Karnataka High Court
Smt.Ratnamma Baramappa Nagara vs State Of Karnataka on 27 August, 2020
Equivalent citations: AIRONLINE 2020 KAR 1989
IN THE HIGH COURT OF KARNATAKA
®
DHARWAD BENCH
DATED THIS THE 27TH DAY OF AUGUST, 2020
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NOS.146835-853 OF 2020 (LB-RES)
BETWEEN:
1. SMT. RATNAMMA BARAMAPPA NAGARA
W/O BARAMAPPA NAGARA
AGED ABOUT 46 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
ALAVANDI CONSTITUENCY
KOPPAL TALUK & DISTRICT - 583 231
2. SHRI. NAGARAHALLI SHEKARAPPA
BASAVAREDDYAPPA
S/O BASAVAREDDYAPPA
AGED ABOUT 68 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
HIRESINDOGI CONSTITUENCY
KOPPAL TALUK & DISTRICT - 583 231
3. SMT. GAYATHRI VENKATESH V
W/O VENKATESH
AGED ABOUT 36 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
BANDIHARLAPUR CONSTITUENCY
KOPPAL TALUK & DISTRICT
2
4. SMT. BINA GOUS
W/O MOHAMMED GOUSE
AGED ABOUT 39 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
ITNAL CONSTITUENCY
KOPPAL TALUK & DISTRICT - 583 231
5. SHRI K. RAJSHEKAR BASAVRAJ ITNAL
S/O BASAVARAJ ITNAL
AGED ABOUT: 39 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
GINGERI CONSTITUENCY
KOPPAL TALUK & DISTRICT
6. SHRI GOLAPPA HALGERI
S/O DYAMAPPA HALGERI
AGED ABOUT 43 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
GONDABAL CONSTITUENCY
KOPPAL TALUK & DISTRICT
7. SMT. CHENNUPATI VIJAYLAXMI PRABHAKAR
W/O PRABHAKAR
AGED ABOUT 44 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
MARALI CONSTITUENCY
GANGAVATI TALUK
KOPPAL DISTRICT
8. SHRI AMARESHAPPA SHIVAPPA GONAL
S/O SHIVAPPA GONAL
AGED ABOUT 44 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
HERURU CONSTITUENCY
GANGAVATI TALUK
KOPPAL DISTRICT
3
9. SMT. SHANTA RAMESH NAIK
W/O RAMESH NAIK
AGED ABOUT 44 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
HULIHAYDER CONSITUTUENCY
GANGAVATI TALUK
KOPPAL DISTRICT
10. SMT. BAGYAVATI MANIK BOLA
W/O MANIK BOLA
AGED ABOUT 40 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
NAVLI CONSTITUENCY
GANGAVATI TALUK
KOPPAL DISTRICT
11. SMT LAXMAMMA SIDAPPA NIRLUTI
W/O SIDAPPA NIRLUTI
AGED ABOUT 54 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
VENKATAGIRI CONSTITUENCY
GANGAVATI TALUK
KOPPAL DISTRICT - 583 231
12. SMT. HOLEYAMMA SHARANGOWDA POLICE PATIL
W/O SHARANGOWDA POLICE PATIL
AGED ABOUT 38 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
HIREVANKALAKUNTA CONSTITUENCY
YELBURGA TALUK
KOPPAL DISTRICT
13. SMT. GIRIJA REVANAPPA SANKTI
W/O REVENAPPA SANKTI
AGED ABOUT 41 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
CHIKKAMYGERI CONSTITUENCY
4
YELBURGA TALUK
KOPPAL DISTRICT
14. SMT. PREMA ERAPPA KUDAGUNTI
W/O ERAPPA KUDAGUNTI
AGED ABOUT 39 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
MANGALUR CONSTITUENCY
YELBURGA TALUK
KOPPAL DISTRICT
15. SMT. BAVIMANI NELAMMA ADIVEPPA
W/O ADIVEPPA
AGED ABOUT 52 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
MUDHOL CONSTITUENCY
YELBURGA TALUK
KOPPAL DISTRICT
16. SHRI. NEMANNA DYAMAPPA MELSAKRI
W/O DYAMMA MELSAKRI
AGED ABOUT 55 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
HANUMNAL CONSTITUENCY
KUSTGI TALUK
KOPPAL DISTRICT
17. SHRI. VIJAYNAIK LAMANI
S/O PAKKIRAPPA NAYAKA
AGED ABOUT 52 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
CHALAGERA CONSTITUENCY
KUSTGI TALUK
KOPPAL DISTRICT
18. SHRI. HANAMANA GOWDA MADEGOWDA
S/O MADEGOWDA
AGED ABOUT 55 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
5
MENDAL CONSTITUENCY
KUSTGI TALUK
KOPPAL DISTRICT
19. SHRI. CHOWDAKI RAMAPPA PAKIRAPPA
S/O PAKIRAPPA
AGED ABOUT 49 YEARS
MEMBER OF KOPPAL ZILLA PANCHAYAT
IRAKALGADA CONSTITUENCY
KOPPAL DISTRIT & TALUK
....PETITIONERS
(BY SRI. PROF. RAVIVARMA KUMAR, SENIOR COUNSEL
FOR SRI GANGADHAR J.M. AND PRAVEEN TARIKAR,
ADVOCATES)
AND:
1. STATE OF KARNATAKA
REPRESENTED BY UNDER SECRETARY
DEPARTMENT OF ZILLA PANCHAYAT &
PANCHAYAT RAJ
M.S. BUILDING
BENGALURU - 560 001
2. THE REGIONAL COMMISSIONER
KALBURGI REVENUE DIVISION
OFFICE OF THE REGIONAL COMMISSIONER
KALBURGI - 585 101
3. THE CHIEF EXECUTIVE OFFICER
KOPPAL ZILLA PANCHAYAT
KOPPAL - 577 126
4. SHRI H VISHWANATH REDDY
S/O BADANAGOUDA
PRESIDENT OF KOPPAL ZILLA PANCHAYAT
6
AGED ABOUT 53 YEARS
NEAR DUGULAMMA TEMPLE
RESIDENT OF SIDDAPUR
GANGAVATI TALUK
GANGAVATI KOPPAL DISTRICT - 584 130
....RESPONDENTS
(SRI. K. VIDYAVATI, AAG AND VINAYAK S. KULKARNI,
AGA FOR R1 AND R2,
SRI. BHUSHAN KULKARNI, ADVOCATE FOR R3,
SRI. JAYAKUMAR S. PATIL, SR. COUNSEL FOR
SRI DEEPAK C.MAGANUR AND SRI C.P. PATIL,
ADVOCATES FOR R4)
THESE PETITIONS ARE FILED UNDER ARTICLES 226
& 227 OF CONSTITUTION OF INDIA, PRAYING TO ISSUE
WRIT, ORDER OF DIRECTION IN THE NATURE OF
CERTIORARI QUASHING THE LETTER/COMMUNICATION
DATED 16.05.2020 ISSUED BY THE 1ST RESPONDENT AT
ANNEXURE-A AND CONSEQUENTIAL
LETTER/COMMINICATION DATED 20.05.2020 ISSUED BY
THE 2ND RESPONDENT AT ANNEXURE-B AND ETC.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 03.07.2020, COMING ON
FOR PRONOUNCEMENT OF ORDERS THIS DAY, THROUGH
VIDEO CONFERENCE, THE COURT MADE THE
FOLLOWING:
7
ORDER
The captioned writ petitions are filed seeking writ in the nature of certiorari to quash the letter/communication dated 16.05.2020 bearing No. UÁæ.C¥ÀAgÁ 138 f¥À¸À 2020 issued by the respondent No.1 as per Annexure-A and consequently, letter/communication dated 20.05.2020 bearing No. PÀA:¥ÁæDPÀ:ZÀÄ£ÁªÀuÉ:02:2020-21 issued by the respondent No.2 as per Annexure-B. The petitioners are also seeking writ in the nature of mandamus directing the respondent Nos.2 to 4 to hold a special meeting for 'No- Confidence Motion' moved by the petitioners against the respondent No.4.
