Karnataka High Court
A S Theerthesh vs State Of Karnataka on 14 June, 2012
Author: B.S.Patil
Bench: B.S.Patil
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 14TH DAY OF JUNE 2012
BEFORE
THE HON'BLE MR.JUSTICE B.S.PATIL
W.P.No.522/2012 (APMC)
BETWEEN:
Sri A.S.Theerthesh,
S/o late Shivanna
Aged 50 years,
R/at Amachawadi Village,
Chamarajanagar Taluk & District,
Chamarajanagar. ... PETITIONER
(By Sri Jayakumar S.Patil, Sr.Adv. for Jayakumar S.Patil Assts.)
AND:
1. State of Karnataka,
Rep.by its Director,
Agricultural Produce Marketing Office,
No.16, 11th Raj Bhavan Road,
P.B.No.5309, Bangalore-01.
2. The Secretary,
Agricultural Produce Marketing Committee,
Chamarajanagara.
3. The Deputy Commissioner,
Chamarajanagara
District Chamarajanagar.
4. S.Purushotham,
S/o late Shivaramu
Aged 43 years
APMC, Vice President,
Kodiugane Village & Post,
Chamaranagara Taluk.
2
5. Smt.B.Rathnamma,
W/o K.R.Basavaraju,
Aged 38 years,
Member, APMC,
Kilagere Village & Post,
Gundlupete Taluk.
Chamarajanagar,
6. Veerathappa
S/o Gurumallappa
Aged 55 years
Member, APMC,
Mariyala Village & Post,
Chamarajanagar District.
7. M.Girish
S/o M.P.Mahadevappa
Aged 38 years,
Member, APMC,
Mariyuru Village & Post,
Chamarajanagar Taluk & District.
8. N.M.Shivaswamy
S/o Mahadevappa
Aged 42 years,
Member, APMC,
Nanjandevapur Village & Post,
Chamarajanagar Taluk & District.
9. Y.S.Nanja Shetty
S/o late Siddashetti,
Aged 48 years,
Member, APMC,
Mariyuru Village & Post,
Yelanduru Taluk,
Chamarajanagar District.
10. Shivakumar,
S/o Nagarajappa
Aged 35 years,
Member, APMC,
Kagalwadi Village & Post,
Chamarajanagar Taluk & District.
3
11. C.Rajashekar,
S/o late Chinnaswamy
Aged 37 years,
Member, APMC,
Aldur Village & Post,
Chamarajanagar Taluk & District.
12. Y.L.Shivaswamy,
S/o Linganayak,
Aged 55 years,
Member, APMC,
Yelandur Town & Post,
Chamarajanagar Taluk & District.
13. K.M.Madappa
S/o Mariswamappa
Aged 48 years
Member, APMC,
Kinakahalli Village
Yelandur Taluk,
Chamarajanagar District.
14. L.Suresh
S/o late D.N.Lingashetty
Aged 52 years,
Member, APMC,
Near Siddartha Theatre,
Chamarajanagar Taluk & District.
15. Shivaswamy,
S/o late Shanthamalledevaru,
Aged 60 years,
Member, APMC,
R/o Amachavadi Village,
Chamarajanagar Taluk & District.
16. H.C.Mahesh Kumar,
S/o late M.Channabasappa
Aged 48 years,
Member, APMC,
R/o Heggavadipura Village,
Chamarajanagar Taluk & District.
4
17. S.Basavanna
S/o late Shivabasappa
Aged 55 years,
Member, APMC,
R/o Arakalavadi Village,
Chamarajanagar Taluk & District.
18. Rajanna
S/o Nanjundashetty,
Aged 35 years,
Member, APMC,
R/o Badamudlu Village,
Haradanahalli Hobli,
Chamarajanagar Taluk & District.
19. Smt.Veena
W/o Maraiah
Aged 38 years,
Member, APMC,
R/o Jennuru Hosur Village,
Santhe Marahalli Hobli,
Chamarajanagar Taluk & District.
