Karnataka High Court
Mallamma vs State Of Karnataka And Ors. on 21 June, 2002
Equivalent citations: ILR2002KAR4253, 2002(5)KARLJ254, 2002 AIR KANT HCR 2091, 2002 A I H C 3290 (2002) 5 KANT LJ 254, (2002) 5 KANT LJ 254
Author: A.V. Srinivasa Reddy
Bench: A.V. Srinivasa Reddy
ORDER A.V. Srinivasa Reddy, J.
1. The petitioner against whom the respondents 4 to 16 have moved a no-confidence motion is before this Court in this writ petition for a writ . of certiorari quashing the impugned notice dated 5-4-2002 (Annexure-A) on the ground that the same is in violation of Sub-rule (1) of Rule 3 of the Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha or Upadhyaksha of Gram Panchayat) Rules, 1994 (for short 'Rules 1994').
2. Heard the learned Counsels for both parties.
3. The learned Government Pleader appearing for respondents 1 and 2 and Mr. G. Shanthappa appearing for the respondents 4 to 16 have filed statement of objections inter alia contending that the impugned notice is in accordance with Sub-rule (1) of Rule 3 of the Rules. The learned Government Pleader has also secured the records from the 2nd respondent.
4. In order to appreciate the contentions of the parties to the writ petition it is appropriate to extract Section 49 which lays down the procedure to be followed in the matter of moving a resolution of no-confidence against Adhyaksha or Upadhyaksha of Gram Panchayat:
"Section 49, Motion of no-confidence against Adhyaksha or Upadhyaksha of Gram Panchayat.--Every Adhyaksha or Upadhyaksha of Gram 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 Gram 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-third of the total number of members and at least ten days notice has been given of the intention to move the resolution:
Provided farther that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved within one year 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 Gram Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within one year from the date of the decision of the Gram Panchayat".
(emphasis supplied) The resolution can be passed only 'at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed'. The procedure for convening a meeting for the purpose is prescribed in Sub-rule (1) of Rule 3 of the Rules 1994, which reads as follows:
"3, Motion of no-confidence.--(1) A written notice of intention to make the 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".
(emphasis supplied)
5. The proposed notice to be issued by the 2nd respondent-Assistant Commissioner on receipt of notice of intention to make the motion under the proviso to Section 49 is also provided in the Rules. The rule stipulates that the notice of intention to make motion shall be in Form I and Form I should be accompanied by a copy of the proposed motion.
6. The learned Counsel for the petitioner placing reliance on the said rule has strenuously argued that sending of notice under Form I without accompanying the proposed motion of no-confidence cannot be sustained in law as the intention of the Legislature in incorporating the service" of proposed motion is mandatory in terms of the language employed under Sub-rule (1) of Rule 3 of the Rules.
7. However, on the contrary, Mr. G. Shanthappa, learned Counsel appearing for respondents 4 to 16 has submitted that sending of notice in Form I, prescribed under Sub-rule (1) of Rule 3 of the Rules will be sufficient compliance of the said Rule.
8. I am not able to subscribe to the contentions urged by the learned Counsel for the respondents 4 to 16 in view of the fact that the language employed in Sub-rule (1) of Rule 3 of the Rules is mandatory for the proposed motion to accompany the notice in Form I. Merely because the Form does not contain a clause requiring the proposed motion to be accompanied along with notice of the meeting, it would not do away with the necessity of accompanying of a copy of the motion because under Section 49, the resolution can be passed only 'at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed'. As Sub-rule (1) of Rule 3 of the Rules prescribes service of notice of intention along with a copy of the proposed motion any deviation from that rule would be violative of Section 49 and, therefore, bad in law.
9. Accordingly, Annexure-A is quashed by allowing the writ petition.
10. However, quashing of Annexure-A will not come in the way of initiation of fresh no-confidence motion in terms of the Rules. Liberty is reserved to the 2nd respondent to issue fresh no-confidence in terms of Rule 3 and as explained in this order.