Karnataka High Court
Mrs. Anuradhika Manjunath vs The State Of Karnataka on 11 September, 2019
Author: G.Narendar
Bench: G.Narendar
WP 6473-75/2019
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON'BLE MR.JUSTICE G.NARENDAR
W.P.NOS.6473-6475/2019 (LB-ELE)
BETWEEN
MRS. ANURADHIKA MANJUNATH
W/O MANJUNATH,
AGED ABOUT 34 YEARS,
ADHYAKSHA,
BANDIKODIGEHALLI PANCHAYATH,
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149.
... PETITIONER
(BY SRI P.P.HEGDE, ADV. A/W
SMT. BHARGAVI DEV K & I.S.DEVAIAH, ADVS.)
AND
1. THE STATE OF KARNATAKA
REPRESENTED BY
THE PRINCIPAL SECRETARY,
DEPARTMENT OF RURAL
DEVELOPMENT AND PANCHAYATH RAJ,
VIDHANA SOUDHA,
BENGALURU-560 001
2. THE ASSISTANT COMMISSIONER
BENGALURU NORTH SUB-DIVISION,
2ND FLOOR, KANDAYA BHAVAN,
BENGALURU-560 009
3. CHIEF EXECUTIVE OFFICER
BENGALURU URBAN ZILLA PANCHAYATH,
S.KARIAPPA ROAD,
WP 6473-75/2019
2
BANASHANKARI,
BENGALURU-560001.
4. EXECUTIVE OFFICER
BANGALORE NORTH TALUK,
YELAHANKA, BENGALURU-560089
5. THE PANCHAYATH DEVELOPMENT OFFICER
BANDIKODIGEHALLI PANCHAYATH,
JALA HOBLI, BENGALURU NORTH TALUK
BENGALURU-562149
6. MRS. RASHMI
W/O B.K. MANJU,
AGED ABOUT 36 YEARS
RESIDING AT
BANDIKODIGEHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK
BENGALURU-562149
7. MRS. SHAKUNTHALAMMA @ BABY
W/O GOVINDARAJU,
AGED ABOUT 45 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST,
JALA HOBLI, BENGALURU NORTH TALUK
BENGALURU-562149
8. MRS. THRIVENI
W/O JAGADISH,
AGED ABOUT 32 YEARS
RESIDING AT
AREBANNIMANGALA VILLAGE,
BUDIGERE POST, JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
9. MR MUNIRAJU
S/O DODDAMUNIYAPPA,
AGED ABOUT 50 YEARS
RESIDING AT BANDIKODIGEHALLI VILLAGE,
JALA HOBLI, BENGALURU NORTH TALUK,
BENGALURU-562149
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10. MRS. DHANALAKSHMI
W/O MUNIRAJU
AGED ABOUT 34 YEARS
RESIDING AT
BANDIKODIGEHALLI VILLAGE,
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149
11. MR RAJKUMAR
S/O SONNAPPA
AGED ABOUT 47 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149
12. MR. MANJUNATH
S/O KRISHNAPPA
AGED ABOUT 35 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149
13. MRS SHWETHA
W/O CHENNAKESHAVA
AGED ABOUT 34 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149
14. MRS JAYALAKSHMAMMA
W/O SHIVANNA
AGED ABOUT 35 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST
JALA HOBLI,
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BENGALURU NORTH TALUK,
BENGALURU-562149
15. MRS. SHANTHA
W/O GOVINDARAJU
AGED ABOUT 36 YEARS
RESIDING AT MYLANAHALLI VILLAGE,
BANDIKODIGEHALLI POST
JALA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-562149
16. MRS. LAKSHMAMMA
W/O NARAYANASWAMY,
AGED ABOUT 45 YEARS,
RESIDING AT
KADAYARAPPANAHALLI VILLAGE,
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
17. MRS.SUMITHRA
W/O RAVIKUMAR
AGED ABOUT 84 YEARS
RESIDING AT UNACHUR VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
18. MR NARAYANASWAMY
S/O SHIVANNA,
AGED ABOUT 32 YEARS
RESIDING AT
MAHADEVAKODIGEHALLI VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
19. MRS KALAVATHI
W/O RAJANNA
AGED ABOUT 41 YEARS
RESIDING AT YADIYUR VILLAGE
JALA HOBLI,
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BENGALURU NORTH TALUK
BENGALURU-562149
20. MR KEMPANNA
S/O MARIYAPPA
AGED ABOUT 39 YEARS
RESIDING AT BK PALYA VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
21. MRS. RADHAMMA
W/O MUNEGOWDA
AGED ABOUT 39 YEARS
RESIDING AT
HUVINAYAKANAHALLI VILLAGE
JALA HOBLI,
BENGALURU NORTH TALUK
BENGALURU-562149
... RESPONDENTS
(BY SRI M.A.SUBRAMANI, HCGP FOR R1 & R2,
SRI M.PRADEEP, ADV. FOR R3 & R5,
SRI M B CHANDRA CHOODA, ADV. FOR R6 - R8,
SRI C.N.RAJU, ADV. FOR C/R15 & FOR R9-R10 AND
R12-R17 & R20,
R4 - SERVED & UNREPRESENTED.)