20. Srinivasa Reddy,
S/o not known
Aged about 40 years
Member, APMC,
Asst.Director of Agricultural Produce
Marketing Department,
Chamarajanagar District. ... RESPONDENTS
(By Sri H.Venkatesh Dodderi, AGA for R1 & R3,
Sri D.Vijaya Kumar, Adv. for R2
Sri H.M.Muralidhar, Adv. for
M/s.Sree Ranga Assts., for R4 to R14,
Sri P.N.Nanja Reddy, Adv. for R5 to R19)
This writ petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the resolution of no
confidence motion and proceedings dated 26.12.2011 passed
against the petitioner vide Annexure-A and etc.
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This petition coming on for preliminary hearing-B group
this day, the Court made the following:
ORDER
1. In this writ petition, petitioner is challenging the proceedings dated 26.12.2011 regarding the no confidence motion held again him by the members of Agricultural Produce Market Committee.
2. The total number of members of the Committee is 18. Out of them, one Sri. K. Srinivasa Reddy is an ex-officio member nominated by the Registrar. The no confidence motion moved against the petitioner was supported by 11 members. As per Annexure-A proceedings, it was found that the no confidence motion was carried by the requisite number of members supporting the motion. Aggrieved by this action, the petitioner has approached this Court challenging the proceedings at Annexure-A.
3. On 05.01.2012 at the time of preliminary hearing, this Court has granted Interim stay of the proceedings dated 26.12.2011 Annexure-A for a limited period. The said order has been subsequently extended. Though this matter was listed for orders on the application filed seeking to vacate the interim 6 order of stay granted, having regard to the nature of dispute raised and the urgency pleaded, with the consent of learned counsel for the parties, the matter was finally heard.
4. The only question that falls for consideration in this writ petition is:
"whether the no confidence motion moved against the petitioner has been carried by majority not less than two-thirds of the then members of the Market Committee in the meeting convened for this purpose?"
5. The contention of the learned Senior counsel Sri. Jayakumar S. Patil appearing for the petitioner is that as the total number of members of the Committee as on the relevant date was 18 which included 14 elected members, 3 nominated members and 1 ex-officio member nominated by the Registrar, to form two-thirds of the total number of members, atleast 12 members ought to have supported the motion. According to him, the ex-officio member nominated by the Registrar also being a member of the Committee, is required to be counted for the purpose of finding out whether two-thirds of the total number of all the members had voted in favour of the motion. It is his submission that mere fact that ex-officio 7 member did not have the right to vote in the meeting cannot be taken to exclude him from computing the total number of members for the purpose of reckoning two-thirds majority. His contention is that as the motion is supported by only 11 members, the action of the Authorities in drawing up Annexure- A proceedings holding that the motion had been carried by two- thirds majority is illegal and unsustainable.
6. Learned Senior counsel has drawn specific attention of the Court to the provisions contained under Section 44(2) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 (for short 'the Act') particularly to the expression used therein stating that "not less than two-thirds of all the then members of the Market Committee". He has urged that Sub-Section 2 of Section 44 has been substituted by Act No.18/2010 with effect from 16.04.2010. He points out that prior to the said amendment, Sub-Section (2) provided that, if the motion of no confidence was carried by majority of total number of members present and voting at a meeting specially convened for the purpose then the Chairman or the Vice- Chairman as the case may be shall forthwith vacate his office. 8
7. Reliance is placed on the judgment of this Court in the case of SHAMBUGOWDA vs. THE STATE OF KARNATAKA AND OTHERS - 2000(5) Kar.L.J.359 to contend that when a similar question arose before this Court, a learned single judge of this Court interpreted the provisions contained under Sub-Clause (2) of Section 44 read with Section 11(1)(viii) to hold that although the nominated member does not vote, it does not imply that he ceases to be a member of the municipality or that he should be ignored in determining the question whether the chairman has lost the confidence of the two-thirds of the members. He has invited the attention of the Court to paragraph 11 of the judgment in Shambugowda's case to contend that the word "all' as added to the existing phrase in Sub-Clause (2) of Section 44 made it crystal clear that it was "two-thirds" of the number of all the existing members of the Market Committee which will have to be taken into account irrespective of any member thereof being a nominated member of the Committee. It is his further contention that the judgment rendered by the learned Single Judge in the aforementioned case of Shambugowda was challenged before the Division Bench in W.A.No.4863/2000 and by order dated 22.09.2000, the Division Bench has dismissed the writ appeal confirming 9 the order passed by the learned Single Judge. In this background he submits that as this Court has interpreted the scope of Section 44(2) of Act in the judgment in Shambugowda's case affirmed by the Division Bench in W.A.No.4863/2000, the matter no longer requires any further consideration and therefore, the petitioner is entitled to succeed.
