Karnataka High Court
Vithal And Ors vs State Of Karnataka & Ors on 4 June, 2020
Author: Krishna S Dixit
Bench: Krishna S.Dixit
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 4TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR.JUSTICE KRISHNA S.DIXIT
W.P.Nos.205743-745/2019
C/W
W.P.Nos.205746-748/2019
C/W
W.P.No.205364/2019 (LB-RES)
IN W.P.Nos.205743-745/2019:
Between:
1. Vithal S/o Veerappa
Aged about 55 Years
Occ: Gram Panchayat
Member, Residing of Village Chatnalli
Tq. & Dist. Bidar
2. Ismail S/o Mainoddin
Aged about 40 Years
Occ: Gram Panchayat Member
Resident of Village Chatnalli
Tq. & Dist. Bidar
3. Rizwana Begum W/o Mateen
Aged about 35 Years
Occ: Gram Panchayat Member
Resident of village Honnadi
Tq. & Dist. Bidar
... Petitioners
(By Sri Hanmanthraya Sindol, Advocate)
2
And:
1. State of Karnataka
Deputy Director and Ex Officio
Under Secretary of the Government
(Gram Panchayat) (¥À)æ
Rural Development and Panchayat Raj
Department, M.S. Building
Bengaluru
2. Enquiry Officer and Regional Commissioner
Kalaburagi Division,
Kalaburagi-585 102
3. Asst. Commissioner, Bidar-585 401
4. Zilla Panchayat, Bidar
By its Chief Executive Officer-585 401
5. Taluka Panchayat, Bidar
By its Executive Officer-585 401
6. Gram Panchayat, Chatnalli
Tq. & Dist. Bidar, by its Secretary-585 226
7. Ghaleppa S/o Chanmallappa
Chitnalli, Age about 45 Years
Occ: Member of Gram Panchayat
Chatnalli, Resident of Chatnalli
Tq. & Dist. Bidar-585 226
... Respondents
(Sri Shivakumar R. Tengli, AGA for R1 to R3;
Sri Prashant S. Kumman, Advocate for R4;
Sri Jairaj K. Bukka, Advocate for R7;
Notice to R5 served)
3
These writ petitions are filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ of
certiorari and may kindly be passed by quashing Annexure-
Q in File No. ¸ÀPÁðgÀzÀ DzÉñÀzÀ ¸ÀASÉåÃ: UÁæC¥À/854/UÁæ¥A
À C/2019 ¨ÉAUÀ¼ÀÆgÀÄ,
¢£ÁAPÀ: 12-11-2019, order passed by the first respondent.
IN W.P.Nos.205746-748/2019:
Between:
1. Muttamma W/o Arjun
Aged about 65 Years
Occ: Vice President
R/o Village Budhera
Tq. & Dist. Bidar
2. Jaganath S/o Shivaraj
Age about 25 Years
Occ: Gram Panchayat Member
Resident of Village Honnadi
Tq. & Dist. Bidar
3. Ashok S/o Bakkappa
Age about 37 Years
Occ: Gram Panchayat Member
Resident of village Baridabad
Tq. & Dist. Bidar
... Petitioners
(By Sri Hanmanthraya Sindol, Advocate)
4
And:
1. State of Karnataka
Deputy Director and Ex Officio
Under Secretary of the Government
(Gram Panchayat) (¥À)æ
Rural Development and Panchayat Raj
Department, M.S. Building
Bengaluru-01
2. Enquiry Officer and Regional Commissioner
Kalaburagi Division,
Kalaburagi-585 102
3. Asst. Commissioner,
Bidar-585 401
4. Zilla Panchayat, Bidar
By its Chief Executive Officer-585 401
5. Taluka Panchayat, Bidar
By its Executive Officer-585 401
6. Gram Panchayat, Chatnalli
Tq. & Dist. Bidar,
by its Secretary-585 226
7. Ghaleppa S/o Chanmallappa
Chitnalli, Age about 45 Years
Occ: Member of Gram Panchayat
Chatnalli, Resident of Chatnalli
Tq. & Dist. Bidar-585 226
... Respondents
(Sri Shivakumar R. Tengli, AGA for R1 to R3;
Sri Jairaj K. Bukka, Advocate for C/R7;
Notice to R4 to R6 served)
5
These writ petitions are filed under Articles 226 & 227
of the Constitution of India, praying to issue a writ of
certiorari and may kindly be passed by quashing Annexure-
Q in File No. ¸ÀPÁðgÀzÀ DzÉñÀzÀ ¸ÀASÉåÃ: UÁæC¥À/854/UÁæ¥A
À C/2019 ¨ÉAUÀ¼ÀÆgÀÄ,
¢£ÁAPÀ: 12-11-2019, order passed by the first respondent.
