Karnataka High Court
Smt. Hanamavva W/O Hulappa Hirekurabar vs The Assistant Commissioner Bagalkot on 26 September, 2022
Author: B. Veerappa
Bench: B. Veerappa
1
IN THE HIGH COURT OF KARNATAKA AT DHARWAD
®
DATED THIS THE 8TH DAY OF AUGUST 2022
PRESENT
THE HON'BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD
AND
THE HON'BLE MR. JUSTICE R. NATARAJ
WRIT PETITION NO. 102077 OF 2022 (LB-RES)
BETWEEN:
SMT. HANAMAVVA
W/O HULAPPA HIREKURABAR
AGE:55 YEARS
OCC: HOUSEHOLD WORK
R/O VADAGERI
ILKAL TALUK
BAGALKOT DISTRICT. ... PETITIONER
(BY SRI ANAND R.KOLLI, ADVOCATE)
AND:
1. THE ASSISTANT COMMISSIONER
BAGALKOT
PIN-581701.
2
2. KASTURBIBAYI MALLAYYA MUGANUR
W/O MALLAYYA MUGUNAR
AGE:35 YEARS
OCC: HOUSEHOLD WORK
R/O ILKAL, TQ: ILKAL
DISTRICT BAGALKOT.
PIN 587202.
3. SRI. BHARAMAPPA PARASAPPA VAGGAR
AGE:45 YEARS
OCC: AGRICULTURIST
R/O VADAGERI
TQ:ILKAL
DISTRICT BAGALKOT
PIN-587202.
4. SRI. PAWADGOUDA PAWADGOUDA GOUDAR
S/O PAWADGOUDA GOUDAR
AGE 50 YEARS
OCC: AGRICULTURE
R/O VADAGERI,
TQ: ILKAL
DISTRICT BAGALKOT
PIN:587202.
5. SMT. DYAMAVVA HOLIYAPPA METI
AGE 40 YEARS
OCC: HOUSEHOLD WORK
R/O DAMMUR
TQ:ILKAL, DISTRICT BAGALKOT
PIN-587202.
6. SRI. BHALAPPA FAKIRAPPA BASARIGIDAD
S/O FAKIRAPPA BASARAGIDAD
AGE 50 YEARS
OCC: AGRICULTURE
R/O DAMMUR
TQ: ILKAL
DISTRICT BAGALOKOT
PIN-587202.
3
7. SMT. SAVITA VEERANNA BADIGER
W/O VEERANNA BADIGER
AGE 30 YEARS
OCC: HOUSEHOLD WORK
R/O GORAJNAL
POST: TALLIKERI, TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
8. SRI. IRAYYA RUDRAYYA GOUDAR
S/O RUDRAYYA GOUDAR
AGE 45 YEARS
OCC: AGRICULTURE
R/O ILAL, TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
9. SRI. CHANDRASHEKHAR DEVINDRAPPA JAGGAL
S/O DEVINDRAPPA JAGGAL
AGE 48 YEARS, OCC: AGRICULTURE
R/O ILAL, TQ: ILKAL
DISTRICT: BAGALKOT
PIN-587202.
10. SRI. RANGAPPA PIDAPPA TALAWAR
S/O PIDAPPA TALAWAR
AGE 51 YEARS
OCC: AGRICULTURE
R/O GORAJNAL
TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
11. SRI. BHARAMAPPA KARIYAPPA MADAR
S/O KARIYAPPA MADAR
AGE:56 YARS
OCC: AGRICULTURE
R/O DAMMUR, TQ: ILKAL
DISTRICT: BAGALKOT
PIN-587202.
12. SMT. SATTEVVA KARIYAPPA MADAR
4
AGE 38 YEARS
OCC: HOUSEHOLD WORK
R/O VADAGERI
TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
13. SMT. KARIYAVVA MASAPPA KABBARAGI
AGE 39 YEARS
OCC: HOUSEHOLD WORK
R/O VADAGERI
TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
14. SMT. YALLAVVA SRAKAPPA KAMBALI
AGE 55 YEARS
OCC: HOUSEHOLD WORK
R/O VADAGERI, TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202.
