( 1 ) A short but an interesting question arises in this writ petition. The question relates to the meaning and scope of Clause (5) (viii) of Rule 33-B, U. P. Panchayat Raj Rules, 1947 ("rules" ). Rule 33-B provides for removal of the elected Pradhan. Clause 5 (viii) thereunder provides that the no-confidence motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the members "present and voting. " The question is whether "present and voting" mean only "present and casting valid votes and not invalid votes". The decision of this Court in Roop Narain Pandey v. State of U. P. , 1984 All LJ 879 has taken the view that it is only the valid votes that should count. The correctness of this decision has been doubted by a division Bench which has referred this case to a larger Bench. That is how the matter is now before us.

( 2 ) THE facts are these Petitioner was an elected Pradhan of Gaon Sabha, Mirpur Sitapur of district Saharanpur. On 27-9-1983, a meeting was convened for considering a no-confidence motion against him. There were, in all, 314 members of the Gaon Sabha present in the meeting. Out of them, 207 voted in favour of the motion while 100 voted against the motion. Seven of the votes were found invalid and so rejected. The Presiding Officer declared the motion as having been passed by a majority of two-thirds of the members present and voting. Pradhan challenging the decision of the Presiding Officer has moved this Court for relief under Article 226 of the constitution.

( 3 ) IF the rejected votes had been taken into consideration for the purpose of counting the required two-thirds majority, the decision of the Presiding Officer would have gone in favour of the pradhan. The question urged before us is that the Presiding Officer was not justified in excluding the invalid votes for the purpose of considering the majority of two-thirds of the members present and voting,

( 4 ) IN order to appreciate the contention, we may now refer to the relevant Rules. Rule 33-B provides procedure for removal of Pradhan or Up-Pradhan. Clause (1) of Rule 33-B provides for giving written notice of the intention to move a motion for removal of the Pradhan. It is to be signed by not less than one-half of the total number of members of the Gaon Sabha. Clause (2) of rule 33-B provides that the prescribed authority shall convene a meeting of the Gaon Sabha on a date to be fixed by him which shall not be later than thirty days from the date of the receipt of the notice. Clause (3) deals with the procedure to be followed in such a meeting. The Presiding officer has to allow the motion to be moved and discussed. Upon the conclusion of the debate, the motion has to be put to vote by secret ballot. The ballot paper may be hand-written, type-written, cyclostyled or printed. The Presiding Officer has to satisfy himself about the identity of the persons entitled to vote. Sub-clause (iv) of Clause (5) provides that if any member after obtaining a ballot paper for the purpose of recording his vote decides not to use the same, he has to return the ballot paper to the Presiding Officer who has to mark it "returned and cancelled" and keep it in an envelope. Sub-clause (v) of Clause (5) deals with voting. Each member has to enter the polling compartment, and if he wishes to vote for the motion for the removal, he has to make a mark on the ballot paper, and if he wishes to vote against the motion, he has to make no mark on the ballot paper. Thereafter, he has to fold the ballot paper and put it into the ballot box through the slit provided for the purpose. Sub-clause (viii) of Clause (5) deals with the duties of the presiding Officer after voting is closed. It reads : " (a) The Presiding Officer shall open the ballot box and take out therefrom the ballot papers and examine them; (b) The Presiding Officershall reject a ballot paper, if it bears any mark or writing by which the voter can be identif