Karnataka High Court
Smt Roopa vs The State Of Karnataka on 28 September, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION No.32295 OF 2018(LB-RES)
BETWEEN:
SMT. ROOPA
W/O SURESH
AGED 33 YEARS
R/AT KENGAL VILLAGE
NELAMANGALA TALUK
BANGALORE RURAL DIST-562 123.
...PETITIONER
(BY SRI PRAKASH M H, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REP. BY THE PRINCIPAL SECRETARY
DEPARTMENT OF PANCHAYATH RAJ
M.S.BUILDING, AMBEDKAR STREET
BANGALORE-560 001.
2. THE ASSISTANT COMMISSIONER
DODDABALLAPUR SUB DIVISION,
DODDABALLAPUR,
BANGALORE RURAL DIST.-561 203
3. THE EXECUTIVE OFFICER
TALUK PANCHAYATH
2
NELAMANGALA
BANGALORE RURAL DIST.-562 123.
4. HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
REPRESENTED BY PANCHAYATH
DEVELOPMENT OFFICER.
5. V.H.GANGARUDRAIAH
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
6. B C NARAYANASWAMY
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123
7. THIMMAIAH
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
8. H.P.SURESH
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
3
9. KAMALAMMA
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
10. VANAJAKSHI
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
11. RATNAMMA
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
12. LAKSHMAMMA
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
13. YASHODHAMMA
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123
14. MAHIMARANGAIAH
AGE MAJOR, MEMBER
HONNENAHALLI GRAM PANCHAYATH
4
SOMPURA HOBLI
NELAMANGALA TALUK
BANGALORE RURAL DIST.-562 123.
...RESPONDENTS
(BY SMT. ANITHA N, HCGP FOR R1 & R2;
SRI NISHANTH A V ADVOCATE FOR C/R5, R6, R8 TO R14;
SRI SHIVAPRASAD SHANTANAGOUDAR,
ADVOCATE FOR R7;
R3 AND R4 SERVED AND UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH MEETING NOTICE DATED:21.07.2018 ISSUED BY
THE RESPONDENT No.2, VIDE ANNEXURE-F AS ILLEGAL
AND CONSEQUENTLY DECLARE THE MOTION OF NO
CONFIDENCE DATED 28.06.2018 MADE BY THE
RESPONDENTS Nos.5 TO 14 AGAINST PETITIONER, VIDE
ANNEXURE-A AS ILLEGAL.
THIS WRIT PETITION COMING ON FOR DICTATING
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Only point which arises for consideration in this writ petition is:
" Whether No-confidence Motion dated 28-06-2018 Annexure-A moved by the Members of Honenahalli Grama Panchayat (for short "Grama Panchayat") suffers from legal infirmity?"
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2. Petitioner and respondents 5 to 14 were elected as Members of Honenahalli Grama Panchayat in the Elections held during 2015. Petitioner came to be elected as 'Adhyaksha' of the Grama Panchayat. A representation dated 28-06-2015 signed by respondents 5 to 14 expressing No-confidence in the petitioner and alleging that petitioner is not evincing interest in carrying out public works of the panchayat and also alleging that he is not empowered under the Act to approve Private Layout had approved layout plan as the President of Grama Panchayat by affixing his signature to the plan contrary to the provisions of the Act. Hence, expressing No-confidence in petitioner, said motion came to be moved by respondents 5 to 14 by submitting same to the 2nd respondent on 28-06-2018. 2nd respondent in turn directed 3rd respondent to submit factual report on the allegations made in the said No- 6 confidence Motion by communication dated 29-06-2018 Annexure-B. Accordingly, 3rd respondent submitted a report to 2nd respondent on 07-07-2018 Annexure-C and on going through same 2nd respondent by communication dated 18-07-2018 Annexure D directed the 3rd respondent to specifically furnish a report as to whether the said No-confidence Motion would attract the provision of Section 49(2) of Karnataka Panchayat Raj Act, 1993 (for short hereinafter referred to as 'Act') or not. On receipt of said communication, 3rd respondent on 19-07-2018 Annexure E submitted further report stating that prima facie contents of No- confidence Motion seems to be true and correct.