15. POORNIMA RAMESH KELUR
W/O RAMESH KELUR
AGE 45 YEARS
OCC: HOUSEHOLD WORK
R/O GORAJNAL
POST TALLIKERI
TQ: ILKAL
DISTRICT BAGALKOT
PIN-587202. ... RESPONDENTS
(BY SMT.VIDYAVATI, AAG FOR R1:
SRI PADMANABHA V.MAHALE, SENIOR COUNSEL
FOR SRI S.L.MATTI FOR R2 TO R15)
THE REFERENCE IS MADE ON 13.06.2022 BY A SINGLE
DIVISION BENCH TO DECIDE AS TO "WHETHER THE 10 DAYS
NOTICE PRESCRIBED IN THE LATTER PART OF FIRST PROVISO
TO SUB-SECTION (1) OF SECTION 49 IS TO BE GIVEN TO THE
ADHYAKSHA OF THE GRAM PANCHAYAT OR THE ASSISTANT
5
COMMISSIONER AND WHETHER SUCH NOTICE IS MANDATORY
OR DIRECTORY?
THE REFERENCE, COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCING, THIS DAY, B. VEERAPPA J., MADE
THE FOLLOWING:
I. ORDER ON REFERENCE
A learned Single Judge while considering a
challenge to a notice issued by the Assistant
Commissioner under the Karnataka Grama Swaraj and
Panchayath Raj Act, 1993 (henceforth referred as Act
of 1993) and Karnataka Panchayath Raj (No
confidence motion against Adyaksha and
Upadhyaksha) Rules, 1994 (henceforth referred as
Rules of 1994) entertained a doubt about the
correctness of the Judgment of another co-ordinate
Bench in Parvathi vs The Assistant Commissioner,
Haveri Sub-Division, Haveri and others reported
in ILR 1997 Kar 3230, where it was held that the
Assistant Commissioner, need not wait for ten days
after receiving the notice from the members of a
6
panchayath expressing lack of confidence in an
Adhyaksha or Upadhyaksha and he may convene a
meeting before the expiry of 10 days from the date of
he receiving the notice from the members.
The learned Single Judge noticed that the
Judgment in Parvathi (supra) was upheld by a
Division Bench of this Court in M.Puttegowda and
others vs The Assistant Commissioner, Mysore
2002 (1)KLJ 16. The learned Judge referred to a
pathbreaking Judgment in Sharadabai vs State of
Karnataka and others in W.P.No.101890/2022
where the distinction between the words "send" and
"give" a notice contemplated under Rule 3(2) of the
Rules, 1994 was scintillatingly examined in great
detail and it was held that "giving notice"
contemplated tendering it actually, while "sending
notice" could be construed as tendered when it is
actually served. The learned Single Judge held that in
7
view of the Judgment of the Full Bench in
C.Puttaswamy vs Smt.Prema reported in AIR
1992 Kar 356, the procedure of giving 15 days clear
notice is mandatory and therefore as there was no 15
days clear notice, quashed the notice issued by the
Assistant Commissioner. The learned Single Judge
approvingly quoted another Judgment of a co-ordinate
Judge in Smt.Roopa vs State of Karnataka and
others reported in ILR 2019 Kar 1373.
The learned Single Judge held that in Parvathi
(supra), the learned Judge had proceeded on an
assumption that the 10 days notice as prescribed in
the latter part of the first proviso to sub section (1) of
Section 49, is required to be given to the Assistant
Commissioner. The learned Judge held "on a close
reading of the said provision, this Court does not find
that the 10 days notice is to be given to the Assistant
Commissioner. On the other hand, having regard to
8
the provisions contained in Section 52 of the Act, a
meeting of the Gram Panchayat shall be held by the
Adhyaksha, whenever he thinks fit or upon the written
request of not less than one-third of the total number
of members as provided in sub-section (2) of Section
52 of the Act." Therefore, this Court is of the opinion
that the 10 days notice as prescribed in the latter part
of the first proviso to sub-section (1) of section 49 is
required to be given by not less than one-half of the
total number of members to the Adyaksha of the
Gram Panchayat. It is only after the 10 days minimum
notice is given to the Adhyaksha that the further
process as provided in Rule 3 of the Rules, 1994
would commence, in the form of a written notice of
intention to make the motion as provided under the
proviso to section 49 to be given in Form-I to the
Assistant Commissioner. When such written notice is
given by the required number of members, the
9
Assistant Commissioner is required to convene a
meeting for consideration of said motion which shall
be not later than 30 days from the date on which the
said of notice under sub-rule (1) is delivered by him.
