ORDER
A.P. Misra
1. This is a petition under Art. 226 of the Constitution of India.
2. The facts giving rise to the present petition are as follows :--
By means of the present petition petitioner Wahid Ullah Khan had challenged the resolution dated 22nd December, 1990, by which no confidence motion had been passed against the petitioner who was the elected President of the Municipal Board, Khatima, district Nainital. It is not disputed that the total strength of the members of the Board is 15. It is also not disputed that ihe petitioner was elected as President of the Board. Respondents Nos. 4 to 11 served a notice under S. 87-A of the U. P. Municipalities Act, hereinafter referred to as the Act, expressing their intention to move a motion of no confidence against the petitioner before the District Magistrate, Nainital. This notice was given on 19th November, 1990.
3. On 4-12-1990 the District Magistrate issued a notice to the members of the Municipal Board which was despatched from Nainital on 6-12-1990 whereby 22ndDecember; 1990 was fixed for consideration of motion of no confidence. In pursuance of the notice issued by the District Magistrate a meeting of the Municipal Board was held on 22nd December, 1990 in which nine members participated out of whom eight members voted in favour of motion of no confidence. The sole question which has been urged on behalf of the petitioner is that the motion of no confidence cannot be taken to have been passed against the petitioner as it has not been passed by a majority of more than one-half of the total number of the members of the Board as required by S. 87-A of the Act and Consequently the resolution passed against the petitioner is wholly invalid.
4. This petition was initially heard by Division Bench of this Court which held :--
'In Mangala Prasad Jaiswal v. District Magistrate, Gorakhpur, 1970 All LJ 1122 : (AIR 1971 All 77) a Full Bench of this Court has taken the view that sub-sec. (12) of S. 87-A requires that the quorum necessary for passing a motion of no confidence is the total number of the members and not the members of the Board 'for the time being'. The expression total number of the members' used in sub-sec. (12) of S. 87-A would mean total number of the members constituting the Board.
In view of the decision of the Full Bench consequently, motion against the petitioner would be deemed to have been passed only when it had been passed by a majority of more than one-half of 15 members of the Board. On a plain reading of sub-sec. (12) of S. 87-A of the Act half of the members cannot be seven and a half which is an impossibility and consequently has to be rounded to eight, and the resultant effect is that the majority of more than one-half could only be nine members, in a case where the Board consists of 15 members. In the circumstances on a plain reading of sub-sec. (12) of S. 87-A the submission made by the learned counsel for the petitioner is well founded.'
5. This view is directly in conflict with the view taken by an earlier Division Bench of this Court in Ganesh Prasad Chaturvedi v.District Magistrate, Jalaun, 1956 All LJ 58, which held :--
'The last submission on behalf of the appellant is that the resolution of no confidence was not passed by the Board by the requisite majority. The relevant provision is sub-sec. (12) which provides that-
'The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the Board.' Sri Khare's argument is that where, as in the present case, the total number of the members of the Board is twentyone, half of the total number must be taken to be eleven (as half a member is an impossibility), and that as the majority must be more than half the no-confidence resolution could not be passed unless the minimum number of members voting for it was twelve. The sub-section is somewhat ambiguously worded, for if it was the intention of the legislature that a bare majority of the total number of the members of the Board would suffice for the purpose of passing a no confidence resolution it was unnecessary to add after the word 'majority' the words 'of more than half.