3. It is thereafter 3rd respondent has issued notice dated 21-07-2018-Annexure-F to all the Members in Form No.2 under Rule 3(2) of Karnataka Panchayat Raj 7 (Motion of No-confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short hereinafter referred as "Rules") by summoning a Meeting of the Grama Panchayat to be held on 04-08-2018 at 11.00 a.m. for consideration of No- Confidence Motion dated 28.06.2018-Annexure-A. Being aggrieved by same, petitioner has filed this writ petition and has sought for quashing of the meeting notice dated 21-07-2018 Annexure-F and to declare the Motion of No-confidence dated 28-06-2018 - Annexure-A moved by respondents 5 to 14 against petitioner as illegal.
4. I have heard the arguments of Shriyuths M.H.Prakash appearing for petitioner, learned Government Advocate appearing for respondents 1 and 2, Nishanth A.V. appearing for respondents 5, 6, 8 to 14, Shivaprasad Shantanagoudar appearing for respondent-7. Respondents 3 and 4 are served and 8 unrepresented. Perused the original records made available by learned Government Advocate.
5. It is the contention of Shri. M.H.Prakash, learned counsel appearing for petitioner that decision making process by the 3rd respondent is void inasmuch as 2nd respondent has relied upon the report of 3rd respondent which is based on a photo copy of the plan alleged to have been signed by the petitioner and despite 3rd respondent concluding in his first report that original plan not being available, 2nd respondent could not have accepted the allegations made against petitioner for moving the No-confidence Motion by respondents 5 to 14 as prima facie true and said conclusion is based on surmises and conjecture. In that regard, he would rely upon Circular dated 07-02-2018 issued by 1st respondent to contend that for No-confidence Motion being accepted to summon the 9 meeting or meeting being convened, 2nd respondent will have to satisfy itself with regard to correctness of the allegations made in the No-confidence Motion, inasmuch as language of Section 49(2) which provision came to be inserted by Act 44/2015 with effect from 31-12-2015 is clear and unambiguous, since office of Adyaksha or Upadhyaksha being a responsible office, there cannot be a motion for No-confidence when there is no specific allegation and intent of the legislature being clear in that regard, any infraction thereof would vitiate whole proceedings. He would also contend only when there is specific allegation of mis-use or abuse of power or authority in executing the scheme, action plan or the direction of the Government or project of the panchayat or there being mis- appropriation of funds and other assets of the panchayat during the term of the membership of such persons, there can be motion of No-confidence. As such, when two reports of the 3rd 10 respondent are contrary to each other, 2nd respondent could not have summoned the meeting to consider the No-confidence Motion.
6. He would further elaborate his submissions by contending that under Rule 3(2), meeting has to be summoned within 30 days from the date of receipt of motion of No-confidence and in the instant case, undisputedly, 2nd respondent has received the notice of Motion of No-confidence on 28-06-2018 and as such, the meeting ought to have been summoned on or before 28-07-2018, but said meeting having been convened on 04-08-2018 under impugned notice dated 21-07-2018 Annexure F, it would be in violation of the mandate of the Rule 3(2) and as such, impugned notice is liable to be quashed. He would also further contend that on receipt of motion of No-confidence, 2nd respondent is required to take steps in accordance with the Circular 11 dated 07-02-2018 Annexure-G and on being satisfied with the correctness or otherwise of the allegations made in the No-confidence Motion, he will have to summon the meeting not only within the time stipulated under said Rule but also will have to issue notice to the members for consideration of such No-confidence Motion by giving 15 clear days notice to the members. The intent of the legislature being clear and unambiguous any infraction of the said Rule would call for same being declared as illegal by this court in exercise of the power vested under Article 226 of the Constitution of India. Hence, he prays for allowing the writ petition and granting the prayer sought for in the writ petition.
7. In support of his submission, he has relied upon the following judgments.12
(i) AIR 1992 Karnataka 356 (Full Bench)- C.Puttaswamy, etc. V. Smt. Prema, etc.
(ii) Unreported judgment in Writ Appeal 5159-5160/1998 disposed of on 18- 12-1998 in the matter of M. Muniyappa and another Vs. State of Karnataka and others.
(iii) AIR 1962 Supreme Court 113- Bhikraj Jaipuria Vs. Union of India.
