WP(C) 4815/2010 BEFORE THE HON’BLE MR. JUSTICE B.P. KATAKEY These writ petitions, being related to the no confidence motion brought against the President of Ghilamara Anchalik Panchayat under Lakhimpur Zilla Pari shad, are taken up for disposal together. WP(C) No.4815/2010 has been filed by t he Vice President and 4(four) members of the said Anchalik Panchayat challenging the communication dated 12.08.2010 issued by the Chief Executive Officer of Zil la Parishad intimating the Executive Officer of the Anchalik Panchayat that as t he resolution expressing want of confidence on the President of the Anchalik Pan chayat (respondent No.8) has not been adopted by the majority of 2/3rd members, the same vitiates the provisions contained in Section 43(1) of the Assam Panchay at Act, 1994 (in short the 1994 Act) and as such no further action could be take n in that regard. A further prayer has also been made to declare that the office of the President of the Anchalik Panchayat stands vacated on 07.08.2010 when th e resolution expressing want of confidence was passed in the special meeting of the Anchalik Panchayat. 2. WP(C) No.5596/2010 has been filed by the President of Ghilamara Anchalik Panchayat (respondent No.8 in WP(C) No.4815/2010), challenging the notice dated 01.10.2010 issued by the Executive Officer of the Anchalik Panchayat convening an urgent meeting on 05.10.2010, which according to the writ petitioner has been convened to elect the President of the Anchalik Panchayat, though the Zilla Par ishad has refused to act on the resolution adopted in the meeting of the Anchali k Panchayat on 07.08.2010 expressing want of confidence on her, on the ground of not being passed by majority of 2/3rd number of members, as required under the provisions of the 1994 Act. 3. The relevant facts necessary for disposal of the present two writ petiti ons, which are not in dispute, may be noticed as under. Ghilamara Anchalik Panch ayat was constituted with 9(nine) directly elected members, which however been r educed to 8 because of the death of one member, out of which, 6 members on 30.07 .2010 gave a notice expressing want of confidence on the President of the Anchal ik Panchayat, pursuant to which a special meeting was convened on 07.08.2010, wh erein 5(five) out of 8(eight) existing directly elected members of the Anchalik Panchayat adopted a resolution expressing want of confidence on the President. T he Executive Officer of the Anchalik Panchayat vide communication dated 07.08.20 10 informed the Deputy Commissioner about the proceeding dated 07.08.2010, with copy to the Chief Executive Officer of the Zilla Parishad. By impugned communica tion dated 12.08.2010 the Chief Executive Officer of the Zilla Parishad informed the Executive Officer of the Anchalik Panchayat that as the 5(five) members of the Anchalik Panchayat do not constitute majority of 2/3rd of 8(eight) members, the resolution expressing want of confidence on the President cannot be treated to be valid, in view of the provision contained in Section 43 of the 1994 Act an d as such no action can be taken on the basis of such resolution. Thereafter, a notice dated 01.10.2010 has been issued by the Executive Officer of the Anchalik Panchayat convening an urgent meeting of the Anchalik Panchayat fixing 05.10.20 10 as the date for such meeting, which has been challenged in WP(C) No.5596/2010 . 4. I have heard Mr. P.J. Phukan, learned counsel for the petitioners in WP( C) No.4815/2010, who are also the respondent Nos.7 to 11 in WP(C) No.5596/2010 a nd Mr. R.P. Sarmah, learned Sr. counsel for the petitioner in WP(C) No.5596/2010 , who is also the respondent No.8 in WP(C) No.4815/2010. The learned State couns el appearing for the State respondents has also been heard. 5. The learned counsel for the petitioners in WP(C) No.4815/2010 referring to Section 43 of the 1994 Act has submitted that the President of the Anchalik P anchayat can be removed from the office by bringing a no confidence motion subje ct to passing of the same by a majority of 2/3rd of total number of the directly elected members of the Anchalik Panchayat and in the instant case since out of the 8(eight) existing directly elected members of the Anchalik Panchayat 5(five) supported such motion expressing want of confidence, it cannot be said that suc h resolution has not been adopted as required under sub-section (1) of Section 4 3 of the 1994 Act. According to the learned counsel the reasons cited by the Chi ef Executive Officer of