JUDGMENT : 1. RULE. Learned Assistant Government Pleader Mr. Dhawan Jayswal waives service of notice of Rule on behalf of the respondent – State and learned Advocate Mr. Mehul Sharad Shah waives service of notice of Rule on behalf of the respondent No.4 – Mehsana Municipality. 2. This petition under Article 226 of the Constitution of India is filed seeking declaration that the no confidence motion against the petitioner is defeated and the Resolution No.368 dated 02.03.2020 with regard to the same be quashed and set aside. 3. The case before the Court is with regard to the no confidence motion moved against the petitioner and successfully passed thereby resulting in cessation of the petitioner as President of Mehsana Municipality. 4. Learned Advocate for the petitioner has challenged the motion of no confidence primarily on three grounds :- (I) That the Resolution of no confidence was not moved by 1/3rd members of the Municipality as required and that the impugned Resolution is not passed by 2/3rd majority of the Councillors of the Municipality; (II) The petitioner was not provided with an opportunity of addressing the house as contemplated under Section 36(3) of the Gujarat Municipalities Act, 1963 (hereinafter referred to in short as the 'Municipalities Act'); (III) That those members who had acted against the whip of the party on whose symbol they were elected be treated as disqualified from the date on which they had incurred disqualification, i.e. 03.12.2019 and therefore, their votes be discarded. 5. Learned Advocate for the petitioner has elaborately made an argument that the petitioner was elected as a Councillor of Mehsana Municipality in December 2015 as provided under Section 6(2)(d) of the Act. The strength of the Municipality is 44, out of which 29 were elected on the party symbol of the Indian National Congress while 15 members were elected on the symbol of the Bharatiya Janata Party. 6. It is submitted that the party of the petitioner was in power and the petitioner was elected as the President of the Municipality. It is submitted that after the Agenda was circulated for constitution of the Statutory Committee, Executive Committee etc., a meeting convened on 07.09.2019, however the same was adjourned to 03.12.2019 for which the Agenda was issued for a Special General Meeting on 27.11.2019. During this meeting, a whip was issued by the political party. It is submitted that after the Agenda was circulated for constitution of the Statutory Committee, Executive Committee etc., a meeting convened on 07.09.2019, however the same was adjourned to 03.12.2019 for which the Agenda was issued for a Special General Meeting on 27.11.2019. During this meeting, a whip was issued by the political party. However, 6 members namely Mahesbhai Somabhai Patel, Rameshbhai Tribhovanbhai Patel, Sunilbhai Pravibhai Bhil, Pallaviben Jigneshbhai Patel, Sanjaykumar Pravinchandra Brahmbhatt and Allarakhi Ayubbhai Belim who were elected on the symbol of the Indian National Congress did not cast their vote or remained neutral in defiance of the whip. In this connection, the petitioner has initiated proceedings for declaring them disqualified under the provisions of the Gujarat Disqualification for Members of from Local authorities and for Defection Act, 1986 (hereinafter referred to in short as 'the Disqualification Act'). It is submitted that as the application for their disqualification was pending, these members colluded with the members of the other party to move the no confidence motion almost blackmailing the petitioner to withdraw the application for disqualification or else they would vote for the no confidence motion. It is submitted that since the respondents had incurred disqualification on the date on which they defied the whip and that the provision also is to the effect that disqualification is on the date on which the said disqualification was incurred, i.e. to say on 03.12.2019 and therefore, when the motion for no confidence was moved on 02.03.2020, those six members had been disqualified to vote and therefore, their votes cannot be considered. It is submitted that out of the six disqualified members, in the interregnum period, one member, who incurred the disqualification had expired. It is submitted that if the votes are not to be considered at all, moving of the notice of motion, which also bears the signature of the disqualified members, cannot be said to be with necessary members of 1/3rd of Councillors as well as passing of motion is also lacking in 2/3rd majority. 7. Learned Advocate for the petitioner submits that as the strength of the Municipality is 44, 1/3rd members for requisitioning the motion for no confidence (1/3rd members should be 15 in number) and if the disqualified members are removed from the said requisition, then the number is reduced to 12 and therefore, the requisition is not by 1/3rd majority of the members. Similarly, considering the strength of the Municipality to 44 and requirement of passing of resolution by 2/3rd majority, the total number of votes to make 2/3rd majority is 30 whereas the vote in favour of the motion are only 29. 2/3rd majority comes to 29.33 which is to be treated as 30 and 1/3rd majority comes to 14.60 which is to be treated as 15. 8. Learned Advocate for the petitioner has relied upon the decision of the Apex Court in the case Ganesh Sukhdeo Gurule v. Tahsildar, Sinnar and Others reported in (2019) 3 SCC 211 and especially on Paragraph 12 to submit that as the fraction of a vote cannot be considered and therefore, the fraction has to be rounded up meaning thereby, in the strength of 44 municipal members, 2/3rd majority would be 30 and 1/3rd majority would be 15. 