THESE WRIT PETITIONS ARE FILED UNDER ARTICLES
226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE NOTICE IN FORM 2 DTD:30.1.2019 ISSUED BY
THE R-2 [ANNEXURE-A] CONVENING A MEETING OF THE
MEMBERS OF BANDIKODIGEHALLI GRAM PANCHAYAT ON
16.2.2019 AT 11 A.M. TO CONSIDER THE NO CONFIDENCE
MOTION AGAINST THE PETITIONER ADHYAKAHA HEREIN
ETC.
THESE WRIT PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 03.09.2019, COMING ON FOR
PRONOUNCEMENT OF ORDERS, THIS DAY, THE COURT
MADE THE FOLLOWING:
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ORDER
1. Heard the learned Counsel Sri P.P.Hegde along with the learned Counsel Smt. Bhargavi Dev.K. & Sri I.S.Devaiah appearing for the petitioner, learned HCGP, learned Counsel Sri M.Pradeep appearing for respondents 3 & 5, learned Counsel Sri M.B.Chandrachooda appearing for respondents 6 & 8 and the learned Counsel Sri C.N.Raju appearing for respondent No.15.
2. The petitioner is seeking for the following reliefs apart from other reliefs.
(i) issue a writ, order or direction in the nature of a writ of certiorari quashing the notice in Form 2 dated 30.01.2019 and bearing No.Chu.Na./CR/28/2017-18 issued by the 2nd Respondent (Annexure A) convening a meeting of the members of Bandikodigehalli Gram Panchayat on 16.02.2019 at 11 a.m. to consider the no-
confidence motion against the petitioner Adhyaksha herein; and
(ii) issue a writ, order or direction in the nature of a writ of certiorari quashing the WP 6473-75/2019 7 communication dated 23.06.2018 (Annexure- L) addressed by the 1st respondent to the 3rd respondent directing the 3rd respondent to withdraw the recommendation for removal of the 6th to the 8th respondents, and immediately file a fresh recommendation under Section 43-A of the KGSPR Act;
(iii) issue a writ, order or direction in the nature of a writ of certiorari quashing the letter dated 06.07.2018 (Annexure-M) addressed by the 3rd respondent to the 1st respondent, recommending removal of the members under Section 43-A of the KGSPR Act, and withdrawing the earlier recommendation under Section 13(c) of the KGSPR Act;
(iv) issue a writ, order or direction in the nature of a writ of mandamus directing the 1st respondent to act in furtherance to the show cause notice dated 18.01.2018 issued against the 6th to 8th respondents (Annexure-
K), as per the recommendation dated 05.01.2018 by the 3rd respondent for removal of the members under Section 13(c) of the KGSPR Act (Annexure-J), and the decision WP 6473-75/2019 8 taken in terms of the letter dated 19.06.2017 to the Respondent No.3 (Annexure-C);
(v) issue a writ, order or direction in the nature of a writ of mandamus to declare that the Karnataka Panchayat Raj (Motion of No-
confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (Annexure-Z) are not applicable to the invocation of Section 49 either under sub- section (1) or under sub-section (2) of the Karnataka Gram Swaraj and Panchayat Raj Act;
(vi) issue a writ, order or direction in the nature of a writ of mandamus to further declare that a no-confidence motion, either under Section 49(1) or under Section 49(2) cannot be initiated unless and until a procedure/new rules are framed as provided under Section 49(1) of the Karnataka Gram Swaraj and Panchayat Raj, subsequent to the Karnataka Panchayat Raj (Second Amendment) Act, 2015;
(vii) issue a writ, order or direction in the nature of a writ of certiorari quashing the WP 6473-75/2019 9 Karnataka Panchayat Raj (Motion of No-
confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (Annexure Z) as being arbitrary and unconstitutional.