the Zilla Parishad in the impugned communication dated 1 2.08.2010 is erroneous and contrary to the provisions contained in sub-section ( 1) of Section 43 of the 1994 Act, as while ascertaining the majority of 2/3rd of total number of directly elected members any fraction which is less than 5 has to be ignored. Mr. Phukan submits that the Chief Executive Officer of the Zilla Parishad has not ignored the fraction .33 in calculating the number of members c onstituting majority of 2/3rd members. Mr. Phukan in support of his contention h as placed reliance on a Division Bench judgment of this Court in Samiruddin Ahme d Vs. S.D.O., Mangaldoi and others reported in AIR 1971 Assam & Nagaland 163 as well as a Full Bench decision of Allahabad High Court in Wahid Ullah Khan Vs. Di strict Magistrate, Nainital and others reported in AIR 1993 Allahabad 249. 6. Referring to the decision of the Apex Court in State of U.P. and another Vs. Pawan Kumar Tiwari and others reported in (2005)2 SCC 10 it has been submit ted by Mr. Phukan that under the rule of rounding off, if part is one-half or mo re, its value has to be increased to one and if part is less than half then its value has to be ignored. According to the learned counsel, in the case in hand, since 2/3rd of 8 constitute 5.33, the fraction .33 has to be ignored, the same b eing less than 5. 7. Mr. Sarmah, learned Sr. counsel appearing for the writ petitioner in WP( C) No.5596/2010, who is the President of the Anchalik Panchayat, supporting the communication dated 12.08.2010 issued by the Chief Executive Officer of the Zill a Parishad has submitted that to remove a President of Anchalik Panchayat by ado pting the resolution expressing want of confidence, the same has to be passed by majority of 2/3rd of the total number of directly elected members. According to the learned Sr. counsel as the requirement of Section 43(1) of the 1994 Act is that such resolution has to be passed by majority of 2/3rd of total directly ele cted members, while calculating such 2/3rd, the total number of directly elected members is to be considered and not the number of existing directly elected mem bers, irrespective of the vacancy in the office of any member and hence in the p resent case, the total number of directly elected members of the Anchalik Pancha yat being 9, the resolution has to be supported by 6, to unseat the President. I t has also been submitted by the learned Sr. counsel that even assuming that onl y the number of existing members is to be taken into consideration while calcula ting the 2/3rd, any fraction, howsoever small may be, cannot be ignored, in view of the specific provisions in sub-section (1) of Section 43 of 1994 Act that su ch resolution has to be adopted by majority of 2/3rd of the total number of dire ctly elected members and if such fraction is ignored, it would amount to emascul ate the provision of its rigour and reduce the exercise to a formality. 8. Mr. Sarmah in support of his contention has placed reliance on the decis ion of a Division Bench judgment of this Court in Samiruddin Ahmed (supra), a Si ngle Bench judgment of this Court in Jiten Saikia and another Vs. State of Assam and others reported in 2004(2) GLT 233, a Single Bench judgment of Allahabad Hi gh Court in Smt. Meera Devi Vs. State of U.P. and others reported in AIR 1998 Al lahabad 157, a Division Bench judgment of Andhra Pradesh High Court in Gogineni Koteswara Rao and etc. Vs. Govt. of A.P. and others reported in AIR 1999 Andhra Pradesh 348 and a Full Bench judgment of Bombay High Court in Ashok Maniklal Har kut Vs. The Collector of Amravati and another reported in AIR 1988 Bombay 207. 9. Mr. Phukan, learned counsel for the petitioners in WP(C) No.4815/2010, i n reply to the submission made by the learned Sr. counsel appearing for the Pres ident of the Anchalik Panchayat, has submitted that it is being nobody’s pleaded case that in calculating the majority of 2/3rd of the total members of the Anch alik Panchayat, the total number of members constituting the Panchayat, irrespec tive of whether there is any vacancy, has to be taken into consideration, the su bmission of the learned Sr. counsel for the President that there being total 9 m embers, 2/3rd would be 6, cannot be gone into in the present proceedings. It has also been submitted that the Single Bench judgment of this Court in Jiten Saiki a (supra) cannot be held to be good law, the same being contrary to the provisio ns of the 1994 Act as well as the judgment of the