2. The facts leading to the top noted writ petitions are as under:
The petitioners are the elected members of the Zilla Panchayath, Koppal. The petitioners have contended in the writ petition that in the elections conducted on 20.02.2016, the Indian National Congress won 17 seats whereas, the Bharatiya Janata Party won 11 seats and 8 one seat went to an independent candidate. As per the reservation policies, the post of President of the Zilla Panchayath was reserved in favour of general candidate and accordingly, elections for the post of President, Vice-
President of Zilla Panchayath was held on 30.04.2016 and one Mr. Nagarahalli was elected as President. The said person tendered resignation to the post of President on 14.06.2017 and on account of vacancy, elections were again conducted on 17.07.2017 and one K.Rajshekhar Basavaraj Hittnal was elected as President. The said person also tendered resignation on 26.10.2018. In view of vacancy, fresh election was conducted on 28.12.2018. In the said elections, the respondent No.4 was elected as President and till today, the respondent No.4 is holding the post of President.
The grievance of the petitioners before this Court is that the respondent No.4 has failed to take confidence of members of Zilla Panchayath and is acting in arbitrariness. The respondent No.4 has also failed to undertake any 9 progressive work in the development of Zilla Panchayath. This compelled the petitioners to convey their views to the respondent No.4 and a request was made to change his approach in functioning as a President of Zilla Panchayath. The petitioners contended at para 3 of the writ petition that the respondent No.4 is not in a mood to heed to the request of the petitioners and in this background, it appears the petitioners decided to move 'No-confidence motion' against the respondent No.4 and accordingly, notice was sent to respondent No.4 on 18.05.2020 requesting him to call for a special meeting to consider the 'No-confidence motion' against the respondent No.4. The petitioners went to the chambers of the President to give notice personally and the respondent No.4 refused to receive the notice of 'No-confidence motion'. This compelled the petitioners to resolve to initiate 'No- confidence motion' and accordingly, a resolution also came to be passed on 11.05.2020. The copy of resolution dated 11.05.2020 and notice dated 18.05.2019 are produced and marked as Annexures -F and G. The 10 petitioners also submitted the said notice by post to the office of the respondent No.4 and personal assistant of respondent No.4 has received the notice and has given acknowledgment for having received the notice. The petitioners also contended that the said notice is sent through E-mail, speed post and courier to respondent No.4 and copy of the said notice is also forwarded to respondent Nos.2 and 3.
The petitioners have specifically contended in the writ petition that since respondent No.4 failed to call for a special meeting as per the mandate of Section 180 of the Act, the petitioners decided to call for special meeting to hold 'No-confidence motion' against the respondent No.4 as per the procedure contemplated under Section 180(2)(a) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short 'the Act') and also requested the Chief Executive Officer of respondent No.3 - Zilla Panchayat to fix the date for special meeting in consultation with the respondent No.2, since the amended provisions empower the respondent No.2 to hold the 11 proposed special meeting of 'No-confidence motion'. The respondent No.3 received the representation and has issued the acknowledgment. The petitioners have placed on record the representation as per Annexure-K. The petitioners also submitted similar representation to the respondent No.2 and it was brought to the notice of the respondent No.2 that respondent No.4 has failed to call for a special meeting as per the mandate of Section 180 of the Act and thereby requested the respondent No.2 to direct the respondent No.3 to fix a date for 'No- confidence motion'. The representation is produced and marked as Annexure-L. The respondent No.2 who has empowered and is vested with the authority to deal with 'No-confidence motion' instead of acting upon the representation, addressed a letter in the form of endorsement and communicated to respondent No.3 by stating that rules are yet to be framed and until the new Rules are framed, no action in this regard should be taken. The communication issued by respondent No.2 and addressed 12 to respondent No.3 is also produced and marked as Annexure-C. The impugned endorsement issued by respondent No.2 is pursuant to direction issued by respondent No.1 - State as per Annexure-A, wherein the respondent No.1 - State has communicated to respondent No.2 with a direction that 'No-confidence motion' pertaining to President and Vice-president of Zilla Panchayath cannot be held until rules are framed. The petitioners being aggrieved by the endorsement issued by the respondent No.1 as per Annexures - A and B and the consequent communication issued by respondent No.2 as per Annexure-C are before this Court seeking writ in nature of Certiorari and also writ in the nature of mandamus to direct respondents to hold special meeting for 'No-confidence motion'.
