Bombay High Court
Ashok Maniklal Harkut vs The Collector Of Amravati And Anr. on 14 October, 1987
Equivalent citations: AIR1988BOM207, 1988(2)BOMCR399, (1987)89BOMLR637, AIR 1988 BOMBAY 207, (1988) 2 BOM CR 399, 1988 MAH LJ 378, (1987) MAH LJ 378, (1988) MAHLR 952, (1987) 89 BOM LR 637, 1987 BOM LR 89 637
JUDGMENT
Dharmadhikari, Acg. C.J.
1. The Petitioner Ashok Maniklal Harkut was elected as President of the Municipal Council Chandur Bazar, District Amravati. On 12th of June 1987 a requisition incorporating a proposal to move a resolution to remove the President was served by 12 Councillors on the Collector of the District requesting him to convene a special meeting for the said purpose, within 10 days of the receipt of the requisition. On 17th of June 1987 the Collector gave intimation about the said resolution to the President. On the same day he issued a notice calling a meeting of the Municipal Council for the purpose of considering the m(sic)ion of no confidence on 30th of June 1987. The meeting was accordingly held on 30th of June 1987. This meeting was attended by 19 elected and 2 co-opted Councillors. Thirteen elected Councillors voted in favour of the resolution, whereas six voted against it. Since the resolution was carried out by a majority of not less than two-thirds of the total number of Councillors (excluding co-opted Councillors), presiding officer declared that the motion of no confidence was duly passed and the petitioner has ceased to be the President of the said Municipal Council. It is this resolution of the Municipal Council, which is challenged in the present petition.
2. It is contended by Shri B.P. Jaiswal, learned counsel appearing for the petitioner, that the total number of the elected Councillors of the Chandur Bazar Municipal Council was 20, and therefore, 13 Councillors who voted in favour of the resolution did not constitute two-third majority of the total number of the Councillors (excluding co-opted Councillors), within the meaning of the said expression as used in Section 55(1) of the Maharashtra Municipalities Act, 1965 (hereinafter referred to as the Act). It is the case of the petitioner that though one seat was vacant and the total number of elected Councillors then existing was only 19, still voting by fourteen Councillors was necessary, to constitute majority of two-thirds of total number of Councillors, which was twenty. Therefore, the resolution was not legally carried out. It was also contended that requisition for calling a special meeting was served on the Collector on 12th of June 1987. Under Sub-section (3) of Section 55 it was obligatory on the part of the Collector to convene a special meeting of the Council within 10 days of the receipt of the requisition. The meeting which was convened by the Collector on 30th of June 1987 was beyond the said period of 10 days and on that count also the meeting held and the resolution passed are illegal. A contention is also raised that while counting the two-third majority, the fraction cannot be ignored and, therefore, the resolution was not passed by the requisite majority.
3. On the other hand it is contended by Shri A.S. Bobade, learned Advocate General, that the expression used in Section 55 of the said Act i.e. total number of Councillors, can only mean total number of Councillors (other than co-opted Councillors) who are entitled to sit and vote at the relevant time. If the interpretation suggested by the petitioner of the said phrase is accepted, then the provisions of the Act will become unworkable. He then contended that the expression 'convene' as used in Section 55 only means that a meeting should be called and the notice of the meeting should be issued within 10 days of the receipt of the requisition by the Collector. It does not mean that the meeting itself should be held within 10 days. He also contended that while counting the two-third majority a fraction, if any, will have to be ignored. In support of his contentions the petitioner has placed strong reliance upon the decision of the Division Bench of this Court in Bhaskar v. S. G. Daithankar, Sub-Divisional Officer, Bhandara, . On the other hand the learned Advocate General has placed reliance upon the subsequent decision of another Division Bench in Shivdas Govind Lanjewar v. Municipal Council, Bhandara, .
