Bombay High Court
Priyanka Pravin Suryawanshi vs The State Of Maharashtra And ... on 17 August, 2022
Bench: M. G. Sewlikar
(1) 77 wp 737.22
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
77 WRIT PETITION NO.737 OF 2022
PRIYANKA PRAVIN SURYAWANSHI
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Petitioner : Mr. Patil Jitendra V.
AGP for Respondents/State : Mr. S.B. Pulkundwar
Advocate for Respondents : Mr. M.S. Sonwane for R/4
Advocate for Respondents : Mr. G.V. Wani for R/5
Advocate for Respondents : Mr. Fayaz K. Patel for R/11
Advocate for Respondents : Mr. Dhawale Bhushan S. for R/12
...
CORAM : M.G. SEWLIKAR, J.
DATE : 17th August, 2022
P.C.:-
Heard.
2. Petitioner is the Sarpanch of Gram Panchayat Kinod. The
strength of Gram Panchayat is eight.
3. Respondent nos.5 to 10 moved the motion of no confidence
against petitioner. This motion was tendered before the Tahsildar. The
Tahsildar issued notice for voting on no confidence motion. At the time of
voting six members were present. The petitioner was disqualified. The
decision of disqualification was ratified by the Gramsabha in a special
meeting.
(2) 77 wp 737.22
4. Notice of no confidence motion was accepted which was ratified
by the special Gramsabha. This decision was challenged by the petitioner
before the Collector vide dispute application no.57/2021. This dispute came
to be rejected by the District Collector/respondent no.2.
5. Learned counsel for the petitioner submits that in terms of
Section 35 (1) of the Maharashtra Village Panchayat Act, a motion of no
confidence needs to be moved by not less than two third of the total number
of the members who are for the time being entitled to sit and vote at the
meeting. He submits that the total number of members of Gram Panchayat is
eight. The 2/3rd of 8 members of the Gram Panchayat comes to 5.03.
Learned counsel for the petitioner submits that 5.03 cannot be rounded off as
five. For this purpose he placed reliance on the case of Ganesh Sukhdeo
Gurule V/s. Tahsildar, Sinnar and Others reported in (2019) 3 SCC 211 in
which it has been held thus:
"12. The next submission pressed by the respondent is that for
applying the principle of rounding off 5.33 votes have to be
rounded as to five. Thus, five votes are sufficient to accept
majority for the purpose of passing no-confidence motion.
Whether 5.33 votes can be rounded up into 5 votes or requirement
is at least six votes is the real issue. When there are clear words in
the statute i.e. "not less than two-third of the total number of
members" applying the principle of rounding off, 5.33 vote cannot
(3) 77 wp 737.22
be treated as 5. Vote of a person cannot be expressed in fraction.
When computation of a majority comes with fraction of a vote that
fraction has to be treated as one vote, because votes cannot be
expressed in fraction. The principle that figure less than .5 is to be
ignored and figure more than .5 shall be treated as one, is not
applicable in the statutory scheme as delineated by Section 35.
Provision of Section 35(1) which provides for requirement for
moving motion of no-confidence 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, is the same
expression as used in sub-section (3). Obviously, requirement of
not less than one-third number for moving motion has to be
computed from total number of the members who are entitled to
sit and vote. Thus, the same expression having been used in sub-
section (3) of Section 35, both the expressions have to be given
the same meaning. Thus, one-third of total number of members
who are entitled to sit and vote have to be determined on the
strength of members entitled to vote at a particular time. The
same meaning has also to be applied while computing two-third
majority."
6. Admittedly, strength of Gram Panchat is eight members. Out of
those eight members five members moved no confidence motion. 2/3rd of
eight comes to 5.03. In terms of the judgment of the Supreme Court in the
case of Ganesh Sukhdeo Gurule cited (supra), it is apparent that 5.03 cannot
be rounded off as five. Therefore, it cannot be said that motion of no
confidence was validly moved by Gram Panchayat members. Learned counsel
for the respondents Shri Wani cannot dispute this position. In view of this,
(4) 77 wp 737.22
petition needs to be allowed. The order passed by the District Collector dated
6th January, 2022 by which the dispute application no.57/2021 came to be
rejected is set aside. Dispute Application No.57/2021 is allowed.
7. Writ Petition is disposed of. No costs.
[M.G. SEWLIKAR, J.]
mub