3. Prof. Ravivarma Kumar, learned Senior Counsel by relying on the judgment rendered in BHANUMATI AND OTHERS VS. STATE OF UTTAR PRADESH reported in (2010) 12 SCC 1, would contend 13 that the Hon'ble Apex Court by applying the Doctrine of Silence has held that the right of 'No-confidence motion' is inbuilt under Indian Constitution. Relying on this judgment, he would contend before this Court that right of 'No-confidence motion' is constitutional right of the elected members. Relying on this judgment, he would further contend that these institutions must run on democratic principles and in democracy all persons heading public bodies can continue, provided they enjoy the confidence of the persons who comprise such bodies. The respondent No.4 is not acting in fairness and is not discharging his duty and as such, he does not inspire confidence of petitioners and in this background, the petitioners were compelled to move for a 'No-confidence motion'. By relying on this material aspect, learned Senior Counsel would submit to this Court that democracy demands accountability and transparency in the activities of the persons heading public bodies and since respondent No.4 has lost confidence of majority members, the 'No- confidence motion' cannot be kept in abeyance. 14
4. Learned Senior Counsel would bring to the notice of this Court of various consequences dealing with 'No-confidence motion' of Gram Panchayath, Taluk Panchayath and Zilla Panchayath. He would submit to this Court that the State has enacted separate rules called Karnataka Panchayat Raj (motion of no-confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994. He would submit to this Court that insofar as Taluk Panchayath and Zilla Panchayath are concerned, no separate rules are framed unlike for Gram Panchayath. He would further submit that however, Sections 179 and 180 itself provides for the procedure. He would also bring to the notice of this Court that since from the date of enactment till today, the 'No-confidence motions' are conducted under Section 180 and this Court has rendered catena of judgments under Section 180 of the Act which provide for procedure for 'No-confidence'.
5. Learned Senior Counsel to buttress his arguments, would rely on the judgments of this Court 15 rendered in K.P.CHANDRAKALA vs. THE KODAGU ZILLA PANCHAYATH, MADIKERI AND OTHERS reported in ILR 2002 Kar 946 and LAKSHMAPPA BALAGANUR vs. THE STATE OF KARNATAKA AND OTHERS reported in ILR 1999 Kar 986. By relying on these two judgments, learned Senior Counsel would submit that there are catena of judgments under Section 180 of the Act which provides for procedure for 'No- confidence'.
6. Learned Senior Counsel would also rely on the Division Bench judgment rendered by this Court in M. VEERABHADRAIAH vs. THE UNION OF INDIA, BY ITS SECRETARY, MINISTRY OF LAW AND JUSTICE AND OTHERS reported in ILR 2016 KAR 595. By relying on this judgment, he would contend before this Court that unless the parliament or State Legislature prescribes in the Statute itself, that no action shall be taken under a particular provision of a Statute until and unless Rules are framed in that regard, the Authority, in such 16 circumstances, is precluded from exercising power under the Statute. Relying on the Division Bench judgment of this Court, he would submit to this Court that the proposed amendment brought in by the State Legislature by way of Ordinance contemplates framing of Rules, if required. He would submit to this Court that there is absolutely no legislative intent that the authority cannot exercise the powers unless the Rules are framed.
7. Learned Senior Counsel would now take this Court to the procedural compliance by the petitioners who had initiated 'No-confidence motion'. He would contend before this Court that a resolution was passed by 20 members out of total 29 members on 11.05.2020 as per Annexure-F. The petitioners have given a notice to respondent No.4/President on 18.05.2020 requesting him to call for special meeting to consider 'No-confidence motion' against respondent No.4. He would submit that respondent No.4 had admitted the same. Learned Senior Counsel would further contend and submit to this Court 17 that respondent No.4 with an intention to avoid 'No- confidence motion' failed to follow the mandate of Section 180 of the Act and has deliberately not called for a special meeting within statutory period of 15 days. This compelled the petitioners to hold a special meeting as per the procedure contemplated under Section 180(2)(a) of the Act by requesting the Chief Executive Officer of the respondent No.3 - Zilla Panchayat to fix the date for special meeting in consultation with the respondent No.2. In compliance, learned Senior Counsel would further submit that the petitioners have also submitted representation to the respondent No.3.
8. Learned Senior Counsel by citing the procedural compliance by the petitioners in initiating 'No- confidence motion' would at this stage, rely on a judgment of the Hon'ble Apex Court in VIPULBHAI M CHAUDHARY vs. GUJARAT CO-OPERATIVE MILK MARKETING FEDERATION LIMITED & OTHERS reported in (2015) 8 SCC. By relying on the ratio laid 18 down by the Hon'ble Apex Court, learned Senior Counsel would submit to this Court that the law laid down by the Apex Court in Vipulbhai's case has been followed by this Court in catena of judgments and in support of his contention, he would rely on the judgments rendered by this Court in Mubeen vs. The State of Karnataka and Others (W.A.No.100382/2018), Smt. S.B. Nagarathanamma vs. The State of Karnataka (W.P.No.108614/2018) and Ashok vs. The Registrar of Co-operative Societies (W.P.No.202390/2017).
9. Relying on these judgments, learned Senior Counsel would vehemently argue and submit to this Court that even in absence of rule, 'No-confidence motion' ought to have been conducted. Since there is a failure on the part of the authorities, it is the duty of this Court to intervene and pass appropriate orders.
10. Learned Senior Counsel while interpreting the provision under Section 49 would submit to this Court that the right conferred on the Gram Panchayath members 19 under Section 49(2) as an additional right of 'No- confidence motion' and under the amended provisions of Section 49(2), an unfettered right is given on the members to move 'No-confidence motion' even before the expiry of the terms specified under clause (1) of Section
49. He would submit to this Court that Section 49 provides two types of 'No-confidence motion' one is without allegation and the latter is with allegations of corrupt practice. Learned Senior Counsel would further submit to this Court that however, in the year 2015, no corresponding amendment has been made to Sections 140 and 179 and the additional right of 'No-confidence motion' before expiry of terms specified on the grounds of corrupt practice are only confined to the Gram Panchayath.