8. Learned counsel appearing for the respondents strongly contended that Shambugowda's case was decided by this Court by relying upon the judgment in RAEES AHMAD vs. STATE OF UTTAR PRADESH AND OTHERS - 2000 AIR SCW 5 where a similar provision of the Uttar Pradesh Municipalities Act fell for consideration and the Apex Court in the said judgment had, no doubt, held that the motion of no confidence against the president of the municipal council under the provisions of the Uttar Pradesh Municipalities Act was required to be passed by majority of two-thirds of total number of members of municipality and that the two-third majority could not be calculated by excluding nominated member who had no right to vote as, such nominated members who do not have the right to vote do not cease to be members of the municipality. 10
9. It is contended by the learned counsel for the respondents Sri. Sree Ranga that the judgment of the Apex Court in Raees Ahmad's case having been subsequently distinguished and differed in the case of RAMESH MEHTA vs.SANWAL CHAND SINGHVI AND OTHERS - AIR 2004 SC 2258 the very basis for the judgment rendered by the learned Single Judge of this Court in the case of Shambugowda is taken away and therefore as per the law laid down by the Apex Court in Ramesh Mehta's case for the purpose of calculating the two- third majority for carrying the motion of no confidence, nominated members having no right to vote cannot be taken into consideration. He, therefore, contends that as the provisions contained under Section 44(2) of the Act with which this Court is presently concerned is akin to the provisions contained in Rajasthan Municipalities Act (38 of 1959) which fell for consideration before the Apex Court in Ramesh Mehta's case, this Court is required to follow the ratio laid down in the said decision which is rendered by a larger bench of three Hon'ble Judges of the Apex Court.
10. Learned counsel for the respondents further points out that prior to the judgment rendered in Shambugowda's case, 11 another single Judge of this Court had an occasion to consider the effect of the same provisions contained under Sub-Clause (2) of Section 44 of the Act in the case of PRABHAKAR vs. THE STATE OF KARNATAKA AND OTHERS - 1999(2) KCCR 1462 where it has been held that for the purpose of determination of two-third majority of members for passing the no confidence motion, the nominated member having no right to vote cannot be counted. He submits that though the judgment rendered in the case of Prabhakar, has not been followed subsequently in the judgment rendered in Shambugowda's case, it was because the learned Single Judge was of the view that Raees Ahmad's case decided by the Apex Court was required to be followed, but in view of the subsequent development resulting in the Apex Court laying down the law in Mehta's case in the year 2004, the judgment rendered in Prabhakar's case has to be treated as the correct position of law.
11. Having heard the learned counsel for both parties and on careful perusal of the entire materials on record, the question that falls for consideration is:
"Whether the nominated member to the APMC who is not conferred with voting rights has to 12 be reckoned as a member for the purpose of calculating two-third majority in the no confidence motion moved?"
12. At the outset, it is necessary to refer to the relevant provisions of the Act. The term "Member" is defined under Section 2(25) of the Act to mean "a Member of a Market Committee". The term "Market Committee'" or "Committee" is defined under Section 2(20) of the Act to mean "a Market Committee constituted for a market area under this Act".
