Gayam Eswaramma vs Government of A.P. and others

This writ petition is filed challenging the validity of the explanation to Rule 6 of the Rules framed in G.O. Ms. No.200, Panchayat Raj and Rural Development (Mandal-I), dated 28-4-1998 (hereinafter referred to as ''the Rules''), rotating to the motion of no confidence against the Upa-Sarpanch of the Gram Panchayat or President or Vice-President of Mandal Parishad, or Chairman or Vice-Chairman of the Zilla Parishad, as being ultra vires of Section 245(2) of the A.P. Panchayat Raj Act, 1994 (in short referred to as ''the Act'') and consequently declare the proceedings of vote of no confidence moved against the petitioner as illegal and without jurisdiction.

According to the case of the petitioner, petitioner is Mandal President of Hanumanthapadu Mandal, Prakasam District and there are 8 MPTC members in the said Mandal Parishad. The office of the President of the Mandal Parishad is reserved for woman candidate and the petitioner is the woman President. It is the further case of the petitioner that a motion expressing want of confidence in her, was presented before the Revenue Divisional Officer, the 2nd respondent herein, on 5-8-1998 and in pursuance of the said motion, 2nd respondent issued a notice dated 7-8-1998 convening the meeting, for consideration of vote of no confidence at 1.00a.m. on 27-8-1998. Out of eight members, five members have voted in favour of the motion. The petitioner alleged that petitioner has been doing good work, to the satisfaction of the people, but five members belonging to Telugu Desam party want to remove her from the post of President, as the petitioner and two others belong to the Congress party. These proceedings are initiated against her with a mala fide intention only to see that the petitioner is ousted from her office. The petitioner contended that whatever it may be, the explanation to Rule 6 of the Rules is ultra vires of Section 245(2) of the Act and consequently, the proceedings of vote of no confidence moved against the petitioner would be illegal and without jurisdiction,

By filing a counter, these allegations of the petitioner are denied by the official respondents. It is contended that the rule is infra vires of Section 245 of the Act and as such there is no illegality in the impugned proceedings.

The learned senior Counsel, Sri Ramana Reddy, appearing for the petitioner submitted that the rule, enabling the authorities to round off a fraction of 0.5 and above as one and to ignore a fraction of less than 0.5, would be inconsistent to Section 245(2) of the Act, under which vote of no confidence may be passed by not less than two-thirds of the total number of members. In the instant case, out of eight members, five members not only have signed the requisition for Motion of No Confidence, but they have voted in favour of the motion. But two-thirds of these eight members conies to 5.33 and if that is so, the motion falls short of 0.33 per cent, in order to constitute two thirds of the eight members. He elaborated his contention by contending that not less than two-thirds of the members shall vote in favour of the motion, for motion being carried out, and that two-thirds should necessarily be not less than 5.33 of eight members in order to constitute two-thirds in terms of Section 245(2) of the Act. But the explanation to Rule 6 of the Rules enables the authorities to ignore a fraction less than 0.5 and if that fraction of less than 0.5 is ignored in terms of the said Rule, two-thirds would not be constituted and in these circumstances, the said Rule enabling the authorities to ignore a fraction less than 0.5, would be hit by Section 245(2) of the Act. Therefore, the said Rule is liable to be struck down. He relied upon certain judgments of this Court and other High Courts, which I will be considering them while taking up this point for consideration. On the other hand, the Counsels appearing for the official respondents and as well as for the non-official respondents, contended that the rules framed u/s 268 of the Act enables the rule making authority to make the rules to carry out all or any of the purposes of this Act and the impugned Rule enabling the authorities to adjust the fractions less than 0.5 as nil and more than 0.5 as one, intends to carry out the purposes of this Act. Moreover, u/s 245(1) of the Act, the action, regarding vote of no confidence shall be taken in accordance with the procedure prescribed and by the impugned Rules, the authorities have prescribed this procedure. Therefore, the impugned rule is intra vires of the Section 245 of the Act and consequently, the vote of no confidence passed against the petitioner is valid.

It is now admitted on both sides that vote of no confidence has been passed against the petitioner by five members present and voting and only a declaration has to be made by the Government and this Court has granted stay of issue of gazette notification.