9. Learned Advocate for the petitioner has thereafter, relied upon the decision of this Court in the case of The State of Gujarat v. Kishorchandra A. Chhaya reported in 1984 GLH 126 to contend that to decide the majority, the strength of the Municipal Councillors has to be decided in terms of Section 36(2) meaning thereby that it is the total strength of the Municipality which is relevant and not the strength of the members who are either present or voting. Learned Advocate for the petitioner has emphasized on Paragraph 4 of the judgment to contend that 2/3rd majority of the total number of the Councillors cannot be read to mean the Councillors to be present at the General Meeting. 10. With regard to the contention of the petitioner not being given an opportunity to address the house, learned Advocate for the the petitioner has heavily relied upon the decision of this Court in the case of Geetaben Bharatbhai Patel v. State of Gujarat and Others reported in 2006 (1) G.L.H. 91 and submitted that the requirement of Section 56(3) of the Gujarat Panchayats Act, 1993 (hereinafter referred to in short as the 'Panchayats Act') is mandatory and not merely directory or adjudicatory. Learned Advocate has further submitted that this decision was subject matter of challenge in Letters Patent Appeal No.11667/2005 which also came to be dismissed and therefore, the view of this Court in the case of Geetaben Bharatbhai Patel (supra) is upheld and accordingly, the petitioner will also have a right to participate and to speak on the subject. As the petitioner was facing the no confidence motion, it is submitted that the purpose behind such opportunity was to permit the petitioner to put his point of view so as to convince the members especially the members who had belonged to his own party who had signed such motion for no confidence for voting against such motion. 11. Reliance is placed upon the decision of this Court in the case of Suvarnaben Chetanbhai Raval v. State of Gujarat reported in 2014 (5) GLR 4277 to contend that by not granting the petitioner an opportunity to address the house, grave prejudice and injustice is caused to the petitioner and this would amount to violation of mandatory provision of Section 56(3) of the Panchayats Act and therefore, the entire procedure deserves to be quashed and set aside. 12. Reliance is also placed upon the decision of this Court in the case of Laljibhai Dhanjibhai Unagar v. Khambha Taluka Panchayat, Khambha Thro Taluka reported in 2015 (3) GLR 2424 which is the judgment with regard to the right of the President to address the House against the no confidence motion. It is submitted that though the aforesaid judgments are pertaining to Panchayats Act, but the provisions in this regard are pari materia to the Municipalities Act, the same will apply in full force. 13. Learned Advocate for the petitioner has thereafter, relied upon the decision of the Full Bench of this Court in the case of Shivprasad Umashanker v. Municipality of Palitana reported in 1997 (2) GLR 1460 and submitted that the case was pertaining to removal of the Chief Officer of the Municipality and the Full Bench has held that even for removal of Chief Officer, principle of natural justice are required to be followed even where removal of the Chief Officer is by a resolution of the Municipality. 14. Learned Government Pleader opposing the petition submitted that the petitioner has deliberately not pointed the relevant facts which would be necessary for deciding the case. 14. Learned Government Pleader opposing the petition submitted that the petitioner has deliberately not pointed the relevant facts which would be necessary for deciding the case. As it is contended by the petitioner that the strength of the Municipality is 44 and has accordingly calculated the strength of 2/3rd majority and 1/3rd majority, deliberately the petitioner has not indicated that one member of the Municipality had expired on 12.02.2020 and therefore, the strength of the Municipality had stood at 43. It is submitted that if the strength of the Municipality is to be considered at 43, then 2/3rd majority would be 28.6 which is equivalent to 29 and 1/3rd majority would be 14.3 which would be equivalent to 15. The learned Government Pleader took the Court through the Resolution and the Notice for no confidence and submitted that out of 43 members, 29 members have voted for the motion of no confidence and 12 members had voted against the motion of no confidence. It is submitted that the Resolution itself records the proceedings which indicates that no illegality has been committed in convening the meeting by requisitioning the meeting and passing the Resolution. It is submitted that the petitioner is making hue and cry of an opportunity of addressing the house but in the Resolution itself and during the proceedings, nothing is pointed out by the petitioner as to whether such an opportunity was sought for by the petitioner. The petitioner himself is an Advocate by profession and is aware of the nitty gritty of such meetings. It is submitted that the petitioner has participated in the Meeting and has signed the Resolution against the motion of no confidence and now as an after thought is seeking to contend that the petitioner was deprived of an opportunity to address the house. 