Karnataka High Court
Smt Yashodha K vs The Assistant Commissioner on 7 February, 2014
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7th DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.5931/2014 (LB-RES)
BETWEEN:
SMT. YASHODHA K.
W/O BHEEMAPPA
AGED 40 YEARS
ADHYAKSHA, BELLUDI GRAMA PANCHAYATH
BELLUDI
HARIHAR TALUK - 577 601
DAVANGERE DISTRICT.
... PETITIONER
(BY SRI SHIVAKUMAR CHANNABASAPPA, ADV.)
AND:
1. THE ASSISTANT COMMISSIONER
DAVANGERE SUB-DIVISION
DAVANGERE
DAVANAGERE DISTRICT.
2. GRAMA PANCHAYATH BELLUDI
REP. BY ITS SECRETARY
BELLUDI
HARIHAR TALUK
DAVANGERE DISTRICT - 577 601.
... RESPONDENTS
(BY SRI H.T. NARENDRA PRASAD, AGA)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE NOTICE DATED 23.1.2014 ISSUED BY THE
2
1ST RESPONDENT MARKED AS ANNEXURE-D BY ISSUE OF A
WRIT OF CERTIORARI OR ANY OTHER SUITABLE WRIT OR
ORDER.
THIS PETITION COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner was elected as member of Belludi Grama Panchayat, Harihara Taluk, Davangere District (for short 'the Panchayat'), on 19.04.2010. She was elected as Adhyaksha of the Panchayat on 19.12.2012. 18 members of the Panchayat having presented an application on 20.01.2014, in Form-I under Rule 3(1) of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short 'the Rules') and the 1st respondent having given notice dated 23.01.2014 in Form-II under Rule 3(2), to the members of the Panchayat, fixing 10.02.2014 as the date for the meeting, being weary of facing the No- Confidence Motion, for the purpose of consideration of which the said meeting has been called, this writ petition 3 was filed to quash Annexure-D and to grant consequential reliefs.
2. Sri Shivakumar, learned advocate contended that the impugned notice is not valid in law, since the requisite procedure prescribed under Sub-Rule(2) of Rule 3 has not been followed or complied with and the meeting fixed in pursuance of such invalid notice cannot take place nor should be allowed to proceed with for consideration on 10.02.2014. He submitted that the proposed Motion as required under Rule 3(1) having not been submitted to the 1st respondent along with Annexure-C and the reason to move the Motion of No-Confidence having not been disclosed and the petitioner having been kept in dark and procedural safeguard provided by the statute having been violated, interference is warranted. He submitted that Annexure-D having been posted on 28.01.2014, was received by the petitioner on 29.01.2014 and the meeting having been fixed on 10.02.2014, there is no clear 15 days' notice, apart from the fact that the 1st respondent 4 has despatched the same before expiry of 10 days' period from the date Annexure-C was received by him, which shows undue haste on his part.
3. Sri H.T. Narendra Prasad, learned HCGP on the other hand submitted that the Panchayat has 21 members and 18 out of them presented Annexure-C on 20.01.2014 and that the notice vide Annexure-D was served on the petitioner by muddam and was also despatched by post and from the date of service of Annexure-D by muddam, there is 15 clear days and there being no legal infirmity in the matter of giving Annexure-D, the writ petition may be dismissed.
4. In ABDUL RAZAK Vs. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION AND OTHERS, 2005(1) KLJ 230, it has been held as follows:
"4. Rule 3 is a provision made for effectuating the substantive right given to members Under Section 49 of the Karnataka Panchayat Raj Act, 1993. Section 49 is a provision whereunder every 'Adhyaksha' or Upadhyaksha' of a Gram Panchayat shall be forthwith deemed to have vacated his 5 office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. The right given Under Section 49 of the Act is to the members who have such a right to have the 'Adhyaksha' removed if not less than two-thirds of the members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'."
In view of the above, the petitioner, sitting Adhyaksha of the Panchayat has no locus standi to maintain this petition on the premise of violation and /or non-compliance of requirements of the Rules.
5. In the case of M. PUTTEGOWDA AND ANOTHER Vs. THE ASSISTANT COMMISSIONER, MYSORE SUB-DIVISION, MYSORE, 2002(1) KLJ 16 (DB), with regard to requirement of giving 10 days' notice to the Assistant Commissioner by 6 the members intending to move the Motion of No- Confidence and the action to be taken by the Assistant Commissioner, it has been held as follows:
"From the combined reading of proviso to Section 49 and the Rules it is clear that the persons who intend to move the no- confidence motion shall give at least 10 days notice to the Assistant Commissioner for convening the meeting. It would not come in the way of the Assistant Commissioner to call for the meeting to consider the motion for no-confidence before the expiry of 10 days from the date he received the notice. The Assistant Commissioner can call the meeting within 10 days from the date he received the notice. He is not required to wait for the expiry of 10 days before issuing the notice convening the meeting."