11. In this background, learned Senior Counsel would submit that the right under Section 49(2) is an additional right available to the Gram Panchayath members only. Learned Senior Counsel by relying on the 20 judgment rendered in SMT. LAKSHMAMMA vs. THE STATE OF KARNATAKA AND OTHERS reported in 2019 (1) KCCR 161 (DB) and subsequent judgment in the case of SMT. PARVATHI AND OTHERS vs. THE STATE OF KARNATAKA AND OTHERS (W.A.NOS.100093- 100094 OF 2019), would submit to this Court that the Division Bench though recorded a finding that the provisions of Section 49(2) are unworkable but at any stretch that cannot be extended to the provisions of Section 49(1). He would submit to this Court that the Division Bench has emphatically held that sub-Section (1) of Section 49 remains operational and has neither eclipsed nor stands nullified. Learned Senior Counsel in this background would submit to this Court that the concept of 'No-confidence motion' contemplated under sub-Section (1) of Section 49 is identical and similar to the right of 'No-confidence' contemplated under Section 179 and hence, would submit to this Court that the word 'remain unworkable' as held by the Division Bench in Smt. Parvathi's case cannot be applied to the present case on 21 hand and consequently, it is impermissible under law to defer the consequence of 'No-confidence motion'.
12. Learned Senior Counsel would take this Court to the effect of amendment to Sections 179 and 180 which came into force with effect from 31.03.2020 by way of ordinance 2020. By taking this Court to the amended provisions, learned Senior Counsel would submit to this Court that when State amends law through ordinance, it means it should be implemented with immediate effect. In this background, learned Senior Counsel would submit to this Court that respondent Nos.1 to 4 cannot postpone the implementation of amendment to Sections 179 and 180 by giving reasons that rules are not framed. Learned Senior Counsel would submit that impugned endorsement issued by respondent Nos.1 and 2 as per Annexures - A, B and C respectively runs contrary to spirit of amendment made through ordinance. He would further argue and contend before this Court that even if we assume that rules are not framed by the State and the State may not 22 frame rules for years together, then in that event, he would submit that non-framing of rules would take away the constitutional rights of the petitioners who have an unfettered right in initiating right of 'No-confidence motion' and the same would stand defeated.
13. While marshalling his arguments, learned Senior Counsel would bring to the notice of this Court that this Court has its own restrictions and this Court cannot direct the State to frame the rules which exclusively falls within the domain of legislature. He would also cite judgment rendered by the Hon'ble Apex Court in the case of STATE OF JAMMU & KASHMIR vs. A.R.ZAKKI & OTHERS reported in 1992 Supp (1) SCC 548. Learned counsel would further submit that conduct of the respondents in issuing impugned endorsements as per Annexures- A to C would clearly indicate that an attempt is made to deny the constitutional rights of the petitioners in seeking 'No-confidence motion' under the guise that rules are yet to be framed.
23
14. Learned Senior Counsel by relying on the judgment rendered in STATE OF U.P. & OTHERS vs. HARISH CHANDRA & OTHERS reported in (1996) 9 SCC 309, would submit to this Court that the Courts cannot pass any orders either to refrain from enforcing the law or to act contrary to law. Relying on this judgment, he would now take this Court to the impugned endorsements as per Annexures-A, B and C and contend before this Court that even said endorsements are virtually in the nature of directives to refrain from enforcing the law and on this count, the impugned endorsements are liable to be quashed and they are in violation of provisions of Constitution as well as the statutory rights of the petitioners conferred under Section 179 of the Act.
15. Per contra, Sri Jayakumar S.Patil, learned Senior Counsel appearing for the respondent No.4 would submit his arguments in two folds. The first part of his arguments would relate to maintainability of the top noted 24 writ petitions. Learned Senior Counsel by adverting to the communications at Annexures - A, B and C would submit to this Court that the said communications are in the nature of correspondence and would not constitute an order adjudicating the rights of the parties and hence, the present writ petitions are not at all maintainable. Learned Senior Counsel by taking this Court to Annexure-A would submit to this Court that pursuant to amendment to Sections 179 and 180(6) of the Act, the Rules are being framed and further steps needs to be taken by the authority in prescribing the Rules which are under process of being finalized and this aspect is communicated by respondent No.1 - State to the respondent No.2 as well as the petitioners. Marshalling his arguments, learned Senior Counsel would contend before this Court that Annexures - B and C are communications and hence, the present writ filed by the petitioners seeking writ of certiorari to quash the impugned communications at Annexures-A and B is not at all maintainable. Insofar as prayer 'C' is concerned, learned Senior Counsel would submit to this Court that on 25 reading the entire averments averred in the writ petition, it is forthcoming that petitioners have failed to make out a case for issuing such a direction.
16. Insofar as second part of argument by learned Senior Counsel is concerned, he would vehemently argue and contend before this Court that the petitioners cannot enforce 'No-confidence motion' in absence of Rules framed therein. He would submit to this Court that the petitioners cannot invoke the provisions of Article 226 of the Constitution of India and seek a mandamus by relying on the judgment of the Hon'ble Apex Court rendered in Vipulbhai M.Chaudhary's case reported in (2005) 8 SCC 1. He would submit to this Court that the Apex Court by exercising its power under Article 142 of Constitution of India has proceeded to issue a writ and as such exercise cannot be done by this Court under Article 226 of the Constitution of India. Learned Senior Counsel would further argue and contend before this Court that Section 179(3) of the Act provides for moving of 'No-confidence 26 motion' and procedure is prescribed under Section 180 more particularly, under Section 180(6) of the Act. In view of amendment, he would submit that sub-Section (3) of Section 179 contemplates initiation of 'No-confidence motion', but to set the process of 'No-confidence motion', the rules are yet to be prescribed. He would stress on the proposed amendment brought in by way of ordinance and contend before this Court that the amendment specifically provides that motion of 'No-confidence' can be moved only as per the procedure prescribed under Rules. His contention is that the wordings of Section 179(3) are crystal clear and there is absolutely no ambiguity whatsoever. He would further contend that the petitioners cannot insist the authorities to follow the procedure which was earlier provided under Section 180 since the procedure adopted prior to amendment is not applicable in view of the amendment brought in by the respondent No.1 - State. He would further contend that the subject of meeting of 'No-confidence motion' is taken out purview of the office bearers and members of Zilla 27 Panchayat and the said power is now conferred on Regional Commissioner or any other equivalent officer by amending Section 180(6) of the Act.