The argument is at first sight attractive but we do not think that it is right. The word 'majority' may refer either to the total number of votes cast in favour of the resolution or it may refer to the difference in number between the votes cast for and those cast against the resolution. If the sub-section had provided that motion of no confidence shall be deemed to have been carried only when it has been passed by a majority of, say, five votes, then it would be clear that the word 'majority' is used in the latter sense and that the resolution would not be passed unless the votes in favour of it exceeded those against it by at least five-If the word 'majority' has however been used in that sense in the present sub-section then it would follow that a no confidence resolution can, in a case where the total number of members of the Board is twentyone, be passed only when the number of members voting for it is greater by. eleven than the number voting against it. This in our opinion cannothave been the intention of the legislature. A parallel is, we think, to be found in the Indian Companies Act, sub-sec. (1) of S. 81 of which provides that resolution shall be an extraordinary resolution when it has been passed by a majority of not less than three fourths of such members entitled to vote as are present at the meeting. It has, so far as we are aware, never been doubted that an extraordinary resolution is passed by the requisite majority is three fourths of the members present vote for it; it is not necessary that the difference in number between the members voting for the resolution and those voting against it should be not less than three-fourths of the total number of persons present. In our judgment the. words 'of more than half in this sub-section are redundant.'
Disagreeing with the view taken in Ganesh Prasad Chaturvedi (1956 All LJ 58) (supra) the Division Bench held :--
'In our opinion the words 'of more than hah, cannot be held to be redundant. The legislature had used these words consciously and for a specific purpose. If the motion of no confidence was to be carried only by majority it was wholly unnecessary for the legislature to have used the words 'of more than half in the said sub-section.'
6. In view of this conflict between the two views this question has been referred for an opinion, as, per referring order dated 10-1-1992.
7. In order to appreciate properly the controversy involved, the relevant amendments in the Act are enumerated hereunder.
8. By means of U.P. Act No. II of 1926 S/47A was inserted after S. 47 which is statedas follows :
47A. If a Board has passed, by a majority consisting of not less than one-half of the members of the Board for the time being a vote of no-confidence in its hairman (not being an ex-officio Chairman) and at any subsequent meeting, held not less than three weeks nor more than three months, sub-sequent thereto, has by a majority consistingas aforesaid, adopted a resolution calling upon him to resign, such Chairman shall, within three days of receipt of notice that such resolution has been adopted, submit his resignation in the manner prescribed by S. 47.'
By U.P. Act No. IX of 1933 S.47A was substituted as follows :--
'47A. If a Board has adopted by a majority consisting of more than one half of the members of the Board for the time being, a resolution expressing non confidence in its Chairman (not being an ex-officio Chairman), and at a subsequent meeting has, by a majority consisting as aforesaid, adopted a resolution calling upon him to resign, such Chairman shall, within three days of receipt of notice that the latter resolution has been adopted, submit his resignation in the manner prescribed by S. 47.
and further S.87A, after S.87, was for the first time added. Relevant sub-sections of S. 87A are quoted below ;--
'87A. Discussion of motions of non-confidence-- (1) A motion that the Board shall adopt a resolution expressing non-confidence in its Chairman may be discussed and voted upon at any meeting : Provided that no such motion shall be discussed or voted upon at any meeting unless the Chairman or the Board shall have received seven clear days' notice in writing signed by not less than one-third of the members of Board that there is an intention to discuss such motion.
(2) If the Chairman or Board receives such notice as aforesaid the Chairman shall, at the first meeting held after the expiry of a period of seven days from the notice of receipt of the notice, place such motion before the Board as the first item on agenda for such meeting and give the Board an opportunity of discussing it and voting upon it.
(3) If the Board shall have adopted by a Majority consisting of more than one half of the members of the Board for the time being a resolution expressing non-confidence in its Chairman, and if the said Chairman or theBoard within a period of two months after such resolution has been adopted shall receive a notice in writing signed by not less than one-third of the members of the Board that there is an intention to discuss a motion that the Board shall adopt a resolution calling upon the Chairman to resign, the Chairman shall at the first meeting held after the expiry of a period of seven days from the date of receipt of such notice, place the said motion before the Board at the first item on the agenda for such meeting and shall give the Board an opportunity of discussing, the motion and voting upon it. xxx xxx xxx'
The objects and reasons for the said amendment as contained in the said amending Act is quoted below :--
'Certain Chairmen of Municipal Boards have tried to burke motions of no-confidence brought by a hostile party by not including them in the agenda, by arranging through various devices such as placing them at the end of an impossibly long list of business, that they shall not come up for discussion or by postponing meetings.