4. When the present writ petition came for hearing before the Division Bench of Mohta and Sambre JJ. the said Bench found that there is apparent conflict between the aforesaid two decisions. It was also observed that this point often arises for consideration and, therefore, in the interest of certainty the said conflict needs to be resolved by a larger Bench. The Division Bench also thought that the petition as a whole should be disposed of by the Full Bench itself,
5. The questions which arise for our consideration, may be formulated as under :
(1) What is the meaning of the expression, the total number of Councillors (excluding co-opted Councillors), which occurs in Section 55 of the Maharashtra Municipalies Act? Whether it means total number of seats in a particular Council as determined under Section 9 of the Act or it means total number of Councillors, entitled to sit and vote and not the sanctioned strength?
(2) Whether under Sub-section (3) of Section 55 of the Maharashtra Municipalities Act, it is necessary to hold a meeting of Municipal Council for the consideration of motion of no confidence, of which requisition is received under Sub-section (2), within ten days of the receipt of requisition or it only requires that a notice calling the meeting of the Municipal Council should be issued within ten days of the receipt of requisition?
(3) Whether while counting majority of not less than two-thirds of total number of Councillors under Section 55 of the Act, fraction, if any, should be ignored?
6. For property appreciating the controversy raised before us, it will be worthwhile, if a detailed reference is made to the various provisions of the Act. Section 9 of the Act provides for composition of the Councils. The Council consists of Councillors elected at Ward Elections and shall also include Councillors co-opted by the elected Councillors in the prescribed manner from amongst persons who are entitled to vote at the Municipal election and who have special knowledge or practical experience in the field of public Health, Local Self Government, Education, or Welfare of Labour. The Municipal Councils are divided into three classes, A, B, and C according to the population of the town. Minimum and maximum number of elected Councillors is fixed by Section 9(2) of the Act. What will be the number of the co-opted Councillors is also fixed by Section 9(1) proviso (iii) of the Act. There is another class of Councillors known as Nominated Councillors. Under Section 18 of the Act, if at a general election or by-election, no Councillor is elected from any Ward, a fresh election shall be held to elect a Councillor from that Ward and if there is a failure to elect a Councillor at the fresh election, then such vacancy may notwithstanding anything contained in the Act, be filled by nomination of a duly qualified person by the State Government. Any person, so nominated, shall be deemed to be elected at an election under the Act. The number of Councillors to be elected to a particular Municipal Council is fixed by the Director under Sub-section (2) of Section 9. By Section 2(6) the term 'council' is defined to mean, the Municipal Council constituted or deemed to be constituted under the Act for a municipal area. Section 2(7) defines 'councillor' to mean a person who is duly elected or co-opted or nominated as a member of the Council. The phrase 'total number of Councillors' is defined by Section 2(49) which in relation to a Council means 'total number of elected and the co-opted and nominated Councillors, if any, of that Council. By Section 19 it is laid down that as soon as possible after counting of votes in a Ward, if it is by election and in all Wards if it is a general election, in the municipal area is over, the Collector shall publish the result in the Official Gazette as soon as conveniently may be. If at the general elections, poll could not be taken in any Ward or Wards, for any reason, on the date originally fixed for the purpose, but it was taken on that date in more than two-thirds of all the Wards, then the Collector shall as soon as possible after counting of the votes in the said Wards is over, publish the available results in the Official Gazette and as regards the remaining Ward or Wards he shall subsequently publish the results as and when the poll is taken and counting of votes therein is over. However, it is declared by the said provision that after every general election, upon publication of the results, or, as the case may be, first publication of the results, in the Official Gazette, the Council shall be deemed to be duly constituted.
7. After a Council is constituted or deemed to be duly constituted a President and Vice President are to be elected from amongst the Councillors who are elected or deemed to be elected. This is provided by Section 51(1) of the Act. By Section 52 term of the office of the President is fixed, which is conterminous with the elected Councillors. Section 53 provides for the resignation of the President. Then comes Section 55 which deals with the removal of the President by Councillors. The said section reads as under : --
"55(1) A President shall cease to be President, if the Council by a resolution passed by a majority of not less than two-thirds of the total number of Councillors (excluding the co-opted Councillors) at a special meeting so decides.
(2) The requisition for such special meeting shall be singed by not less than one-half of the total number of Councillors (excluding the co-opted Councillors) and shall be sent to the Collector.
