JUDGMENT
N.A. Britto, J.
1. Heard learned Counsel on behalf of the parties.
2. The petitioners, in this petition, filed under Article 226 of the Constitution, inter alia, seek a writ or direction, directing respondent No. 1 to convene a meeting to consider the notice of no confidence motion delivered on 26.10.2007.
3. Some facts are required to be stated to dispose of this writ petition. Respondent No. 6-Village Panchayat of Calangute consists of 11 elected members. After the last elections held in May, 2007, respondents No. 4 and 5 came to be elected as Sarpanch and Dy. Sarpanch, respectively. Thereafter, the petitioners, a group of six members, gave a notice of no confidence motion dated 25.9.2007 which came up for consideration at the meeting held on 1.10.07. The minutes of the said meeting show that the said no confidence motion was carried by 6 votes in favour and 5 against, but the said resolution became the subject-matter of proceedings taken before respondent No. 2-Director of Panchayats and which, in turn, compelled the petitioners to move this Court in Writ Petition No. 488/07.
By order dated 17.10.07, this Court directed for a fresh meeting to be held on 21.10.07 at 11 a.m. This Court also directed the Secretary of the Village Panchayat as well as the Presiding Officer to take care to ensure that the procedure prescribed by the Goa Panchayat (Meetings) Rules, 1996 (hereinafter, referred to as “the said Rules”) was scrupulously followed.
When the said meeting was called on 21.10.07, the petitioners attended the said meeting and elected the petitioner No. 1 to preside over the same. The group of 5, including respondents No. 4 and 5, remained absent. It appears that the motions of no confidence against respondents No. 4 and 5 were put to vote and were carried by 5 votes in favour and none against. Petitioner No. 1 did not cast his vote in view of his understanding of Rule 7(2) of the said Rules, as according to petitioner No. 1, he was required to cast his vote only in case of equality of votes, though at the earlier meeting, petitioner No. 1 had voted in support of the motion. Respondent No. 1-B.D.O. submitted his report to respondent No. 2-Director of Panchayats dated 21.10.07, reporting that the no confidence motion against the Sarpanch and the Dy. Sarpanch was passed by 5 votes against nil and further stating that in terms of Section 51 of the Goa Panchayat Raj Act, 1994 (“the Act” for short) six members were required to constitute the absolute majority and as the motion was carried by 5 votes against nil, the same was not in accordance with Section 51 of the Act, i.e. it was not passed by the majority of the total members of the Panchayat. Thereafter, the petitioners made two other representations dated 22.10.07 and 24.10.07 to respondent No. 2-Director of Panchayats to hold fresh elections for the posts of Sarpanch and the Dy. Sarpanch, as according to the petitioners, no confidence motion was duly passed. The petitioners, thereafter, by way of abundant caution gave fresh notice of confidence motion dated 26.10.07.
Respondent No. 2-Director of Panchayats, in his affidavit-inreply, has stated that only 5 members of the Panchayat had voted in favour of the no confidence motion in the meeting held on 21.10.07 and as such, the resolution could not be termed as having been passed by the majority of the total number of members of the Panchayat in terms of Section 51 of the Act. According to him, the total strength of the Panchayat is 11 members and, therefore, as required under Section 51 of the Act, 6 members ought to have voted in favour of the said resolution, in order to consider the same as passed. Respondent No. 2-Director of Panchayats has, therefore, taken a stand that since the resolution was not passed by the requisite majority, he did not take any action to fill up the vacancies of the posts of Sarpanch and the Dy. Sarpanch as no such vacancies had arisen.
4(a). Section 51 of the Act, reads as follows:
51. Motion of no confidence against Sarpanch and Deputy Sarpanch – (1) Every Sarpanch or a Deputy Sarpanch shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of a total members of the Panchayat at a meeting specially convened for the purpose:
Provided that no such [notice of motion of no- confidence] shall be taken into consideration unless it is signed by the majority of the Members.
[Provided further that no notice of motion of no confidence shall be moved within six months after the meeting of Panchayat defeating the motion of no confidence.]
[(2) The notice of no confidence motion shall be delivered to the Block Development Officer who shall convene a special meeting of the Panchayat to consider the no confidence motion within fifteen days from the receipt of the notice thereof.
(3) A copy of notice of no confidence motion shall also be delivered to the Secretary of the Panchayat.
(4) The procedure to be followed for such a special meeting shall be such as may be prescribed.]” 4(b) Rule 7 of the Rules reads as follows:
7. Questions shall be decided by the majority of the votes. -(1) Save as otherwise provided in the Act, all questions coming before a meeting shall be decided by a majority of the votes of the members present and voting.
(2) In case of an equality of votes, the person presiding shall have and exercise a second or casting voter.