The present Municipalities Act makes no provision for a procedure to be followed when a Chairman refuses to issue a notice for a meeting to consider such a resolution under S. 47A of the Act, and it is to remedy this defect that the present (Act) has been framed. It may be considered as complementary to the other Bill now before the Council requiring a three-fifth instead of a bare majority for the passing of such a resolution.'
By U.P. Act No. XIII of 1942 S. 47A of the Act was amended and S. 87A was substituted. The portion of S. 87A is quoted below.
'87A. Motion of no-confidence against Chairman-- (1) Subject to the provisions of this section, a motion expressing no-confidence in the Chairman shall be made only in accordance with the procedure laid down below.
(2) Written notice of intention to make a motion of no confidence in its Chairman,signed by such number of members of the Board as constitute not less than one-half of the total number of members of the Board, together with a copy of the motion which it is proposed to make, shall be delivered in person together by any two of the members signing the notice to the district Magistrate.
....... ...... ...... (12) The motion shall be deemed to have been carried only when it has been passed by a majority of more than half of the total number of members of the Board, and when it has been so carried the Provincial Government shall by notification in- the official Gazette remove the Chairman, and the Chairman shall be deemd to have vacated office with effect from the date of publication of the notification.
(13) If the motion is not carried by majority as aforesaid, or if the meeting cannot b held for want of a quorum, no notice of any subsequent motion of no-confidence in the same Chairman shall be received until after the expiry of a period of twelve months from the date of the meeting. ............ ............ ............'
By Amending Act, U.P. Act No.XXVII of 1964, S. 87A has further been amended, which is quoted below:--
'(1) at the end of sub-sec. (11) for the fullstop, a colon shall be substituted and the following shall be added as a proviso thereto :
'Provided that if the President refuses of avoids to take delivery of the copies so forwarded, the same shall be affixed at the outer door of his last known residence and he shall be deemed to have received the same at the time such affixation is made', and (2) in sub-sec. (13), between the word 'quorum' and the comma occurring thereafter the words 'which shall be not less than one half of the total number of members of the Board for the time being' shall be omserted.
Next by U.P. Act No. 41 of 1976 S.87A was further amended which is quoted below:--
'(a) for sub-sec. (2), the fallowing sub-section shall be substituted, namely :--
'(2) Written notice of intention to make a motion of no-confidence in its President signed by such number of members of the Board as constitute not less than two thirds of the total number of members of the Board together with a copy of the motion which it is proposed to make shall be delivered in person together by any two of the members signing the notice to the District Magistrate. (b) for sub-sec. (12), the following subsection shall be substituted, namely :
'(12) The motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the total number of members of the Board.' (c) for sub-sec. (13), the following subsection shall be substituted, namely
'(13) If the motion is not carried by a majority as aforesaid, or if the meeting cannot be held for want of quorum which shall not be less than two-thirds of the total number of members of the Board, for the time being no notice of any subsequent motion of no-confidence in the same President shall be received until after the expiry of a period of two years from the date of the meeting.' (d) for sub-sec. (14), the following subsection shall be substituted, namely : '(14) No notice of a motion of no confidence under this section shall be received within two years of the assumption of office by a President.''.
By U.P. Act No. 17 of 1982 again S. 87A was amended, which is quoted below :--
'In S.87A of the principal Act,-- (a) in sub-sec. (2). for the word 'two-thirds' the word 'one-half shall be substituted :
(b) in sub-sec. (12) for the word 'two-thirds' the words 'more than one-hair shall be substituted.'
Next, by U.P. Act No. 19 of 1990, S. 87A was again amended which is quoted below :--
'In S. 87A of the Principal Act, in sub-sections(13) and (14), for the words 'two years'' wherever they occur, the words'one year' shall be substituted and in sub-sec. (13), for the words, 'shall not be less than two-thirds' the words 'shall be more than one half shall be substituted.'