17. Learned Senior Counsel in view of the above said contentions would submit to this Court that it is only the Regional Commissioner or authorized officer, who can convene and fix the date of meeting, preside and conduct the meeting. It is only the Regional Commissioner who has to preside over and fix a date by issuing notice and this can be done only after procedure is contemplated by framing necessary rules in that regard. He would further submit to this Court that till such a procedure is prescribed by framing necessary rules, the request for considering 'No-confidence motion' will have to wait.
18. Learned Senior Counsel by drawing an analogy to the provisions of Section 49 of the above said Act would submit to this Court that the amendment was brought in to Section 49 and this Court while examining the issue in regard to 'No-confidence motion' initiated by 28 invoking the amended provisions of Section 49(2) in Smt. Lakshmamma vs. State of Karnataka has held that unless and until a comprehensive set of Rules as applicable to this motion is promulgated, this new sub-Section (2) will continue to remain unworkable. By relying on this judgment, learned Senior Counsel would argue and contend before this Court that unless proper rules are framed under amended Section 179(3) of the Act, 'No- confidence motion' cannot be moved against the Adhyaksha and Upadhyaksha of the Zilla Panchayat. He would further rely on the judgment of the Hon'ble Apex Court in BABU VERGHESE AND OTHERS vs. BAR COUNCIL OF KERALA reported in (1999) 3 SCC 422 and contend that if a particular act is prescribed under any statute, the act must be done in that manner or not at all and hence, unless relevant rules are framed, the respondent No.2 has no authority to proceed.
19. Learned Senior Counsel would also rely on the judgment reported in ILR 2016 Kar 595 and contend that 29 the amended Section 179(3) starts with "subject to Rules as may be prescribed" and hence, would vehemently contend before this Court that the petitioners cannot insist for motion of 'No-confidence' unless the Rules are framed therein. Learned Senior Counsel would further argue and submit to this Court that the judgments relied by the petitioners reported in (2019) 1 KLJ 113 and (2010) 12 SCC 1 are not applicable to the facts and circumstances of the present case. Learned Senior Counsel would further rely on the judgment rendered in by the Hon'ble Apex Court in (1999) 3 SCC 422 and the order passed by the Division Bench in W.A.No.844/2012 reported in (2019) 1 KCCR 161 (DB).
20. Learned Senior Counsel would also bring to the notice of this Court that respondent No.4 has already filed W.P.No.146999/2020 questioning Ordinance 2020 which has brought in amendment to Sections 179 and 180 of the Act. Learned Senior Counsel would further submit that the provisions of Section 179(4) is equivalent to 30 Section 149(2) of the Act. He would also cite the provisions of Section 48(4) of the Act.
21. Learned Additional Advocate General would submit to this Court that the amended provisions of Section 179(3) clearly indicates that the members of Zilla Panchayat cannot seek 'No-confidence motion' unless rules are framed. She would rely on '29H' of Karnataka Co-operative Societies Act and would contend that in 2017, Rules are framed and accordingly as per Rule 14- AKK Karnataka Co-operative Societies (Amendment) Rules 2017, the members of Co-operative Society are entitled to seek 'No-confidence motion'. Learned AAG would submit to this Court that respondent No.1 - State has rightly issued a communication to respondent No.2 not to proceed with the 'No-confidence motion' till the prescribed rules are framed. The communication issued by respondent No.1 - State is in accordance with law and as such, the petitioners prayer seeking writ of certiorari to quash the communications issued by the State to the 31 respondent Nos.2 and 3 as per Annexures- A and B is not maintainable. She would also bring to the notice of the Court that the draft rules are ready and in this background, she would submit to this Court that the relief sought in the writ petition are premature and the writ is not at all maintainable and accordingly, would submit to this Court that the writ is liable to the dismissed.
22. Prof. Ravivarma Kumar, learned Senior Counsel by way of reply would counter the contentions raised by the learned Senior Counsel appearing for respondent No.4 and also learned Additional Advocate General. Learned Senior Counsel would take this Court to sub-clause (2) of Section 1 of the Karnataka Gram Swaraj and Panchayat Raj (Amendment) Ordinance 2020. By relying on sub-clause (2), he would submit to this Court that the amended Ordinance 2020 clearly contemplates that it shall come into force at once. By relying on sub- Section (2) of Section 1 of the above said Ordinance 2020, he would submit to this Court that the contentions of 32 learned Additional Advocate General that amendment is suspended till Rules are framed cannot be accepted. To counter the contentions of learned Senior Counsel appearing for respondent No.4, learned Senior Counsel appearing for the petitioner submits that the analogy drawn by learned Senior Counsel appearing for respondent No.4 by citing amended provisions of Section 49(2) is not at all applicable to the present case. Learned Senior Counsel would stress on the wordings used in amended Section 179 and contend before this Court that the amendment contemplates by insertion of words "subject to such Rules as may be prescribed". By stressing on these wordings brought in by way of amendment, he would submit to this Court that the word 'may' is used. Learned Senior Counsel would further submit that in the light of the wording used in the amendment, he would contend that nothing is altered. Even in absence of Rules, the authority cannot defer the effect of 'No-confidence motion' set in by the petitioners. Learned Senior Counsel would further counter the 33 arguments of the respondents in regard to the jurisdiction of this Court under Article 226 of the Constitution of India. He would submit that Article 142 has no relevance to the present case on hand.