8. Per contra, learned Government Advocate having made available the original records would submit that action taken by 2nd respondent to convene the meeting for consideration of No-confidence Motion against petitioner is in consonance with Section 49(2) and even otherwise, unless, petitioner is able to demonstrate or establish convening of such meeting has prejudiced his rights, it would not call for interference. Hence, she has prayed for dismissal of the writ petition.13
9. Shri. A.V.Nishanth, learned counsel appearing for respondents 5, 6, 8 to 14 would defend the action taken by 2nd respondent and would contend that Sub Section (2) of Section 49 is a code by itself and the Rules would be applicable only in case, where No- confidence Motion is moved under Sub Section (1) of Section 49 and not otherwise. He would also contend that legislature having brought about amendment to Section 49 by inserting Sub Section (2) there has been no corresponding Rule incorporated, added, substituted in the existing Rules as such, Rule (3) cannot be read into sub section (2) of Section 49. He would also further contend that even if there being infraction of Rule 3, unless prejudice is established, in the democratic set up any motion to remove a person from office ought not to be interfered by this Court in exercise of Extra Ordinary jurisdiction. He would also contend that if for any reason this court arrives at a conclusion that 14 impugned notice calling for consideration of the No- confidence Motion issued by 2nd respondent is found to be illegal, this Court may reserve liberty to the 2nd respondent to call for fresh meeting to consider motion of No-confidence, in accordance with law. Hence, he prays for dismissal of the writ petition by relying upon the following judgments:
(i) Kenchappa v/s State of Karnataka, 2014 SCC Online Kar 5529.
(ii) Shankaragouda v/s State of Karnataka, 2014 SCC Online Kar 1400.
(iii) Munirathnamma v/s The Asst.
Commissioner Kolar Sub-Division and another, ILR 2007 KAR 690
(iv) Abdul Razak v/s The Asst.
Commissioner Davanagere Sub-
Division and others, 2004 SCC Online Kar 505.
(v) Smt.Kanthamma v/s The Asst.
Commissioner Mysore Sub-
15Division and others, 2012 SCC Online Kar 611.
(vi) Smt.Manjula and another v/s State of Karnataka and others, 2018 SCC Online Kar 539.
(vii) Bhanumati and others v/s State of Uttar Pradesh and others, (2010) 12 SCC 1
(viii) Behram Khurshid Pesikaka v/s State of Bombay, (1955) 1 SCR
613.
(ix) Siddanagouda v/s State of Karnataka and others, 2004 SCC Online Kar 111.
(x) Smt.Hemavathi Laxmangowda v/s State of Karnataka & others, 2001 SCC Online Kar 534.
(xi) Bengal Iron Corporation and another Vs. Commercial Tax Officer and others -1994 Supplement (1) SCC 310
10. Shri. Shivaprasad Shantanagoudar, learned counsel appearing for 7th respondent by adopting the arguments canvassed by Mr. Nishanth A.V. has further 16 elaborated his submission by contending that petitioner has not produced any material before this Court to demonstrate or establish that by consideration of No- confidence Motion in the meeting to be held on 04-08-2018, it has prejudiced his rights and in the absence of such material being placed, even if violation of Rule 3(2) were to exists, it would not invalidate the No-confidence Motion moved against the petitioner by relying upon the judgment reported in 2004 AIR Kant R 1001- Siddanagouda Vs. State of Karnataka and others. Hence, he has prayed for dismissal of the writ petition.
11. Having heard the learned Advocates appearing for parties and on perusal of original records made available by the learned Government Advocate, including pleadings of parties and after bestowing my anxious and careful consideration to the rival 17 contentions, this Court is of the considered view that Section 49 of the Act and Rule 3 of the Rules which has direct bearing and impact on the rival contentions raised requires to be extracted and it reads as under:
49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.- [(1)] Every Adhyaksha or Upadhyaksha of Grama Panchayat shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two thirds of the total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed.
Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than [one-half] of the total number of members and at least ten days notice has been given of the intention to move the resolution:
[Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be 18 moved [within the first thirty months] from the date of his election.
Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, [within two years] from the date of the decision of the Grama Panchayat.] [(2)Notwithstanding anything contained in sub-section (1), no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved except on specific allegation of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or project of the panchayat or of misappropriating funds or other assets of the panchayat during the term of his membership or otherwise indulging in corruption or misconduct in the course of exercising his functions.] (Emphasis supplied by me) Rule -3 reads as under:
3. Motion of No-confidence.-(1) A written notice of intention to make the 19 motion under the proviso to Section 49 shall be in Form I signed by not less than one-third of the total number of members together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Assistant Commissioner.
(2) The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion at the office of the Grama Panchayat on the date appointed by him which shall not be later than thirty days form the date of which the notice under sub-rule (1) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in Form II:
Provided that where the holding of such meeting is stayed by an order of a Court, the Assistant Commissioner shall adjourn the said meeting and shall hold the adjourned meeting on a date not later than thirty days from the date on which he receives the intimation about the vacation of stay, after giving to the members, after giving to the members a notice of not less than fifteen clear days of such adjourned meeting.
(3) A notice is Form II shall be to every member including the Adhyaksha and Upadhyaksha.-20
(a) by delivering or tendering the said notice to such member;
or
(b) if such member is not found, by leaving such notice at his last known place of residence or business within the Grama Panchayat or by giving or tendering the same to some adult member or servant of his family; or
(c) by registered post; or
(d) if none of the means aforesaid be available, by affixing such notice on some conspicuous part of the house, if any, in which the member is known to have last resided or carried on business within the Grama panchayat.
(4) The quorum for such meeting shall be two thirds of the total number of members of the Grama Panchayat. The Assistant Commissioner shall preside at such meeting. (5) Save as otherwise provided in the Act or these rules, a meeting convened for the purpose of considering a motion under sub-
rule (2) shall not for any reason be adjourned.
(6) If there is no quorum, within one hour after the time appointed for the meeting, the 21 meeting shall stand dissolved and the notice given under sub-rule (1) shall lapse. (7) As soon as the meeting convened and sub-
rule (2) commences the Assistant Commissioner shall read to the members of the Grama Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate.
(8). The Assistant Commissioner shall not speak on the merits of the motion and he shall not be entitled to vote thereon. (9) If the motion is carried by a majority of not less than two thirds of the total number of members of the Grama Panchayat, the Adyaksha or Upadhyaksha, as the case may be, shall forthwith cease to function as such and the Assistant Commissioner shall, as soon as may be, notify such cessation on the notice board of the office of the Grama Panchayat and also inform the Adhyaksha or Upadhyaksha, as the case may be, regarding such cessation, if he is not present at the meeting.
(10). After the cessation is notified under sub-rule (9) the Adhyaksha or Upadhyaksha as the case may be shall, immediately hand over all documents, moneys or other properties of the Grama Panchayat in his custody to the Secretary of the Grama Panchayat.
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(11). The election to the office of Adhyaksha or Upadhyaksha shall not be held until the notification under sub-rule (9) removing the Adhyaksha or Upadhyaksha, as the case may be, is published.
12. A plain reading of Section 49(1) would disclose that Adhyaksha or Upadhyaksha of Grama Panchayat would be deemed to have vacated his office if a resolution expressing want of confidence in him/her is passed by a majority of not less than two thirds of the total number of members of the Grama Panchayat at a meeting specifically convened for the purpose in accordance with the procedure as may be prescribed.
13. First proviso to sub section (1) would indicate that such motion of No-confidence cannot be moved unless such resolution/no-confidence motion is signed by not less than one-half of the total number of 23 members and atleast ten days notice has been given of such intention to move the resolution.
14. On a bare reading of second proviso it would disclose that such resolution expressing want of confidence in any Adhyaksha or Upadhyaksha shall not be moved within first thirty months from the date of his/her election.
15. Third proviso would indicate that where a resolution having been moved, considered and negatived by a Panchayat, a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be moved within two years from the date of decision of the Grama Panchayat.
16. By virtue of power vested under Section 311 r/w Section 45 of the Act, appropriate government has formulated Karnataka Panchayat Raj (Election of 24 Adhyaksha and Upadhyaksha of Gram Panchayat) Rules 1995 and has prescribed the manner, mode and method for consideration of no confidence motion by Members of Gram Panchayat in a meeting convened for the said purpose.
