Karnataka High Court
Sri. M Girish S/O M P Mahadevappa vs State Of Karnataka on 11 December, 2012
Author: Vikramajit Sen
Bench: Chief Justice, B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 11th DAY OF DECEMBER 2012
PRESENT R
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
WRIT APPEAL NOS.4794-4804/2012 (APMC)
BETWEEN
1. SRI.M.GIRISH
S/O. M.P.MAHADEVAPPA
AGED ABOUT 38 YEARS
MEMBER, APMC,
MARIYURU VILLAGE & POST,
CHAMARAJANAGAR TALUK & DISTRICT.
2. SMT.RATHNAMMA.B,
W/O.K.R.BASAVARAJU
AGED ABOUT 38 YEARS
MEMBER, APMC,
KILAGERE VILLAGE & POST,
GUNDLUPET TALUK,
CHAMARAJANAGAR.
3. SRI.VEERATHAPPA
S/O.GURUMALLAPPA
AGED ABOUT 55 YEARS
MEMBER, APMC,
MARIYALA VILLAGE & POST
CHAMARAJANAGAR DISTRICT
2
4. SRI.S.PURUSHOTHAM
S/O.LATE SHIVARAMU,
AGED ABOUT 43 YEARS
APMC, VICE PRESIDENT
KODIUGANE VILLAGE & POST
CHAMARAJANAGAR TALUK.
5. SRI.N.M.SHIVASWAMY,
S/O.MAHADEVAPPA,
AGED ABOUT 42 YEARS
MEMBER, APMC
NANJANDEVAPUR VILLAGE & POST
CHAMARAJANAGAR TALUK & DISTRICT.
6. SRI.Y.S.NANJA SHETTY
S/O.LATE SIDDASHETTI
AGED ABOUT 48 YEARS
MEMBER, APMC,
MARIYURU VILLAGE & POST
YELANDURU TALUK
CHAMARAJANAGAR DISTRICT
7. SRI.SHIVAKUMAR
S/O.NAGARAJAPPA
AGED ABOUT 35 YEARS
MEMBER, APMC,
KAGALWADI VILLAGE & POST
CHAMARAJANAGAR TALUK & DISTRICT
8. SRI.C.RAJASHEKAR
S/O.LATE CHINNASWAMY
AGED ABOUT 37 YEARS
MEMBER, APMC,
ALDUR VILLAGE & POST,
CHAMARAJANAGAR TALUK & DISTRICT
9. SRI.Y.L.SHIVASWAMY
S/O.LINGANAYAK
AGED ABOUT 55 YEARS
3
MEMBER, APMC
YELANDUR TOWN & POST
CHAMARAJANAGAR TALUK & DISTRICT
10. SRI.K.M.MADAPPA
S/O.MARISWAMAPPA
AGED ABOUT 48 YEARS
MEMBER, APMC,
KINAKAHALLI VILLAGE,
CHAMARAJANAGAR TALUK & DISTRICT.
11. SRI.L.SURESH
S/O.LATE D.N.LINGASHETTY
AGED ABOUT 52 YEARS
MEMBER, APMC
NEAR SIDDARTHA THEATRE
CHAMARAJANAGAR TALUK & DISTRICT
..APPELLANTS
(BY SRI.H.M.MURALIDHAR, ADV, FOR
M/S.SREE RANGA ASSTS, ADVS.)
AND
1. STATE OF KARNATAKA
AGRICULTURAL PRODUCE MARKETING OFFICE
NO.16, 11TH RAJ BHAVAN ROAD,
P.B.NO.5309, BANGALORE-560 001
REPRESENTED BY ITS DIRECTOR
2. AGRICULTURAL PRODUCE
MARKETING COMMITTEE
CHAMARAJANAGARA
REPRESENTED BY ITS SECRETARY
3. THE DEPUTY COMMISSIONER,
CHAMARAJANAGAR,
4
CHAMARAJANAGAR DISTRICT
4. SRI.A.S.THEERTHESH
S/O.LATE SHIVANNA
AGED ABOUT 50 YEARS
RESIDING AT AMACHAWADI VILLAGE
CHAMARAJANAGAR TALUK & DISTRCT
CHAMARAJANAGAR
5. SRI.SHIVASWAMY
S/O.LATE SHANTHAMALLEDEVARU
AGED ABOUT 60 YEARS
MEMBER, APMC,
RESIDING AT AMACHAVADI VILLAGE
CHAMARAJANAGAR TALUK & DISTRICT
6. SRI.H.C.MAHESH KUMAR
S/O.LATE M.CHANNABASAPPA
AGED ABOUT 48 YEARS
MEMBER, APMC
RESIDING AT HEGGAVADIPURA VILLAGE
CHAMARAJANAGAR TALUK & DISTRICT
7. SRI.S.BASAVANNA
S/O.LATE SHIVABASAPPA
AGED ABOUT 55 YEARS
MEMBER, APMC
RESIDING AT ARAKALVADI VILLAGE
CHAMARAJANAGAR TALUK & DISTRICT.