IN W.P.No.205364/2019:
Between:
Amar S/o Sangramappa
Age: 31 Years, Occ: Chairman
Of the Gram Panchayat Chatnalli
Tq. & Dist. Bidar, Resident of Honnadi
Post: Bagdal, Tq. Bidar-585 226
... Petitioner
(By Sri Hanmanthraya Sindol, Advocate)
And:
1. State of Karnataka
Deputy Director and Ex Officio
Under Secretary of the Government
(Gram Panchayat) (¥À)æ
Rural Development and Panchayat Raj
Department, M.S. Building
Bengaluru-01
2. Enquiry Officer and Regional Commissioner
Kalaburagi Division,
Kalaburagi-585 102
3. Asst. Commissioner,
Bidar-585 401
6
4. Zilla Panchayat, Bidar
By its Chief Executive Officer-585 401
5. Taluka Panchayat, Bidar
By its Executive Officer-585 401
6. Gram Panchayat, Chatnalli
Tq. & Dist. Bidar,
by its Secretary-585 226
7. Ghaleppa S/o Chanmallappa
Chitnalli, Age about 49 Years
Occ: Member of Gram Panchayat
Chatnalli, Resident of Chatnalli
Tq. & Dist. Bidar-585 226
... Respondents
(Sri Shivakumar R. Tengli, AGA for R1 to R3;
Sri Prashant S. Kumman, Advocate for R4;
Sri Jairaj K. Bukka, Advocate for C/R7;
Notice to R5 & R6 served)
This writ petition is filed under Articles 226 & 227 of
the Constitution of India, praying to issue a writ of certiorari
and may kindly be passed by quashing Annexure-Q in File
No.¸ ¸ÀPÁðgÀzÀ DzÉñÀzÀ ¸ÀASÉåÃ: UÁæC¥À/854/UÁæ¥ÀAC/2019 ¨ÉAUÀ¼ÀÆgÀÄ, ¢£ÁAPÀ:
12-11-2019, order passed by the first respondent.
These writ petitions having been heard and reserved
for orders on 20.03.2020, coming on for pronouncement of
orders, this day, the Court made the following:-
7
ORDER
Petitioners being Members of Gram Panchayat, Chatnalli in Bidar Taluk through these petitions are knowing at the doors of Writ Court for laying a challenge to the order dated 12.11.2019 passed by the respondent No.1 - State of Government under Sections 12 & 43-A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('Act', for short) whereby their membership has been removed, on fault ground.
2. After service of notice, contesting respondents having entered appearance through their learned Advocates opposed the writ petitions contending that after a thorough enquiry with participation of these petitioners having been held their membership has been cancelled because of their proven misconduct; the findings as to misconduct being factual, Writ Court cannot undertake a deeper examination because of the restrictive scope of it's constitutionally vested 8 jurisdiction. So contending they seek dismissal of the writ petitions.
3. All these cases have broadly a common fact matrix and legal parameters, and therefore they are taken together for final disposal with the concurrence of the Bar. I have heard the learned counsel for the parties and perused the petition papers and I have adverted to the rulings cited at the Bar.
a) Petitioner, Smt. Muttamma W/o Arjun in W.P.Nos.205746/2019 could not have been removed from membership since the allotment of the house / site was done during the year 2013-14 under Indira Awas Yojana vide Beneficiary Code No.29639 i.e., much anterior to her election as Member of the Gram Panchayat in the year 2015; Section 43-A of the Act by it's very language does not take into it's fold the allotments made to a person anterior to his / her 9 election as a Member of local Body; if there is any infirmity as to the allotment or non-compliance of any of it's conditions, some other consequence may follow in law, is beside the point.
b) Petitioner, Mr. Jaganath S/o Shivaraj in W.P.No.205747/2019 has been dismembered from the Gram Panchayat inasmuch as he got allotted a house under 2016-17 Ambedkar Niwas Vasati Yojana vide Beneficiary Code No.420770 in favour of his father Shivaraj S/o Basappa, disgracefully as found out in the enquiry accomplished with his participation; therefore his removal from membership in terms of Section 43-A cannot be faltered, as rightly contended by the learned AGA; the act of the petitioner who happens to be an elected representative of the people is disgraceful, too.