13. Section 11 of the Act deals with the constitution of Market Committees which provides that every Market Committee shall consist of the following members:
i) eleven elected members duly elected by the agriculturists in the market area;
ii) one member to be elected by the commission agents and traders other than retail traders in the market area;
iii) xxxxxxxx;
iv) one member elected by the Committee of
management of the Co-operative Marketing Societies carrying on business in notified agricultural produce within the market area;13
v) one member to be a representative of Agricultural Co-operative Processing Societies carrying on business in notified agricultural produce within the market area, to be elected by the Committee of management of such societies;
vi) xxxxxxxxxxx;
vii) xxxxxxxxxxxxx;
viii) one member to be an officer not below the rank of the Secretary of the concerned Market Committee nominated by the Director of Agricultural Marketing who shall have no right to vote under Section 41 or Section 44;
ix) three members being persons nominated by the State Government who shall have right to vote in all the meetings of the Market Committee and shall hold office at the pleasure of the State Government.
14. Section 44(2) of the Act is the relevant provision for the case on hand. It is useful to extract the same. It reads as under:
"If the motion against the Chairman or the Vice-Chairman or both is carried by a majority of not less than two-thirds of all the then members of 14 the Market Committee at a meeting specially convened for the purpose, the Chairman or the Vice-Chairman shall forthwith vacate the office of the Chairman or the Vice-Chairman as the case may be".
15. It is thus clear from the above that members of the Market Committee (Member means a "Member of the Market Committee" as defined under Section 2(25) of the Act) include elected members representing different categories of Societies and Bodies and one person to be nominated by the Director of Agricultural Marketing who shall be an officer not below the rank of the concerned Market Committee and three persons nominated by the State Government. It is also clear from Section 11 of the Act that the elected members and the three nominated members are conferred right to vote in all the meetings of the Market Committee. Whereas, the other nominated member who is an officer of the rank of Secretary of the Committee or above shall not have right to vote under Section 41 or Section 44 of the Act. We are, in the present case, concerned with the member nominated by the Director of Agricultural Marketing who undoubtedly is one of the members of the Committee but without the right to vote under Section 41 15 or Section 44 of the Act. The question now is not whether he is entitled to participate in the no confidence motion but as to whether he has to be reckoned as a member for the purpose of determining the total number of members to calculate two-third majority for carrying the no confidence motion.
16. Sub-Clause (2) of Section 44 as extracted above makes it very clear that the two-third majority shall be of all the then members of the Market Committee. Whether the expression "all the then members of the Market Committee" will include the nominated member having no right to vote is the issue. Sub- Clause (2) of Section 44 of the Act has undergone certain changes and the provisions [Section 44(2)] in the present form has been incorporated by way of substitution by Act No.18/2010 with effect from 16.04.2010. Earlier to the substitution, Sub-Clause (2) of Section 44 of the Act read as under:
"If the motion against the Chairman or the Vice-Chairman or both is carried by a majority of the total number of members present and voting at a meeting specially convened for the purpose, the Chairman or the Vice-Chairman shall forthwith vacate the office of the Chairman or Vice-Chairman as the case may be".16
17. Learned Single Judge of this Court in the case of Shambugowda examined the effect of Section 44(2) read with Section 11(1)(viii) of the Act. It is categorically held in the said judgment that the phrase "two-thirds of all the then members of the Market Committee" occurring in Sub-Clause (2) of Section 44 which was originally worded as "two-thirds of the total number of members of the Market Committee" had to be understood keeping in mind the word "all" as added to the then existing phrase which made it crystal clear that it was the "two- thirds" of the number of all the existing members of Market Committee which will have to be taken into account irrespective of any member thereof being a nominated member of the Committee. Learned Single Judge in Shambugowda's case further fortified the conclusion arrived at by him by referring to the judgment of the Apex Court in the case of Raees Ahmad, whereunder in paragraph 5, it has been stated as under:
"On behalf of the respondent emphasis is laid upon the proviso quoted above which states that nominated members shall not have the right to vote in the meeting of the municipality. It is contended that inasmuch as the nominated members do not have the right to vote in the meetings of the 17 municipality, they should not be counted as part of the total number of the members of the municipality, two-thirds of whose vote in favour is requisite for the passage of the motion of no- confidence. We find it difficult to accept this submission, given the plain words of the provisions quoted above. That nominated members may not vote does not imply that they cease to be members of the municipality or that their number should be ignored in determining whether the president has lost the confidence of two-thirds of the members. So calculated the vote of confidence against the president had not been carried as required."