Therefore, 30 days period as provided under sub-rule
(2) of Rule 3 commences from the date when the
written notice is given by the required number of
members in terms of sub-rule(1) of Rule 3 to the
Assistant Commissioner. This cannot be confused with
the 10 days notice that is required to be given in
terms of the first proviso to sub-section (1) of Section
49 to the Adhyaksha. This Court is also of the opinion
that if such interpretation is not given, then, the
provision requiring "at least 10 days notice" would be
rendered otios, which again will be contrary to the
settled rules of interpretation.
In the wisdom of the legislature, if 10 days
notice is prescribed before any motion of resolution of
10
no confidence against the Adhyaksha and
Upadhyaksha is to be moved, then, it should be for a
specific purpose and object. It may be that when once
the Adhayakha receives such a notice from one-half of
the total number of members of the Gram Panchaya,
expressing their intention to move a 'no confidence
motion' against him/her, then the Adhyaksha or
Upadhyaksha, as the case may be, may
himself/herself resign from the post. In such a
situation the members need not wait for another 30
days as provided in sub-rule (2) of Rule 3.
Nevertheless, since the opinion rendered in
Smt.Roopa (supra) which was also followed by this
Court in Smt.Sharadabai (supra) is based on a
decision of a Full Bench of this Court in
C.Puttaswamy (supra), wherein it was held that the
provisions are mandatory in nature and there are
other divergent opinions which are now brought to the
11
notice of this Court, this Court is of the opinion that
the matter requires to be referred to a Larger Bench.
The reference proposed is:
"Whether the 10 days notice prescribed in
the latter part of first proviso to sub-
section (1) of Section 49 is to be given to
the Adhyaksha of the Gram Panchayat or
the Assistant Commissioner AND whether
such notice is mandatory or directory?"
Accordingly, the Hon'ble Acting Chief Justice has
constituted this Bench.
II. FACTS OF THE CASE
1. The seminal facts that lead to the filing of the
writ petition before the learned Single Judge are that
the petitioner was the President of Vadageri Grama
Panchayath. The respondents 2 to 15 being the
members filed a representation in Form-I expressing
no-confidence in the petitioner. Based on this,
12
respondent No.1 issued a notice dated 09-05-2022 in
Form-II convening a meeting on 25-05-2022 to
consider the motion of no-confidence. This notice is
challenged before the Learned Single Judge on various
grounds.
2. We heard the learned counsel for the parties on
the reference.
III. Arguments advanced by the learned counsel for
the petitioner
3. In support of the reference, the learned
counsel for the petitioner, Sri Anand R. Kolli,
submitted that first proviso to Section 49(1) of the Act
has to be read independently without reference to the
Rules framed under Section 49(1) of the Act. He
further contended that as per proviso to Section 49(1)
of the Act, one-half of total number of members of the
Gram Panchayat has to give at least ten days notice of
13
their intention to move resolution of 'no-confidence
motion'. But the proviso is silent as to whom the
notice should be submitted. Hence, Section 52 of the
Act has to be read along with Section 49 of the Act.
As per Section 52 of the Act, notice has to be
submitted to the Adhyaksha. If Adhyaksha does not
resign within ten days of notice, then as per Rule 3 of
the Rules, one half of the members has to submit
representation to the Assistant Commissioner in Form
No.1, as prescribed under Rule 3(1) of the Rules.
