JUDGMENT R. H. Zaidi, J.
1. In both these writ petitions common questions of law and fact are Involved. They were, therefore, heard together and are being disposed of by this common judgment.
2. By means of W.P. No. 538 (MS) of 1998 filed under Article 226 of the Constitution of India, petitioner prays for issuance of a writ, order or direction in the nature of certiorari quashing the order dated 23.2.1998 whereby petitioner, who was holding the office of Pradhan of village Eksana alias Karkashan, district Rae Bareli, was informed that he has been removed from the aforesaid office and was directed to hand over charge of the said office to Up Pradhan of the village within 3 days of the receipt of the said order. Prayer for a writ, order or direction in the nature of mandamus commanding respondents not to compel the petitioner to hand over charge of the office of the Pradhan to Up Pradhan, has also been made.
3. The relevant facts of the case giving rise to the present petition, are that a notice dated 22.11.1997 was Issued by District Panchayat Raj Officer, Rae Bareli fixing 17.12.1997 for holding meeting of Gram Panchayat to consider motion of no-confidence against the petitioner. Challenging the validity of said notice petitioner filed W.P. No. 3015 (MS) of 1997. As at the relevant time, number of similar petitions were pending In this Court, the said writ petition was directed to be connected and listed with leading W.P. No. 2171 (MS) of 1996. Operation of order/ notice dated 22.11.1997 was also stayed by this Court vide order dated 8.12.1997. In the said writ petition, an application was moved by the contesting respondents for vacation of the Interim order but the said application was rejected on 12.12.1997 and the interim order was hot vacated. On the basis of the interim order granted by this Court on 8.12.1997, the meeting of Gram Panchayat which was scheduled to be held on 17.12.1997, could not be held. Writ Petition No. 2171 (MS) of 1996 along with other connected petitions were dismissed by this Court and the interim orders granted in the same were also vacated by Judgment and order dated 12.12.1997. However. Writ Petition No. 3015 (MS) of 1997 was not one of the petitions dismissed by the said order. Consequently, the interim order granted in the said petition remained operative. The District Panchayat Raj Officer, however, under the impression that the writ petition filed by the petitioner was also dismissed and interim order was vacated. Issued a fresh notice on 3.1.1998 fixing 21.1.1998 for holding the meeting to consider the motion of no confidence against the petitioner.
4. Another W.P. No. 174 of 1998 was filed in which it was clarified that interim order granted in W.P. No. 3015 of 1997 was continuing. Inspite of the aforesaid order passed by this Court, the meeting of Gram Panchayat was held on 21.1.1998. There were as many as 14 members of the Gram Panchayat including the Pradhan, i.e., 13 elected and one Ex-officio. All the 14 members participated and cast their votes except the petitioner who was not permitted to cast his vote. 9 members voted for the motion and 4 against. The motion of no-confidence was declared to have carried against the petitioner and petitioner by means of impugned order was intimated about the same as stated above. The petitioner, therefore, had to file present petition mainly challenging order dated 23.2.1998 on the ground that motion of no confidence was not carried by a majority of 2/3rd members present and voting.
therefore, the same cannot be said to have been carried.
5. The present petition was directed to be put up along with W.P. No. 3015 (MS) of 1997 referred to above. It was on 23.3.1998 that the following order was passed by this Court after hearing counsel for the petitioner and learned standing counsel :
"Notices on behalf of respondent Nos. 1 to 3 have been accepted by the learned standing counsel. He prays for and is allowed three weeks time to file counter-affidavit. Petitioner will have two weeks thereafter to file rejoinder-affidavit.
Issue notice to respondents Nos. 4 to 7 returnable at an early date. Petitioner is also permitted to implead the other members of the Gram Panchayat who did cast their votes against the petitioner as respondents, during the course of the day. If they are impleaded as respondents, issue notice to the said respondents also.
It has been urged by the learned counsel for the petitioner that in the meeting held on 21.1.1998 for consideration of no-confidence motion against the petitioner, the petitioner was present but he was not permitted to cast his vote, although he was entitled to cast, In view of the provision of sub-section (6) of Section 12 of U. P. Panchayat Raj Act. It is further stated that there are only 14 members of the Gram Panchayat out of whom only nine cast their votes in favour of the motion of no-confidence and four against the motion in favour of the petitioner. Had the petitioner been permitted to cast his vote, the motion of no confidence would have been defeated. The submission made by the learned counsel for the petitioner has got substance. It is, therefore, directed that until further orders respondents shall not Interfere In the functioning of the petitioner as Pradhan of the village."
6. On the strength of interim order granted by this Court dated 23.3.1998, petitioner continued to hold the office of Pradhan.
7. On behalf of contesting respondents, a counter-affidavit has been filed in which the facts stated in the writ petition have been controverted but in paragraphs 17 and 19, it has been admitted that on 21.1.1998. the 13 elected members as well as Pradhan, the petitioner, were present in the meeting, and that petitioner did not raise any grievance that he was not allowed or forcefully restrained from voting, to the Panchayat Raj Officer who was conducting the election. The stand taken by contesting respondents, in substance, Is that the petitioner has no right to participate in the aforesaid meeting and to cast his vote and that 2/3rd members of 13 elected members did cast their votes in favour of motion of no confidence, therefore, motion of no confidence shall be deemed to have been carried against the petitioner.