8. SRI.RAJANNA
S/O.NANJUDNDA SHETTY
AGED ABOUT 35 YEARS
MEMBER, APMC,
RESIDING AT BADAMUDLU VILLAGE
HARADANAHALLI HOBLI
CHAMARAJANAGAR TALUK & DISTRICT
9. SMT.VEENA
5
W/O.MARAIAH
AGED ABOUT 38 YEARS
MEMBER, APMC
RESIDING AT JENNURU HOSUR VILLAGE
SANTHE MARAHALLI HOBLI
CHAMARAJANAGAR TALUK & DISTRICT
10. SRI.SRINIVASA REDDY
S/O.NOT KNOWN
AGED ABOUT 40 YEARS
MEMBER, APMC
ASSISTANT DIRECTOR OF
AGRICULTURAL PRODUCE
MARKETING DEPARTMENT,
CHAMARAJANAGAR DISTRICT.
Note: Respondents 9 & 10 have been
deleted vide Court Order Dt.05.11.2012
..RESPONDENTS
(BY SRI.BASAVARAJ KAREDDY, PRL.GA FOR R.1 & 3
SRI.VIGNESHWAR S.SHASTRI, ADV. FOR R.4
R.2, 5, 6, 7 & 8 ARE SERVED
R.9 & 10 ARE DELETED V/O DATED 5.11.2012)
Writ Appeals filed under Section 4 of the Karnataka High
Court Act praying to set aside the order passed in Writ Petition
No. 522/2012 dated 14.12.2012.
These writ appeals having been heard and reserved, coming
on for pronouncement of judgment this day, the Chief Justice
delivered the following:
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JUDGMENT
Vikramajit Sen, C.J.
These Appeals assail the Order of the learned Single Judge dated 14.06.2012 in which the only question that arose was:
"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? "
2. This question draws almost verbatim from Section 44(2) of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 ['APMC Act' for short] as amended from time to time. The writ petitioner Sri.A.S.Theerthesh who is respondent No.4 before us, was elected as a President/Chairman of the Agricultural Produce Marketing Committee [for brevity referred to as 'APMC'], Chamarajanagar in the election held on 27.05.2011. The Appellants assert that a No Confidence Motion moved against Theerthesh was duly carried on 26.12.2011, strictly in accordance with the procedure 7 laid down under Section 44(2) of the APMC Act. The Committee consists of 18 members as contemplated under Section 11 of the APMC Act viz., eleven elected persons, one member elected by the commission agents and traders other than retail traders, one member being the representative of Co-Operative Marketing Societies, one member being the representative of Agricultural Co-Operative Processing Societies, three members nominated by the State Government and one nominated by the Director of Agricultural Produce Marketing Committee who shall have no right to vote under Section 41 or Section 44 of the APMC Act. We must immediately highlight the difference in the language employed in the statute so far as the non voting person is concerned, inasmuch as, while all the other constituents of the Marketing Committee are referred to as 'members', this epithet or nomenclature is missing so far as the nominee of the Director of Agricultural Marketing Committee is concerned. For ease of reference Section 11 (1) and 44(2) of the APMC Act is reproduced:
"11. Constitution of Second and subsequent market committees - (1) Save as provided in Section 8 10, every market committee shall consist of the following members, namely.-
(i) eleven members shall be persons elected by the agriculturists in the market area of whom one shall be a woman, one shall be a person belonging to the Scheduled Castes, one shall be a person belonging to the Scheduled Tribes and two persons belonging to the Backward Classes, out of which one shall be from persons falling under category 'A' and one shall be from persons falling under category 'B":
Provided that if no person belonging to the Scheduled Castes is available, the seat reserved for that category shall also be filled by a person belonging to the Scheduled Tribes and vice versa:
Provided further that if no person falling under category 'A' is available, the seat reserved for that category shall also be filled by a person falling under category 'B' and vice versa;
(ii) one member shall be a person elected by the Commission agents and traders other than retail traders, in the market area;
(iii) x x x x x 9
(iv) one member shall be a representative of Co-
operative Marketing Societies carrying on business in notified agricultural produce, within the market area, who is not disqualified under Section 16, elected by the committee of management of such societies;
(v) one member shall be a representative of Agricultural Co-operative Processing Societies carrying on business in notified agricultural produce, within the market area, who is not disqualified under Section 16, elected by the committee of management of such societies; Xxxxx Xxxxx X x x x x."