Thereafter, the Assistant Commissioner has to issue
notice under Rule 3(2) of the Rules. He further
contended that even in respect of Taluk Panchayat, as
per Sections 140 and 141, notice has to be submitted
to the Adhyaksha. Even with regard to Zilla
Panchayat, as per Sections 179 and 180 of the Act,
notice has to be submitted to the Adhyaksha.
Therefore, he contended that notice of 'no-confidence
14
motion' by one-half of the members of the Gram
Panchayat as per the proviso has to be submitted to
the Adhyaksha of the Gram Panchayat and not to the
Assistant Commissioner.
4. He further contended that in view of the
Judgment of this Court in Puttegowda (supra), the
Rules are mandatory and therefore, the Assistant
Commissioner is bound to wait for 10 days before
issuing notices to the members convening a meeting
of the members to consider the no confidence motion.
IV. Arguments advanced by the learned Senior
Counsel for respondent Nos. 2 to 15:
5. Per contra, Sri Padmanabha V.Mahale, learned
Senior counsel appearing for respondent Nos.2 to 15
contended that Section 49 of the Act and Rules
framed under Section 49(1) of the Act has to be read
together. A combined reading of Section 49(1) of the
15
Act and the Rules makes it clear that one-half of the
total number of members of the Gram Panchayat has
to submit representation to the Assistant
Commissioner. He further contended that there is no
ambiguity in the provisions of the Act. The procedure
prescribed under Section 52 of the Act is for a general
meeting while a meeting to consider a no confidence
motion is a special meeting convened by the Assistant
Commissioner. He submitted that the 10 days (Ten)
notice prescribed in the later part of the first proviso
to sub-section (1) of Section 49 of the Act shall be
given to Assistant Commissioner and Adhyaksha of
the Grama Panchayat and the same is mandatory and
Assistant Commissioner need not wait for ten days but
can issue a notice to convene the meeting before ten
days.
V. Arguments advanced by learned AAG for State
16
6. Smt. Vidyavati, learned Additional Advocate
General appearing for the State contended that
Section 49 of the Act r/w Rules is a complete code and
is specially enacted for the purpose of moving 'no-
confidence motion' against the Adhyaksha and
Upadhyaksha. Section 49 of the Act r/w Rule 3 of the
Rules, makes it clear that notice prescribed in the first
proviso to Section 49(1) of the Act has to be
submitted to the Assistant Commissioner and not to
the Adhyaksha.
7. We have given our anxious consideration to the
arguments advanced by the learned counsel for the
parties and the records carefully.
VI. Consideration
8. In order to answer the reference, it is
pertinent to note the provisions of law relating to no-
confidence motion under the Act of 1993 and the Rule
17
3 of the Rules of 1994 and for the sake of brevity are
extracted below:
"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.
Rule 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
specified in Section 49(1) of the total
number of members together with a copy
of the proposed motion shall be delivered
in person specified under sub-section (2) of
Section 49, the allied particular allegations
with notice enlisted in written witnesses
and evidences submitted in person by any
19
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 from the date on 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: The Assistant
Commissioner shall make sure that the
allegations delivered are specific in the
attached list of notice to prepare a report
within seven days in respect of Taluk
Panchayat Executive Officer.
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
20
receives the intimation about the vacation
of stay, after giving to the members, a
notice of not less than fifteen clear days of
such adjourned meeting.
(3) A notice in Form II shall be given to
every member including the Adhyaksha
and Upadhyaksha.--
(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 posts; 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.
21
(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.
Explanation.- For determination of two
third of total number of members under
this sub-rule any fraction arrived at shall be
construed as one.
(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 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
22
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
Adhyaksha 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,
23
moneys or other properties of the Grama
Panchayat in his custody to the Secretary
of the Grama Panchayat.
(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."
9. The Forms prescribed for intimation by the
members and the notice to be given by the
Assistant Commissioner to all the members are as
below:
"FORM I
(See Rule 3(1))
To,
The Assistant Commissioner...................
.......................................................................
....................................................................... 24 Sir, Sub: Motion of No-Confidence Against Adhyaksha or Upadhyaksha of ................... Grama Panchayat. We, the following members hereby give notice of our intention to move that Sri...........................Adhyaksha or upadhyaksha of .......................... Grama Panchayat shall be removed from the office of Adyaksha or Upadhyaksha.