(3) The Collector shall, within ten days of the receipt of a requisition under Sub-section (2), convene a special meeting of the Council;
Provided that, when the Collector convenes a special meeting, he shall give intimation thereof to the President.
(4) A meeting to consider a resolution under Sub-section (1) shall be presided over by the Collector or any other Officer authorised by him in this behalf, but the Collector or such other officer shall have no right to vote.
(5) The co-opted Councillors present at any meeting mentioned in Sub-section (4) shall have no right to vote on any resolution relating to the removal of the President."
From this provisions it is clear that the President shall cases to be the President if the Council by a resolution passed by majority of not less than two-thirds of the total number of the Councillors (excluding co-opted Councillors) at a special meeting so decides.
8. As contended by the learned Counsel for both sides phrase 'total number of Councillors' can have two meanings. It could mean actual number of Councillors at a given time who are entitled to sit and vote, It could also mean total number of Councillors as there are seats in the Council i.e. total number of elected seats in the Council. In Bhaskar's case the Division Bench of this Court came to the conclusion that the phrase 'total number of Councillors' used in Section 55(2) of the Act means total seats in a particular council as determined under Section 9 of the Act and not the strength of Councillors entitled to sit and vote, whereas in Shivdas Govind's case another Division Bench of this Court construed the said provision to mean Councillors who are entitled to sit and vote and not the sanctioned strength which may include vacant seats. In the later decision, the Division Bench took the view that it was obliged to follow the view taken by the Full Bench in Namdeorao Madhavrao Thakre v. Dulaji Sitaram Patil 1969 Mah LJ 74 though it was a case decided under the provisions of the Maharashtra Zilla Parishad and Panchayat Samities Act, (hereinafter referred to as the Z.P. Act.) In our view judicial discipline required that if the Division Bench was inclined to disagree with what has been said by another Division Bench, on the ground that it does not represent the correct law on the subject, the case should have been referred to a larger bench. More so when in Bhaskar's case, the Full Bench decision in Namdeorao's case was duly referred to and distinguished. However, as ultimately the matter has come before this Full Bench, we will prefer to finally decide the said controversy on merits.
9. For proper construction of the said phrase, which is also used in the Z.P. Act, Shri Bobde, learned Advocate General, has placed strong reliance upon the Full Bench decision of this Court in Namdeorao Madhavrao Thakre v. Dulaji Sitaram Patil, 1960 Mah LJ 74. After making a reference to Section 9(2) and 15(A) of the Z.P. Act, which are analogous to Section 19(f) and (2) of the Act, this is what the Full Bench has observed :
"Here again the distinction is drawn between the person who is elected and the seat which he occupies and a case is contemplated where there may be only one person but two seats which he occupies in which case he has to elect in writing which of the two seats he resigns from and upon failure to elect the provision is that all the seats shall become vacant. A Councillor or a person elected, therefore, is quite different from the seat or the seats to which he is elected and it is possible for one and the same person to be elected to more than one seat. Therefore, it seems to us that the word 'Councillor' in the expression we are called upon to construe cannot possibly be equated with the seat or seats which he is occupying and the construction contended for on behalf of respondent No. 1 must necessarily lead to that conclusion".
"In the course of the arguments, a contention was urged in support of each view that that view was best conducive of the purpose and object of the Act and that the other or rival view would lead to some difficulty or render some provision of the Act nugatory. So far as the view which we have just considered is concerned, it was pointed that giving effect to this construction would lead to great difficulty in the implementation of the Act and would also be opposed to its avowed object namely "promoting the development of democratic institutions and securing a greater measure of participation by the people in Government Affairs". The effect of accepting a view like thus would in our opinion lead to a very anomalous position. If the total number of councillors were to be equated with the total number of seats theoretically possible then in the present case having regard to the constitution of the Zilla Parishad under Section 9 the 'total number' would be 69, but if by death, resignation, disqualification or removal of councillors, the actual number of councillors were to go below, say 35, then at no stage in future till the number remains below 35 could a non-confidence resolution ever be passed and the provisions of Section 49 would be rendered completely nugatory. The 'total number' being 69 and the section requiring that the resolution of non-confidence must be passed by a majority, a minimum of 35 votes would always be required to pass a no confidence motion, but since the membership has fallen below that number, no no-confidence motion would ever be possible, and the section would be rendered inapplicable. We do not think that an interpretation which results in so anomolous a position should be accepted, apart from the fact that upon the provisions of the law itself such a construction can never be given to these words. We are, therefore, unable to accept construction placed upon those words in the first category, referred to' above."