8. Learned counsel for the petitioner vehemently urged that the petitioner being Pradhan of the village was a member of Gram Panchayat and was legally entitled to participate in the meeting and to cast his vote. The petitioner having not been permitted to cast his vote, therefore, motion of no-confidence cannot be said to have been carried by requisite majority of members. Proceedings of the meeting held on 21.1.1998 as well as order dated 23.2.1998 were liable to be quashed. In support of his submission, learned counsel for the petitioner has referred to and relied upon the decision in Smt. Meera Devi v. State of U. P. and others. (1998) 2 UPLBEC 922. On the other hand, learned counsel appearing for contesting respondents submitted that motion of no-confidence, was passed against the petitioner by requisite majority of members, therefore, the motion was rightly declared to have been carried. It was urged that petitioner had no right to participate in the meeting and to cast his vote in the said meeting.
9. I have considered submissions made by learned counsel for the parties and also perused the record.
10. Sub-section (1) of Section 14 of U. P. Panchayat Raj Act, 1947, for short, 'the Act', provides as under :
"Removal of Pradhan or Up Pradhan.-- (1) Gram Panchayat may at a meeting especially convened for the purpose of which atleast 15 days' previous notice shall be given, for removing Pradhan by majority of 2/3rd of members present and voting."
11. Admittedly, there were 13 elected members of Gram Panchayat concerned. Sub-section (6) of Section 12 of the Act provides that Pradhan shall be deemed to be a member of Gram Panchayat. In view of the said provision, the petitioner who was holding the office of Pradhan, shall be deemed to be a member of Gram Panchayat. He was, therefore, entitled to participate in the said meeting and to cast his vote. A reference In this regard may be made to the decision In Raj Singh v. District Panchayat Raj Adhikari, Muzaffar Nagar and others, 1997 RD 429. It has been admitted in the counter-affidavit that the petitioner was personally present in the meeting but he was not permitted to cast his vote, Thus, there were as many as 14 members present and voting in the meeting in question, out of whom only 9 members voted for the motion which were less than a majority of 2/3rd of the members present and voting.
12. Rule 33B (v) (viii) specifically provided that motion of no confidence would be carried out by a majority of 2/3rd of members present and voting. In Arunandra Singh v. District Panchayat Raj Officer, Unnao and others, 1999 (3) AWC 1662 (LB), the question as to whether 7 out of 11 members present in voting constituted requisite majority of 2/3rd. In the said case, 7 out of 11 voted in favour of the motion while 4 voted against the motion. Mathematically, 2/3rd of 11 members would be 7.33. It was ruled that figure 7.33 would have to be rounded off and unless 8 members voted in favour of no confidence motion, the same cannot be said to have been carried. As the same does not make the required majority of 2/3rd. Similar view was taken by Full Bench of this Court in Wohid Uttah Khan v. District Magistrate, Nainital and others. AIR 1993 All 249 (FB.) Facts of the case of Smt. Meera Devi, (supra), on which implicit reliance has been placed by learned counsel for the petitioner, were similar to the facts of the present case. There were as many as 14 members including the Pradhan of the Gram Panchayat concerned, out of whom only 9 voted for the motion. This Court after considering the relevant decisions on the point was pleased to rule as under :
"5. In view of the aforesaid discussions, I am of the considered view that where two-third majority of the members present and voting falls short by a fraction, in that eventuality, motion would be deemed to have fallen to the ground. In the instant case, the petitioner was admittedly present in the meeting but she was not allowed to cast her vote and in the circumstances, for all practical purposes, she would be deemed to be present and voting and if her vote is reckoned, then two-thirds of 14 members would be equal to 9.33 as against which only nine votes polled in favour of motion would not constitute requisite majority of two-thirds of the members present and voting. By applying the principle of rounding off, the requisite majority of two-thirds would be ten votes. The declaration that motion of no-confidence was carried in the meeting held on 24.8.1997 does not commend itself to be sustained."
14. So far as W.P. No. 3015 (MS) of 1997 is concerned, admittedly on the strength of interim order granted by this Court, the meeting to consider motion of no-confidence was not held. Subsequently, the meeting of Gram Panchayat was held on 21.1.1998 in which motion of no-confidence was alleged to have been passed and order dated 23.2.1998 was issued which have been held to be illegal, Since 21.1.1998 more than one year's time has already elapsed and in view of the provisions of sub-section (2) of Section 14 of the Act, on a fresh notice meeting for consideration of motion of no-confidence against the petitioner, can be convened in accordance with law, It is, therefore, not necessary to deal with the controversy involved in W.P. No. 3015 (MS) of 1997 on merits. The same for all practical purposes became infructuous and is accordingly liable to be dismissed.
15. In view of the aforesaid discussion, the Writ Petition No. 538 (MS) of 1998 succeeds and is allowed. Proceedings of meeting of Gram Panchayat Eksana alias Karkashan held on 21.1.1998 and the order dated 23.2.1998 are hereby quashed.
16. Writ Petition No. 3015 (MS) of 1997 is dismissed as infructuous. No order as to costs.