Yours faithfully, Signature of members of Grama Panchayat.
1.
2.
3. Etc. 25 "FORM II [See Rule 3(2)] NOTICE Sub: No-Confidence Motion Against Adhyaksha or Upadhyaksha of ...............................Grama Panchayat reg.
A meeting to consider the No-confidence Motion against the Adhyaksha or Upadhyaksha of ............Grama Panchayat will be held on .......................(week day) the ....................... day (date) of ...............(Month) 19............(Year) at............(time) in the office of the said Grama Panchayat.
You are therefore requested to attend the said meeting on the date and at the place and time mentioned above.
Assistant Commissioner To, Sri/Smt.........................
----------------
10. Since the Learned Single Judge has viewed Section 49 of the Act through the prism of Section 52 26 of the Act, 1993, it is imperative to refer to Section 52 which is extracted below:
"52. Meeting of the Grama Panchayat.- (1) A Grama Panchayat shall meet for the transaction of business at least once in a month at the office of the Grama Panchayat and at such time as the Adhyaksha may determine.
(2) 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 within fifteen days from the receipt of such request, call a special meeting.
(3) Seven clear days notice of an ordinary meting and three clear days notice of a special meeting specifying the place, date and time of such meeting and the business to be transacted thereat, shall be given by the Secretary of the Grama Panchayat to the members and such officers as the 27 Government may prescribe, and affixed on the notice board of the Grama Panchayat.
(4) The officers to whom notice is given under sub-section (3) and other Government officers having jurisdiction over the panchayat area or any part thereof shall attend every meeting of the Grama Panchayat and take part in the proceedings but shall not be entitled to vote.
(5) If the Adhyaksha fails to call a special meeting as provided in sub-section (2), the Upadhyaksha or one third of the total number of members may call such meeting for a day not more than fifteen days after the presentation of such request and require the Secretary of the Grama Panchayat to give notice to the members and to take such action as may be necessary to convene the meeting.
Explanation:- for the purpose of this section, an ordinary or special meeting 28 includes an extended meeting of such ordinary or special meeting as the case may be.
(6) Every meeting may be allowed to be telecasted if in the opinion of the panchayat the proceeding of a such Gram Panchayat be telecasted."
11. The concept of no-confidence is based on the concept of amotion in the corporate world, where a person who has lost confidence of the Board of Directors is bound to be removed by the person/s appointing him. A grama panchayath under the Act of 1993 lies at the bottom of hierarchy of local self governing bodies and membership to it is based on election amongst resident citizens within the panchayath area. Amongst the members so elected, a President and Vice President are elected based on the applicable reservation roster, to carry on the activities 29 of the Panchayath. In order to ensure that the President or Vice President of the Panchayath have a definite tenure, provision is made in Section 49 of the Act of 1993 that a no confidence motion cannot be moved within 30 months from the date of their election. Further to ensure that the proceedings of a no confidence motion are conducted in an orderly manner, Section 49 of the Act, 1993 lays down that the procedure as may be prescribed may be followed (emphasis by Court). The procedure is as prescribed under the Rules, 1994 which contemplates that a written notice of intention to move a no confidence in Form-I shall be submitted by not less than half of the members and shall be presented to the Assistant Commissioner by two members signing it. The Assistant Commissioner may thereafter give 15 clear days notice in Form-II to all the members and convene a meeting on a date which shall not be 30 beyond 30 days from the date of the members submitting Form-I. The meeting shall be presided over by the Assistant Commissioner who shall put the motion to vote and declare the result, upon which the concerned Adhyaksha or Upadhyaksha shall cease to function. The Rules of 1994 have a mandatory flair since a motion of no confidence would act deleterious to not only the candidate but the constituency that he represents and therefore as held by the Full bench of this Court in Puttaswamy (supra), must be strictly complied with.
