Harmesh Rana v. State of Punjab & Ors.

No.4 by way of preliminary objection has challenged the maintainability of the writ petition on the ground that the impugned resolution has been passed by two-third majority in terms of Section 22 of the Act. As per respondent No.4, the resolution having been passed by 9 members, will constitute two-third majority of 14, which has to be counted as 9, though the actual two-third may work out to be 9.33. The fraction being less than .5 is to be rounded off as 9 and cannot be taken as 10 as per respondent No.4. In contrast to above stand of respondent No.4, respondent Nos.5 to 13 have maintained that strength of the Council is 13 as one member is dead and, thus, would say that no confidence motion has been rightly carried by two-third majority and is legal and proper. Their plea is that Section 22 of the Act does not require that CIVIL WRIT PETITION NO.22496 OF 2011 :{ 6 }: the resolution is to be passed by two-third majority of the sanctioned strength but it simply states that two-third of the members of the committee and as such two-third of 13 members would be 9 and this was the number of the members, who have passed this resolution. As already noticed, the issue on both counts as raised before me is covered by the judgment of this Court. The stand of private respondents that two-third is to be counted out of 13 members even is not supported by respondent No.4, i.e., the Municipal Council. To my mind, counsel appearing for respondent Nos.5 to 13 has raised this argument despite being fully aware of the precedents, which are annexed with the petition and of which he could not have been ignorant. In CWP No.16877 of 1999 titled Chaman Lal Versus State of Punjab, decided on 12.7.2000, this was the precise question, which arose for determination before the Division Bench of this Court and was answered against the line of submissions pursued by the learned counsel appearing for private respondent Nos.5 to 13. The submission in this case by the counsel appearing for the petitioner was that expression “two-third members of the committee” appearing in Section 22 of the Act referred to existing members of the Council and, thus, he had justified the resolution passed in the said case by 6 members out of 9. Upon due consideration of this submission and after referring number of precedents, the Division Bench culled out the question which it was called upon to decide. This can be so noticed from the following part of the judgment:- “In the light of above analysis of the relevant provisions, CIVIL WRIT PETITION NO.22496 OF 2011 :{ 7 }: we have to decide whether the expression “two-third of the total number of members or only the existing members.” After making reference to number of judgments cited before the Division Bench, the Court finally concluded as under:- “On the basis of above discussion, we hold that the expression occurring in Section 22 “two-third of the members” of the council takes within its fold the number of elected members determined by the State Government as well as members of the Legislative Assembly who become member of the Municipal Council by virtue of their office and it is not confined to the members who are existing on the date of consideration of no-confidence motion.” Court finally held that resolution passed by 6 out of 11 members could not be treated as validly passed and consequent order passed by the respondents was declared illegal. In fact, exactly identical question in regard to counting of fraction for the purpose of determining two-third number has been considered by another Division Bench of this court in the case of Vijay Kumar Saluja Vs. The Deputy Commissioner, Karnal and others, 1991 PLJ 635. The court while dealing with Section 21(3) of the Haryana Municipal Act has observed that the committee which consisted of 14 members, two-third of which comes 9.33. In this case also, only 9 members were present at the meeting and have supported the motion of no confidence. This figure was found less by CIVIL WRIT PETITION NO.22496 OF 2011 :{ 8 }: .33. Perusing Section 21, the Court opined that the impugned proceedings had not been taken by requisite number of persons. Thus, this was not found in conformity with the provisions of Section 21(3) of the Act. Another Division Bench of this Court in Jardar Khan Vs. State of Haryana and others, AIR 1998 Punjab and Haryana 249 reached a similar conclusion so far as counting of fraction to determine two-third majority is concerned. Here 5 members of the Gram Panchayat having 8 members in all had passed a no confidence motion. The court observed that two-third of 8 is more than 5 by a fraction and that the said fraction cannot be ignored and has to be treated as a whole. In this case also, the resolution allegedly carried by 5 members was said to have not been validly passed by the requisite majority. The relevant observations of this court in this regard are as under:- “Five Panches out of eight do not constitute two third majority. Two third of eight would be more than five. The fraction cannot be ignored and the same has to be treated as one whole. The provisions of Section 10 of the Act which provide for the removal of an Up-Sarpanch in the very nature of things have to be interpreted very strictly. This being so, at least six members were required to pass a valid resolution to remove an