Then a reference is made by the Full Bench to Section 41 of the said Act which is pari materia to Section 48 of the present Act and provides that no by -- election shall be held or co-option or nomination made for filling a casual vacancy, if the general elections are due, to be held within six months of the occurrence of the vacancy. This is what the Full Bench ultimately held in para 32 :
"32. Then we come to the construction suggested on behalf of the petitioners by Mr. Rane and referred to in category (d) mentioned in the referring order. The construction canvassed is that the words 'total number of Councillors' can only mean the actual number of Councillors other than associate councillors who are in fact entitled to sit and vote at any given time. We may say first of all that this construction is in consonance with the two definitions of 'councillor' and 'Zilla Parishad' in Section 2(9) and Section 2(35). As we have pointed out the definition of 'councillor' refers to the state of facts as they exist after the Zilia Parishad is constituted and so does the definition of 'Zilla Parishad' in Section 2(35) which defines ' Zilla Parishad' to mean a Zilla Parishad constituted under Section 9. It was clearly the intention by each definition to indicate that one must have regard to the actual state of facts as they exist i.e. have regard to the number of councillors as they exist at any given time, excluding of course the associate councillors who have no right to vote. This construction is also in consonance with the object and purpose of the Act and its spirit. Section 49(7) says that a no confidence motion shall be carried by a majority of the total number of councillors other than associate councillors. Since the Zilla Parishad is a democratic body and brought into existence with a view to promoting the development of democratic institutions normally also it would be the majority of a body consisting of its then members that would be entitled to vote upon any resolution and in our opinion, Sub-section (7) of Section 49 was enacted to indicate no more and no less than that. In other words, it was enacted to indicate that the resolution must be passed by a majority of councillors who are on the date of the no confidence motion entitled to sit in the Zilla Parishad and vote on the no confidence motion. Any other construction would be doing violence not merely to the object and purpose of the Act but also as we have shown to one or more of the legal provisions. This is, therefore, a construction which commends itself to us as the construction most in consonance with the provisions of the Act and with the purpose and object of the Act."
The Division Bench in Bhaskar's case did not follow the said decision and distinguished it on the ground that constitution of Zilla Parishad is entirely different from the constitution of the Municipal Council and there is no fixity about the total number of councillors in the Zilla Parishad Act. The Division Bench further observed that the term 'total number of councillors; has not been defined in the Z.P. Act and, therefore, the Full Bench decision would be no authority for the question before it. We find it difficult to agree with the reasons given by the Division Bench for not following the Full Bench decision in Namdeorao's case (1969 Mah LJ 74). It is true that the phrase 'total number of councillors' is not defined in the Zilla Parishad Act and is defined in the present Act. However, the said definition cannot be read in isolation. It will have to be read and construed with the definitions of terms 'council' and 'councillors'. While defining term 'council', a council which is deemed to be constructed, is also taken in its import. Councillor is a person who is duly elected, co-opted or nominated as a member of the Council.
10. The definition of phrase 'total number of councillors' takes in its import the total number of elected, co-opted and nominated councillors of a Council concerned This is clear from the expressions 'in relation to a council', 'if any; of that council'. It does not deal with total number of seats as determined or fixed under Section 9 of the Act. This is further clear from the fact that in the definition even nominated councillors are included. Nomination of Councillors is contemplated under Section 18 if there is failure to elect a councillor. On his nomination he is deemed to be a councillor elected at an election. Thus nomination is qua a seat meant for elected councillor and not in addition to it. Therefore it is clear that Section 2(49) deals with the councillors and not seats fixed or determined under Section 9 of the Act. This is further clear if Section 2(49) is read, with Sub-sections (6) and (7) of Section 2, which defines terms 'council' and councillors'. By Section 87(4) it is made clear that during any vacancy in the council the continuing councillors may act as if no vacancy had occurred. This is necessary to assure continuity in the working of the Corporate body. Changes in the total number of councillors might take place by death, resignation, disqualification or removal of councillor etc, still the continuing councillors may act, as if no vacancy has occurred. The principle that the statute must be read as a whole is equally applicable to the different parts of the same section. Therefore, in our view the definition of term 'total number of councillors' as given in Section 2(49) will have to be read with the definitions of terms 'council' and councillors' and not independent of it.