By U.P. Ordinance No. 23 of 1992 again S. 87A was amended, which is quoted below :--
In S. 87A of the principal Act- (a) in sub-sec.'(12), for the words 'more than one half the words 'two thirds' shall be substituted;
(b) in sub-sections(13) and (14), for the words, 'one year' wherever they occur the words, 'two years' and in sub-sec. (13), for the words, 'shall be more than one half the words, 'shall not be less than two-thirds', shall be substituted.
(Underlining by us)
However, this amendment would not be applicable in the present case, which is of a date prior to this amendment.
9. The aforesaid various amendments in the Act reveal that the legislature has been using both the words 'majority' and then the qualifying words 'more than one half or 'two-thirds of the total number of members of the Board.' It is significant by U.P. Act No. 2 of 1926 S. 47A as introduced has used the words 'by a majority consisting of not less than one half of the members of the Board.' We further find similarly in various other Acts the legislature has used both the words; 'majority' qualified by the aforesaid words. In S. 16(15) of the U.P. Nagar Mahapalika Adhiniyam, 1959, the words used are :--
'The motion shall be deemed to have been carried only when it has been passed by a majority of more than one half;'
(Underlining by us)
Section 14(1) of the U.P. Panchayat Raj Act provides for removal of Pradhan
'by a majority of two thirds of the members present and voting.'
Similarly, under Rule 33B(viii) of the Panchayat Raj Rules it is provided :--
'..... The motion shall be deemed to have been carried only when it has been passed by a majority of two-thirds of the members present and Voting.'
(Underlining by us)
Rule 460 of the U.P. Co-operative Societies Rules provides
'The resolution for no confidence shall be deemed to be carried, if passed by a majorityof at least two-third of the members present.'
Here again we find even in various otherenactments the word 'majority' is' furtherqualified either by the words 'more than half'or by 'a majority of two-thirds'. The argument that the use of the words 'more than onehalf followed by the, word 'majority' inS.87A is redundant cannot be accepted. Itmay be in a given case the legislature could besaid to have inserted superfluous words or byway of abundant caution but before comingthis conclusion the Court must scrutinisethe provisions of the whole Act, its antecedents the legislative history and possiblemeaning which could be attributed to thewords used in particular setting of a provisionof an Act and if no possible meaning could beattributed, or, in other words if without use ofsuch words the same meaning could be said tobe carried, it may be held that the use of suchwords is superfluous used as an abundantcaution.
10. In I. R. Commissioner v. Dowdall, 'O' Mohoney Co., (1952) 1All ER 531 (537)(HL) it is held :--
'. . . . .it is not uncommon to find the legislature inserting superfluous provision under the influence of what may be abundant caution.'
To the same effect is the decision in Hakim Ali v. Board of Revenue, U.P., AIR 1991 SC 972.
11. However, in the present case, we find both the use of the word 'majority' followed by 'more than one half is being used by the legislature right from 1933 when it amended S. 47A of the Act by providing 'majority consisting of more than one half of the members of the Board' and various amendments both under this Act and other Actsas hereinbefore we have referred to. This repeated use of the words 'more than one-half followed by the use of the word 'majority cannot be held to be either superfluous or used as an abundant caution, nor could it be held to be redundant. 'Majority' under the Act has not been defined.
In Webster's Third New International dictionary the word 'majority' is defined as :--
'the quality or state of being greater; a number greater than half of a total; the excess of such a greater number over the remainderof the total ;.. .....'
In the Radom House Dictionary, the unabridged edition, the 'majority' is defined as:--
'... ..the number larger than half thetotal; a number of voters or votes -- more than half of the total number; the amount by which the greater number as of votes surpasses the remainder.'
Similarly, in Shorter Oxford English Dictionary, 2nd edition, the word 'majority' isdefined thus :--
'The state or fact of being greater; the number by which in voting, the votes cast on one side exceeds those cast on the other......'