Up-Sarpanch. Since five members have passed the resolution it cannot be said to have been passed within the requisite majority of not less than two-thirds of the total members of the CIVIL WRIT PETITION NO.22496 OF 2011 :{ 9 }: Gram Panchayat and in this view of the matter also, the resolution cannot be legally sustained.” Long ago, in the year 1973, the question regarding computation of fraction to decide two-third majority of total members was considered by single bench of this court in Jai Chand Vs. The Haryana State Agricultural Marketing Board and others, 1973 P.L.J. 704. Section 16(2) of the Punjab Agricultural Produce Markets Act required that not less than two-third of the whole number of members must vote before a Chairman can be removed. The court held this section to be mandatory and that the number of votes must not be less than two-thirds in any event but it could be more. Observing that the requirement of two-third majority in the section is a condition precedent which must be fulfilled before the member can derive power or jurisdiction to remove a Chairman from office. The court held that 11 members in the committee consisting of 17 members did not constitute the requisite two-third majority. In this case also, two-third was fraction more than 11 members of total number being 17 and was held not constituted two-third majority. In fact, the learned Single Judge in this case had also found it unnecessary to examine the rival arguments as on principle, this issue of counting of fraction was covered by a judgment delivered of this court. A Division Bench of this Court in Ram Narain Sharma etc. Vs. State of Haryana & others, 1973 PLJ 550 while construing the provision regarding quorum in rule 4 of the Punjab Panchayat Samities (Co-option of Members) Rules dealt with the question of fraction and observed as under:- CIVIL WRIT PETITION NO.22496 OF 2011 :{ 10 }: “It was urged that though the words used in sub-rule (1) and sub-rule(4) are slightly different and the normal practice of drafting is that if the same idea is to be conveyed, then the same words should be used, yet, the very idea conveyed by the word `quorum' is the “minimum number” which must be present before the members can transact any business. Therefore, when three-fourth of the total number of members is the prescribed quorum, that obviously means that three- fourth is the minimum number. It can be more but it cannot be less and again when there is no such explanation, ordinary meaning has to be attached to the word `quorum', the basic idea of which is that the number prescribed is the minimum for legally transacting any business at a meeting. When such a number comes to 14¼, there is no justification for holding that the intention of the Legislature was to fix the number at 14 unless that intention had been absolutely clear.” Reference here can also be made to a judgment of Calcutta High Court in the case of Shyamapada_Ganguly Vs. Abani Mukharjee, AIR 1951 Calcutta 420, where the question of fraction apparently has been dealt by the court while dealing with the provisions of Bengal Municipal Act and which precedent had generally been referred to and followed in all the decisions referred to above. The Municipality in this case consisted of 17 persons and the relevant section provided that elected Chairman could be removed by CIVIL WRIT PETITION NO.22496 OF 2011 :{ 11 }: a resolution passed by not less than two-thirds of the whole number of Commissioners. Repelling the identical argument, as is being raised, the court observed as under:- “The next question is as to whether the voting by 11 Commissioners was sufficient compliance with the requirements of section 61(2). In my view the answer must be in the negative. The section requires that not less a Chairman or a Vice-Chairman can be removed. The section is mandatory. The number of votes must not be less than two-thirds in any event but it may be more. Two-thirds of 17 is 11-1/3. Mr.Sanyal's argument is that the fraction should be ignored and the next whole number below it should be accepted as the number. Mr.Sanyal argued that as compliance is impossible in the nature of things and fraction of a person capable of voting is an impossibility the compliance should be dispensed with. In my view, however, the requirement of two-third majority in section 61(2) is a condition precedent which must be fulfilled before the Commissioners, can drive power or jurisdiction to remove a Chairman or a Vice-Chairman from office. I am clearly of the opinion that voting by 11 Commissioners was not sufficient compliance with the sanction and the resolution for removal of the opposite party was ineffective and must be deemed to have been lost.” Despite these binding precedents, which are plenty in CIVIL WRIT PETITION NO.22496 OF 2011 :{ 12 }: number, counsel for respondent Nos.5 to 13 still made an attempt to distinguish the judgment. Ofcourse he was totally unsuccessful and rather off the track on the issue. His submission that two-third is to be counted of the existing number of members is definitely against the law laid down by Division Bench of this court in Chaman Lal's case (supra). In this regard, other precedents which were noticed by the Division Bench can be referred, which, the counsel may carry note for his future reference. Division Bench of this Court in Ranjit Singh Vs. State