1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1446 OF 2009 Sudam Baburao Gawade & Ors. ...Petitioners Versus The State of Maharashtra & Ors. ...Respondents Mr. Narendra V. Bandiwadekar for the Petitioners Mr. S.K. Chinchlikar, Assistant Government Pleader, for the State. CORAM: B ILAL NAZKI and SMT. V.K. TAHILRAMANI, JJ. DATE: JUNE 11, 2009 P.C.:- The petition has been filed, seeking quashing of the impugned order dated 31st December, 2008 passed by respondent No. 2, by which he held that the motion of no confidence was not carried against respondent No. 4. 2. Seventeen members were present and voted. 11 persons voted in favour of the motion, and 6 persons voted against it. 2 The respondents ruled that motion was not carried, as it was not carried by a majority of not less than two-third of the total number of members who voted in the meeting. If one calculates mathematically, 11.33 would be two-third of 17. The learned counsel for the petitioners submits that it is commonly understood that if a fraction is less than .5, it should be ignored, and if a fraction is more than .5, it should be taken as 1. Therefore, he submits that when 11 persons voting in favour of the motion out of 17, it should have been taken to have been carried, and it should have been construed that two-third of the members had voted in favour of the motion. 3. The learned counsel relies on a judgment of the Supreme Court in State of Uttar Pradesh v. Pawan Kumar Tiwari, reported in AIR 2005 S.C. 658. This judgment was delivered altogether in different circumstances in a different set of facts. Before the argument of the petitioners is appreciated, it would be profitable to re-produce hereunder Section 35(3) of the Bombay Village Panchayats Act, 1958:- “If the motion (of no confidence) is carried by a majority of not less than two-third of the total number of the members who are for the time being be entitled to sit and vote at any meeting of the Panchayat the Sarpanch or the Upa-Sarpanch, as the 3 case may be, shall cease to hold office after seven days from the date on which the motion was carried unless he has resigned earlier or has disputed the validity of the motion so carried as provided in sub-section (3-B); and thereupon the office held by such Sarpanch or Upa-Sarpanch shall be deemed to be vacant. Provided that, where the office of the Sarpanch being reserved for a woman, is held by a woman Sarpanch, such motion of no-confidence shall be carried only by a majority of not less than three-fourth of the total number of the members who are for the time being entitled to sit and vote at any meeting of the panchayat: Provided further that no such motion of no-confidence shall be brought within a period of six months from the date of election of Sarpanch or Upa-Sarpanch.” 4. This provision makes it clear that a motion of no confidence would be construed to have been carried if a majority of not less than two-third of the total number of the members vote in favour. Therefore, the requirement of the law is that the motion should be passed by majority of not less than two-third. 11, numerically, is less than 11.33. Although 11.33 cannot be achieved, what can be achieved is 12. 5. Therefore, we are of the view that out of 17 persons, if at least 12 persons vote in favour of the motion, then and only then, motion can be construed to have been carried. In any case, 11 is less than two-third of 17. 4 6. Therefore, we do not find any ground to intervene. The petition is dismissed. BILAL NAZKI, J. SMT. V.K. TAHILRAMANI, J.