15. The learned Government Pleader has relied upon the decision of the Apex Court in the case of Vipulbhai M. Chaudhary v. Gujarat Coop. Milk Mktg. Federation Ltd. reported in (2015) 8 SCC 1 to contend that a no confidence motion is also a democratic principle recognized by law and if the petitioner has lost the confidence of his members then the petitioner has no right to continue as the President. Milk Mktg. Federation Ltd. reported in (2015) 8 SCC 1 to contend that a no confidence motion is also a democratic principle recognized by law and if the petitioner has lost the confidence of his members then the petitioner has no right to continue as the President. The provision made under the Municipalities Act are elaborate in nature and therefore, if one of the requirements of this Act is is satisfied then no fault can be found with passing of the Resolution. It is submitted that the motion for no confidence was requisitioned under the signature of 17 members of the Municipality which is more than 1/3rd of the majority for sending requisition to the Chief Officer of Mehsana Nagar Palika. The resolution is passed by 29 to 17, which is also meeting with requirement of 2/3rd majority and hence, there is no question of declaring such resolution as illegal. It is submitted that the petitioner himself had called for the meeting by giving an Agenda for a no confidence motion. The meeting was called by the petitioner himself on 26.02.2020 and the meeting was to be convened on 02.03.2020. The petitioner therefore, had sufficient time to convince the members to vote against the no confidence motion. Therefore, the contention of the petitioner of not being given an opportunity to address the house is a mere excuse. 16. Reliance is placed by the learned Government Pleader upon the judgment of the Apex Court in the case of Padmini Singha v. State of Assam reported in 2018 (10) SCC 561 to contend that when the President had participated knowing fully well about the Agenda of the meeting and having participated in the meeting when the Resolution is passed against such a President, the President cannot assail the proceedings of the meeting on the basis of the procedure not being followed. 17. Reliance is placed upon the decision of the Apex Court in the case of Mool Chand Sharma v. State of U.P. and Others reported in AIR 1967 SCC 112 to contend that the disqualification of a member from the Municipality cannot be said to be automatic upon having incurred disqualification. 17. Reliance is placed upon the decision of the Apex Court in the case of Mool Chand Sharma v. State of U.P. and Others reported in AIR 1967 SCC 112 to contend that the disqualification of a member from the Municipality cannot be said to be automatic upon having incurred disqualification. It is submitted that in the facts of the case where certain members have voted against the whip there is still a period of 15 days available to explain their conduct against the whip and it is for the party to condone or examine the action against such a member and still consider him to be qualified member of the Municipality. Therefore, it is only by declaration as such under the provision of the Disqualification Act, a member be treated as disqualified from participating and voting. In the instant case, there is no such decision in the pending meeting and the members cannot be prevented from voting. 18. Learned Advocate for the Municipality has opposed the petition by relying upon the Affidavit of the Chief Officer and submitted that the entire proceedings of the meeting has been conducted in accordance with law and the provisions of the Municipalities Act. It is submitted that the no confidence motion was requisitioned under the signature of sufficient number of members and the meeting was called for by the petitioner himself as the President. The President had participated in the meeting and had voted in the meeting and had voted against the no confidence motion. It is submitted that motion of no confidence was passed with 29 to 12 and therefore, the motion was passed with requisite majority. It is submitted that the petitioner as an afterthought handed over the paper purportedly to be application seeking permission to address the house. However, such an application was not given before the motion was put to vote, but after the members raised hand in favour of the motion were seen in majority, the petitioner handed over such an application to the Chairman of the meeting. Therefore, this action cannot be said to depriving the petitioner to address the house. 19. However, such an application was not given before the motion was put to vote, but after the members raised hand in favour of the motion were seen in majority, the petitioner handed over such an application to the Chairman of the meeting. Therefore, this action cannot be said to depriving the petitioner to address the house. 19. Learned Advocate for the Municipality has relied upon the decision dated 11.07.2018 of the learned Single Judge of this Court in the case of Bharatbhai Ravjibhai Vadi v. State of Gujarat in Special Civil Court No.8204/2018 and submitted that there is no right conferred upon the petitioner for being invited to address the house and it cannot be proposition that till such right to speak is exercised, no motion could be passed. It is for the member to exercise his right to speak or not to speak. 