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2017 DIGILAW 543 (CAL)

Shipra Banik v. Executive Officer

2017-06-14

I.P.MUKERJI

body2017
JUDGMENT : I.P. Mukerji, J. 1. The impugned order/decision is dated 2nd January, 2017 of the Executive Officer, Panchayat Samiti, Little Andaman. There was a no confidence motion against the Pramukh of the Panchayat Samiti. It was scheduled to be held on 2nd January, 2017. The Samiti consisted of six members including a member of Parliament. At the scheduled time of the meeting only three members were present. The said officer conducting the meeting held that the quorum requirement of 2/3rd of the members under Rule 9(3) of the Andaman and Nicobar Island (Panchayat Administration Rules, 1997), i.e. four members had not been fulfilled. The meeting was 'dissolved'. Ms. Nag appearing for the petitioner makes several important submissions. 2. She says that under section 107(3)(b) of the Andaman and Nicobar Islands (Panchayats) Regulation, 1994 a member of Parliament is a member of the Samiti. However, under Regulation 112 the Pramukh has - to be elected from amongst the elected members of the Panchayat Samiti, which does not include the member of Parliament. Thereafter she refers to regulation 117 which lays down that a motion of no confidence may be moved by any member of the Panchayat Samity against the Pramukh. The motion, to succeed is to be carried by a majority of not less than 2/3rd of total number of members of the Panchayat Samiti. She submits that since the Pramukh is elected by the Samiti without the presence of a non-elected member being the member of Parliament, the removal should also follow the same rule. Therefore the number of members of the Samiti entitled to vote was five. 2/3rd of the membership would be 3.3. Under rule 10(2) of the 1997 Rules in determining a quorum, a fraction of one half and above is to be counted as 1 and a fraction of less than 112 shall be ignored. Therefore' if arithmetically 2/3rd majority works out to be 3.3 it is to be taken as 3. Therefore not less than 2/3rd would have to be taken as 3 or more than 3 members. Since three members were present, according to Ms. Nag, there was quorum and the meeting ought not have been 'dissolved'. 3. On the other hand, both Mr. Rajinder Singh and Mr. Sivabalan for the respondent. No. 2 and the respondent No. 1 submit that there is a difference in the language in regulations 112(1) and 117. Since three members were present, according to Ms. Nag, there was quorum and the meeting ought not have been 'dissolved'. 3. On the other hand, both Mr. Rajinder Singh and Mr. Sivabalan for the respondent. No. 2 and the respondent No. 1 submit that there is a difference in the language in regulations 112(1) and 117. They submit that regulation 112 relates only to election of inter alia, the Pramukh. During this election only elected members of the Samiti can vote. But as far as the motion of no confidence is concerned under regulation 117 there is no such stipulation that only the elected representatives can vote. 4. He also says that any fraction, even if it was less than half should be rounded off to the next whole number relying on a Single bench unreported decision of the Gauhati High Court in WP 4815 & 5596 of 2010 Smt. Janali Ooley & ors. v. The State of Assam & ors; Smt. Manju Borgohain (Baruah) v. The State of Assam & ors, decided on 31st January, 2011. 5. Now let me deal with the first submission of Ms. Nag. 6. What is to be taken as not less than 2/3rd of members of the Samiti? 7. Say if the number of members constituting the Samiti was 12, 8 members would constitute 2/3rd of the Samiti. Therefore, if the resolution had to be passed by not less than 2/3rd members, 8 or more members had to. pass it. Naw, suppose the membership of the Council was 8, 2/3rd would be 5.3. It is absolutely absurd to imagine any fraction of a member constituting a body. No legal fiction can be created in this direction. The number of persons actually voting must be a whole number. 8. What does one do. with 5.3 or 3.37. 9. The said rule 10(2) has taken a very realistic and mathematically correct view of the problem by saying that any fraction below 112 is to be ignored and any above 112 is to be counted as 1. This method finds support in a Special Bench judgment of the Allahabad High Court in the case of Wahid Ullah Khan v. District Magistrate, Nainital and others reported in AIR 1993 Allahabad 249. This method finds support in a Special Bench judgment of the Allahabad High Court in the case of Wahid Ullah Khan v. District Magistrate, Nainital and others reported in AIR 1993 Allahabad 249. Therefore, in my opinion, if 2/3rd is not a whole number and includes a fraction, it should be counted by rounding off any decimal of 5 or more to the next whole number and likewise any decimal of less than 5, should not be counted as a whole number. 10. Therefore, if 2/3rd of the members of the Samiti is 5.3 or 3.3 it should be taken as 5 or 3.1 do not think the above Gauhati High Court decision in Smt. Junali Ooley & ors. v. State of Assam & ors. lays down the correct law. 11. But, in my view, the second point is more important. Regulation 112(1) specifically states that on the constitution of the Panchayat Samiti for the first time or on the expiry of its term or its reconstitution a meeting shall be convened amongst the elected members of the Panchayat Samiti. While dealing with the question of a motion of no confidence, regulation 117 clearly says that it may be moved by any member of the Panchayat Samiti. It does not qualify such a member by saying elected or nominated. Again in Regulation 117(2) the Regulation says that the motion has to be carried by a majority of not less than 2/3rd of total number of members without making any qualification. regarding elected or non-elected members. Therefore, at the time of moving a motion of no confidence against or for removal of a member of the Panchayat Samiti, the member of Parliament is entitled to take part in the meeting and vote. He is an essential part of the meeting and his vote is to be counted. 12. In my judgment, the total number of members of the Samiti constituting the quorum would be 2/3rd of 6 members i.e. 4 members. Unfortunately, 3 members attending the meeting did not constitute the quorum. 13. The concerned officer very rightly did not hold the meeting holding that there was no quorum. 14. Hence, there is no merit in this writ application. I dismiss the same.