Duyu Sambyo and Others Vs Secretary, (Panchayat Raj), Government of Arunachal Pradesh and Others

P.K. Musahary, J.@mdashHeard Mr. Habung Tangu, learned Counsel for the Petitioners, Mr. N. Lowang, learned Addl. Senior Government Advocate appearing for Respondent Nos. 1 and 2 and Mr. S. Koyang, learned for the Respondent No. 4. None appears on behalf of the private Respondent No. 3 in spite of notice being served upon him.

2. The fact leading to filing of this writ petition may be stated thus: The Petitioners, 11 in number, are directly elected members of 7-Reru-Kalung Anchal Samiti Segment, Ziro-1. The Respondent No. 4 was also elected as Anchal Chairperson for the aforesaid segment of Anchal Samiti. The Petitioners, on several occasions, approached the Respondent No. 4 with request to convene meeting to discuss about the implementation of development schemes in the said Anchal Samiti Segment but he turned deaf ear and as a result, many schemes remained unimplemented. They, having lost confidence on Respondent No. 4, initiated no confidence motion against him under the provision of Section 63 of the Arunachal Pradesh Panchayati Raj Act, 1997 (''1997 Act''). A meeting was convened on 25.8.2010 for discussion on the no confidence motion. Altogether 17 members remained present in the meeting and cast their votes. All the 11 Petitioners/AS Ms cast their votes in favour of motion while 6 members/AS Ms including Respondent No. 4 cast their votes against the motion. The Member Secretary concerned prepared minutes of no confidence proceeding of the meeting held on 25.8.2010 in which he recorded that two-thirds (2/3) of total 17 AS Ms is 11.33 and as the Petitioners could not secure two-thirds (2/3) of the total directly elected members, no confidence motion was rejected.

3. The instant writ petition has been filed by the Petitioners challenging the legality and validity of the impugned order dated 25.8.2010 passed by the Respondent No. 3. Mr. Tangu, learned Counsel for the Petitioners submits that since 11 elected members voted in favour of motion, they have secured the required two-thirds (2/3) clear majority within the meaning of Section 63 of the 1997 Act and the Member Secretary should have declared the motion passed and the Respondent No. 4 ceased to hold the office of the Chairperson. Mr. Tangu further argues that two-thirds (2/3) majority of total 17 members is 11.33, that means, there was a shortage of point thirty-three (.33) as the motion was supported by 11 members and the said shortage of point thirty-three (.33), being negligible is to be ignored as per the decimal rules in mathematics inasmuch as point thirty-three (.33) is less than the half (1/2) and the Respondent-Member secretary committed a serious mistake in not ignoring the fraction point thirty-three (.33) and rejecting the no confidence motion. He also argues that the lesser fraction is to be ignored inasmuch as a living person cannot be divided into fraction and the fraction of point thirty-three (.33) of a person cannot be accepted for the purpose of counting the votes. In support of this submissions, he relies on the decision of a Single bench of this Court in Jiten Saikia and Another Vs. State of Assam and Others, . For proper appreciation he would submit that even in the election of President prescribed under (c) of Article 55 of the Constitution of India, each of the elected members of either house of parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assembly of the State. Under Clause (a)(b) by total number of elected members of both the houses of Parliament, fraction exceeding 1/2 (.5) is counted as 1 and the other fraction which is less than 1/2 (.5) are disregarded/ignored, which is similar to the provision contained in Rule 8 of the Arunachal Pradesh Panchayati Raj (Delimitation of Constituencies and Reservation of Seats for Women) Rules, 2002. By adopting the above mentioned cut of line relating to fraction point thirty-three (.33), which is in question, is negligible and as such, the same is liable to be ignored.

4. Countering the above submissions. Mr. Koyang, learned Counsel for the Respondent No. 4 submits that under the existing provision of the Act, there is no scope for ignoring even the negligible fraction. The movers of the no confidence motion in the house of 17 members, they have to secure 11.33 to achieve the required 2/3 majority. The shortage of point thirty-three (.33) is not to be considered as negligible fraction. Similarly, the bigger fraction secured by the group against the motion cannot also be ignored. This view, according to Mr. Koyang, was taken by the Allahabad High Court in Smt. Meera Devi Vs. State of U.P. and others, In this regard, he also relies on the decision of a Division Bench of Chimna Ram Vs. State of Rajasthan and Others, The no confidence motion, according to him, was rightly declared lost vide impugned order passed by the Respondent No. 3 strictly under the provision of Section 63 of the Act and as such, no interference with the same, is warranted.