20. Reliance is place on yet another decision dated 23.08.2018 in the case of Parshottambhai Talsibhai Chhaniyara v. Taluka Vikas Adhikari Taluka Panchayat Mandal in Special Civil Application No.8059/2018. It is submitted that this judgment was carried in Appeal in the form of Letters Patent Appeal No.1135/2018, wherein it is submitted that once the petitioner had participated in the meeting and had his right to vote, it cannot be said that the provisions of Section 56(3) of the Panchayats Act are not complied with merely because the petitioner had not addressed the House. 21. At this stage, learned Advocate Mr. Siddharth Dave who has filed an application on behalf of the members who belonged to the ousted members of the Municipality and had moved an application for joining party. It is further submitted that he may be heard and his Affidavit be taken on record to which the Court called upon the learned Advocate for the petitioner to address as to whether he objects to the applicant of Civil Application No.1/2020 to be joined as a party. 22. Learned Advocate for the petitioner at the outset, submitted that on account of paucity of, time he may not address the Court elaborately objecting to joining the applicant. However, it is submitted that the applicant is not the affected party and there is no prejudice caused to him and therefore, the joining to the petition may not be relevant. 23. Learned Advocate Mr. However, it is submitted that the applicant is not the affected party and there is no prejudice caused to him and therefore, the joining to the petition may not be relevant. 23. Learned Advocate Mr. Siddharth Dave submitted that in the Affidavit he has contended that the manner in which the entire proceedings took place he has stated in the Affidavit the manner in which the meeting had taken place including the manner in which the petitioner had addressed the meeting as well as the members. He has also draws attention of this Court to the photographs of the meeting and submitting that there was no restriction on the petitioner from addressing the house but had himself chosen not to address on the particular subject but had spoken in the house for starting the meeting etc. Moreover, it is submitted from the photographs that it is apparent that the permission to speak was given in writing in a surreptitious manner and that too after realising the majority have voted in favour of the motion of no confidence and therefore, the petitioner has remained silent participated in the no confidence motion till the stage where he felt that the motion would be rejected by a majority and on seeing that the motion was being passed with majority has immediately given an application which cannot be treated as a non-granting of an opportunity to speak as contemplated under Section 56(3) of the Panchayats Act. 24. The Court finds that the applicant of C.A. 1/2020 is the member who had participated in the motion and therefore interested when the motion he has voted for is the subject matter of challenge at least he can not be treated as a foreigner to the cause of action in this case. The applicant of Civil Application No.1/2020 is permitted to be joined as a respondent and his Affidavit is taken on record. 25. In rejoinder, learned Advocate for the petitioner submitted that none of the parties have been able to answer to the applicability of the decision of the Division Bench in the case of The State of Gujarat v. Kishorchandra A. Chhaya (supra). It is submitted that the Affidavit of the Chief Officer infact there is an admission that the petitioner had sought an opportunity by giving an application in writing. It is submitted that the Affidavit of the Chief Officer infact there is an admission that the petitioner had sought an opportunity by giving an application in writing. It is submitted that even from the photographs on which the applicant of Civil Application No.1/2020 seeks to rely on indicates the time of handing over of the letter as 12:06:06 pm and therefore, considering the time for meeting scheduled being 12.00 pm, it cannot be said that the petitioner had submitted the application after voting took place. 26. Learned Advocate submitted that the decision dated 11.07.2018 cited on behalf of the Municipality in the case of Bharatbhai Ravjibhai Wadi v. State of Gujarat in Special Civil Application No.8204/2018 to contend that there is no right conferred on him of inviting him to speak and it could never be the proposition that until he exercises his right to speak, motion could be passed should be treated as judgment in per curiam. As the earlier judgment in the case of Geetaben Bharatbhai Patel (supra), the Court is already held the requirement of Section 56(3) of the Panchayats Act mandatory and a Bench of the same strength cannot disregard the judgment of the earlier Bench and therefore, the right of the earlier bench should be given precedence. 27. I have considered the rival submissions of the parties and perused the records of the case. A challenge is made to the Resolution No.368 passed by the Mehsana Municipality on 02.03.2020. The said Resolution is passed by 29 to 12. A Notice for no confidence was moved on 18.02.2020 (Annexure 'C') as provided under Section 36(3) of the Municipalities Act. The strength of the Municipality is 44. It is not in dispute that in the year 2015 when the election of the Municipality took place, 29 members were elected on the symbol of Indian National Congress and 15 were elected on the symbol of the Bharatiya Janata Party. 