23. Having heard the counsel for the parties, I proceed to examine the rival contentions.
The first respondent-State by way of Ordinance bearing No.2/2020 has brought in amendment to Sections 179 and 180 of Karnataka Grama Swaraj and Panchayat Raj Amendment Act, 1993(Karnataka Act 14 of 1993) whereby the length of time of Moratium which was earlier 30 months is reduced to 15 months. The second proviso to Section 25 of the Ordinance contemplates the period of Moratium. It appears the petitioners who have lost confidence in fourth respondent have moved a requisition by passing a resolution on 11.5.2020 as per Annexure-F to the writ petition. The petitioners' grievance is that the fourth respondent being the President of the Zilla Panchayath has failed to take confidence of the members 34 of the Zilla Panchayath and has failed to execute any developmental work of Zilla Panchayath. The grievance of the petitioners is that inspite of repeated requests, the fourth respondent is not in a mood to give heed to their request and this compelled the petitioners to seek no- confidence motion against the fourth respondent. It is also evident from the records that the fourth respondent however has refused to call for a meeting and this compelled the present petitioners in approaching the third respondent and a representation was also submitted as per Annexure-K to the third respondent. Similar representation was also submitted to the second respondent bringing it to the notice of the second respondent that the fourth respondent has failed to convene a meeting as per the mandate of the Act. In the said representation a request was also made to the second respondent to issue a direction to the third respondent to fix the date for exercise of 'No-confidence motion'.
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24. It is borne out from the records that the second respondent has sought clarification from the first respondent/State and the first respondent in response to the communication of the second respondent has issued the impugned communication dated 16.5.2020 as per annexure-A directing the second respondent, not to proceed with the no confidence motion since the Rules are not framed. Similar communications are also issued to the third respondent, which is also challenged before this Court.
25. The question that would arise before this Court is, once the members of Zilla Panchayath resolve to initiate no-confidence motion against the fourth respondent-President, whether the no- confidence motion can be kept in abeyance on the premise that Rules are yet to be framed. To answer this question it would be relevant to examine the proposition laid down by the Hon'ble Apex Court in Vipulbhai M. Chaudhary's case supra. Wherein at Paragraph 16 while exhaustively dealing 36 with no-confidence motion pertaining to the members of the Co-Operative Societies has held as follows:
"16. The principle of representative democracy is the election of representatives by the people otherwise eligible to cast their vote and the people thus elected, constituting the body for the management of an institution. Thus, in the case of co-operative societies, after the amendment in the Constitution, there has to be a Board of elected representatives, which may be called Board of Directors or Governing Body or a Managing Committee, etc. to which the members entrust the direction and control of the management of the affairs of the society. That representative body selects one among the elected representatives as its Chairman or any other office-bearer, as the case may be. Selection is the act of carefully choosing someone as the most suitable to be the leader or office-bearer. Thus, there is a lot of difference between election of delegates/representatives to constitute a body and selection of a person by the body from amongst the elected members to be the leader. It is to be borne in mind that the 37 management and control of the society is entrusted to the representative body viz. the Board of Directors and that the Chairperson elected by the Board of Directions is the Chairperson of the society and not of the Board of Directors".
26. The Hon'ble Apex Court having observed as above was also of the view that the Democracy demands accountability and transparency in the activities of the Chairperson especially in view of the important functions entrusted with the Chairperson in the running of Panchayat Raj Institutions. The Apex Court was of the view that such duties can be discharged by the Chairperson only if he/she enjoys the continuous confidence of the majority members in the panchayath. The Apex Court was also of the view that any statutory provision to demonstrate that the Chairperson has lost the confidence of the majority is conducive to public interest and adds strength to such bodies of the self-governance. The Apex Court at Para 25 has further observed thus: 38
"25. Silence in the Constitution and abeyance as well has been dealt extensively by Michael Foley in his celebrated work The Silence of Constitutions. To quote from the Preface:
" Abeyances refer to those constitutional gaps which remain vacuous for positive and constructive purposes. They are not, in any sense, truces between two or more defined positions, but rather a set of implicit agreements to collude in keeping fundamental questions of political authority in a state of irresolution. Abeyances are, in effect, compulsive hedges against the possibility of that which is unresolved being exploited and given meanings almost guaranteed to generate profound division and disillusionment. Abeyances are important, therefore, because of their capacity to deter the formation of conflicting positions in just those areas where the potential for conflict is most acute. So central are these abeyances, together with the social temperament required to sustain them, that when they become the subject of heightened interest and subsequent conflict, they are not merely accompanied by an 39 intense constitutional crisis, they are themselves the essence of that crisis."
In Part II, Chapter Four, the author has also dealt with the constitutional gaps and the arts of prerogative. To the extent relevant, it reads as follows (P.82):
" Gaps in a constitution should not be seen as simply empty space. They amount to a substantial plenum of strategic content and meaning vital to the preservation of a constitution. Such interstices accommodate the abeyances within which the sleeping giants of potentially acute political conflict are communally maintained in slumber. Despite the absence of any documentary or material form, these abeyances are real, and are an integral part of any constitution. What remains unwritten and indeterminate can be just as much responsible for the operational character and restraining quality of a constitution as its more tangible and codified components."
27. In the background of the above said proposition, if the Ordinance is examined, Sub-clause (2) 40 of Section 1 of the Ordinance clearly contemplates that Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance, 2020 shall come into force at once. Further the amendment to Section 179 wherein the words "subject to such Rules as may be prescribed"
would in no way take away the powers of the authority in proceeding with the No-confidence Motion by following the procedure prior to amendment. The Hon'ble Apex Court in Vipulbhai M. Chaudhary's case supra has also categorically held that if a procedure is prescribed in any Act or Rule or Bye-law regarding election of an office-
bearer by the "board", as defined under Article 243-ZH(b) of the Constitution of India, and for removal thereof, by way of a motion of no-confidence, the same procedure has to be followed. At this juncture, I have gone through the written synopsis produced by the counsel for the fourth respondent that in Vipulbhai M. Chaudhary's case supra, the Apex Court has declared the law regarding democratic set up of a Co-Operative Society and has consequently laid down guidelines. The learned Senior 41 Counsel contended that the Hon'ble Apex Court has authority under Article 142 of Constitution of India, but this Court exercising jurisdiction under Article 226 has no power either to declare a law or issue any guidelines to the State needs to be outrightly rejected. This argument is difficult to accept as Act relating to elected representatives of Panchayath contained a provision regarding no confidence, but however, in Co-operative sector the Apex Court has observed that there is no express provision regarding no-confidence. The Apex Court has further held that the co-operative society registered under the Central or the State Act is bound to function as a democratic Institution and conduct its affairs based on democratic principles. The Apex Court was of the view that democratic functioning on democratic principles is to be reflected in the respective Acts or Rules or bye-laws both on the principle and procedure. If such Rules or procedures are not contemplated then it is for the Court to read the democratic principles and if there is no express provision under the Act or Rules, or Bye-laws for 42 removal of an office bearer, such office-bearer is liable to be removed in the event of loss of confidence by following the same procedure by which he was elected to the office.