(vi) Xxxxx (vii) Xxxxx
(viii) one shall 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; (underlining added) 10
(ix) three members shall be 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."
Provided that if persons of the categories specified in any categories specified in any category of clauses (ii),
(iv) and (v) (both inclusive) are not available, the committee shall consist only of persons of the categories available.
Provided further that when persons of those categories become available, they may be elected as members and such members shall hold office so long only as the members first elected hold office of members.
"44.Motion of no-confidence.- (1) A motion of no- confidence may be moved by any member against the Chairman or the Vice-Chairman after giving such notice as may be prescribed and such notice shall be supported by not less than fifty percent of the total number of members of the market committee. If a meeting for consideration of the no-confidence motion is not directed by the Chairman to be convened within fifteen days from the date of the notice, the Secretary of the market committee shall convene such meeting 11 under the Chairmanship of the Tahsildar of the concerned taluk where the office of the market committee is situated.
Provided that a motion of no-confidence shall not be moved within a period of six months after the failure of a similar motion of no-confidence moved earlier.
Provided further that a motion of no confidence shall not be moved within a period of six months from the date of assuming the office of the Chairman or the Vice-Chairman as the case may be;
(2) 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 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;
Provided that the Chairman or the Vice-Chairman shall vacate office on the expiry of thirty days from the date of the passing of the motion, if no order of such removal is passed within the said period." The aforesaid definition has been amended in the year 2010. Prior to that the definition read as follows: 12
"44.Motion of no-confidence.- (1) A motion of no- confidence may be moved by any member against the Chairman or the Vice-Chairman after giving such notice as may be prescribed and such notice shall be supported by not less than one-third of the total number of members of the market committee. If a meeting for consideration of the no-confidence motion is not directed by the Chairman to be convened within fifteen days from the date of the notice, the Secretary of the market committee shall convene such meeting under the Chairmanship of the Tahsildar of the concerned taluk where the office of the market committee is situated.
Provided that a motion of no-confidence shall not be moved within a period of six months after the failure of a similar motion of no-confidence moved earlier.
(2) 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 the Vice-Chairman as the case may be.
Provided that the Chairman or the Vice-Chairman shall vacate office on the expiry of the thirty days from the date of the passing of the motion, if no order of such removal is passed within the said period." 13
3. The term 'member' stand defined in Section 2(25) of the Act but does not lift the mist inasmuch as it tautologically states that 'member' means a member of a marketing committee. In the earlier definition, a motion of no confidence had to be supported by not less than 1/3rd of the total number of members of the market committee. But under the present definition a notice of no confidence motion has to be supported by not less than 50% of the total number of members of the market committee. Secondly, under sub-Section (2), under the earlier definition, if the motion of no confidence is carried by a majority of the total number of members present and voting at a meeting specially convened for the purpose, then the Chairman or Vice- Chairman as the case may be, had to vacate office forthwith. After the amendment, the motion has to be carried "by a majority of not less than 2/3rd of the then members of the market committee at a meeting specially convened for the purpose". Therefore, on a comparative reading of sub-Section (1) and sub-Section (2) of section 44 prior to and after the amendment, it becomes clear that the criteria for carrying out a motion of no confidence has 14 become most stringent after the amendment. Prior to the amendment it had to be supported by not less than 1/3rd of the total members. Now it has to be supported by not less than 50% of the total members of the market committee. Secondly, earlier it was a simple majority of the total number of members present and voting at the meeting, but after the amendment, it is by a majority of not less than 2/3rd of all the members. Therefore, from what was earlier a simple majority has been made as not less than 2/3rd majority.