28. It is also not in dispute that one member namely Allarakhiben Ayubbhai Belim expired on 12.02.2020 thereby reducing the strength of the members to 43. The requisition for no confidence motion was moved by 17 members, under the signature of 17 members addressed to the Chief Officer of the Mehsana Municipality on 18.02.2020. 28. It is also not in dispute that one member namely Allarakhiben Ayubbhai Belim expired on 12.02.2020 thereby reducing the strength of the members to 43. The requisition for no confidence motion was moved by 17 members, under the signature of 17 members addressed to the Chief Officer of the Mehsana Municipality on 18.02.2020. In view of the aforesaid, the petitioner issued a Notice for a Special General Meeting on 26.02.2020 scheduling the meeting on 02.03.2020 at 12.00 p.m. with the sole Agenda of no confidence motion against the petitioner (Annexure 'E'). The Special General Meeting was held as per the schedule on 02.03.2020 where the procedure of the decision took place which are on record. The Chief Officer in his Affidavit has narrated the manner in which the proceedings were held which are under :- “That out of 43 members, 41 members were remained present in the meeting and 2 members remained absent in the meeting. That the Chairman of the meeting i.e. Vice President of the Nagarpalika apprised the members about the purpose of the meeting. Thereafter, immediately the leader of ruling party Shri Jaydipsinh Dabhi rise from his place and readout the whip to all the members present in the meeting and inform all the members of the Indian National Congress party that everyone has to vote against No Confidence motion, and everyone has to vote in favour of the President of the Nagarpalika Shri Ghanshyambhai Solanki. That as soon as he completed his announcement, the leader of opposition party Shri Kirtibhai Shankarbhai Patel rise from his place and readout the whip of the Bhartiya Janta Party and informed the members of his party that they have to vote in favour of no confidence motion. There are municipal councillors from two different parties and therefore, their leaders have readout the whip given by the respective party. Thereafter, the President of Nagarpalika did not request the Chairman of the meeting that he would like to address the members with respect to No Confidence motion moved against him. No other members also asked the Chairman to present his views regarding No confidence motion and therefore, the members were asked to raise their hands in favour of no confidence motion. The 29 members have raised their hands in favour of no confidence motion. No other members also asked the Chairman to present his views regarding No confidence motion and therefore, the members were asked to raise their hands in favour of no confidence motion. The 29 members have raised their hands in favour of no confidence motion. After the said proceedings, the Chairman of the meeting asked the members to raise their hands against no confidence motion and 12 members have raised their hands against No confidence motion. That during the process of raising hands against no confidence motion, the President had given one Paper to the Chairman of the meeting. I say and submit that before putting No confidence motion to vote, President has not given any such letter to the Chairman of the meeting and he never requested to address the house. Thereafter, it was informed to the members that the No Confidence motion is passed, as 29 members have voted in favour of the No confidence motion and 12 members have voted against No confidence motion. It was informed by me to the house that after 3 days of such motion, office hold by the present President shall be declared as vacant.” 29. To appreciate the contention of the petitioner with regard to the strength of the Municipality undoubtedly under Section 6(2)(a), the strength of the Mehsana Municipality is 44 members. It is the case of the petitioner that in view of the meeting of the Municipality to constitute the Executive Committee, Town Planning Committee when the 6 members elected on the symbol of the Indian National Congress defied the whip, they have incurred disqualification. Disqualification Petition No.4/2009 is filed before the designated authority by Jaideepsingh N. Dabhi, an elected member of the Mehsana Municipality with a prayer clause to disqualify the respondents namely Mahesbhai Somabhai Patel, Rameshbhai Tribhovanbhai Patel, Sunilbhai Pravibhai Bhil, Pallaviben Jigneshbhai Patel, Sanjaykumar Pravinchandra Brahmbhatt and Allarakhi Ayubbhai Belim as disqualified from the post of member of Mehsana Municipality. Even this application was filed for interim direction with a prayer that such members who had incurred disqualification may be prevented from voting on the no confidence motion. Today it is brought to the notice of the Court by the private parties that such an application for interim direction has been rejected and the main matter is now fixed for hearing. 30. Today it is brought to the notice of the Court by the private parties that such an application for interim direction has been rejected and the main matter is now fixed for hearing. 