11. In this context it is pertinent to note that if the construction put by the Division Bench in Bhaskar's case , is accepted, then the Act would become unworkable. Section 81(9) provides for the quorum necessary for the transaction of business. It provides that a quorum for an ordinary meeting shall be one third of the total number of the councillors and for a special meeting shall be one half. It is rightly contended that if at a given time number of councillors occupying seats is less than one third or one half then no business could be transacted in the ordinary or special meeting. A provision of Section 81(9)(b) which provides that if there is no quorum then business can be transacted after stated time by the members present is no answer to the problem. Section 92deals with the transfer of municipal property and Sub-section (2) thereof, provides that proposal for such transfer shall be accompanied by a resolution passed at a meeting by majority of not less than two-thirds of the total number of councillors. In Sections 63, 65 and 167 similar expression is used. We have already noticed provisions of Section 19 by virtue of which a deemed Council is able to work effectively for all practical purposes including removal of a President by passing a vote of no confidence if it becomes necessary. If the construction put up on the said phrase in Bhaskar's case is accepted then these provisions become unworkable. Such a contention was raised before the Division Bench in Bhaskar's case and we do not agree with the reasons given by the Division Bench for repelling it.
12. It was also contended by Shri Jaiswal that after the decision of this Court in Bhaskar's case, Section 55 came to be amended. If the trainers of the Act thought that the decision in Bhaskar's case was not in tune with the intention of the Legislature it would have intervened, but far from doing so it has acquiesced to it. Therefore, it should be inferred that the view expressed by the Division Bench in Bhaskar's case is in accord with the intention of the Legislature. It is not possible for us to accept this contention. From mere inaction on the part of the Legislature an inference cannot be drawn that the view expressed in Bhaskar's case was either accepted by the Legislature or was in accord with its intention. In this context it is also pertinent to note that differing with the said decision, another Division Bench of this Court in Shivdas Govind's case has taken a different view and in spite of this view the State Legislature has not intervened. From this inaction also an inference is possible that the view expressed by the Division Bench in Shivdas Govind's case is also in accord with the intention of the Legislature. In this context it cannot also be forgotten that certain provisions of the Maharashtra Municipalities Act, 1965 came to be amended by Maharashtra Act 4 of 1987, that is, after Division Bench decision in Shivdas Govind's case.
13. Therefore in our view having regard to the scheme of the Act, the phrase 'total number of councillors' as used in Section 55(3) of the Act can only mean total number of councillors who are entitled to sit and vote at the relevant time. Hence we agree with the view taken by the Division Bench of this Court in Shivdas Govind's case.
14. In the view which we have taken it is not necessary to make a detailed reference to the various decisions cited at the bar. Shri Jaiswal, learned counsel appearing for the petitioner has relied upon various decisions of the different High Courts, including , Shyamapada Ganguly v. Abani Mohan Mukherjee, , Sukhdeo Narayan v. Municipal Commr. of Arrah Municipality, , Section Shivashankarappa v. Devangere City Municipality, Davangere, (FB), Mangala Prasad Jaiswal v. District Magistrate, (FB), Gyan Singh v. The District Magistrate, Bijnor and , Gopaldas Bakulbhai Rana v. Lunawada Nagar Panchayat. The decisions of Calcutta and Patna High Courts were also referred to and distinguished in Namdeorao's case (1969 Mah LJ 74) (FB). These decisions are based on the provisions of the respective State enactments. It is not a sound principle of construction to interpret expressions used in one Act with reference to their use in another Act. The decisions rendered with reference to construction of one Act, cannot apply to the provisions of another Act, unless the two Acts are pari materia. We have gone through the said decisions and we find that they are of little assistance, in construing the provisions of the present Act.