In this background, the contention of the learned Senior counsel appearing for the fourth respondent that this Court cannot exercise jurisdiction under Article 226 of the Constitution of India needs to be out rightly rejected.
28. Even prior to amendment, there is a procedure contemplated under Sections 179 and 180 of the Act. By bringing in amendment to Section 180(6) of the Act, I do not find any vacuum or ambiguity has arisen. On account of amendment brought by way of Karnataka Ordinance No.02 of 2020 to the Karnataka Gram Swaraj and Panchayath Raj (Amendment) Ordinance, 2020, under Section 180(6) of the Act, the Regional Commissioner or any other equivalent Officer authorized by the Government is required to preside over the meeting in which no-confidence motion against Adhyaksha or Upadhyaksha is being moved. Section 180 (2)(a) and 43 2(c) lays down the procedure and it is nobody's case that by bringing amendment to Section 180(6) of the Act, the preceding Sections to Section 180 of the Act are deleted. The relevant sub-sections to Section 180 of the Act are intact and are not altered. The relevant sub-sections of Section 180 are culled out as under:
Section 180(2)(a) "The date of the first meeting of the Zilla Panchayat after the first constitution or reconstitution, (or the date of subsequent meeting for the purpose of election of Adhyaksha or Upadhyaksha as the case may be) shall be fixed by the Commissioner, who shall preside at such meeting, and (the date of each subsequent ordinary meeting shall be decided by the Adhyaksha and he shall inform the same at the immediately preceding meeting) of the Zilla Panchayat, provided that the Adhyaksha of Zilla Panchayat may for sufficient reasons, alter the date of the meeting to a subsequent date. The Adhyaksha may, whenever he thinks fit, and shall, upon the written request of not less than one-third of the total number of members and on a date 44 within fifteen days from the receipt of such request, call a special meeting. Such request shall specify the object for which the meeting is proposed to be called. If the Adhyaksha fails to call a special meeting, the Upadhyaksha or one-third of the total number of members of the Zilla Panchayat may call the special meeting for a day not more than fifteen days after presentation of such request and require the Chief Executive Officer to give notice to the members and to take such action as may be necessary to convene the meeting;"
Section(2) (b) "Ten clear day's notice of an ordinary meeting and seven clear day's notice of a special meeting specifying the time at which such meeting is to be held and the business to be transacted thereat, shall be sent to the members and pasted up at the office of the Zilla Panchayat. Such notice shall include, in the case of a special meeting any motion or proposition mentioned in the written request made for such meeting."
29. From a bare reading of the above said sub- sections 2(a) and (b) of Section 180 of the Act, it is clear 45 that the procedure contemplated to preside over a meeting is clearly kept intact under the above said Sub- Sections and in this background, I am of the view that there is no impediment for respondent No.2 or any officer authorized by the State to preside over and consider the requisition submitted by the petitioners.
30. In the present writ petitions, the petitioners are seeking a writ of mandamus. The petitioners are duly elected members of Zilla Panchayath and having expressed no confidence motion, have submitted a requisition to Respondents 2 and 3 as well as to the fourth respondent. The petitioners have statutory right to seek 'No-confidence motion. On examination of the averments and grounds raised in the writ petition and also having examined the judgments cited by the learned counsel appearing for the petitioners, it is clearly forthcoming that the petitioners have some legal right to seek 'No- confidence motion' against the respondent No.4. The Act clearly contemplates corresponding legal duty upon the 46 respondents. I am also of the view that the petitioners have no alternative and efficacious remedy and the representations submitted by the petitioners as per Annexures- K and L to the respondents amounts to demand for justice and the inaction on the part of the respondent Nos.1 to 3 amounts to refusal of the said demand. All these ingredients constitute valid cause of action and denial of the rights available to the petitioners and hence, the present writ petitions under Article 226 is very much maintainable and this Court is under bounden duty to examine the lis between the parties. I am also of the view that the present writ is applied for in utmost good faith. If the interpretation propagated by the Senior Counsel for the fourth respondent is to be accepted, then the same would give occasion to serious mischief. In the present case, it is apparent that the fourth respondent is attempting to avoid no-confidence motion for want of Rules to be framed. What is relevant to look into is whether the fourth respondent has lost the support of the majority. If he has lost the majority, then he is not 47 entitled to clinch to the power on the basis of the hyper- technical and misconceived notions. The question before this Court is; whether the second respondent who is an Officer under the amended provisions to preside over the no-confidence motion was justified in seeking explanation from the first respondent. This Court is of the view that infact it is not an explanation but he is virtually seeking permission from the first respondent to preside over the no-confidence motion. The second respondent derives the authority under Section 180(6) of the Act and hence question of seeking an explanation from the first respondent appears to be unwarranted. There is inaction on the part of second respondent. The public servants are responsible to the judiciary for the lawfulness of their public duties and their actions there under. If a public authority fails to do what is required under law, a writ of mandamus is very much maintainable before this Court.