18. Therefore, it is clear that following the judgment of the Apex Court and interpreting the provisions of Section 44(2) and 11(1)(viii) of the Act, learned Single Judge of this Court has held that a nominated member of the Committee has to be reckoned for determining two-third majority for the purpose of no confidence motion. It is also necessary to notice here that the learned Single Judge of this Court in Shambugowda's case has found that the earlier judgment rendered by another single Judge in Prabhakar's case could not be followed in the light of the ratio laid down by the Supreme Court in Raees Ahmad's case. If this is the only factual aspect, then there was nothing 18 more for this Court to state except to dispose of the writ petition in the light of the judgment of the learned Single Judge. But, the Counsel for the respondent relies on the judgment of the Apex Court in Ramesh Mehta's case, to urge that there is change in the law and the judgment rendered earlier by the Apex Court in Raees Ahmad is no longer a good law, hence this Court need not follow the judgment of the learned Single Judge in Shambugowda's case.
19. In the case of Ramesh Mehta, the provisions of the Rajasthan Municipalities Act read with Rajasthan Municipalities (Motion of No-Confidence against Chairman/Vice-Chairman) Rules, 1974 had fallen for consideration. The question raised therein was whether the nominated members in Municipal Board shall be counted for calculating the majority required for carrying on a no confidence motion against a Chairman as per the provisions of the Rajasthan Municipalities Act and the Rules. As can be gathered from a careful perusal of the judgment, the definition of the expression "whole number" as contained under Sub- Clause (36) of Section 3 was to the following effect: 19
"unless the context otherwise requires the whole number or total number when used with reference to the members of a board means the total number of members holding office at the time".
In paragraphs 9 and 10, the Apex Court having examined the scheme and provisions of the Rajasthan Municipalities Act has held as under:
"9. At the outset, we may notice the legal position prior to 1994. Section 3, which is a definition section, begins with the words "unless the context otherwise requires". Section 3(36) defines the expression "whole number" or "total number" to mean total number of members holding the office at the time. Under Section 72 read with Section 274 of the said Act, the State Government enacted the 1974 Rules, which have remained unchanged till date. Rule 3 prescribes procedure for passing no-confidence motion. Rule 3(5) states that no meeting for consideration of no-confidence motion shall be held unless the quorum of 1/3rd of the whole number of members is present. Rule 3(8) states that if the motion is not carried by 2/3rd majority of the whole number of members or if any meeting cannot be held for want of quorum, the motion of no-confidence against the chairman/vice- chairman shall be deemed to have been lost. Rule 3 20 (9) states that if the motion is carried by a majority of 2/3rd of the whole number of members, the motion shall be deemed to have been passed.