30. Section 3 of the Disqualification Act prescribes for the manner in which a member would earn disqualification. In the instant case, disqualification of such members is based on defying the whip of the party and is therefore, covered under Section 3(1)(b) of the Disqualification Act. However, Section 6 provides for the decision on question as to disqualification on the ground of the defying whip and whether such member has become subject to disqualification under the Disqualification Act. The question has to be referred to the Chief Secretary, State of Gujarat or to an officer not below the rank of a Secretary of the State Government as may be chosen by the State Government in its behalf. Therefore, the issue whether such members have earned disqualification or not has to undergo adjudicatory process and decision to be given by the designated authority. It is only after such decision that a member becomes disqualified. The date of disqualification relates back to the date on which such member may have incurred disqualification. However, such decision is also to be taken by such authority. The issue of disqualification is not before this court nor there is any challenge to rejection of interim direction by the designated authority made by the petitioner. As in the instant case, there is no such decision and more particularly, when the application for interim injunction preventing such members from voting is rejected, the Court does not find any reason in treating the vote of such members against whom disqualification proceedings are pending to be invalid votes. 31. Reliance may be placed on the decision of this Court in the case of Devabhai Parbatbhai Avadia and Others v. District Collector, Rajkot and Another reported in 2008 2 GLR 1692 wherein the Collector in exercise of which power under Section 258 of the Municipalities Act prevented members of the Municipality from attending the meeting of the Municipality on the ground that the disqualification proceedings are pending against such members. Though the Court was considering the powers of the Collector under Section 258 of the Municipalities Act, yet the Court had an occasion to observe that the Collector could not have exercised the powers under the provisions of Section 258 of the Municipalities Act, while dealing with the application of the respondent and could not have passed the impugned order restraining the petitioners from participating in the General and Special Board Meeting of Morbi Nagar Palika especially when the proceedings under the Defection Act against the petitioners are pending before the competent authority. In that view of the matter also, the proposed action against whom the defection proceedings for disqualification are pending till they are declared disqualified cannot be prevented from participating in the meeting of the Municipality and therefore, their votes necessarily be treated as valid votes. 32. With regard to the contention of majority both in bringing the requisition for no confidence motion and the passing of the resolution of no confidence motion, Section 36(3) of the Municipalities Act provides for moving a no confidence motion by a notice supported by not less than 1/3rd of the total member of the then Councillors of the party. The notice for no confidence motion is dated 18.02.2020 which is signed by 17 members. It is not in dispute that one of the members had expired on 12.02.2020 and the strength of the Municipality is 43. 1/3rd majority considering the strength to be 43 would be 14.3 and as held by the Apex Court in Ganesh Sukhdeo Gurule v. Tahsildar, Sinnar and Others (supra) 1/3rd strength would be 15 members. In the instant case, when the Notice for no confidence is signed by 17 members, in the opinion of the Court, the notice for no confidence is meeting the requirement of Section 36(1) of the Municipalities Act. 33. Similarly where the strength of the Municipality is at 43, requirement of Section 36(2) of the Municipalities Act is for passing the motion by majority which should not be less than 2/3rd of the total member of the then Councillors of the Municipality. Learned Advocate for the petitioner has argued that when the word 'not less than 2/3rd' has found place in the Section, then the requirement of law is having members more than 2/3rd majority. Learned Advocate for the petitioner has argued that when the word 'not less than 2/3rd' has found place in the Section, then the requirement of law is having members more than 2/3rd majority. The argument of learned Advocate for the petitioner is unsupported by any precedence and therefore, cannot be accepted. The requirement of law is backed by a majority of not less than 2/3rd of the member to mean that 2/3rd of the members would constitute the required number under Section 36(2) of the Municipalities Act. In the instant case with the strength of 43, the 2/3rd majority would be at 28.6. Hence, applying what is held by the Apex Court in Ganesh Sukhdeo Gurule (supra), 2/3rd majority is at 29. In the instant case, the Resolution is passed by 29 to 12, meaning thereby that 2/3rd majority is achieved. 34. Reliance can be placed on the decision of Rajubhai Motilal Padhiar v. State of Gujarat and Others reported in 2009 3 G.L.H. 524 wherein it is held that that use of the term “then” under Section 36 of the Municipalities Act clearly denotes that the total number of Councillors has to be considered on the date of moving the motion or passing of it and therefore, the reduced number of Councillors ought to be treated as total strength of the Municipality and not the original strength. Paragraphs 6 and 7 of the above judgment reads as under :- “6. Sub-section (1) of Section 36 of the Act prescribes that a notice of no confidence motion has to be supported by not less than one third of the total number of the then councillors of the Municipality, and if such number is achieved the motion may be moved. Therefore one third of the total number has to be of the number of councillors of the Municipality at the point of time when a councillor intends to move a motion of no confidence against the President, i.e. on the date when the notice of no confidence has to be issued. 