of Punjab, (1964) 66 P.L.R. 621 while interpreting expression “total number of members” held that the expression so used in Section 18 of the 1961 Act refers to all members of the Samiti, including associate members and ex-officio members. In this regard, the court has gone to the extent of holding that ex-officio members may not be entitled to vote in the meeting but they are entitled to be taken into account in determining two-third strength necessary to pass a resolution for removing a member. In Samiruddin Ahmed Versus S.D.O.Mangaldoi and others, AIR 1971 Assam & Nagaland 163, Division Bench again considered the expression “at least a minimum of two-thirds of total number of members” held that expression cannot be equated with two-third of the existing members functioning at the time of passing of the resolution. This was also a case where one member had died and another had vacated the seat on account of election to Panchayat. No confidence motion was passed by 8 members who were present in the meeting. While rejecting the argument that CIVIL WRIT PETITION NO.22496 OF 2011 :{ 13 }: expression used in Section 27(1)(b) means the two-thirds of total number of existing members, the Court held as under:- “We are unable to accept the submission of the respondents. There is no warrant for adding a word “existing” in Section 27(1)(b) to qualify the words “number of members”. Under this section a President immediately ceases to be a President on passing of a motion of no- confidence against him by three-fifty majority of the minimum requisite members present. Such a provision under the law resulting in deprivation of an office has to be strictly construed as it affects the right of an elected office bearer to continue for the normal span of this office.” A Single judge of Karnataka High Court in S.Shivashankarappa and others Vs. The Davangere City Municipality, Davangere and others, AIR 1978 Karnataka 140 also took a similar view in this regard as can be noted from the following view expressed by the court:- “The Legislature has thought fit to provide security of tenure in the interest of ensuring the proper discharge of duties and responsibilities of President or Vice-President as the case may be, without the fear of being removed from the respective offices by the change of loyalties of a few municipal councilors. It is with this object in view that the majority of two-thirds of the total number of councilors has been prescribed for the validity of a CIVIL WRIT PETITION NO.22496 OF 2011 :{ 14 }: resolution expressing want of confidence against a President or a Vice-President, as the case may be, under S.42(9) of the Act. Therefore, this provision has to be construed strictly. When it is so construed, the conclusion is inevitable that the requisite majority of two-thirds of the councilors for the purpose of sub-sec. (9) of S.42 of the Act, has to be calculated on the basis of the “total number of councilors” and not on the basis of the “number of existing councilors”. Even this Court in Pritam Singh and others Vs. State of Punjab and others, AIR 1995 Punjab and Haryana 341, relied upon these decisions of the Karnataka and Assam High Courts to opine that two-third members has to be calculated on the basis of all members including associate members and not only the members who have a right to vote. The attempt by the counsel appearing in this case to distinguish the decision of Assam and Karnataka High Court, referred to above, was also not accepted by Single Bench of this court as can be noted from the following:- “The Legislature in its wisdom has provided for removal of President or Vice-President if the resolution requesting his removal is passed by two-third of members of the committee. The constitution of the committee is prescribed in Section 12 of the Act which not only includes elected and co-opted members but also associate members. The expression used both in Section 22 and its proviso is “two-third of members of the CIVIL WRIT PETITION NO.22496 OF 2011 :{ 15 }: committee”. It has not excluded associate members. If the intention of the Legislature was to exclude the associate members, it would have used the words “two- third of members of the committee other than associate members.”. It is elementary that the primary duty of the court is to give effect to the intention of Legislature as expression in the words used by it and no outside consideration can be called in aid to find out that intention.” In view of this settled position of law, there was hardly any need to debate the issue which has unnecessarily been so raised by the counsel appearing for respondent Nos.5 to 13. It is required to be realized even by the respondent-State and the Municipal Council that such issue ought not to be raised putting the elected representative to unnecessary harassment, which finally leads to wasting the time of the court, which has to deal with such issues, which at the first place, should not arise in view of the settled position of law. The writ petition is allowed. The impugned resolution (Annexure P-3) is set-aside and quashed being illegal. Since the petitioner has unnecessarily been made to make the present approach, I would allow this writ petition with costs of Rs.25,000/-, to be recovered from respondent No.4 and respondent Nos.5 to 13 collectively. July 16, 2012 ramesh (RANJIT SINGH ) JUDGE