Apex Court in Pawan Kumar Tiwa ri’s case. Relating to the judgment of Allahabad, Andhra Pradesh and Bombay High Court, on which the learned Sr. counsel for the President of the Anchalik Panch ayat has placed reliance, it has been submitted that the provisions in the Acts under consideration in the said cases are different from the provisions of the 1 994 Act, as under those Acts the motion has to be passed by ’not less than’ the particular number of members. The wordings in those enactments are different fro m the wordings of the 1994 Act and hence those decisions, as cited by the learne d Sr. counsel, cannot be applied in the case in hand, submits the learned counse l. 10. The learned State counsel appearing for the State respondents has not ta ken any stand in these proceedings. The State respondents have also not been fil ed any affidavit-in-opposition. 11. In view of the aforesaid submissions made by the learned counsel for the appearing parties, the questions which require determination by this Court in t he present proceedings, are (i) whether in calculating the majority of the total number of directly elected members of the Anchalik Panchayat, any fraction, eve n if it is less than 5, can be ignored and (ii) whether the total number of memb ers means the number of members constituting the Anchalik Panchayat or existing members of the Anchalik Panchayat at the time of consideration of the motion exp ressing want of confidence. 12. For determination of the aforesaid issues, the relevant provisions of 19 94 Act are to be considered first. Section 43 of the 1994 Act provides for bring ing motion of no confidence against the President and Vice President of Anchalik Panchayat. Sub-Section (1) of Section 43 provides that the President and the Vi ce President of the Anchalik Panchayat can be removed from the office by a resol ution expressing want of confidence in him/her, provided it is passed by a major ity of 2/3rd of the total number directly elected members of the Anchalik Pancha yat, in a meeting specially convened for that purpose with the approval of the P resident of the Anchalik Panchayat. Sub-Section (1) of Section 43 of the said Ac t, for better appreciation, is quoted below:- 43. No confidence motion against the President and the Vice-President of Anchal ik Panchayat. - (1) Every President and Vice-President of the Anchalik Panchayat shall be deemed to have vacated his office forthwith, if by a resolution expres s want of confidence in him is passed by a majority of two-third of total number of the directly elected the members of the Anchalik Panchayat. Such a meeting s hall be specially convened with the approval of the President of the Anchalik Pa nchayat. Such meeting shall be presided over by the President if the motion is a gainst Vice President and by the Vice-President if the motion is against the Pre sident. In case such a meeting is not convened by the Anchalik Panchayat within a period of fifteen days from the date of receipt of the notice, the Secretary o f the Anchalik Panchayat shall refer the matter to the President of the Zilla Pa rishad with intimation to the Deputy Commissioner. The President of the Zilla Pa rishad shall then arrange for convening the meeting within fifteen days from the date of receipt of intimation. The Zilla Parishad President shall preside over such meeting but shall have no vote. 13. To determine the first issue it has first to be ascertained what would b e 2/3rd of total number of directly elected members, for the purpose of carrying a motion expressing want of confidence on the President and the Vice President of the Anchalik Panchayat. If the total number of the directly elected members i s an odd number, there would not be any difficulty in calculating the 2/3rd of s uch members, as it would be divisible by 3. But if the total number of members o f an Anchalik Panchayat is an even number, while calculating the 2/3rd there wou ld always be a remainder and in that case to arrive at the 2/3rd of such number, whether the remainder, if it is less than 5 is to be ignored or it has to be ro unded to one, even if it is less than 5. No dispute has been raised by any of th e parties to the proposition that when such remainder is 5 or more, it has to be rounded to 1. 