12. The controversy in the present case stems from the words "at least ten days notice has been given of the intention to move the resolution" found in first proviso to Section 49 of the Act of 1993. The learned Single Judge has noticed that first proviso to Section 49 does not indicate to whom the notice has to be issued. The learned Single Judge fell back upon 31 Section 52 of the Act of 1993 to hold that since a President can convene meetings whenever he thinks fit or upon the written request of not less than one- third of the total number of members as provided in sub-section (2) of Section 52 of the Act, 10 days notice should be given to the Adhyaksha who may on his/her own resign from the post. After that event, if he does not resign, then the further process as provided in Rule 3 of the Rules, 1994 should commence, in the form of a written notice of intention to make the motion as provided under the proviso to section 49 to be given in Form-I to the Assistant Commissioner.
13. Before we delve deeper into the question, the settled principles of law regarding statutory interpretation deserve to be underscored.
(i) The words of a statute should be given their plain and simple meaning 2019 (17) SCC 157 32
(ii) It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. The Hon'ble Supreme Court in the case of Dwarka Prasad -vs- Dwarka Das Saraf reported in (1976)1 SCC 128 has held that a proviso must be limited to the subject- matter of the enacting clause. "Words are dependent on the principal enacting words to which they are tacked as a proviso. They cannot be read as divorced from their context" (Thompson v. Dibdin, 1912 AC
533). If the rule of construction is that prima facie a proviso should be limited in its operation to the subject-matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause, inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as 33 a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. The proper course is to apply the broad general Rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. (Maxwell on Interpretation of Statutes, 10th Edn., p. 162)".
(iii) If a statute prescribes a particular thing should be done, it should be done in the manner prescribed or not at all.
34
(iv) An interpretation leading to absurdity should be avoided and instead an interpretation which aids the purpose of the legislation should be adopted.
(v) It is well settled principle of law that the Court cannot read anything into a statutory provision which is plain and unambiguous as held by the Hon'ble Supreme Court in the case of State of Jharkhand and another vs. Govind Singh reported in (2005) 10 SCC 437 wherein at paragraphs-15 to 20 it is held as under:
"15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, 35 though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See Frankfurter: "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p.
51.)
16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs [(1980) 1 All ER 529 :
(1980) 1 WLR 142] (All ER at p. 542c-d):
"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes 36 which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest."
17. Where, therefore, the "language" is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here. [See Gwalior Rayons Silk Mfg. (Wvg.) Co.
Ltd. v. Custodian of Vested Forests [1990 Supp SCC 785 : AIR 1990 SC 1747] (AIR at p. 1752), Shyam Kishori Devi v. Patna Municipal Corpn. [AIR 1966 SC 1678 :
(1966) 3 SCR 466] (AIR at p. 1682) and A.R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 37 277] (SCC at pp. 518, 519).] Indeed, the court cannot reframe the legislation as it has no power to legislate. [See State of Kerala v. Mathai Verghese [(1986) 4 SCC 746 : 1987 SCC (Cri) 3] (SCC at p. 749) and Union of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248 : (1992) 19 ATC 219 : AIR 1992 SC 96] (AIR at p. 101).]
18. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them".
(See Lenigh Valley Coal Co. v. Yensavage [218 FR 547]). The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] (SCC p. 284, para 16). 38
19. In D.R.Venkatachalam v. Dy. Transport Commr. [(1977) 2 SCC 273 : AIR 1977 SC 842] it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.
20. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.
(See CST v. Popular Trading Co. [(2000) 5 SCC 511 : AIR 2000 SC 1578] ) The legislative casus omissus cannot be supplied by judicial interpretative process. 39
14. Without meaning any disrespect to the learned Single Judge, applying the golden rule of interpretation to Section 49 by giving the words their plain and simple meaning, the fall out is that the meeting for considering the no-confidence motion should be as per the "procedure prescribed". Since the procedure is already prescribed in the Rules of 1994, the said procedure has to be baked into Section 49. If this is done then the notice has to be addressed by the members in Form No.1 to the Assistant Commissioner. It is then that the first proviso to Section 49, kicks in and warrants that such notice must be "10 clear days", which means that he should have enough breathing time to act. If the above interpretation is given, then invariably, the provision is not rendered nugatory but advances its purpose.