3. Brief facts of the case:
The petitioner is an elected member of respondent No.5-Panchayath and later came to be elected as the Adhyaksha of the said Panchayath. The private respondents gave a written notice of their intention to move a motion under Section 49 of the Karnataka Gram Swaraj & Panchayat Raj Act, 1993 (for short, 'the Act'). The intention to move the notice was submitted in Form-I to respondent No.2 - Assistant Commissioner. That pursuant to the said intention notice in Form-I, respondent No.2 issued notice in Form-II as mandated under Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short, '1994 Rules'), thereby notifying the members of convening a meeting on 16.02.2019 at 11.00 a.m. to consider the proposed motion WP 6473-75/2019 10 of no-confidence moved by the private respondents against the petitioner-Adhyaksha. The notice was issued on 30.01.2019. Aggrieved by the said motion of no-confidence, the petitioner approached this Court in the instant writ petition. This Court by order dated 14.02.2019 has been pleased to grant an interim relief in the following manner:
"Without expressing any opinion on the merits of the matter, the proposed meeting could be proceeded with, however, the result of the said meeting regarding the motion of no-confidence would not be announced without further orders from this Court."
4. Pursuant to the same, the meeting has been conducted, but results have not been announced. Prior to the instant writ petition, the parties have been and were before this Court in several proceedings disposed off and pending before this Court.
5. This is a classic case where the petitioner has been taking advantage of the legal processes and the provisions to successfully fend off the convening and holding of the meeting to express no-confidence in her.
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6. The battle of attrition started with the petitioner addressing a communication in June 2017 to respondent No.1 seeking exercise of powers vested under Section 13(c) of the Act, and consequently to remove respondents 6 to 8 (including the Upadhayaksha) from the membership of the Gram Panchayat. Pursuant to the said communication addressed by the petitioner, respondent No.1 by communication dated 19.06.2017 directed the respondent No.3 to take necessary action and file an action taken report. Subsequently, Section 13(c) of the Act came to be omitted by way of amendment. It is submitted that thereafter between July and December 2017, the petitioner addressed five communications to respondent No.4 seeking action against the members under Section 43-A of the Act and acting on the said representation, respondent No.4 recommended to respondent No.3 to initiate action against respondents 6 to 8. On receipt of the same, respondent No.1 got issued a show cause notice to the three members (respondents 6 to 8) to show cause why action ought not to be taken under Section 43-A of the Act.
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7. Aggrieved by the said show cause notice, respondent No.6 preferred W.P.No.26597-99/2018 and this Court has been pleased to grant an interim relief and the said writ petition is pending consideration before this Court. Subsequently, respondent No.1 by communication dated 23.06.2018 directed the office to withdraw the recommendation for removal of respondents 6 to 8 and further to forward a fresh recommendation under Section 43-A of the Act, and in compliance of the same, respondent No.3 addressed one more letter dated 06.07.2018 recommending removal of respondents 6 to 8 under Section 43-A of the Act and withdrew the earlier recommendation invoking 13(c) of the Act. That the said recommendation/proceedings of respondent No.3 recommending removal of respondents 6 to 8 is pending consideration before respondent No.1.
8. In the interregnum, the seeds for the present round of litigation were sown. The respondents 6 to 21 issued a notice of intention proposing to move a motion of no- confidence against the petitioner-Adhyaksha. The notice of WP 6473-75/2019 13 intention came to be moved in Form-I on 12.01.2018. Respondent No.2 on receipt of the same, issued a notice dated 16.01.2018 calling upon them to detail the misuse or abuse of office or authority by the Adhyaksha, within a period of three days, when such authority was never vested in the Respondents u/s.49(1). In short, the respondent No.2 called upon the private respondents to make or state the allegations on which they are basing their proposed motion of no-confidence, wherein in response to the same, the private respondents-members of the Panchayat by their reply dated 22.01.2018 set out various allegations, misuse and abuse of power by the petitioner. That respondent No.4 by communication dated 07.02.2018 intimated that their office had not received any complaint or any statement setting out any allegations against the petitioner and time was also sought to file a fact finding report, after enquiry. That respondent No.2, thereafter, by communication dated 12.02.2018 'temporarily disposed off' the notice proposing motion of no-confidence against the petitioner. The alleged disposal is on the ground that the respondents have not WP 6473-75/2019 14 made any allegations of misuse or abuse of power or authority by the petitioner. The said disposal is said to be made after placing reliance on the Government Circular dated 07.02.2018 bearing No.GAP/887/GPA/2017. The said order came to be passed on 12.02.2018. Aggrieved by the same, some of the respondents approached this Court in W.P.No.14521/2018, wherein they had sought for a direction to respondent No.2 to convene the meeting under Section 49 of the Act. This Court after hearing the parties was pleased to pass the following order on 17.04.2018.
