IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.W.P. No.169 of 2008. Judgment reserved on: 8.9.2008 Date of decision: September 23, 2008 Suresh Kumar Dogra ….. Petitioner -Versus- State of H.P. & Ors. …. Respondents Coram: The Hon’ble Mr. Justice Jagdish Bhalla, Chief Justice. The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? Yes. For the Petitioner(s ) : Mr. Rakesh Jaswal, Advocate. For the Respondent(s) : Mr. R.K.Bawa, Advocate General with Mr. J.K.Verma, and Ms. Shubh Mahajan, Deputy Advocate Generals, for respondents No.1 to 4. Mr. Tarlok Chauhan, Advocate, for Respondent No.5. Deepak Gupta, J. The following interesting question of law arises for decision in the present case:- Whether an authority presiding over a meeting convened to consider a no confidence motion under Section 129 of the H.P. Panchayati Raj Act, 1994 has the right to cast a casting vote in case equal votes are cast in favour and against the no confidence motion? The brief facts necessary for decision of the case are that the petitioner was elected as Chairman of the - 2 - Panchayat Samiti, Hamirpur in the elections held on 14.1.2006. On 30.1.2008, a notice of no confidence motion was moved against the petitioner by the Vice-Chairman of the Panchayat Samiti. The said notice was signed by 9 out of the total 15 members comprising the Panchayat Samiti. On the said notice being issued, a meeting was convened by the Vice-Chairman of the Panchayat Samiti to discuss the no confidence motion against the Chairman. The meeting was fixed for 7th February, 2008 in the office of the Block Development Officer, Hamirpur. In terms of the provisions of the Act and the Rules, the Chairman could not preside over the meeting which was to consider the no confidence motion against him. The Vice-chairman presided over the meeting. The Vice-chairman being the Presiding Officer did not have a right to vote under Rule 134(2) of the H.P Panchayati Raj (General) Rules, 1997. Out of 15 members who were present, 14 voted. Seven votes were cast for the motion and seven against. Thereafter the Vice-Chairman who had not taken part in the proceedings till that stage and had not exercised his vote cast a casting vote in favour of the motion and the motion was stated to have been carried by 8 votes to 7. - 3 - The petitioner by means of the present writ petition has basically challenged the right of the Vice-Chairman (respondent No.5) to exercise a casting vote. Before we deal with the merits of the case, it would be appropriate to deal with the preliminary objection raised by the learned Advocate General that an efficacious alternative remedy of filing an appeal within the meaning of Section 148 of the Act is available to the petitioner and since the petitioner has not exhausted this remedy, the present writ petition should not be entertained. Shri Rakesh Jaswal learned counsel appearing on behalf of the petitioner contends that the proceedings which culminated in the passing of the no confidence motion do not fall within the meaning of words “orders or proceedings” under Section 148 and therefore, no appeal is maintainable. We do not intend to decide the question as to whether the proceedings which are the subject matter of the present case are appealable under Section 148 of the H.P.Panchayati Raj Act, 1994 or not. The question raised in the present case is a pure and simple question of law. It goes to the very root of the matter. The jurisdiction of the Vice- Chairman to exercise his casting vote is under challenge before this Court. The existence of an alternative remedy, if - 4 - any, is not an absolute bar to the exercise of the extraordinary writ jurisdiction of this Court. This Court is vested with the discretion to decide whether it should relegate the petitioner to taking recourse to the alternative remedy or to decide the matter itself. In the present case, the no confidence motion was passed on 7.2.2008. On 13.2.2008, a learned Vacation Judge of this Court stayed the consequent elections to the post of Chairman of the Panchayat Samiti. This stay order is continuing till date. Therefore, we feel that the interest of justice will be better served if we decide this matter on merits itself. To appreciate the rival contentions of the parties, it would be relevant to refer to Sections 80(7), 129(3) of the H.P. Panchayati Raj Act, 1994 (hereinafter referred to as the Act) and Rules 133 & 134 of the H.P.Panchayati Raj (General) Rules, 1997 (hereinafter referred to as the Rules) which read as follows:- SECTIONS. 80(7). Except as otherwise provided by this Act or the rules made thereunder all questions coming up before any meeting of a Panchayat Samiti shall be decided by a majority of votes of the members present and voting and, in case of an equality of votes, - 5 - the authority presiding at the meeting shall have a second or casting vote. 129 (3). Notwithstanding anything contained in this Act or the rules made thereunder, a Pradhan or Up-Pradhan of Gram Panchayat or a Chairman or Vice-Chairman of the Panchayati Samiti or Zila Parishad shall not preside over a meeting in which a motion of no-confidence is discussed against him. Such meeting shall be presided over by such a person, and convened in such manner, as may be prescribed and the person against whom a motion of no confidence is moved, shall have a right to vote and to take part in the proceedings of such a meeting. RULES 133. Matters to be included in the proceedings.