c) Petitioner, Mr. Ashok S/o Bakkappa in W.P.No.205748/2019 has been dismembered since he got allotted a house in favour of his wife Smt. Roopa 10 under 2016-17 Pradhana Mantri Awas Vasati Yojana;
though his wife was already a beneficiary having been allotted another house under 2008-09 Indira Awas Vasati Yojana; thus, his removal also cannot be found fault with; here too, the act of the petitioner is disgraceful.
d) Petitioner, Mr. Vithal S/o Veerappa in W.P.No.205743/2019 has been dismembered since he got allotted a house in favour of his daughter-in-law Smt. Ambika W/o Venkat under 2017-18 Pradhan Mantri Awas Yojana vide Beneficiary Code No.276242; the contention of petitioner that, daughter-in-law is not a "nearest relative" and therefore Section 43-A is not applicable is bit difficult to countenance inasmuch as the beneficiary and the petitioner are residing in the very same residence which fact is evidenced by same electricity R.R. Number as mentioned in both the Ration Cards as rightly pointed by the learned Additional 11 Government Advocate; it can be safely presumed that the daughter-in-law is dependent upon the petitioner since she is residing in the house belonging to the petitioner.
e) The contention of the petitioner that the Explanation to Section 43-A of the Act enlists only the son & daughter, and therefore the allotment to daughter-in-law cannot factor as a ground for dismembering, if accepted would defeat the very intent and purpose of the legislature which enacted the provision; what is prohibited by law cannot be permitted to be done in a circuitous way or indirectly; the law of this nature needs to be construed keeping in view the object which the Legislature intended to achieve; such a law should receive a purposive construction as distinguished from literal.
12
f) Petitioner, Mr. Ismail S/o Mainoddin in W.P.No.205744/2019 has got allotted a site in favour of his wife Smt. Asma Begum vide Beneficiary Code No.171086 under Basava Vasati Yojana 2013-14 which is anterior to his election as a Member, is true, but he was instrumental after the election in getting the sanctioned amount released though no construction was undertaken; this apart his residence does not have a sanitary latrine for the use of members of his family as found out in the enquiry and therefore he is removed from the membership under Section 12(j) of the Act as rightly submitted by the learned AGA; this provision has laudable underlying philosophy, though it's text appears plain & simple, for an onlooker.
g) Petitioner, Smt. Rizwana Begum W/o Mateen in W.P.No.205745/2019 has got allotted a house under 2016-17 vide Beneficiary Code No.338231 under Pradhan Mantri Awas Vasati Yojana, which fact is not 13 denied even before this Court; the contention of the petitioners that Section 43-A of the Act does not bar a Member of Gram Panchayat from securing allotment of house / site under various Government Schemes is bit difficult to countenance; if in the language of Section 43-A of the Act, a member can be removed if he gets allotment of site or contract to his near relative then it falls foul of law, to permit a member to get allotment to himself, with impunity. His reliance on the Brochure of Rajeev Gandhi Housing Corporation Limited 2018-19 does not much come to his aid, either, since it does not have statutory force.
h) Petitioner, Mr. Amar S/o Sangramappa in W.P.Nos.205364/2019 has been dismembered for remaining absent in the four Gram Panchayat Meetings consecutively held on 05.11.2018, 08.01.2019, 18.01.2019 & 22.02.2019; the enquiry report dated 21.05.2019 at Annexure-D states that the petitioner 14 was absent in three meetings, consecutively; the Government in the impugned order mentions of four meetings; it's open to the Government to disagree with the findings of the enquiry report, is true; but that cannot be done without giving proposal notice to the petitioner vide Yoginath D. Bagde Vs. State of Maharashtra, 1999 (7) SCC 739; this due course of procedure having not been followed, matter requires reconstruction from the stage of enquiry report.
In the above circumstances, this Court makes the following:-
ORDER W.P.No.205746/2019 filed by Smt. Muttamma is favoured and her removal from membership pursuant to impugned order is quashed; W.P.No.205364/2019 filed by Sri Amar S/o Sangramappa having been partly favoured, his removal from membership is quashed and the matter is remitted back to the respondent No.1 for 15 consideration afresh from the stage of enquiry report after giving proposal notice and after hearing him; all other writ petitions being devoid of merits, are dismissed.
Costs made easy.
Sd/-
JUDGE BL/Snb