Section 9(4) dealt with co-operation of two members. Under Clause (ii) of sub-section (5) of Section 9, the co-opted members had a right to vote on all motions and accordingly they were put on par with elected members. Under Section 65(9) of the Act, the office of the Chairman/vice-chairman stood vacated as and when no-confidence motion was passed by a majority of "the whole number of members" and conversely if the motion was not carried by a majority, such motion would fail. Reading the above provisions of the un-amended Act and the 1974 Rules, it is clear that even prior to 1994 the legislative intend was that the chairman/vice-chairman had to vacate his office on passing of no-confidence motion by requisite majority of members who had the right to vote, which included the co-opted members. In Law and Practice of Meetings by Shackleton (8th Edition Page
66) while explaining the word "Majority" the learned author states that in legislative assemblies it is usual to decide the question by a majority of those who have voting rights. The learned author, further states, that in cases where a motion is to be determined by a majority consisting of 2/3rd of the votes, the word "Majority" would mean majority of persons entitled to vote on the proposal and once 21 the motion is voted upon by the requisite majority, it becomes resolution of the meeting. Therefore, the word 'majority" would mean majority of persons entitled to vote. In the present case, the word 'majority" finds place in Sections 65(9) and 72(9) of the Act prior to amendment. Therefore, even prior to 1994 amendment of the Act, the legislature intended that the chairman/vice-chairman of the municipal board shall be removed only by a requisite majority of members having right to vote on the motion. We are, therefore, of the view that even prior to 1994, the words 'whole number of members" under Rule 3 of the 1974 Rules meant total number of members who have voting rights.
10. There is no dispute with the proposition that the right to elect and the right to be elected is a statutory right and that the mode and manner of election to any post could be different from the scheme of removal of a person from that post.
However, in each case, we have to examine the Act in question, which we have done herein above. In the circumstances, we do not with to discuss the judgments cited on behalf of the appellant in support of the above proposition. However, reliance was placed on the judgment of this Court in the case of RAEES AHMAD V. STATE OF U.P. reported in ((2000) 1 SCC 432). In the said case this Court was concerned with the provisions of U.P. Municipalities 22 Act under which the chairman is elected by direct election. Under Section 43 of the U.P.Act the chairman is elected directly by the electorate on the basis of adult franchise exercised by the voters of the area. It is the case of direct election. On the other hand, in the present case under Section 65 of the Rajasthan Municipalities Act with which we are concerned the chairman is elected from amongst the elected members of the board. This distinction, in our view, is very important. As stated above prior to 1994 the co-opted and the elected members were put on par. Both the categories had the right to vote. The chairman was elected from amongst the members of the board. Consequently, the chairman/vice-chairman had to vacate the office when such members voted in support of the motion. In the circumstances, the judgment of this Court in the case of Raees Ahmad (supra) has no application to the facts of the present case."
20. It is thus clear that although the Apex Court has dealt with the meaning of the expression "Majority" by referring to Shackleton Law and Practice of Meetings (8th Edition Page 66), in paragraph 10 the Apex Court has made it clear that in each case the Court has to examine the Act in question. With regard to the judgment in Raees Ahmad's case, the Apex Court has not over-ruled the said judgment. It is specifically observed in 23 paragraph 10 that, Raees Ahmad's case has no application to the facts of the case before it in Ramesh Mehta's case. It is thus evident that this Court is required to examine the scheme of the Act, relevant provisions and the intention of the legislature to find out whether the expression "two-third" of the then members of the Market Committee has to be understood to include all the then members of the Committee having right to vote or all the then members of the Committee including those members who do not have voting rights. It is important to notice here that in Ramesh Mehta's case as referred to above, the definition of the term "whole number or total number" it was made clear that "unless the context otherwise required the whole number or total number when used with reference to the members of a board meant that total number of members holding office at the time." Unlike such a position, in the present case, the term "Member" is not defined in that way. The term "Member" as referred to above is defined to mean the "Member of the Committee". As can be seen from paragraph 2 of the judgment of the Apex Court in Ramesh Mehta's case, it had placed reliance on Section 3(36) of the Rajasthan Municipalities Act while interpreting Section 9 of the Rajasthan Municipalities Act and Rule 3(9) of the 1974 Rules to come to 24 the conclusion that the expression "whole number of members"
would exclude nominated members. On the other hand, learned Single Judge of this Court in Shambugowda's case has already interpreted the scope and ambit of the expression of "all the then members of the Market Committee" to include even a nominated member having right to vote. The intention of the legislature is very clear in enacting Sub-Clause (2) of Section 44 by substituting it by Act 18/2010 with effect from 16.04.2010.