- The Chairman or Vice-Chairman or the District Panchayat Officer or the Deputy Commissioner, to whom the notice of intention to move a resolution, requiring the Chairman or Vice-Chairman both of Panchayat Samiti or Zila Parishad to vacate office, was addressed under rule 128 shall preside over meeting and shall draw up proceedings of the meeting, in the proceeding register maintained by the Panchayat Samiti or Zila Parishad, as the case may be, setting-forth therein:- (a) the names of the members present; (b) the names of the members giving notice; (c) date on which the notice of intention for bringing no confidence motion was given under rule 128; (d) the date fixed for the meeting and the date on which the notice of the meeting was sent under rule 131; (e) total number of elected members of Panchayat Samiti or Zila Parishad; (f) the Chairman or Vice-Chairman were present; (g) the time at which the meeting commenced and the time at which the meeting was dissolved for want of quorum, if the meeting is so dissolved; (h) the motion in extensor; (i) the time at which the motion was put to vote; - 6 - (j) number of the members having right to vote and who voted against the motion or their names; (k) number of members having right to vote and who voted against the motion or their names; and (l) the result of voting whether the motion was defeated or succeeded. 134. Voting.- (1) Presiding authority shall arrange for the voting and ensure that secrecy of the member casting his vote for a against the motion shall be maintained at all levels. (2) The presiding authority shall not speak on the merits and demerits of the motion nor shall he be entitled to vote thereon while discussing the motion. (3) The person against whom the no confidence motion has been brought, shall be allowed to place his defence and explanation before the Panchayat Samiti or Zila Parishad, as the case may be, if he so desires. (4) Presiding authority shall declare the result of the voting. The motion shall be deemed to have been carried when it has been passed by a majority of members present and voting. (5) Where the motion has been carried, the office bearer concerned, shall stand removed from his office with immediate effect and the District Panchayat Officer or the Deputy Commissioner as the case may be, shall cause the notice to this effect to be fixed at the office of Panchayat Samiti or Zila Parishad, as the case may be, and serve a copy of the same on there moved Chairman or Vice-Chairman of Panchayat Samiti or Zila Parishad, as the case may be. If the Chairman is removed in that event Vice-Chairman shall function as Chairman till the election of new Chairman. After the removal of the Chairman or vice-Chairman or both of Panchayat Samiti or Zila Parishad, as the case may be, the Deputy Commissioner shall convene a special meeting of Panchayat Samiti or Zila Parishad as the case may be, within a week of passing of no confidence motion to elect the Chairman or Vice-Chairman or both, as the case may be, as per procedure laid down in Chapter IX and X of the Himachal Pradesh Panchayati Raj (Election) Rules, 1994. - 7 - A bare perusal of Section 80(7) of the Act, shows that ordinarily all matters coming up before the Panchayat Samiti have to be decided by a majority of votes. In case of equality of votes, the authority presiding over the meeting has a right to a second or casting vote. This section, however, is subject to the other provisions of the Act and the Rules. Section 129 of the Act deals with no confidence motion and Section 129(3) provides that the official against whom a no confidence motion is moved shall not preside over the meeting where such no confidence motion is discussed. This section provides that the meeting shall be presided over by such a person and convened in such a manner, as may be prescribed. The section, however, makes it clear that the person, against whom the no confidence motion is moved, shall have a right to vote and to take part in the proceedings of such a meeting. The manner of convening and conducting a meeting called to consider a no confidence motion is prescribed in rule 133 of the Rules. This rule provides that in case the resolution is moved against the Chairman of the Panchayat Samiti then the Vice-Chairman shall preside over the meeting . Rule 133 also lays down the manner in which the - 8 - proceedings relating to the no confidence motion are to be maintained. It is important to note that this rule requires the Presiding Officer to give details which are not normally required to be maintained in respect of ordinary meetings of the Panchayat Samiti. The motion has to be quoted in detail. The time at which the meeting commenced has to be given. The time when the motion is put to vote is required to be similarly given. The rule also requires that the person presiding over the meeting shall note down the number of members having the right to vote and who voted for and against the motion is also to be reflected in