15. This brings us to the second question, that is, whether a meeting held after the period of 10 days of the receipt of the requisition under Sub-section (2) of Section 55 of the Act is illegal and therefore, resolution passed therein is also void ab-initio. The main question which requires consideration in this behalf is to find out as to what is the meaning of term 'convene' in Sub-section (3) of Section 55. The expression 'convene' came for consideration before the Full Bench of this Court in Chaitram Dagadu v. Malegaon Panchayat Samiti, 1965 Mah LJ 663 : (AIR 1966 Bom 1). After making reference to the dictionary meaning of the said term, the Full Bench observed, that, the word has more than one meaning and the question as to what meaning it bears in a particular provision must be decided by a reference to the context in which it has been used. The word 'convene' is used in Section 23(1), 51(2) and 81(5). On the other hand the word 'call' is used in various other sections of the Act, including Sections 81(1), 1(a),3, 4(b), 82(2), 82(3), and 82(4) etc. In Sub-section (5) of Section 81 an expression 'notice convening the meeting to be held' is used. Thus it appears that the said expression is not used by the Legislature in a precise sense. It is equally true that in Chairman case the word 'convene' was construed by the Full Bench to mean to summon since it would have been impossible to hold any lawful meeting of the panchayat samiti for consideration of no-confidence motion if such a construction was not placed, which is not the position in the present case. Notice required for convening special meeting is merely 3 days clear notice. Therefore, by giving 3 days clear notice, a special meeting could be convened within ten days. Hence it is contended by Shri Jaiswal that a meeting held beyond the period of 10 days will be wholly illegal and the resolution passed, there at would also be void. We find some difficulty in accepting this contention. Where a statute imposes a public duty and lays down the manner in which and the time within which duty shall be performed, injustice and inconvenience resulting from the strict construction of the statutory prescription is irrelevant for construing the said provision. It is no doubt true that the object of the Legislature in specifying time limit within which the meeting has to be convened, is that the motion of no confidence should be treated as a matter of urgency and should be disposed of within a short time after receipt of the requisition. If it is held that what is required is only an issuance of notice calling a meeting within 10 days, then in a given case, by issuing a notice summoning a meeting within 10 days, but actually fixing a date of meeting much later, a person in whom majority of two-thirds of total number of Councillors have lost confidence, may continue in office. However, it cannot be forgotten that if it is held that the said time limit is mandatory and the meeting held thereafter is ab initio void it will result in unforeseen hardship and inconvenience. Requisitionists have no control over the Collector. It has not been laid down in the Act as to what will happen if the Collector fails to carry on the duty imposed upon him by Sub-section (3) of Section 55. Will it mean that by mere inaction or negligance on the part of the Collector the requisition will lapse and that too for no fault of Requisitionists? Therefore the said provisions will have to be construed as to further its object and not to defeat it.
16. From Section 23(1) it is clear that the Legislature has consciously used the expression, convene and held, to convey different meanings. Under Section 81(1A) it is provided that if the President fails to call an ordinary meeting within the period specified in Clause (1), the Chief Officer shall forthwith report such failure to the Collector, and the Collector shall within seven days from the receipt of Chief Officer's report or may suo motu, call the ordinary meeting. Under Sub-section (4) of Section 81 seven clear days notice is necessary for an ordinary meeting. Therefore the expression,' shall call an ordinary meeting' can only mean issue notice for calling an ordinary meeting. Whenever Legislature wanted that the meeting itself should be held within a particular time it has used different expressions. In Sub-section (2) of Section 81, the expression used is 'on a date not later than fifteen days after the receipt of such request, call a special meeting'. Similar expression is used in Section 82(2). In Section 81(3) expression used is different, that is, 'on a date within 15 days from the date of receipt of such request'. In Section 55(3) such an expression is not used. Section 49(3) of Zilla Parishads Act lays down that the Collector shall, within seven days from the date of receipt of the requisition under sub-section (2), convene a special meeting of Zilla Parishad. It is further provided that the meeting shall be held on a date not later than thirty days from the date of issue of the notice of meeting. Similar provision is made in Section 72(3) of the same Act. If the phraseology used in Section 55(3) is read in this context it can only mean that the notice convening the special meeting should be issued within ten 'days, though the meeting could be and normally should be held within the said period or within a reasonable period, at a later date.