14. Sub-Section (1) of Section 43 of 1994 Act in clear terms has stipulated that the President and the Vice President of the Anchalik Panchayat can be remov ed from the office on expressing want of confidence only if a resolution in that respect is adopted by a majority of 2/3rd of the total number of directly elect ed members. A Single Bench of this Court in Jiten Saikia (supra) placing relianc e on the provisions of Section 43(1) of the Act as well as a judgment of Punjab and Haryana High Court in Jardar Khan Vs. State of Haryana and others reported i n AIR 1998 Punjab & Haryana 249 has held that any fraction, howsoever small may be, cannot be ignored while computing 2/3rd majority of the total members and su ch fraction should be read as one and consequently the result and number would b e the next higher integer. It has also been held that such fraction would repres ent the corresponding opinion essential for comprising the required majority for unseating the President or the Vice President and thus cannot be ignored. 15. A Single Bench of the Allahabad High Court in Smt. Meera Devi (supra) ha s also taken the similar view as has been taken by a Single Bench of this Court in Jiten Saikia’s case. While interpreting the provisions contained in Section 1 4(1) of U.P. Panchayat Raj Act, which provides for removal of Pradhan from its o ffice by adopting the motion of no confidence by a majority of 2/3rd of the memb ers present and voting, it has been held that by applying the principle of round ing off any remainder cannot be ignored, while ascertaining the requisite majori ty of 2/3rd. 16. A Division Bench of Andhra Pradesh High Court in Gogineni Koteswara Rao (supra) while considering the provisions in Section 245(2) of Andhra Pradesh Pan chayat Raj Act, 1994, which provides for unseating of Upa Sarpanch, President or Chairman of Panchayat by adopting motion expressing want of confidence carried with the support of not less than 2/3rd of the total number of members, has held that any fraction arises in calculating such number shall have to be treated as 1, since Rule 6 of the Rules framed under the said Act clarifies that in determ ining 2/3rd of the total number of members, any fraction arrived shall be constr ued as 1. There is, however, no such corresponding provision in Assam Panchayat (Constitution) Rules, 1995. 17. In Ashok Maniklal Harkut (supra) a Full Bench of Bombay High Court while interpreting the expression not less than , occurring in Section 55 of Maharas htra Municipal Act has held that if a fraction is ignored then the majority will be less than the requisite number of councilors required to pass a motion of co nfidence against the President of the Municipal Council. It has also been held i n the said judgment that if such fraction is ignored, it would be against the pr ovisions of Section 55 of the said Act. 18. As noticed above, sub-section (1) of Section 43 of the 1994 Act clearly provides that President or the Vice President of the Anchalik Panchayat can be r emoved from the office by adopting a motion expressing want of confidence by maj ority of 2/3rd of the total number of directly elected members of the Anchalik P anchayat. While calculating the 2/3rd number, if there is any remainder, howsoev er small may be, the same cannot be ignored for the simple reason that the same would then not constitute the 2/3rd of the number of members, which is the minim um requirement for adoption of the resolution expressing want of confidence. An interpretation contrary to the same would be against the intention of the legisl ature as couched in Section 43(1) of the 1994 Act. 19. The submission of Mr. Phukan, learned counsel that the principle of roun ding off requires that any fraction, which is less than 5, is to be ignored, can not be accepted, in view of the aforesaid discussion. Non-occurrence of the expr ession ’not less than’ before the 2/3rd of the total members in Section 43(1) of the 1994 Act would not in any way effect the requirement of passing of the reso lution by majority of 2/3rd of the total number of directly elected members. The decision of the Apex Court in Pawan Kumar Tiwari’s case cannot be applied in th e facts and circumstances of this case as the said case relates to percentage of reservation on post for appointment and not relating to unseating of an elected person by adopting the motion expressing want of confidence. The Division Bench judgment of this Court in Samiruddin Ahmed (supra) would also of no help to the petitioners in WP(C) No.4815/2010 as in the first proviso to Section 17(1)(ii) of the Assam Gram Panchayat Act, 1959, which was under consideration, it was sti pulated that when 1/3rd is a fraction which is half or more than half of a whole number, then the number shall be rounded to the next higher number and if less shall be ignored. In 1994 Act and the Rules framed thereunder there is no such p rovision. 