7. Therefore one third of the total number has to be of the number of councillors of the Municipality at the point of time when a councillor intends to move a motion of no confidence against the President, i.e. on the date when the notice of no confidence has to be issued. 7. Similarly under sub-section (2) of Section 36 of the Act it is provided that if the motion is carried by a majority of not less than two-thirds of the total number of the then councillors of the municipality, the president shall cease to hold office after a period of three days from the date on which the motion is carried. Here also the emphasis is on the number of councillors who are councillors at the point of time when the motion is put to vote. In both the sub-sections the use of term “then” clearly denotes that the total number of councillors of the municipality has to be considered on the date when either the notice of no confidence motion is moved or the date of voting when the motion is moved.” 35. In the case of Kishorchandra A. Chhaya (supra) relied upon by the petitioner, the issue before the Division Bench was on the issue of considering the total number of the then Councillors present at the meeting. This contention was turned down by holding that as the words 'present at the meeting' are not appearing in the Statute itself, the same cannot be considered. The Court had narrated the facts therein with regard to the number of Councillors in Paragraph 3 stated as under :- “Therefore under Section 6 of the Act total number of seats of councillors is fixed. In this Section word “then” is used as equivalent to “at that time”. It may be that some councillors may have resigned or died thereby giving rise to vacancy. So even though total number of councillors is fixed under Section 6 of the Act, yet at the relevant time when the resolution is passed, there may be vacancy because of the death or resignation of some councillors and the total number would mean only those persons who were existing councillors of the municipality at the relevant time. In the present case admittedly when the impugned Resolution No.29 dated 30th July 1982 was passed, 19 members remained present at the meeting. In the present case admittedly when the impugned Resolution No.29 dated 30th July 1982 was passed, 19 members remained present at the meeting. At the time total strength of the councillors of the Mangrol Municipality was admitted 25. Out of the 19 councillors who were present, 13 councillors gave vote in favour of the resolution, one councillor gave vote against the resolution and 5 councillors abstained from voting. As per the interpretation we have just given to the phrase “two thirds of the total number of the then councillors”, it would be clear, that the resolution ought to have been passed by majority of at lease two-third councillors of the total strength of 25 councillors i.e. by a majority of at least 17 councillors. Admittedly the resolution is passed by the majority of 13 councillors.” 36. The Division Bench was conscious of the fact that the vacancy may arise because of the death or resignation of some of the Councillors but such issue was not addressed in this judgment and therefore, reliance placed by the petitioner on this judgment is of no consequence. In view of the aforesaid reasoning, the challenge to the Resolution of not having passed by a requisite majority cannot be sustained. 37. With regard to the petitioner for not having provided an opportunity to address the house before passing of no confidence motion, it would be relevant to take into consideration the Affidavit of the Chief Officer which narrates the proceedings as they were conducted. Undoubtedly the petitioner is not a novice, he is an Advocate by profession and therefore, would be well conversed with the nitty gritties of the meeting and proceedings. The Court is constrained to observe this in view of the fact that the private party in the Affidavit has given a narration as to what preceded the meeting and how the petitioner had addressed the meeting when it commenced. This submission made appears to be made on the basis of the photography recorded of the proceedings which are also referred to the Chief Officer in his reply and referred to by learned Advocate for the Municipality during the course of arguments. The Court sees no reason to disbelieve this. This submission made appears to be made on the basis of the photography recorded of the proceedings which are also referred to the Chief Officer in his reply and referred to by learned Advocate for the Municipality during the course of arguments. The Court sees no reason to disbelieve this. The photographs which are produced indicates the chronology and therefore, there is no manner of doubt that the petitioner had participated in the meetings when the motion was put to vote and had not raised any objection till the hands were raised in favour of the motion which was 29 in number and therefore, obviously reaching the bench mark of 2/3rd majority and it is at this stage that the petitioner has decided to act by handing over a letter to the Chair. Therefore, when the hands