15. A plain reading of Section 49 does not envisage a situation of providing an option to the 40 Adhyaksha or Upadhyaksha to resign voluntary at the request of the members. It does not also contemplate a situation of providing a notice to the Adhyaksha and thereafter to the Assistant Commissioner. On the contrary, it only contemplates a solitary notice that too in form No.1, which has to be addressed to the Assistant Commissioner. The Assistant Commissioner, depending upon his other pre-occupation would fix a date for the meeting to consider the motion of no confidence and also preside over it and declare the result, upon which the Adyaksha or Upadhyaksha may or may not cease to function.
16. The provisions of Section 52 of the Act of 1993 provides for conduct of general meetings of the panchayath to transact business of the panchayath and are not akin to a meeting under Section 49 which is a meeting "specially convened" by the Assistant Commissioner for the purpose of considering a no- 41 confidence motion. It can be easily deduced that a motion of no confidence is not the business of the panchayath. Assuming that the members have to gave a notice to the Adyaksha or Upadhyaksha, that would lead to disastrous consequences and may render the concept of a no-confidence a mockery. An illustration in this regard would best explain this.
"If the members of a panchayath intend to move a resolution and if they give a notice to the President, he may either resign voluntarily or he may protract the issue by convening a meeting which may be adjourned due to various reasons such as lack of quorum etc."
At any rate, a notice to convene a meeting of the members under Section 52 of the Act has to be submitted by 1/3rd of the members while in the case of an intent to move a no confidence, a notice has to be submitted by half of the members and the 42 Adhyaksha or Upadhyaksha shall vacate the office, if 2/3rd of the members vote in favour of the motion. Therefore Section 49 and 52 operate in different circumstances and for different purposes and bridging the two would be pairing oranges and apples.
17. In so far as the contention that in respect of Taluk and Zilla Panchayath, a notice of no confidence has to be first given to the Adhyaksha and therefore a similar analogy has to be drawn in respect of a grama panchayath, the same is misplaced for more reason than one. The first reason is that the provisions contained in Section 140 and 179 provide for such a procedure. The second reason is that the members to Taluk and Zilla Panchayath are promoted by political parties and are therefore bound by defection rules etc. The third reason is that an Adyaksha or Upadhyaksha of a Taluk or Zilla 43 Panchayath, subject to the reservation roster, is elected by the members having a major strength in the house. Therefore, it is that major political party that can call the shots by moving a vote of no confidence. Hence this procedure cannot be applied to Grama Panchayaths where membership to the panchayath is not based on political considerations but the Adyaksha or Upadhyaksha are elected by the members, who have no political lineage. Hence we answer the reference and hold that the "ten days clear notice" found in first proviso to Section 49 of the Act, 1993 has to be given to the Assistant Commissioner which is mandatory and not to the Adhyaksha of the Grama Panchayat.
18. Turning to the next leg of the reference namely whether the Assistant Commissioner has to wait for the expiry of ten days before issuing a notice 44 to the members to convene a meeting of the members to consider the motion of no confidence, this very Bench in the case of Shankargouda and others vs. The State of Karnataka and Others in W.A.No.200087/2022 has held that the Assistant Commissioner need not wait for ten days and that the law declared by the Division Bench of this Court in M.Puttegowda (supra), does not require any reconsideration.
VI. Answer to the Reference
19. In view of the above we hold that the "ten days clear notice" found in First proviso of Section 49 of the Act, has to be duly signed by half of the members of a Panchayath and shall be submitted by any two members signing it, to the concerned Assistant Commissioner. Further, as held by this Full bench in Shankargouda (supra), the members of a Panchayath are bound to give ten days notice in 45 Form-I as stipulated in Rule 3 of the Rules to the concerned Assistant Commissioner, who thereafter, shall, issue notice to all the members convening a meeting to consider the motion of no confidence.
20. The Registry is directed to place the writ petition before the learned Single Judge for passing appropriate orders on the merits of the writ petition in accordance with law.
Sd/-
JUDGE Sd/-
JUDGE Sd/-
JUDGE Cm/Nsu