The word 'majority' speaks of greater number out of the total number which cannot be a fixed number. In fact, the starting point of majority is more than half, but any number more than half still continues to be majority. Majority cannot be said only confining to more than half. Majority of three-fourths of the total number, two-thirds of the total number would all come with in the sphere of the word 'majority'. A person is said to have won by a majority of fifty thousand votes or thirty thousand votes. All speak about the extent of majority. A majority may start from a number which is more than half and would continue till the balance of the number excluding one number. In the matter of votes if a resolution is carried either in favour or against by all it is said to be unanimous. Majority is used in contradiction to minority.Thus, there must exist a minority vote. So, even where one vote is cast in favour or against resolution the balance of the total number of votes cast would all be a number of majority vote.
12. In this Act, we find, may be in view of the changed situations existing at a particular time the majority figure has been oscillating from more than half to majority of two-thirds. It is very significant when S. 47A was introduced by U.P. Act II of 1926 the word 'majority' was spoken in a different context as :
'.... majority consisting of not lessthan one half of the members of the Board...........'
Here, the majority spoken is not less than one-half of the members of the Board.
13. It is in this background when the legislature is using the word 'majority' followed by the words 'more than half or two-thirds', time and again it cannot be said that use of these words in sub-sec. (12) of S. 87A of the Act is redundant or used only as an abundant caution. To this extent, the view expressed contrary to this in Ganesh Prasad Chaturvedi v. District Magistrate, Jalaun (1956 All LJ 58) (supra), we, with respect, do not agree and hold to the contrary. In fact, these words have been used deliberately to specify the majority.
13A. In Aswani Kumar v. Aravinda Bose, AIR 1952 SC 369 (para 26) it is held :--
'It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of statute.'
To the same effect are the subsequent decisions of the Supreme Court. Thus, we hold that the aforesaid words used in S. 87A(2) of the Act, have been deliberately used.
14. Next, coming to the facts in the present case, if the words 'more than one hair' are not superfluous then what meaning is to be given on the facts of the present case, where admittedly the total strength of themembers of the Board is fifteen. In the referring order, the Division Bench held, which is also the argument on behalf of the petitioner, that half of the members out of fifteen cannot be seven and half which is an impossibility. Therefore, it has to be rounded to eight and if this be the half the use of the words 'more than half would only be nine members. This interpretation to the provisions of this Act, with respect, we do not accept. Rounding of a figure is only where a particular figure has to be arrived at. It may be for some relevance where half of the total number is necessary to be arrived at and in case seven could not be half and mathematically seven and half is half of fifteen then the principle of rounding of could be applied. In fact, various provisions or rules provide the rounding of where such contingency has to be arrived at, but in case where total number is fifteen and if the meaning of the word 'majority' is more than one half and any number which is more than half would be a number of majority votes. In order to arrive at majority votes it is not necessary first to find the mathematical figure of half of the total to be seven and half and round that figure as there cannot be seven and half members to eight and then add up one number to make the majority of more than one half. That is to say, to make it nine. This argument is misconceived. 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. If it was not a case of votes in a given case any fraction, which is more than half even before it is totalled up to a rounded figure would be a majority figure. However, this is not true in the matter concerning a person voting as he cannot be divided into fractions. The true intention by using the said words in this provision is that such a number has to be a number which is more than half. It cannot be doubted that number 8 out of total number which is 15 is a number more than half and thus would be covered by the words majority votes. Eight would be a majority vote in a total number of fifteen and in case eight persons voted in favour of no confidence motion then that number would be a majority of more than one half of the total number of members of the Board and such a resolutionwould be deemed to have been carried out the motion of no-confidence as against the Chairman under S. 87A of the Act.
15. In the result, the writ petition fails and is hereby dismissed with costs.
S.P. Srivastava, J.
15A. On thematter dealt with in the judgment of my learned Brother Hon'ble A.P. Misra, J. which I have had the opportunity to read in draft, I agree.