20. A full Bench of Allahabad High Court in Wahid Ullah Khan (supra), on whi ch Mr. Phukan, learned counsel has also placed reliance, has held that rounding of a figure is only where particular figure has to be arrived at. It has further been held that when majority could be any number, which is more than half, then any number which could be said to be more than half would be a majority number. In the said case the issue was whether under the provisions of U.P. Municipalit ies Act, which requires adoption of no confidence motion against the President o f a Municipality by majority of more than half of the members, any resolution ad opted by 8 out of 15 members would be inconformity with the provisions of the sa id Act or majority of more than half would be 9 out of 15 members. The issue w as not whether any fraction which is less than 5 is to be taken as one for the p urpose of ascertaining the majority of the half of the total members. 21. In view of the aforesaid discussion, in my considered opinion, any fract ion, howsoever small may be, cannot be ignored for ascertaining the majority of 2/3rd of total members of the directly elected members of the Anchalik Panchayat , for adoption of the resolution expressing want of confidence, as, such fractio n would also represents the view of the members and hence it has to be rounded t o one, so as to adopt the resolution expressing want of confidence against the P resident and Vice President of the Anchalik Panchayat under sub-section (1) of S ection 43 of the 1994 Act. If such fraction is ignored the same would be contrar y to the provisions of sub-section (1) of Section 43, which requires adoption of resolution expressing want of confidence by majority of 2/3rd members. 22. In the instant case out of 8 existing members 5 members adopted the reso lution expressing want of confidence on the respondent No.8 in WP(C) No.4815/201 0, who is the writ petitioner in WP(C) No.5596/2010. 2/3rd of 8 is 5.33. The fra ction .33 therefore has to be rounded to one and hence, the required number for adoption of the no confidence motion would be 6 out of 8. The motion expressing want of confidence having been adopted admittedly by 5 members, the same cannot be held to be adopted as required by sub-section (1) of Section 43 of the 1994 A ct and therefore, the impugned communication dated 12.08.2010 issued by the Chie f Executive Officer of the Zilla Parishad cannot be held to be contrary to the s aid provision of law. 23. In WP(C) No.5596/2010, as discussed above, the notice dated 01.10.2010 i ssued by the Executive Officer has been put to challenge. By the said notice, th e President of the Anchalik Panchayat, the writ petitioner in the said writ peti tion, has been informed about holding of a meeting of the Anchalik Panchayat on 07.08.2010. The said notice has been issued by the Executive Officer of the Anch alik Panchayat without any concurrence of the President and that too describing her as member of the Anchalik Panchayat and not as the President, despite the co mmunication dated 12.08.2010 issued by the Chief Executive Officer of the Zilla Parishad. For the reasons recorded above, it has been held that resolution adopt ed by the Anchalik Panchayat in its meeting dated 05.10.2010 expressing want of confidence against its President is contrary to the requirement of sub-section ( 1) of Section 43 of the 1994 Act and hence the impugned notice dated 01.10.2010 issued by the Chief Executive Officer of the Anchalik Panchayat describing the w rit petitioner as member of the Anchalik Panchayat is set aside. 24. The issue whether the expression total number of directly elected membe rs occurring in sub-section (1) of Section 43 of 1994 Act means the total numbe r of members constituting the Anchalik Panchayat or the existing members at the time of consideration of the motion expressing want of confidence, has not been gone into the present writ petitions, being not required, as it has been held th at the no confidence motion adopted, against the President of the Anchalik Panch ayat, was not in conformity with the said provisions of law, the same having not been passed by 2/3rd of even the existing members of the Anchalik Panchayat. 25. WP(C) No.4815/2010, therefore, stands dismissed. WP(C) No.5596/2010 stan ds allowed. No cost.