17. Where members resolve to move a no- confidence motion against Adhyaksha or Upadhyaksha of a Gram Panchayath they are required to submit a written notice of intention to move such motion under proviso to Section 49 and it should be in Form No.I signed by not less than (1/3rd) one third of total number of Members together and copy of such motion should be delivered to Assistant Commissioner in person by any two Members as per sub-rule (1) of Rule 3. Sub-rule (2) of Rule 3 would disclose that such notice of intention to make the motion of no-confidence as provided under proviso of sub-section (1) of Section 49 being delivered 25 in Form No.I signed by not less than one-third of the total number of members together with a copy of the proposed motion delivered to the Assistant Commissioner is required to convene a meeting at Gram Panchayat Office for consideration of same. A plain reading of sub-rule (2) of Rule 3 would disclose that it consists of two parts namely, one part mandates that each Member of the panchayat is to be given not less than fifteen days clear notice of the meeting convened to discuss no-confidence motion and other part mandates that meeting so convened should be within 30 days from the date the no-confidence motion is delivered to the Assistant Commissioner. At this juncture itself it would be apt and appropriate to note that though first proviso to sub-section (1) of Section 49 for the words "one-third" was substituted with "one-half", corresponding amendment was not brought into the Rules and now it is sought to be amended as per 26 notification dated 21.08.2018. Since there is no dispute with regard to number of members in this petition, the effect of corresponding non-amendment of the Rules namely, sub-rule (1) of Rule 3 is not being delved upon in this writ petition.
18. In the instant case, an attempt has been made by the learned Advocates appearing for respondents to buttress their arguments by contending that sub-rule (2) is directory and not mandatory and if it is construed as mandatory, unless aggrieved party establishes prejudice has been caused to him/her, infraction of said rule would not invalidate the action taken pursuant to convening of a meeting for consideration of no-confidence motion, requires to be considered with utmost circumspection. Full Bench of this Court in the matter of C.PUTTASWAMY, ETC., vs. SMT. PREMA, ETC., reported in AIR 1992 27 KARNATAKA 356 had an occasion to consider similar and analogous provision to Rule 3(2) of Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 namely, Section 47(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats & Nyaya Panchayats Act, 1983 and for immediate reference sub-rule (2) of Rule 3 of rules in question and sub-section (3) of Section 47 of 1983 Act are comparatively extracted hereinbelow:
Section 47(3) Rule 3(2) The [Deputy Commissioner] After the words "shall be given substituted by Act 5/87 to those members" the words "Assistant Commissioner", "the Assistant Commissioner shall then convene a meeting shall get a report from the for the consideration of a Executive Officer of the motion at the office of the concerned Taluk Panchayat Mandal Panchayat on a date within seven days and ensure appointed by him which shall the allegations made are in the not be later than thirty days appended notice. Thereafter from the date on which the the date of meeting shall be notice under sub-section (2) fixed and this date for no was delivered to him. He shall reason shall be extended 28 give to the members a notice of beyond 30 days from the date of
not less than fifteen clear days the receipt of notice for no of such meeting in such confidence motion from the manner as may be prescribed. members" shall be inserted.
19. A comparison of these two provisions would clearly indicate that there cannot be any doubt with regard to either the expression or the phraseology used in these two sections/Rule to arrive at a conclusion that they are in paramateria.