16. However, I may add that it is by now well established that the essential connotation of a no-confidence motion is that the party against whom such motion is passed has ceased to enjoy the confidence of the requisite majority of members.
17. A perusal of the various provision made in the Municipalities Act indicates that the legislature has used expression like 'less than' and 'more than' in several situations envisaged under the Act and such use of expression cannot be deemed to be without any purpose.
18. In defining either the general object of the legislature or the meaning of its language in any particular passage it is obvious that the intention which appears to be must in accord with convenience, reason, justice and legal principles, should in all cases of doubtful significance be presumed to be true.
19. The legislative intent behind Section 87A(12) of the Municipalities Act appears to be to fix the requisite majority of the members of the Board, the failure to enjoy the confidence of which majority will result in the ouster of the President from the office. In order to determine this majority, the total number of the members of the Board has to be taken into account and the total number of the votes cast in favour of the resolution or cast against the resolution have to be taken into account in order to find out which number is more than one half of the total number of the members of the Board. It is the ultimate result of the counting of the votes at the meeting which has to be taken into account and the emphasis is clearly on the number. In order to arrive at the figure ofthe majority as envisaged under S. 87 A(12) of the Act it is not at all permissible to determine the one half of the total number of the members of the Board by artificially arriving at a figure which numerically cannot be the half of the total number of members of the Board in a given situation. In this view of the matter in a case where the total number of the members of the Board happens to be 15, in that case it will not be permissible to proceed on the assumption that for the purpose of S. 87A(12) of the Act, the half, will have to be deemed to be 8. This will clearly be against the legislative intent.
20. The figure eight cannot numerically be deemed to be half of the figure 15. However, figure eight is obviously more than hah' of the figure fifteen. In such circumstances, if the total number of the votes cast in favour of the resolution of motion of no confidence against a President of the Board which has 15 members will be deemed to have been carried through as the figure eight will represent, the majority of more than half of the total number of the members of the Board. Figure 8 can represent the half of the total number of the members of the Board of 15 members only by artificially increasing the numerical figure which would be representing the half. This does not appear to have been made permissible as it will have a wholly unwarranted effect of providing unmerited period of term to a person against whom a motion of no confidence has been carried through by such number of members which number by itself is more than half of the total number of members of the Board.
21. In the circumstances, words 'more than one hair be used in S. 87A(12) of the Act cannot be deemed to be redundant yet they have to be understood in contradistinction to 'less than one half as used in S. 87A(13) or 88 of the Act. The carrying through or falling of a portion of no confidence under the provisions of the Act has to be determined on the basis of the numbers of votes cast in favour of or against the resolution and this number can be arrived at without artificially increasing the numbers in case the total number of the members of the Board happens to be in an odd figure.
22. The emphasis is on the number not the member. It is not possible to increase the numerical on the assumption that there cannot be a 'half member'. It is only to avoid this situation that the expression 'less than' and 'more than' have been used. They lay emphasis on the numbers and not members. In a given situation, if the total number of the members of the Board happens to be in the odd number even in that case the figure more than half could be arrived at without increasing artificially any number in order to find out the half. It may be usefully noticed that in the case of Jivendra Nath Kaul v. Collector/ District Magistrate, reported in (1993) 3 SCC 576, decided by the Apex Court the total number of the members of the Board was 16. The Apex Court in that case obviously therefore, the half of the number was held to be 8 and it was observed that the motion of no confidence could only be passed if it was supported by more than 8 votes. It was further emphasised that natural meaning to the expression contained in sub-section (12) of S. 87-A of the Act should be given and strained reasoning should not be adopted for appreciating the plain meaning flowing from the simple language.
23. In the circumstances, therefore, it seems to me that it is impossible to approve the view where under when the total number of members of the Board is 15, the number of half of the member is taken to be 8. This will require a strained reasoning which is wholly unwarranted. Obviously half of 15 and 16 cannot be the same figure.
24. To conclude, I agree that the writ petition is clearly devoid of merit and is liable to be dismissed with cost.
25. Petition dismissed.