were raised against the motion, the petitioner also participated by raising his hand against the motion and the same is recorded in the resolution meaning thereby that the petitioner had fully participated in the passing of the Resolution. He was a fence sitter till he realized that that majority was in favour of the motion and at that time he gave a letter seeking an opportunity to address the house. This conduct in the opinion of the Court cannot be considered as depriving the petitioner of addressing the house as contemplated under Section 36(3) of the Municipalities Act. 38. Undoubtedly the ratio of judgment of Geetaben Bharatbhai Patel (supra) holds the requirement of Section 36(3) of the Panchayats Act as mandatory in nature but in the facts of the present case it does not indicate that the petitioner is in any manner deprived of the right to participate and speaking on the subject during the meeting. There is no doubt that the petitioner did give an application in writing to the chair for addressing the house during the meeting there is also no doubt that no written application for the purpose is necessary still it was given during the Vote on No confidence motion was in progress, therefore petitioner was completely aware of the Right to address despite the petitioner preferred to be a fence sitter, perhaps expecting the no confidence motion to fail but when 29 members raised hand in favor of the no confidence motion the petitioner thought it fit to give an application. On account of such conduct the court is of the opinion that this not a case where petitioner is deprived of a valuable Right, but it is a case where the petitioner has foregone his Right to address the House. 39. Yet another aspect is that the necessity of such opportunity to address the house as is led down in the judgments of this court in case of Geetaben (Supra) and Suvarnaben (supra) that such opportunity is to enable the member to give explaination of his conduct and convince other members to vote against the motion. This would necessarily mean that such opportunity and exercise of Right to address has to be before the motion is put to vote. It cannot be understood that such Right is to be exercised at any time of the meeting and certainly not when the motion is put to vote or after the voting is concluded. 40. Learned Advocate for the petitioner has relied upon the judgment in the case of Suvarnaben Chetanbhai Raval (supra) to contend that even if the petitioner may not demand an opportunity of speaking, the petitioner has to be provided with such an opportunity. It is pertinent to note that in that case, there were gross facts to which the Court has come across, wherein the Talati cum Mantri had taken an diametrically opposite stand not to separate the votes but in which a categoric statement was made that an opportunity of addressing the house at the time of no confidence motion was being discussed, but it was not accepted by the member and had failed to address the house, whereas in the subsequent affidavit, it was stated that the member was not informed for that it was open for the member to address the House before the no confidence motion was put to vote. In the said order, the Court has considered the unconditional apology tendered by the deponent therein. 41. As recorded in the judgment in the case of Geetaben Bharatbhai Patel (supra), the purpose behind providing an opportunity to address the house is to enable the member through his persuasive power or logical arguments to prevail upon some of the members present at the meeting to change their mind and persuade them to vote against the no confidence motion. As recorded in the judgment in the case of Geetaben Bharatbhai Patel (supra), the purpose behind providing an opportunity to address the house is to enable the member through his persuasive power or logical arguments to prevail upon some of the members present at the meeting to change their mind and persuade them to vote against the no confidence motion. In the instant case, the no confidence motion was moved by a Notice dated 18.02.2020, the petitioner himself has convened a meeting under a Notice for Special General Meeting dated 26.02.2020 with an Agenda of no confidence motion and the meeting was scheduled on 12.03.2020. The petitioner having participated in the meetings as prescribed in the preceding paragraphs and having cast his vote, the Court is of the view that the requirement of Section 36(3) of the Municipalities Act is not breached and an opportunity of addressing the house was available and the petitioner did not avail of such an opportunity. It was only at the stage when the no confidence motion was under progress, at that stage, a letter is given by the petitioner to the Chair. This gains significance as Section 36(3) of the Act right to speak or not or otherwise cannot operate in the proceedings of such meeting (including right to vote) would obviously mean such right being exercised by the petitioner before the motion put to voting and would certainly not be available to the petitioner but after that the motion as being voted by majority, such ground cannot be raised. 42. In view of the foregoing discussion, the Court does not find any reason to interfere with the resolution. The petition therefore deserves to be dismissed and is hereby dismissed. Rule is discharged. 43. In view of the orders passed in the main matter, the Civil Applications Nos.2 of 2020 and 3 of 2020 do not survive and stand disposed of.