Karnataka High Court
Abdul Razak vs The Assistant Commissioner, ... on 17 November, 2004
Equivalent citations: 2005(1)KARLJ230, 2005 AIR - KANT. H. C. R. 158, (2005) 1 KANT LJ 230
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. This is one more case of an 'Adhyaksha' of a Gram Panchayat, who is averse of facing the no-confidence motion that has been moved by the Members of the Panchayat who have lost confidence in such 'Adhyaksha', who has approached this Court to invalidate the notice dated 2-11-2004 issued by the Assistant Commissioner fixing a date for the meeting to be held on 24-11-2004 to enable the Members to consider the motion.
2. Submission of Sri Manjunath, learned Counsel for the petitioner is that the notice is in violation of requirements of Sub-rule (1) of Rule 3 of the Karnataka Pancheyat Raj (Motion of no-confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994. Learned Counsel also submits that the notice issued by the Assistant Commissioner was not accompanied with a copy of the proposed motion and therefore the notice is bad. In this regard, learned Counsel submits that compliance of requirements of Rule 3 of the Rules have been held to be mandatory; that this Court has taken the view that the notice has to be invalidated in the absence of compliance of any of the requirements of Rule 3 as held in the case of Mallamma v. State of Karnataka, 2002(5) Kar. L.J. 254 : ILR 2002 Kar. 4253 and in the case of Smt. Subbamma and Anr. v. The Executive Officer, Nanjangud Panchayat, Nanjangud and Ors., 2004(3) Kar. L.J. 99 : 2003(3) KCCR 2176. Learned Counsel submits that the notice should be quashed and concerned persons directed to comply with the requirements and proceed ahead.
3. I have taken the view that in a petition filed by a person who is an 'Adhyaksha' of a Panchayat, it need not be entertained by this Court in exercise of writ jurisdiction on the premise of violation or non-compliance of the requirements of Rule 3 of the Rules.
4. Rule 3 is a provision made for effectuating the substantive right given to members Under Section 49 of the Karnataka Panchayat Raj Act, 1993. Section 49 is a provision where under every 'Adhyaksha' or Upadhyaksha' of a Gram Panchayat shall be forthwith 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 members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. The right given Under Section 49 of the Act is to the members who have such a right to have the 'Adhyaksha' removed if not less than two-thirds of the members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'.
5. The examination of the rules can only be in the context of the section and not independent of the main provision for effectuating which provision the rule has been framed. Anyone who can complain of non-compliance of the requirements of Rule 3 of the Rules and thereby seek for invalidation of the notice can only be a member in whose favour a right has been given Under Section 49 of the Act and not any other person. An 'Adhyaksha' is a person who is required to face a motion and who can survive to hold the post if only the number of members supporting the motion fall short of the requisite number of two-thirds of the membership of the Panchayat. If once that is complied i.e., not less than two-thirds of the Members pass a resolution to that effect, the 'Adhyaksha' is deemed to have vacated the office. It is the expression of lack of confidence by not less than two-thirds of the Members of the Panchayat that removes the 'Adhyaksha' from his office and not the mere notice under Annexure-A. Any irregularity, assuming that it is there, it is not one which is required to be examined at the instance of a person like the 'Adhyaksha' who obviously does not envy the situation of facing no-confidence motion and is eager to have the same quashed by calling in aid technicalities.
6. I am of the clear view that exercise of the discretionary jurisdiction by this Court under Article 226 of the Constitution of India is not warranted in favour of a person like the petitioner who is himself to face the no-confidence motion and who is the sitting 'Adhyaksha' of the Panchayat.
7. Accordingly, this writ petition is rejected without issuing rule.