5. As per the pleadings of the parties, the facts are found undisputed. The dispute remains focussed on the calculation of fraction, more precisely, whether the fraction below point fifty (.50) is to be rounded up to make 11.33 as 12 to attain the required two-thirds (2/3) majority of 17 members to get the no confidence motion passed.

6. It will be of assistance if the relevant provisions of Section 63 of the Arunachal Pradesh Panchayati Raj Act, 1997 is reproduced and considered.

63. (1) A Motion of no confidence may be moved by one-third of the total number of directly elected members of a Gram Panchayat or an Anchal Samiti or a Zilla Parishad against its Chairperson after giving at least seven days notice in writing to the Member Secretary or any other prescribed authority of Gram Panchayat or Anchal Samiti or Zilla Parishad of their intention to move such a motion.

(2) If the motion is carried by a majority of not less than two-thirds of the total number of directly elected members of the Gram Panchayat or an Anchal Samiti or a Zilla Parishad, present and voting, the Chairperson shall cease to hold office.

(3) Notwithstanding anything contained in this Act, the Chairperson of a Gram Panchayat or an Anchal Samiti or a Zilla Parishad shall not preside at a meeting in which a motion of no-confidence against him is under discussion, but he shall have the right to speak or otherwise take part in the proceedings of such meeting.

The whole emphasis is put on the phrase "not less than two-thirds" of the total number of directly elected members of the Gram Panchayat or an Anchal Samiti or a Zilla Parishad, present and voting.

7. I have gone through the judgment rendered by this Court in Jiten Saikia and Anr. (supra) wherein, it has been held that for computing two-thirds (2/3) majority, even a fraction less than.5 cannot be ignored and should be read as 1. Apparently this principle sounds to be applicable to the present case also. But it needs further examination and consideration. In the said case, the Panchayat body concerned consists of 5 directly elected members. Out of 5-members, 3 voted for the motion and 2 against the motion. Two-thirds (2/3) majority of 5 members would be 3.3 and it was called upon the court whether.3 for the purpose of computing two-thirds (2/3) of total number of elected members could be ignored or be rounded up to the next higher integer. On consideration of facts and circumstances of the case and also the case laws of various High Courts, a Single Bench of this Court took the view that for computing two-thirds (2/3) majority of the total members, any fraction even if it is less than.5 should be read as 1 and consequently the resultant number would be the next higher integer. Accordingly, it was held as under:

12.*** Any fraction howsoever small may be, would represent the corresponding opinion also essential for comprising the required majority for unseating the President or the Vice-President and, thus, cannot be ignored. To overlook the fraction would be to emasculate the provision of its rigour and reduce the exercise to a formality. This cannot be the intention of the Legislature on an issue of such moment. In the instant case, the required number elected members of the Anchalik Panchayat to requisition and move a No Confidence Motion against the Petitioner No. 1, thus, should have been 4. Admittedly, only three, namely the Respondent Nos. 4, 5 and 6 have participated in the said exercise. This in my view is not in conformity with the mandatory requirement laid down by Section 423 of the Act. To approve the impugned action would tantamount to trivializing the clear edict of the provision.

But, I am afraid, I could subscribe to the aforesaid opinion and conclusion arrived at by the learned Single Bench in the said case. There is a marked difference in Section 43 (1) in the provisions under Assam Panchayat Act, 1994 and Section 63(2) of the Arunachal Pradesh Panchayati Raj Act, 1997. As per provision u/s 43(1) of the Assam Panchayat Act, 1994, "a President and a Vice-President shall be deemed to have vacated his office forthwith if two-thirds (2/3) majority of its total elected members by a resolution express want of their confidence in him" whereas u/s 63 (2) of 1997 Act, it is provided that "A Chairperson shall cease to hold office if a motion is carried by a majority of not less than two-thirds of the total number of directly elected members of the Gram Panchayat or an Anchal Samiti or a Zilla Parishad, present and voting". The Assam Panchayat Act, 1994 has not employed the pre-fixing phrase "majority of not less than two-thirds" and it leaves the house with a scope for passing the no confidence motion by a majority of two-thirds (2/3) of its total elected members as provided under Assam Panchayat Act, 1994. Situated, thus, it can be said that the learned Single Bench of this Court rightly held that any fraction less than.5 can be read as 1.