4. As is evident from the above, there are 14 elected members, three members nominated by the State Government and one nominated by the Director [without the right to vote]. It is not in dispute that the crucial meeting that was held on 26.12.2011 was attended by 11 elected members. The three other elected members as also the three Government nominees were absent. Whilst the nominee of the Director of Agricultural Marketing Committee was present he did not cast his vote because he was not empowered to do so.
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5. The contention of the appellants is that the eleven votes cast in favour of the no-confidence motion constitute 'two third' of the then members of the Marketing Committee, since only 17 members are competent and empowered to vote. However, the writ petitioner-respondent No.4, who was the President of the Committee, contends that even though the nominee of the Director of Agricultural Marketing Committee does not have the right to vote, he must nevertheless be counted in the membership of the Marketing Committee accordingly, requiring a minimum of 12 votes to carry the no confidence motion.
6. The learned Single Judge in a detailed Order has referred to the decision in Shambugowda Vs. The State of Karnataka 2000 (5) Kar.L.J.359 as well as another single Bench judgment titled Prabhakar Vs. The State of Karnataka 1999 (2) KCCR 1462. We may briefly clarify that Shambugowda has been rightly disregarded by the learned Single as by that time, a two Judge Bench of the Hon'ble Supreme Court, had expounded the law in Raees Ahmad Vs. State of U.P 2000 AIR SCW 5 : AIR 16 2000 SC 583. Learned counsel for the appellants however relies on the subsequent decision of the Three Judges Bench in Ramesh Mehta Vs. Sanwal Chand Singhvi AIR 2004 Supreme Court 2258 which has distinguished Raees Ahmad.
7. We think that it is necessary to keep in perspective the hierarchy of the Courts which has a direct impact on the legal efficacy of precedents. There can be no cavil that a Three Judge Bench has the jural capacity to over-rule the view of a smaller Bench, or as often times happens to diplomatically distinguish such a decision. In the present case therefore, the learned Single Judge need not have gone beyond analyzing Ramesh Mehta, which undisputedly holds the field. No sooner this realization is reached, the legal nodus is totally unraveled. In Ramesh Mehta, their Lordships had inter alia referred to Law and Practice of Meetings by Shackleton (8th Edition). The Court held that "the legislature intended that Chairman/Vice Chairman shall be removed on passing of no-confidence motion by requisite majority of members having right to vote" (emphasis added by 17 us). We can do no better than extract the following paragraphs, which make the legal position explicitly clear-
"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(9) states that if the motion is carried 18 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-option 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 19 questions 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 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 20 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 hereinabove. In the circumstances, we do not wish 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 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
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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) had no application to the facts of the present case"
8. In view of the above enunciation of law by the Supreme Court and when this ratio is applied to the facts of the present case, we are unable to subscribe to the appreciation of the law by our learned brother, although the conclusion may be the same. Out of eighteen constituents of the Marketing Committee, the statute clearly stipulates firstly that only 17 including those nominated by the State Government are 'members' and secondly that only they have the right to vote. This being the position, the minimum two third (2/3) majority is 17 x 2/3 = 11.33.
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9. Two options are available to us. Firstly to round-of this figure to eleven (11) as is a routine practice or to insist that exact minimum number must at least be met. In view of the statutory stipulation mandating the polling of votes not less than 2/3, it seems to us, that first alternative is not available. In prescribing well beyond a simple majority the entitlement of the law is to discard frequent changes in the administrative control of the Marketing Committee. Owing to the précising methods of mathematical calculation, we cannot but hold that 'no confidence motion' did not receive affirmation by 2/3 of the membership of the committee, even though the person not entitled to vote is discounted from the calculation. The Legislature often uses the device of prescribing 'not less than' or 'minimum' or 'at least' and in such circumstances rounding-of would be inappropriate. It is plain to us that the constitution of the Marketing Committee is ill-advised inasmuch as it should have had 18 voting members out of which one who has no voting right so that this minute calculation would be obviated.
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In this analysis, the appeal, though meritorious so far as the interpretation of statutory provisions is concerned, fails as regards the conclusion that must inexorably be reached. The appeal is dismissed but with no order as to costs.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE Vr