In order to appreciate the rival contentions, I have to first sec Section 245(1) and (2) of the Act, which reads as under:

"245. Motion of no confidence in Upa-Sarpanch, President or Chairman :--

(1) A motion expressing want of confidence in the Upa-Sarpanch or President or Vice-President or Chairman or Vice-Chairman may be made by giving a written notice of intention to move the motion in such form and to such authority as may be prescribed, signed by not less than one-half of the total number of members of the Gram Panchayat, Mandal Parishad, or as the case may be the Zilla Parishad and further action on such notice shall be taken in accordance with the procedure prescribed :

Proved that no notice of motion under this Section shall be made within two years of the date of assumption of office by the person against whom the motion is sought to be moved;

Provided further that no such notice shall be made against the same person more than once during his term of office.

(2) If the motion is carried with the support of not less than two thirds of the total number of members in the case of a Upa-Sarpanch, the Commissioner shall and in the case of President or Vice-President or the Chairman or Vice-Chairman, the Government shall by notification remove him from office and the resulting vacancy shall be filled in the same manner as a casual vacancy, "

From the reading of Clause (t) to Section 245 it is clear that the motion expressing want of confidence may be made by giving a. written notice of intention to move the motion in such form and to such authority as may be prescribed and signed by not less than one-half of the total number of members and further action in pursuance of such notice shall be taken in accordance with the procedure prescribed. Thus, clause (1) to Section 245 enables the rule making authority to prescribe the procedure regarding the Motion of No Confidence. Section 2(30) of the Act defines "prescribed", which means prescribed by the Government by rules made under this Act. u/s 268 of the Act, the Government also has the power to make rules to cany out all or any of the purposes of this Act. From reading of Section 245(1), read with Section 2(30) along with Section 268 of the Act, one tiling is certain that the Government has the power to prescribe the procedure regarding the Motion of No Confidence. At the same time, it would be kept in mind that under these provisions, the rule making authority can frame rules either u/s 245(1) or u/s 268 of the Act, but not being inconsistent to the substantive provisions of the Act. It is an established law that the deligated legislation shall not be inconsistent to the principal legislation. Now the short question for my consideration would be whether explanation to Rule 6 of the Rules is inconsistent to Section 245(2) of the Act, or not.

The history of legislation regarding Gram Panchayat Act would reveal that a similar provisions were made in the earlier Act, as to how to determine a fraction of the required two-thirds strength of the members of the Committee. For instance Section 51(4) of the A.P. Gram Panchayats Act, 1964, which is now repealed by the present Act, i.e., A.P. Panchayat Raj Act, 1994 is one such provision, I think it appropriate to extract the same as under;

"51(4): The said officer shall preside at such meeting. The quorum for such meeting shall be two-thirds of the total strength of the Gram Panchayat. Explanation :--In the determination of two-thirds of the total number of members under this Section, any fraction arrived at shall be construed as one."

From the above provision of A.P. Gram Panchayats Act, 1964, it is clear that for determining the two-thirds of the total number of members, u/s 51(4) of 1964 Act, any fraction arrived at, shall be construed as one. From this provision it appears that the Legislature intended that any fraction shall be rounded off to one, in order to constitute or fulfil two-thirds requirement. In other words, such a fraction is important in order to arrive at a mathematical figure of two-thirds requirement and if there is any fraction, either less than half or more than half, and if it is rounded off to one, definitely it results in two-thirds requirement. Thus the fraction assumes importance for constituting that two-thirds requirement. And if any fraction is ignored, and such ignoring the fraction would result in the non-fulfilment of the two-thirds requirement, then such fraction cannot be ignored at all, and if there is a fraction which is more than two-thirds requirement, then it would be only redundant, but no inconsistent to the Act. From this analysis of "the concept of two-thirds requirement", it is clear that the Legislature always intended to accommodate a fraction which is surplus, rather than ignoring a fraction which -defeats the section. In the decision reported in Meera Devi v. State of U.P., AIR 1998 All. 157, a similar circumstances had arrived before the High Court of Allahabad and that Court had an occasion to consider such "fraction'''', in order to constitute two-thirds requirement u/s 14 of the U.P. Panchayat Raj Act (26 of 1947). In that case, the High Court of Allahabad referred to its earlier judgment reported in Arunandra Singh v. Disft. Panchayat Raj Officer, Unnao, 1979 (3) AWC 1662, in paragraph No.4 of its judgment. It noted that in tliat earlier case seven out of eleven members had voted in favour of motion, while four against that motion, and mathematically the two-thirds requirement of eleven members, present on voting, would come to 7.33 u/s 14(1) of the U.P. Panchayat Raj Act, and corresponding Rule 33-B (5)(viii) and the figure 7.33 would have to be, as a necessary consensus be rounded off to ''8'' inasmuch as unless eight members voted in favour of Non-Confidence Motion, it cannot be said that Motion has been carried out, since it could not make up the required majority of two-thirds. Following the said judgment, the Full Bench of that Court took the similar view of such "fraction", on the basis of its two earlier decisions and ultimately held as under:

"The expression ''majority'' of two thirds has the same purport and import as the expression ''at least two-thirds''. It means that at least two thirds of the members present and voting at a non-confidence meeting validly convened must vote in favour of motion if it has to be carried. In case it falls short by a fraction, the fraction vote would be rounded off for the purpose of computing two-thirds majority".

The Court further observed that in prescribing such two-thirds majority, the Legislature took into consideration the prevailing social environment and the same has been provided by way of safeguard against any arbitrary exercise of the power of removal. The Court, on the facts of the case on hand, held that out of fourteen members, two-thirds comes to 9.33 and if only nine persons have voted in favour of the motion of no confidence, then it fall short of 0.33, so as to constitute two-thirds and hence the motion had to fail. From this judgment also it is clear that the statutory requirement of two-thirds cannot afford to be shorter even by "fraction". To the same effect also is the Full Bench judgment of the Bombay High Court reported in Ashok Maniklal Harkut Vs. The Collector of Amravati and Another, . In that case also there was an argument that while counting two-thirds majority, the fraction should be ignored. Considering such contention, the High Court of Bombay held that if the Legislature intended that such a fraction should be ignored, it should have provided for the same and if the Legislature did not intend that such a fraction should be ignored, in that event, such fraction could not be ignored at all. For the purpose of this proposition, in fact the Full Bench of the Bombay High Court followed the other two judgments of this Court and ultimately held that expression "not less than two-thirds" is mandatory, because if a fraction is ignored, then the majority will be less than the requisite number of Councillors, required to pass a No Confidence Motion, and the provision is mandatory and as such the number of votes must not be less than two-thirds, though it may be more. Having regard to the importance of the proposition of this law, I think it appropriate to extract the relevant part of the said judgment as under:

" 18. The contention of Shri Bode that while counting two-third majority, the fraction should be ignored cannot be accepted in view of the wording of the Section. In support of his contention Shri Bodi has placed reliance upon the decision of the Andhra Pradesh High Court in Koneru Ramakrishna Vs. The Director of Medical Service and Others, it is of little assistance, for construing the present provision. Whenever Legislature wanted that the fraction should be ignored or should be rounded up it has specifically provided for it. Proviso to Section 9(1), Sections 9(2)(b)(c), 19(1), 63(1), 65(2), 81(a), 82(2)(iv), in terms provide that where there is a fraction it should be ignored. Section 9(2)(c) provides for rounding up of a fraction. It lays down that if a fraction is less than one half it is to be ignored and if it is one half or more, then it shall be reckoned as one. Thus it is clear that whenever Legislature wanted that the fraction should be ignored it has specifically provided for it. In Section 55 such a provision is advisedly not made. Sub-sections (1) and (2) of Section 55 uses the expression "not less than". If a fraction is ignored then the majority will be less than the requisite number of Councillors required to pass a Motion of No Confidence. The provision is mandatory. The number of votes must not be less than two-thirds, though it may be more. If the fraction is ignored that majority will be less than two-thirds of the Councillors. Further in the present case the resolution of vote of no confidence has been passed by the majority of not less tlian two-thirds of the total number of Councillors entitled to sit and vote at the meeting."