31. This Court has meticulously examined Articles 226, 32 and 142 of Constitution of India. After going 48 through the broad contours of the Supreme Court under Article 32 and 142 of the Constitution of India and that of High Courts under Article 226 of Constitution of India, it is not in dispute that the High Court can exercise such powers for any other purpose apart from enforcement of fundamental rights. In catena of judgments, the Hon'ble Apex Court has held that the High Court encompasses a wider area of jurisdiction as far as the subject of writ jurisdiction is concerned. On the other hand, the Hon'ble Apex Court has a wider territorial jurisdiction than the High Courts and has got open and undefined powers under Article 142 of the Constitution of India to pass such decree or make such order as is necessary for doing complete justice. There are no two opinions about the aphoristic judicial observation that Article 226 of the Constitution confers extraordinary jurisdiction on this Court and that is wide as well as expansive, no fetter can be placed on the exercise of the said extraordinary jurisdiction. The adjudicatory ambit of an issue, indeed, is kept to the discretion of Constitutional Courts. The 49 primary purpose of a writ of mandamus is to protect and establish rights and to impose a corresponding imperative duty on State and its officials.
32. In the present case on hand, there is no violation of any statutory provision or Rule of law. In that view of the matter, this Court is of the view that there is no reason as to why the Rule of majority ought not prevail. Moving a motion of no-confidence is a right given to the members who constitute electoral college to elect President and Vice President to the Panchayath, Taluk panchayaths as well as Zilla Panchayath. Under Sections 49, 140 and 180, every Adhyaksha or Upadaksha of either Grama panchayath, Taluk panchayath and Zilla panchayath shall forthwith be deemed to have vacated his/her office if a resolution expressing want of confidence in him/her is passed by majority of members. If such a requisition is submitted, then the authority is bound to convene a meeting for the said purpose in accordance with the procedure as may be prescribed and 50 if no such procedure is prescribed, the authority is bound to follow the prevailing procedure prior to amendment or in absence of such a procedure, the authority is under a statutory duty to follow the same procedure under which the fourth respondent was elected as a President. Once a requisition expressing no-confidence motion is moved, this Court is of the view that the same cannot be kept in abeyance since it runs contrary to the principle of representative democracy and if such a situation arises then it is the bounden duty of the Courts to read the constitutional requirements into the existing provisions.
33. Having examined the rival contentions, the judgments cited by the rival parties, the proposed amendment brought into Sections 179 and 180 of the Act is brought into force forthwith and the same is forthcoming from sub-Section (2) of Section 1. It states that the Ordinance may be called the Karnataka Gram Swaraj and Panchayat Raj (Amendment) Ordinance, 2020 and it shall come into force at once. The wordings used in 51 the amended Section of 179 at clause (i) of Section 25 reads as "Subject to such rules as may be prescribed". On a plain reading of these words inserted in the amended provision of Section 179 of the Principle Act, I do not find any legislative intent indicating that the authority exercising power under the amended provisions has to wait until and unless, rules are framed in that regard. The word "may" would in no way preclude the authority from exercising its power under the Statute. The controversy in regard to exercise of authority under the amended provisions, in the present case on hand, has been dealt with by the Division Bench of this Court in M. Veerabhadraiah's case. The findings of the Division Bench of this Court at para 47 reads as follows:
"47. Thus, what emerges from the aforesaid judicial precedents is that exercise of power under a provision of a statute is not dependent upon the framing of rules unless, the legislative intent is, to the contrary. If the Parliament prescribes in the statute itself, that no action shall be taken under a particular 52 provision of a statute until and unless rules are framed in that regard, then the authority concerned is precluded from exercising powers under the statute. In the instant case, Section 16 does not prescribe any such Parliamentary intention. Under the Act, sub-Section(1) of Section 34 states that the High Court may make rules laying down conditions, subject to which, an advocate shall be permitted to practice in the High Court and the Courts subordinate thereto. The expression "advocate" in sub-Section(1) of Section 34 means "an advocate entered in any roll under the provisions of the Act [Section 2(1)(a)].
Sub-Section(1) of Section 34 is not a mandatory provision but is directory in nature. Also, the said provision deals with advocates in general and not with the aspect of designation of advocates as senior advocates. Designation of senior advocates is in Section 16(2) of the Act. Therefore, it is not incumbent upon the High Court to frame rules before designation of an advocate a senior advocate could be made by it. On the other hand, the aforesaid judgments clearly enunciate that when a statue prescribes making rules for exercise of 53 power or taking any action under a particular provision, the absence of rules being framed, exercise of power is not illegal. That apart, as far as this Court is concerned, Norms have been framed and amended from time to time. The prevalent Norms have been applied in the case of the impugned designations. Therefore, it is not a case of there being absolutely no guidance to the Full Court in the matter of designation of the respondent - advocates. The impugned designations have not been made in a vacuum. Whether the designations are made by passing the ingredients in Section 16(2) of the Act, which itself enunciates the essential criteria required for the designation of an advocate as a senior advocate, is an aspect which is also discussed.
34. In the light of the above said discussion, I am of the view that in absence of any such express provision, framing of rules cannot be a condition precedent for exercise of power under the Statute. The Principle Act clearly contemplates a procedure and there would be no impediment for the authority to follow the existing 54 procedure, more particularly when the petitioners are seeking vote of 'No-confidence' and a requisition is sent to the authority calling upon them to fix the special meeting in this regard. The process of 'No-confidence' cannot be postponed and the same is impermissible in law. The impugned communication issued by respondent No.1 at Annexures-A and B are one without jurisdiction and authority.
35. For the reasons stated supra, this Court is of the view, that there is inaction on the part of the respondents in not considering the representations submitted by the petitioners as per Annexures-K and L. The communication issued by the first respondent as per Annexure-A dated 16.05.2020 and the consequential communication dated 20.05.2020 issued by the second respondent as per Annexure-B respectively are contrary to the law and for the reasons stated supra are liable to be quashed. Accordingly, the following:
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ORDER
(a) Writ petitions are allowed.
(b) The communications issued by the first respondent as per Annexure-A dated 16.05.2020 and the communications issued by the second respondent as per Annexures-B and C dated 20.05.2020 and 08.06.2020 respectively are hereby quashed.
(c) A direction is issued to respondent Nos.2 and 3 to consider the representations submitted by the petitioners vide Annexures- K and L as per Sections 180(2)(a) & (b) and 180(6) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, within a period of four weeks from the date of receipt of a copy of this order.
Sd/-
JUDGE CA/alb*