the proceedings. Rule 134(2) provides that the Presiding authority shall not speak on the merits and demerits of the motion nor shall he be entitled to vote thereon while discussing the motion. Sub rule (4) of Rule 134 provides that the Presiding authority shall declare the result of the voting and the motion shall be deemed to have been carried when it has been passed by a majority of members present and voting. Shri Rakesh Jaswal, learned counsel for the petitioner relying upon rule 134(2) of the rules urges that the Presiding authority cannot cast his vote when presiding over a meeting convened to consider a motion of no confidence. Shri Jaswal also relies upon the provisions of sub rule (4) which - 9 - provides that motion shall be deemed to have been carried when it has been passed by a majority. According to him, if there is equality of votes, there is no majority and motion cannot be deemed to have been carried. On the other hand, Shri R.K.Bawa learned Advocate General appearing on behalf of respondents 1 to 4 and Shri Tarlok Chauhan learned counsel appearing on behalf of respondent No.5 submit that the only interpretation which can be given to sub-rule (2) of Rule 134 is that the Presiding authority shall have no right to vote at the first instance. This rule does not deal with a situation where equal votes are cast. They urge that if the votes cast for or against motion are equal then the Presiding authority will have a right to cast his casting vote under Section 80(7) of the Act. We have given our careful consideration to the rival contentions of the parties and have gone through the provisions of the Act and Rules. Section 129 of the Act specifically deals with no confidence motions. It provides that the person against whom the motion is moved, shall not preside over the meeting. This is a salutary provision. The manner of conducting the meeting is prescribed under Rule 133 of the Rules. Sub rule (2) of Rule 134 clearly lays down that the - 10 - authority presiding over the meeting shall not take part in the discussion or express his opinion on the motion and shall not be entitled to vote thereon while discussing the motion. The intention of the legislature is very clear. The aim was that the person presiding over the meeting should act in a totally non- partisan manner. His role would be similar to that of a speaker of the legislature. Therefore, he was not given the right to vote at the first instance. In fact, the valuable right of casting his vote, for or against the no confidence motion, has been taken away by the legislature. However, it is important that the rule making authority has framed the rule in a careful manner. The Presiding authority is disentitled from voting while discussing the motion. Once the discussion is complete voting takes place. There is no discussion thereafter. The bar to exercising the vote by the Presiding authority, if necessitated by certain circumstances is lifted after the discussion is over. On counting of votes, if it is found that equal votes have been cast, we feel that the Presiding authority will have a right to cast his vote since there is no further discussion on the motion. This view is also in line with the well settled principles of parliamentary practice that the speaker of the legislature does not cast his vote on such a motion but in a situation - 11 - where equal votes are cast, he has the right to cast his casting vote. It is important to note that the Presiding Officer in the present case is virtually dis-enfranchised at the first instance. Actually, he only casts his first vote under the provisions of Section 80(7) of the Act. In a normal meeting of the Panchayat Samiti, the Presiding Officer would have the right to cast two votes in case of equality of votes. No such right would exist under rule 134 since the Presiding Officer is disentitled to speak on the motion or cast a vote thereon while the motion is under discussion. The words “while discussing the motion” clearly indicate that the intention of the legislature was that the Presiding Officer shall not cast his vote at the first instance. Otherwise there was no idea of using these words. It is a well known principle of statutory interpretation that while interpreting any statutory rule, the Court should not treat any word of the rule to be superfluous. If we accept the contention of the petitioner that the Presiding Officer has no right to cast his vote even in case of equality of votes, we will be making the words “while discussing the motion” superfluous. This cannot be the intention of the legislature. - 12 - Keeping in view the above discussion, we are clearly of the view that the authority presiding over the meeting convened to consider a no confidence is not entitled to speak on the motion or cast his vote at the first instance. However, in a case where equal votes are cast for or against the motion, the Presiding authority shall have the right to utilize his casting vote under Section 80(7) of the Act. In view of the above discussion, we find no merit in the present writ petition which is accordingly dismissed. The stay order is vacated. No costs. ( Jagdish Bhalla ), Chief Justice. September 23, 2008 ( Deepak Gupta ), s. Judge.