5. Shri Nadkarni, the learned Counsel on behalf of the petitioners, has submitted that what was required for a resolution to be passed at the specially convened meeting is the majority of the total members present at the meeting. Shri Nadkarni has also submitted that the petitioners are still willing to get the said no confidence motion passed in case this Court directs another meeting to be held to consider the passing of the no confidence motion. On the other hand, Shri Lotlikar, the learned Senior Counsel has submitted, and Shri Rivonkar joins him in that submission, that a resolution of no confidence has to be passed by a majority of the total number of members constituting the Panchayat and in this context Shri Lotlikar has placed reliance on the cases of Shri Francisco Joaquim Fernandes and Anr. v. Shri Jose Minguel Fernandes and Ors. (1995(1) Goa L.T. 302) and Vishwasrao Dajibarao Ghuge v. Vallabhdas Sheonarayan Sharma and Ors. . The learned Senior Counsel Shri Lotlikar has further submitted that since the said motion was not carried by the required majority of the total members of the Panchayat, it is to be considered as defeated and since the said resolution has been defeated, no fresh resolution could be moved in terms of the second proviso to Section 51 of the Act.
6. The first submission of Shri Nadkarni is no longer res integra. A Division Bench of this Court, in Shri Francisco Joaquim Fernandes and Anr. v. Shri Jose Minguel Fernandes and Ors. (supra) has held as follows:
Section 51 says in categorical terms that No Confidence Motion will not be passed unless it is supported by a majority of total members of the Panchayat in a special meeting convened for the specific purpose. Proviso to Section 51 imposes another restriction that even at the time of moving the resolution it should be signed by the majority members of the Panchayat. Therefore, in all three stages, namely, requisition for convening the meeting, holding the meeting and passing the resolution in the meeting, it should have the support of majority of the total members of the Panchayat.
7. Another Division Bench of this Court in Vishwasrao Dajibarao Ghuge v. Vallabhdas Sheonarayan Sharma and Ors. (supra) has stated as under:
Upon the view we have taken it is clear that in the instant case the respondents had 6 votes in favour of the no confidence motion and those 6 votes did not constitute “a majority of the total number of members of the Panchayat Samiti”. The majority having regard to the facts here that the Panchayat Samiti was constituted of 14 members, would be 8. In the result, therefore, the no-confidence motion which is said to have been carried must be set aside as invalidly passed.
8. Needless to observe, since the resolutions were not passed by six members, the same could not have been said to have been passed by the total number of members of the Panchayat. We are entirely in agreement with the first submission made on behalf of the respondents No. 3 and 4 that a resolution expressing want of confidence had to be passed by a majority of the total number of members of the Panchayat, and, not the members present at the specially convened meeting for that purpose, as sought to be contended on behalf of the petitioners. Nevertheless, we are unable to agree with the contention of the learned Senior Counsel that since the resolution at the meeting held on 21.10.07 was not passed with the required majority, it has got to be considered to have been defeated. In our view, non-passing of a resolution with the requisite majority is different from a resolution which is defeated. The ordinary meaning of the word `defeat’ is to win a victory over, thwart, frustrate, overthrow…etc. For the purpose of defeating a resolution, the members present ought to have voted against the resolution by requisite majority and since none had voted against the resolution on 21.10.07, the same could not be treated as defeated, so as to create a bar of moving a fresh resolution, in the light of the second proviso to Section 51 of the Act. In other words, for a resolution to be defeated, the majority of members present at the meeting specially convened for consideration of the no confidence motion ought to have expressed their confidence in respondents No. 4 and 5. That did not happen. Therefore, we are of the view that the second proviso to Section 51 of the Act will not come in the way of the petitioners who have now given another notice of no confidence motion dated 26.10.07.
9. The learned Senior Counsel next contends that it is not the case of the petitioners in the petition that non-passing of the resolution does not amount to defeating the resolution for the purpose of second proviso. It may be so. However, we are not inclined to allow the present undemocratic stalemate to continue for another period of 3 months or so. The present impasse has been created by the wrong understanding of the provisions of Rule 7(2) by the petitioner No. 1, and, it is in the interest of justice and for a better functioning of respondent No. 6 that it should not be allowed to continue. Apparently, and in view of technicalities only, respondents No. 4 and 5 continue to occupy the post of Sarpanch and Dy. Sarpanch respectively, without having support of the majority of the members of the Panchayat, as a result of which and in the light of the Orders made by this Court, the very functioning of the Panchayat has been affected. This is not conducive for a democratic process.
10. We, therefore, deem it appropriate to direct that another meeting be convened by respondent No. 1 to consider the no confidence motion presented by the petitioners dated 26.10.07 and such a meeting shall be convened on 4.2.2008 at 11.00 a.m. in the Panchayat Office, on the same terms and conditions as set out by this Court in the Order dated 17.10.07.
11. The petition, therefore, is partly allowed. Rule is made absolute on the above terms, with no order as to costs.
At this stage, learned Senior Counsel prays for stay of operation of this Judgment. Learned Counsel on behalf of the petitioners objects. Considering the facts and circumstances of the case, the prayer for stay is rejected.
Expedite certified copy.