From the judgments of this Court reported in Koneru Ramakrishna Vs. The Director of Medical Service and Others, and M. Narasimha Rao Vs. Secretary to the Government Medical and Health Department Government of Andhra Pradesh and Others, , also it is clear that mis Court always rounded off any fraction to one, since ignoring any fraction would defeat the minimum statutory requirement. Having regard to the consistent view of this Court and of the High Court of Allahabad and also keeping in view Section 51(4) of the A.P. Grain Panchayats Act, 1964, it is clear that the statutory requirement cannot be defeated by ignoring any fraction. In fact, as I have already stated above, the previous Act, i.e., the A.P. Gram Panchayats Act, 1964, which is repealed by the present Act, i.e., the A.P. Panchayat Raj Act, 1994, had rounded off the fraction into one, rather than ignoring any fraction either being less than half etc. It is also an established rule of interpretation that while interpreting a particular provision, if the history of the legislation throws a better light, the same also could be considered. From these circumstances, it is difficult to sustain a part of the explanation added to Rule 6 of the Rules. For immediate reference, I am extracting the said rule as under:

"6. The quorum for such meeting shall be two thirds of the total number of members.

Explanation :--For the purpose of this rule it is hereby clarified that in the determination of two-thirds of the total number of members under this rule, any fraction below 0.5 should be ignored and any fraction of 0.5 or above 0.5 shall be taken as one."

From the reading of explanation to Rule 6 of the Rules it is clear that the explanation added is clarificatory in nature "to the two-thirds requirement", and it clarifies two-thirds in such a way that if there is any fraction below 0.5, the same should be ignored and any fraction 0.5 or more, should be taken as one. The later part of the explanation that any fraction more than 0.5 should be construed as one, is quite valid because at any rate it ensures the minimum statutory requirement of two-thirds majority and the previous part of the explanation that any fraction below 0.5 should be ignored violate Section 245(2) of the Act, since ignoring such fraction would necessarily lead to the reduction in the minimum of two-thirds requirement. Therefore, in view of the position of law, this part of the explanation cannot be sustained. Hence, I have to necessarily declare the part of the explanation"... any fraction below 0.5 should be ignored" as illegal, being inconsistent to Section 245(2) of the Act. The resultant legal position would be that in order to comply with the required ''two-thirds majority" in terms of Section 245(2) of the Act any fraction below 0.5 or above 0,5 sliall necessarily be taken as one. In the light of this principle of law, now I have to consider the validity of the vote of no confidence passed in the present case.

It is not in dispute in the present case that the total number of members are eight and out of them, five not only signed the requisition for vote of no confidence, but also voted in favour of the motion. Both sides have not disputed that the two-thirds of eight members comes to 5.33. But the persons who have voted in favour vote of no confidence are only five and if that is so, the motion carried out is supported by less than two-thirds of total number of members. As I have already noted above ''not less than'' should necessarily mean at least two-thirds shall vote in favour of motion. As per the law declared by the Supreme Court in the decision reported in Jagan Nath Vs. Jaswant Singh and Others, , the election law shall be construed strictly. And if that is so, the requirement has to be in conformity with the mathematical requirement of two-thirds and out of eight persons, the said two-thirds would be at 5.33 but not at 5. The contention of the respondents that u/s 245(1) of the Act, the Government has the power to prescribe the procedure for such motion of no confidence and, therefore, it is within the power of the rule making authority, even to provide to ignore a fraction, cannot be accepted. Section 245(2) of the Act is a substantive law and any procedure prescribed sliall not be inconsistent to this substantive law. In other words, the substantive law cannot be modified or restricted by the rule making authority under its deligated legislation. Therefore, the motion being voted by five members out of eight members, does not constitute ''two-thirds majority'' in terms of Section 245(2) of the Act, since it falls short by 0.33. Consequently, even the vote of no confidence passed against the petitioner is liable to be declared as illegal.

For the above reasons, I pass the order as under:

It is declared that the clause "any fraction below 0.5 should be ignored" found in the explanation to Rule 6 of the Rules framed under G.O. Ms. No.200, Panchayat Raj and Rural Development (Mandal-I), dated 284-1998, as illegal and ultra vires of Section 245(2) of the A.P. Panchayat Raj Act, 1994. Consequently, the vote of no confidence passed against the petitioner only with the support of five members out of eight members is hereby quashed. Accordingly, the writ petition is allowed. The parties shall bear their own costs.