IMPORTANT POINTS
Expression “who are for the time being entitled to sit and vote” cannot be treated to be expression “members present and voting”.
Fraction of vote has to be treated as one vote.
The vote of the member not submitting caste certificate within six months of election can neither be computed for no-confidence motion nor is relevant for computing two-third majority.

JUDGMENT

ASHOK BHUSHAN,J.

This appeal has been filed against the judgment dated 22.11.2018 of the High Court of Bombay dismissing the writ petition filed by the appellant.

2. We have heard learned counsel for the appellant as well as the counsel for the respondent No.4 who has appeared on caveat. The interest of respondent No.4 and other private respondents being common we have not issued notice to other respondents.

3. The brief facts of the case necessary for deciding he appeal are:

On 07.09.2018, respondents moved a no-confidence motion against the appellant. Tahsildar issued notice dated 07.09.2018 convening special meeting of Gram Panchayat for consideration of no-confidence motion on 14.09.2018. On 14.09.2018 out of nine members of the Gram Panchayat only eight members were present in the meeting. Six members voted in favour of the motion and two members were opposed to it. One of the members who voted in favour of no-confidence motion was not qualified to vote, namely, Smt. Sushila Prakash Darade who had not filed her caste certificate after election, hence, she was disqualified to continue to be a member or to vote in any meeting. A Dispute Application under 35(3-B) of the Maharashtra Gram Panchayat Rules, 1958 challenging the no-confidence motion passed was filed. The Addl. Collector, Nasik passed an order dated 16.10.2018 approving the special meeting dated 14.09.2018 holding that no-confidence motion was validly passed. Against the order passed by the Addl. Collector, a writ petition was filed by the appellant which has been dismissed by the High Court by the impugned judgment. Aggrieved by the judgment of the High Court this appeal has been filed.

4. Learned counsel for the appellant submits that total members of Gram Panchayat being nine and one member being disqualified to vote the two-third majority has to be computed on the basis of eight members which comes to 5.33 and there being only five valid votes in favour of no-confidence motion, motion cannot be held to be passed. One of the members who voted in favour of no-confidence motion i.e. Smt. Sushila Prakash Darade being disqualified to sit and vote cannot be counted in favour of no-confidence motion, two-third majority being 5.33, at least six votes were required for passing the no-confidence motion. It is submitted that caste certificate being not submitted by Smt. Sushila Prakash Darade within six months as required by law she automatically became disqualified to sit or vote in the meeting of Gram Panchayat.

5. The submissions made by the counsel of the appellant were refuted by the counsel for the respondent. It is submitted that there being only eight members present and one being disqualified, two-third majority shall be computed from seven and five votes caste in favour of the no-confidence motion, the motion shall be treated to be validly passed. It is contended that provision of Section 35(3) of the Maharashtra Village Panchayats Act, 1959 has to be read to mean that majority of not less than two-third of total number of members present and voting, thus, there being only 8 members present, majority is to be computed from 7 excluding one disqualified member. He submits that motion of no-confidence was validly passed against the appellant and rightly upheld by the High Court. 6.Learned counsel for the parties relied on few judgments which shall be referred to while considering the submissions.

7. Section 35 of the Maharashtra Village Panchayats Act deals with motion of no-confidence. Section 35(1) and Section 35(3) which are relevant for the present case are as follows:

“35. Motion of no confidence. (1) A motion of no confidence may be moved by not less than [one third] of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat against the Sarpanchor the Upa Sarpanch after giving such notice thereo