If at all the legislature intended that for the purpose of determining two-third majority, only such of the members who have the right to vote shall be calculated, then there was no difficulty for the legislature to give expression to its intention in Sub-Clause (2) of Section 44 of the Act. The emphasis given to two-third of all the then members of the Market Committee without giving any indication whatsoever to exclude such of the members who do not have the voting right will certainly makes it clear that the intention of the legislature is clear in computing all the members, whether elected or nominated, having voting right or not, for the purpose of determining the two-third majority.25
21. The Apex Court in Ramesh Mehta's case has made it clear that in each case, the provision has to be examined and that the Court cannot either supply casus omissus nor interpret a statute so as to create a casus omissus when there is really none. In paragraph 12 of the judgment in Ramesh Mehta's case on which the learned counsel for the respondents has placed reliance, the Apex Court by referring to the Judgement in the case of KARNATAKA v}s. UNION OF INDIA AND ANOTHER (AIR 1978 SC 68 PAGE 107) has observed that the Court cannot supply casus omissus and that it was equally clear that Court should not interpret a statute so as to create a casus omissus when there is really none. In the instant case, it cannot be held that the legislature had omitted to exclude the nominated members having no voting right while using the expression "not less than two-third of all the then members of the Market Committee". This Court cannot infer such an omission, particularly, in the wake of the word "all" which is inserted by substituting the earlier provision. The earlier provision as it existed prior to the amendment brought about by Act 18/2010 with effect from 16.04.2010 provided that, for carrying on a no confidence motion majority of members present and voting had to be reckoned. It is also to be noticed 26 that when Act 18/2010 was introduced with effect from 16.04.2010 using the expression "not less than two-thirds of 'all' the then members of the Market Committee", the judgment in Shambugowda's case was very much holding the field. If at all the legislature intended to express its intention to the contrary, it would have certainly given expression to it while drafting Sub-Clause (2) of Section 44 and substituting the same in the place of the existing one. This also clearly discloses the intention of legislature nature.
22. The contention of the learned counsel for the respondent that Raees Ahmad's case has been over-ruled or is declared as no longer a good law in Ramesh Mehta's case cannot be accepted as no such observations are made by the Apex Court. On the contrary, the Apex court has stated that Raees Ahmad's case had no application to the case before it. It is also very relevant to notice that in Ramesh Mehta's case, the Apex Court took note of the Constitutional 74th Amendment Act of 1994 whereby Chapter 16(b) came to be inserted in the Constitution. Article 243R which dealt with composition of Municipalities brought about a drastic change in the matter of composition of Municipalities which laid down guidelines with regard to the 27 constitution, election and rights of the members of the Municipalities. Article 243R(2)(a)(i) and the proviso to the said Article precludes persons nominated under Sub-clause (1) from having a right to vote in the meeting of the Municipalities. It is in this background by referring to the effect of Article 243R, the Apex Court found that the expression "whole number or "total number" used in the relevant provision of the Rajasthan Municipalities Act connoted the "total number of elected members".
23. The no confidence motion in the present case is to remove the Chairman of the Agricultural Market Committee. Therefore, Article 243R has no application to the present case. Hence, the contention of the learned counsel for the respondents stating that Ramesh Mehta's case has over-ruled Raees Ahmed's case and that the ratio laid down in the said case applies to the provisions contained under Section 44(2) of the Act cannot be accepted.
24. In the light of the above, it has to be held that the nominated member in the instant case though not having right to vote is required to be counted for the purpose of determining two-third majority for the purpose of no confidence motion. If 28 that is the legal position then, Annexure-A proceedings of the no confidence motion drawn stating that as the no confidence motion was supported by 11 members the same stood accepted, cannot be sustained. To make up two-third majority of the members, which at the relevant time was 18, 12 members ought to have supported it and as 12 members did not support the no confidence motion, it cannot be said to have been supported by the requisite number of two-third of all the then members of the committee.
25. Hence, the writ petition deserves to be allowed. Accordingly, Annexure-A resolution passed is set aside.
Sd/-
JUDGE VP