20. In the light of above, it requires to be noticed that Section 47 of 1983 Act, which had fell for consideration before the Full Bench of this Court, it came to be held Section 47 is mandatory and it is specifically held that Section 47(3) of the Act mandates that Deputy Commissioner should give the members of a Mandal Panchayat notice of a meeting for consideration of a no confidence motion against the Pradhana or Upa-pradhana of not less than fifteen clear 29 days of such meeting and said provision is mandatory. Though it was in the background of interpreting fifteen clear days required to be furnished by Deputy Commissioner what was under consideration in said judgment, Section 47(3) which is similar to Rule 3(2) of Rules this Court is of the considered view that dicta laid down by the Full Bench in C.Puttaswamy's case would be squarely applicable in the instant case on both points or in other words, contentions raised by the learned counsel appearing for petitioner - Sri.M.H.Prakash namely with regard to summoning of meeting within thirty days from the date of receipt of motion and also issuing of fifteen clear days notice for summoning such a meeting by issuance of notice for consideration of no confidence motion by the members is mandatory and any infraction thereof cannot be held as a curable defect. An irregularity can be cured but not an illegality. It is no doubt true that under proviso 30 of sub-rule (2) of Rule 3 the Assistant Commissioner would be empowered to call for or hold a urgent meeting on a day not later than thirty days from when he receives intimation about any order of stay having been vacated, within 30 days from the date of such order of stay being vacated and thereby outer limit of 30 days fixed in sub-rule (2) gets extended. Yet, the mandate of 30 days prescribed in sub-rule (2) cannot be held directory particularly in the background of dicta laid down by the Full Bench whereunder it has been held that legislature had prescribed a procedure different from that of a ordinary meeting under Section 47(3) and as such, it is mandatory. In that view of the matter, contention raised by the learned counsel appearing for respondents that sub-rule (2) is construed as directory cannot be accepted and it stands rejected. 31
21. Above analysis of sub-rule (2) of Rule 3 would be applicable insofar as where no confidence motion is moved under sub-section (1) of Section 49 of the Act. Thus, the incidental question which would arise for consideration in this writ petition would be:
"As to what would be the effect of existing Rules in respect of no-confidence motion moved under sub-section (2) of Section 49 of the Act?"
22. The expression or language under sub-section (1) of Section 49 would clearly indicate that where members of Grama Panchayat intends to move a motion of no confidence against Adhyaksha or Upadhyaksha of a Grama Panchayat by expressing want of confidence in him/her, a meeting specially convened for the said purpose would be governed by the procedure as prescribed under Rules. In sub-section (1) of Section 49, the expression that can be found is "in accordance 32 with the procedure as may be prescribed". Thus, prescription ought to be there as otherwise expression found in the substantive statute prevails. In this background, when sub-section (2) of Section 49 is read it would clearly disclose that it is a non-obstante clause and expression used in sub-section (2) of Section 49 reads "Notwithstanding anything contained in sub- section (1)". A non-obstante clause need not necessarily always be co-extensive with the operative part so as to have the effect of going down the clear and unambiguous intent of a enactment. In other words, it means that it is equivalent to saying that inspite of provision the enactment falling will have its full operation or to put it differently, the non-obstante clause can be used as a device to over-ride it in specified circumstances. Even though expression "notwithstanding" is worded widely, its scope may be restricted having regard to the intention of the 33 legislature covered from enacting clause or other related provisions will have to be looked into.
23. In this background, when sub-section (2) of Section 49 as extracted hereinabove is perused or read, it would leave no manner of doubt that when a no confidence motion is moved under sub- section (2) of Section 49 the legislature has clearly intended to exclude expressions found in sub-section (1) of Section 49 from its purview. In this background, it can be noticed that proviso to sub-section (1) of Section 49 does not find a place in sub-section (2) of Section 49. Since learned members of the bar are ad-idem on the issue of larger interpretation of sub-section (2) of Section 49 is before the Division Bench of this Court in W.A.No.844/2018 and connected matters, this Court would not embark upon addressing the said issue and it is left at it, except arriving at a conclusion to hold that 34 1983 Act cannot be read into sub-section (2) of Section 49 of the Act.
24. Undisputedly, no rules have been prescribed insofar as resolution of no confidence motion moved under Section 49(2) against a Adhyaksha or Upadhyaksha of a Grama Panchayat and the existing rules are silent. In the absence of same, it has to be necessarily held that it has remained in-vacuum or in other words, expression found in substantive law will have to be given full effect.
25. In the light of discussion made hereinabove, it is held that the Karnataka Panchayat Raj (Motion of No Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994, would not be applicable insofar as no confidence moved under sub-section (2) of Section 49 of the Act and pursuant to the no-confidence motion dated 28.06.2018-Annexure-A in question which 35 has been moved by respondents 5 to 14, a meeting has been convened by second respondent as per notice dated 21.07.2018-Annexure-F which is in consonance with Section 49(2) or in other words, it would pass the test of Section 49(2) of the Act. Hence, this Court is of the considered view that there is no merit in this writ petition.
Hence, I proceed to pass the following:
ORDER
(i) Writ petition is hereby dismissed.
(ii) No order as to costs.
(iii) All pending applications stands consigned to records.
SD/-
JUDGE tsn*/DR