8. A full Bench of the Allahabad High Court in Wahid Ullah Khan Vs. District Magistrate, Nainital and others, held that rounding off figure is permissible where a particular figure has to be arrived at. In the said case, it has been held that 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 no confidence meeting validly convened must vote in favour of motion if it has to be ''carried and in case it falls short of a fraction, the fraction vote would be rounded off for the purpose of computing the two-thirds. As per the aforesaid two judgments, the rounding off a figure is permissible to cover the shortage by fraction. This is an accepted principle but whether the same principle can be applied, if the provision for passing the no confidence motion is specifically provided as, "not less than two-thirds". Whether the expression "at least two-thirds" is having the same meaning, purport and import as the expression "not less than two-thirds"? The expression "not less than two-thirds" of the total number of directly elected members is compulsive and the provision u/s 63(2) of 1997 Act is mandatory. The said provision must be complied with to remove the elected Chairperson, no relaxation can be introduced by ignoring the fraction short of attaining the two-thirds majority. If such relaxation is given by rounding off the smaller fraction as 1, the higher fraction found against the motion, in the present case, which is.67 i.e. a higher fraction cannot also be ignored. It means that.67, if rounded off to 1, the Respondent No. 4, should be treated to have obtained the higher integer, i.e., 7 in place of 6.67. In that case, the no confidence motion would fall flat by a small fraction."

9. It is the unanimous decision of the various High Courts that the provision in regard to passing of "no confidence motion" should be applied strictly and stringently in either ways, whether it is provided for "two-thirds (2/3) majority" or " at least two-thirds" or "not less than two-thirds majority". The expression "not less than two-thirds" has the import and purport of more stringency. It means that the movers of the no confidence motion must have the required clear majority of two-thirds and not even less than or short by a fraction and a small fraction less than.1 should be treated as less than the required majority and in such case, the principle of rounding off the small fraction would not be available. The philosophy behind it is that by way of moving the no confidence motion, a duly elected Chairperson is sought to be removed from public office and such removal would be possible only by obtaining a clear minimum majority of not less than two-thirds. The mandate of the people in electing the grass root democratic institution like Panchayat could not be neglected and the tendency of moving motion for removal of Chairperson by way of obtaining a simple two-thirds majority should be discouraged. It may be easy to obtain a simple two-thirds majority for getting through the no confidence motion but it would not be so easy to get the "not less than two-thirds majority" for the motion.

10. In the growing trend of horse-trading in getting the required majority right from the apex house like Parliament and down to the lowest democratic institutions like Gram Panchayat, the law makers have felt it necessary to enact more stringent law by making provision like Section 63 in the 1997 Act inserting the phraseology like "not less than two-thirds majority"; The court cannot undermine the purposive legislative intention to protect the democratic institutions, either at the top or at the grass root. The law has to be read and interpreted taking into account the need of the present time and society. It should be borne in mind that under the Constitution (73rd Amendment) Act, 1992, the Panchayati Raj Institutions have been given constitutional status to fulfil Gandhiji''s dream for "Gram Swaraj" and the 1997 Act has been enacted to implement the amended constitutional provisions,

11. A full Bench in Ashok Maniklal Harkut Vs. The Collector of Amravati and Another, has held that whenever Legislature wanted that the fraction should be ignored, it has to be specifically provided and without such provision in the Act, the fraction cannot be ignored because if the fraction is ignored, then, majority will be less than two-thirds of the members. The aforesaid case is related to a proposal to move a resolution to remove the President of the Municipal Council, Chandur Bazar and u/s 55 of the relevant Act, it is provided that a resolution is to be passed of a majority of not less than two-thirds of the total Members/Counsellors. The case at hand is quite similar and the reasoning given in the said case can be applied to.

12. Considering the entire facts and circumstances of the case, materials placed and also considering the legislative intention behind the relevant Constitutional Amendment and also the consequential Act of 1997, enacted by the State Legislature, I come to a conclusion that there is no scope for ignoring even a fraction in counting and/or determining the majority of not less than two-thirds of the total number of directly elected members of the Panchayat body and declare the no confidence motion passed by rounding off the smaller fraction to-1-to the advantage of the group moving the no confidence motion. The Respondent-Member Secretary has rightly rejected the no confidence motion as not being passed as per the provision u/s 63(2) of the 1997 Act. So, I refrain from interfering with the impugned order 26th August, 2010 passed by the Member Secretary, 7-Reru Kalung Anchal Samiti in the proceedings of the "No Confidence Motion" against its Anchal Chairperson/Respondent No. 4.

13. The petition stands dismissed.

14. No costs.