17. It is true that in Z.P. Act with which Full Bench in Chairam's case (AIR 1966 Bom 1) was concerned, the duty to call a meeting was imposed upon the President who was interested in postponing the evil day. This is not the case in the present enactment as the duty is cast upon the Collector. But it cannot be forgotten that in Section 49(3) and Section 72(3) of the Z.P. Act, it is specifically provided that such a meeting shall be held on a day not later than 30 days from the date of issue of notice of the meeting. Such a time limit is not prescribed by Section 55 of the Act. However, in Section 327 of the Act it is laid down that where any notice, order or requisition tinder this Act requires any act to be done for which no time is fixed by or under this Act, such requisition shall fix a reasonable time for doing the same. What could be the reasonable time must ultimately depend upon the facts and circumstances of each case. It cannot be forgotten that in some cases, such as death of a National Leader, Riot, etc. it might become impossible to hold the meeting itself within 10 days. In these circumstances in our view it will not be fair to hold that only because meeting is not actually held within 10 days it is illegal and the resolution passed therein is also void ab-initio. In any case the principle laid down in Section 87 regarding validity of the proceedings must apply to such meeting also and unless prejudice is shown the resolution cannot get vitiated. The apprehension expressed by Shri Jaiswal that either under the political pressure or otherwise, the Collector may neglect or refuse to carry out the public duty so as to help the President, is also not well founded. The power to convene a meeting is conferred upon the Collector who is disinterested and Independent person. It can never be for gotten that in a democratic country even a Government servant is committed to rule of law. Civil Services have a high commitment to the rule of law, regardless of covert commands and indirect pressures from the bosses inside and outside the Government, The courage and probity of the Government servant is the guarantee of purity of administration. There is nothing on record to suggest that the Collector in this case acted at the instance of somebody else or deliberately postponed holding of the meeting. The meeting in this case was held within a 'reasonable time and, therefore, it cannot be said that either the meeting held or resolution passed is in anyway illegal. However, we will like to recommend to the Legislature, that an outer limit for holding the meeting should be laid down in this Act, also as has been done in Zilla Parishad Act.
18. The contention of Shri Bobde that while counting two-third majority, the fraction should be ignored cannot be accepted in view of the wording of the section. In support of his contention Shri Bobde has placed reliance upon the decision of the Andhra Pradesh High Court in Koneru Ramkrishna v. Director of Medical Services. Apart from the fact that the said decision stands overruled, though on different point in Dr. M. Narasimha Rao v. Secretary to the Government Medical and Health Department Government of A.P. Hyderabad it is of little assistance, for construing the present provision. Whenever Legislature wanted that the fraction should be ignored or should be rounded up it has specifically provided for it. Proviso to Section 9(1), Sections 9(2)(b)(c), 19(1), 63(1), 65(2), 81(a), 82(2)(iv), in terms provide that where there is a fraction it should be ignored. Section 9(2)(c) provides for rounding up of a fraction. It lays down that if a fraction is less than one half it is to be ignored and if it is one half or more, then it shall be reckoned as one. Thus it is clear that whenever Legislature wanted that the fraction should be ignored it has specifically provided for it. In Section 55 such a provision is advisedly not made. Sub-sections (1) and (2) of Section 55 uses the expression "not less than". If a fraction is ignored then the majority wilt be less than the requisite number of councillors required to pass a motion of no confidence. The provision is mandatory. The number of votes must not be less than two-thirds, though it may be more. If the fraction is ignored then majority will be less than two-thirds of the councillors. Further in the present case the resolution of vote of no confidence has been passed by the majority of not less than two-thirds of the total number of councillors entitled to sit and vote at the meeting.
Hence there is no substance in this writ petition, Rule discharged with no orders as to costs.