Karnataka High Court
Sahebagowda vs Deputy Commissioner on 5 February, 1990
Equivalent citations: ILR1990KAR884
JUDGMENT
Rama Jois, Ag.C.J.
1. The short question which arises for consideration in these appeals is whether the requisition to convene a meeting of the Mulasavatagi Mandal Panchayat to consider the resolution of no confidence in the appellants Is legal and valid.
2. The facts of the case, in brief, are these: The total number of the Members of the Mulasavalagi Mandal Panchayat fixed according to the provisions of the Karna-taka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 ('the Act' for short) is 26. Out of them 18 persons signed the requisition to convene a meeting of the Panchayat for considering the resolution expressing no confidence in the Pradhan and Upapradhan of the Panchayat. Questioning the legality of the said requisition and the meeting convened pursuant to it, the appellants presented the Writ Petitions.
3. The contention of the appellants before the learned Single Judge was that out of 18 signatories to the requisition, two namely respondents-4 and 5 in the Writ Petitions were no longer Members of the Panchayat as they had been nominated by the Adhyaksha of the Zilla Parishad and their nominations had been declared invalid in the decision of this Court in ASHOK v. TAWANAPPA SIDDAPPA JAKKANNAVARA, . The learned Counsel also contended that among others there were five persons whose seats had become vacant by force of Section 12 of the Act as they had failed to attend three consecutive meetings of the Mandal Panchayat. The appellant's Counsel contended before the learned Judge that if seven persons were excluded the valid signatories to the requisition would be only 11 and as the total number of Members of the Mandal Panchayat was 26, the requisition itself was not in accordance with Section 47 of the Act which requires the signatures of atleast 50% of the total number of Members of the Mandal Panchayat and consequently, the meeting convened was also contrary to law.
4. As far as respondents-4 and 5 are concerned, the learned Judge agreed that as their nominations were struck down by this Court they were no longer Members of the Mandal Panchayat. As regards the other 5 Members, the learned Judge held that unless a specific question was raised that the seats of these 5 persons had become vacant on anyone of the grounds mentioned in Section 12(1)(i) to (iii) of the Act and was so declared by an order made by the Deputy Commissioner under Sub-section (2) thereof, it could not be said that they were not the Members of the Mandal Panchayat. Alternatively, the learned Judge also held that even if the seats of those 5 Members should be regarded as having become vacant the total number of Members who had ceased to be Members would be seven and excluding them the total number of Members of the Panchayat would be only 19, in which event also the requisition would be legal for, excluding the seven signatories, there would still be signatures of eleven Members which was more than half of the total number of 19 Members.
5. The learned Counsel submitted that for the purpose of computing requisite number of Members under Section 47 of the Act, the total number of Members of the Mandal Panchayat fixed under the Act should be taken into account and not the actual number of existing Members on any given date. This contention of the learned Counsel for the petitioners had been rejected b the learned Judge stating that as under Section 5 of the Act which provides that a Panchayat would be deemed to have been duly constituted when two-thirds of the total number of Members have been elected, if at any given point of time if there exists two-thirds of the total number of Members there would be a duly constituted Panchayat in existence and if half of them signed the requisition it would satisfy the requirement of Section 47. The learned Counsel submitted that this view taken by the learned Judge is erroneous for, according to Section 47(2) of the Act, the condition precedent for a valid requisition under that Section was, that it should be signed by 50% of the total number of Members of the Mandal Panchayat and not 50% of the actual number of Members of the Mandal Panchayat existing at any given point of time.
6. Section 47(1) & (2) of the Act reads:
"Motion of no-confidence against Pradhana or Upapradhana of Mandal Panchayat -
(1) A motion expressing want of confidence in the Pradhana or Upapradhana may be made in accordance with the procedure laid down in the following sub-sections:
(2) A written notice of intention to make the motion, in such form as may be prescribed, signed by not less than one half of the total number of Members of the Mandal Panchayat, together with a copy of the proposed motion shall be delivered in person by any two of the Members signing the notice to the Deputy Commissioner."
A reading of Sub-section (2) of Section 47, would show that the learned Counsel for the appellant is right as far the aforesaid point is concerned, one matter is actually covered by the decision of this Court in MUNILINGAIAH M. v. TOWN MUNICIPAL COUNCIL, KANAKAPURA AND ORS., 1978 (1) KLJ 239, in which a similar provision of the Municipalities Act, 1964 was interpreted. In the light of the ratio of the said decision it should be held that for a valid requisition under Section 47, signatures of 50 per cent of the total number of Members fixed for the Panchayat under the Act is a must. Even so, the Writ Petitions were not entitled to succeed for the reason, the view taken by the learned Single Judge, in respect of 5 persons that their seats had not become vacant, is correct.
7. As can be seen from Clauses (i), (ii) and (iii) of Section 12(1) of the Act it prescribes the grounds of disqualification. But the seat of a Member becomes vacant only when an order to that effect is passed by the Deputy Commissioner under Section 12(2) of the Act. In the absence of any such order no one can take the stand that a seat of the Member of the Mandal, Panchayat had become vacant on the ground that he had become disqualified, so long as the Member concerned does not admit the disqualification and vacates his office. Therefore, it is not correct to state that the seats of five persons who had not, according to the appellants, attended the three consecutive meetings of the Panchayat had become vacant and their signatures to the requisition should be excluded, as admittedly there was no order by the Deputy Commissioner under Section 12(2) of the Act declaring that their seats had become vacant. If they cannot be excluded, then it is clear that out of 18 signatories to the requisition, two of them alone had ceased to be the Members, by the force of the order made by this Court and excluding those two, there still remained 16 signatories who were Members of the Mandal Panchayat and that was more than half of the total number of Members, i.e., 26. The requisition and the meeting was therefore in conformity with the Act.
8. Lastly, the learned Counsel for the appellants submitted that a representation had been made by the appellants, before the Deputy Commissioner to declare the seats of the five persons aforesaid as vacant and until that representation is decided, the meeting should be stayed. We find no merit in this contention.
9. In the result, we make the following order:
The appeals are dismissed.