Ashok Kumar and Another vs District Magistrate and Others

R.R.K. Trivedi, J.—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.

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 resignation from the membership of Zila Panchayat on 28.12.1995 which was accepted on 15.12.1996. The order accepting resignation is Aimexure 2 to the writ petition. Thus, the strength of the elected members 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 Collector, 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, 3 7 voted in favour of the motion whereas one member voted against it. The remaining 15 members did not participate in the meeting. The meeting was presided ever by learned 4th Additional District Judge, Fatehpur. The Presiding Officer passed an order 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 u/s 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 Counsel 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 carried 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 members 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 members. 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, counsel has placed reliance in case of Jivendra Nath Kaul Vs. Collector/District Magistrate and Another, ; Wahid Ullah Khan Vs. District Magistrate, Nainital and others, and Mangala Prasad Jaiswal Vs. District Magistrate and Others, .

Shri T.P. Singh, learned Counsel appearing for Respondents, on the other hand, submitted that the Act was originally drafted in Hindi and the Hindi word "TATKALIN" 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" specifically 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 motion 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.

Learned Counsel has further submitted 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 consider as to whether it is a fit case for interference 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 Anr. v. Board of Revenue, U.P. and Ors. 1974 UPTC 570. Learned Counsel has also referred to the Words and Phrases Permanent Edition Volume 27A wherein the word "more" has been defined.

We have seriously considered the submissions of the learned Counsel for parties. However, in our opinion, the controversy 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-sections (12) and (13) of Section 87A of the Act. The only meaning which can be given to the expression "half of (he 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 appreciating the plain meaning of the words "for the time being" in Sub-section (13) of Section 87A of the Act. "For the time being" means at the moment 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 interpretation which does not flow from the simple language of Sub-sections (12) and (13) of Section 87A of the Act. We, therefore, hold that the High Court judgment in Bhaiya Lal''s case does not lay down the correct law and we overrule the same.

The controversy before the Court was with regard to the interpretation of Section 28 of the Act as it then stood. However, even after amendment, there is no change in the phraseology used in Sub-section (11) of Section 28 and the judgment of Hon''ble Supreme Court is squarely applicable to the present case. It is not disputed before us that the motion was supported by 17 elected members on 13.1.1997. If the figure 33 is taken for purpose of application of Sub-section (11) of Section 28 of the Act, half of the total number of members shall be 16-1/2. The figure 17 is naturally more than 16-1/2 and thus the provision has been substantially complied with and the motion ought to have been taken to have been carried out. The submission of learned Counsel for Respondents that as half of the total number of members comes to 16-1/2, it-should be treated as 17 and for making it more than half of the total strength, at least ''1'' should be added, does not appear to be correct and convincing. If the submissions of the learned Counsel for Respondents, are accepted, it may amount to artificial raising of the number, as for coming to the requisite figure firstly a round figure has to be taken of the half of the total members and then figure ''1'' has to be added to make it more than half. In such circumstances, the Court''s effort should be to take a reasonable view which may be nearer to the scheme and object of the Act. The object behind the provision appears to be that motion should be supported by more than half of the elected members which in other words means that the President must retain the confidence of more than 50% of the members for remaining in office. Out of 33, if 17 members do not support Respondent No. 3, he will be in minority as only 16 members will be left in his favour. If the problem is considered in the aforesaid way, it is apparent that the vote of no-confidence was carried out against Respondent No. 3 and the Presiding Officer committed a serious error of law.

The last submission of the learned Counsel for the Respondents was based on the present strength. However, in our opinion, the present strength cannot have any relevance for deciding the fate of the motion of no-confidence on 13.1.1997. The subsequent election of one member cannot affect the result of the meeting held on 13.1.1997. The submission thus cannot be accepted.

For the reasons stated above, this petition is allowed. The order dated 13.1.1997 passed by Respondent No. 2 is quashed. The motion of no-confidence considered and put to vote in the meeting of the Zila Panchayat on 13.1.1997, shall be treated to have been carried out with the support of more than half of the total number of members of Zila Panchayat, Fatehpur against Respondent No. 3 and as contemplated in Clause (b) of Sub-section (11) of Section 28 of the Act, he shall cease to hold office and vacate the same immediately. However, there shall be no order as to costs.