(emphasis supplied)
6. S.49 of the Act provides for moving of Motion of No-Confidence either against an Adhyaksha or Upadhyaksha. A meting for moving No-Confidence Motion is a special type of meeting convened for the specific purpose and such a meeting is required to be convened in accordance with the procedure as prescribed. The procedure has been prescribed by Rule 3 for the purpose of convening such a meeting. It is not the procedure 7 envisaged under Sub-S.(2) of S.52 which is required to be followed for the purpose of moving a No-Confidence Motion. It is the provision of S.49 and the procedure prescribed thereunder being under Rule 3. Thus, the 1st respondent is justified in giving the notice as at Annexure-D immediately after receipt of the requisition, vide Annexure-C from the members of the Panchayat.
7. In the case of LAXMAVVA Vs. STATE OF KARNATAKA AND OTHERS, 2007(3) KLJ 45, with regard to the notice to move the Motion of No-confidence against Adhyaksha and Upadhyaksha of Grama Panchayat and the contents of the proposed Motion, it has been held as follows:
"There is substantial compliance of Rule3(1) of the Rules. In such case, mere attaching the copy of the proposed motion would be duplication of the work and that by itself cannot be a ground to set at naught the democratic exercise of right of the members. When the majority members makes their intention clear, mere non-enclosing a copy of proposed motion would be only an irregularity and does not cause any prejudice to the other side........... Since the notice also incorporates the proposal of no-confidence motion, there is 8 substantive compliance of the requirement of Rule3(1) of the Rules."
8. Proviso to S.49 of the Act imposes embargo to move a resolution expressing want of confidence against Adhyaksha within one year from the date of his/her election. In the instant case, the petitioner was elected as Adhyaksha of the Panchayat on 19.12.2012 and the motion vide Annexure-C was moved on 20.01.2014 i.e., after expiry of one year period commencing from 19.12.2012. Thus, the embargo under proviso to S.49 of the Act is not attracted.
9. In the case of Sri Venkataram and another vs. Assistant Commissioner, Kolar, ILR 2009 Kar 4078, one of the questions considered was, whether, 15 days clear notice contemplated is with reference to the date on which a notice was given 'by the Authority' or the date on which the 'notice is served' on the members, it has been held as follows:
"9. The contention that, having regard to the decisions in the cases referred to supra, it must be held that, mere giving of notice or sending of notice by registered post is not sufficient compliance of Rule 3(2) of the Rules and it is 9 necessary that there should be actual service of notice and that it is the date of service, which is material, is totally unacceptable. In the instant case, a copy of the notice in Form-II prescribed under Rule 3(2) has been given both by registered post with acknowledgement due and also by muddam to the petitioners as well as to all other members of the panchayath. The record produced by learned HCGP shows that, notices as at Annexures-A & B were sent on 31.08.2009 itself, by registered post with acknowledgement due to all the elected members including the petitioners. The duty enjoined under Rule 3(2) of the Rules is 'giving of notice' in Form-II. Notice required to be given thereunder is the notice containing the date, hour and place of the meeting of the grama panchayath scheduled to be held for the purpose of moving motion of No-confidence proposed by the elected members.
10. If, as contended by the Learned Counsel for petitioners, it is held that, Rule 3(2) can be said to have been complied with only when the notice given by registered post or by muddam is served on the addresses, it will not be possible for the authority to convene the special meeting. It will be impossible for the authority to effect service on all the elected members and then only, hold the meeting by giving notice of 15 clear days. Such an interpretation which is not forthcoming by the words used in Rule 3(2) of the Rules, would also give handle to such of the elected members of the panchayath, who intend to postpone the special meeting, since they can very well avoid the service of notice." 10
10. The notice, as at Annexure-D has been served on the petitioner personally on 26.01.2014. The meeting is scheduled to be held on 10.02.2014. Thus, there is 15 days' clear notice. Merely because another copy of Annexure-D, which was sent to the petitioner through RPAD, was received by the petitioner on 29.01.2014, she cannot take advantage of the same, since, she has been personally served with the notice on 26.01.2014 itself.
11. Neither S.49 of the Act nor the Rule 3 contemplates assigning of any reason to move motion of no-confidence. Even in the meeting fixed for consideration of the motion, there need not be a debate. In the circumstances, Annexure-D does not suffer from any infirmity.
In the result, writ petition being devoid of merit is rejected with no orders as to cost.
Sd/-
JUDGE sac*