no-confidence 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 no-confidence was not
passed against the appellant since it was not passed by two-third of the
total number of the members who were for the time being entitled to sit       G
and vote. The 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.
Ankit Gyan                                                  Appeal allowed.   H