"9. This apprehension of the petitioners can be allayed, clarifying that the order at Annexure-D passed by the Respondent No.1 would not preclude the petitioners in moving any fresh resolution in terms of Section 49(1) and (2) of the Act. The order impugned at Annexure-D being in conformity with the provisions of the Act and Rules, cannot be held to be unsustainable. Hence, setting aside the order would not arise.
However, with the aforesaid clarification, writ petition stands disposed of."
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9. It is relevant to note that the petitioner who was arrayed as respondent No.2 has not called the said order in question, thereby the clarification granting leave to private respondents to move the subsequent motion has become final. Though while disposing off the writ petition, the coordinate bench of this Court has upheld the order impugned therein temporarily disposing off the notice of intention to move the motion of no-confidence. It is relevant to note that in the light of Rule 3(5) of the 1994 Rules, no authority is vested in respondent No.2 to adjourn the meeting for any reason whatsoever and Rule 3(6) details the circumstances under which the meeting shall stand dissolved and the notice shall lapse, i.e., only if there is no quorum within one hour after the time appointed for the meeting. Rule 3(7) also circumscribes the authority of respondent No.2 to initiate any debate nor is he entitled to vote in the said meeting. In fact, Rule 3(7) positively mandates that the motion shall be put to vote without any debate. Rule 3(9) specifies that if the motion is carried, then the Adhyaksha and Upadhyaksha shall cease to hold WP 6473-75/2019 16 the office forthwith. That apart, the proviso to Rule 3(2) details the only instance as to when the meeting shall stand adjourned and the consequence that follow. The unambiguous provisions leave no room for any mischief by respondent No.2 in the matter of convening and holding the meeting to consider the proposed motion of no- confidence. Despite the rigor of the rules the official respondents have abused the authority vested in them.
10. Be that as it may, after the disposal of W.P.No.14521/2018, the members of the Panchayat once again issued a fresh notice of intention to move the motion of no-confidence on 05.06.2018. Respondent No.2 on receipt of the same, issued the notice dated 13.06.2018 in Form-II convening the meeting on 04.07.2018 to consider the motion of no-confidence. In the interregnum the private respondents approached this Court in W.P.Nos.26690- 705/2018. In the said writ petition, it was contended that respondent No.2 did not have any powers to withdraw the meeting notice issued under Rule 3 of the 1994 Rules. This Court by order dated 27.06.2018 was pleased to grant an WP 6473-75/2019 17 interim relief and thereafter taking cognizance of the consideration of the provision of Section 49 by the Division Bench, was pleased to stay the holding of the meeting scheduled to be convened on 04.07.2018 and subsequently, the said writ petition came to be disposed off on 18.12.2018. In the interregnum, respondent No.2 issued another notice dated 03.11.2018 which was replied to by the petitioner on 12.11.2018 and the said notice was called in question before this Court in W.P.No.5182/2018. That the meeting pursuant to the notice dated 03.11.2018 did not fructify as the required quorum was not available and consequently the intention notice under Section 3(1) lapsed. In the above background, the present impugned meeting notice came to be issued.
11. It is contended by the learned Counsel for the petitioner that the impugned meeting notice could not have been issued without deciding the issue of removal of respondents 6 to 8. That respondents 6 to 8 having suffered disqualification and being liable to be removed, could not have invoked the provisions of Rule 3(1) and WP 6473-75/2019 18 neither could have the respondent No.2 exercised his jurisdiction under Section 3(2) to issue the notice, convening the meeting. It is further contended that the meeting notice could not have been issued in view of the proceedings pending before this Court. It is contended that the proposed motion of no-confidence could not have been moved without any specific allegations as set out in Section 49(2) of the Act. He would contend that the Rules do not provide for a separate procedure for the meeting to be convened under Section 49(2) and hence, the Rules are arbitrary and also suffer from the vice of unreasonableness. He would further contend that respondent No.2 - Assistant Commissioner is vested with unguided powers and that the meeting called for without the Assistant Commissioner recording his satisfaction vitiates the impugned notice. He would contend that the Rules are contrary to the Act and hence, the Rules are liable to be struck down. He would contend that the Rule more particularly Rule 3(7) mandating that the motion be put to consideration without any debate is violative of the WP 6473-75/2019 19 principles of natural justice as the petitioner would stand condemned without an opportunity of denying the allegations or aspersions cast on him. In the instant case, according to the petitioner, the allegation is that the private respondents have no confidence in the 40 months administration.
12. Per contra, learned HCGP would submit that the provisions of Section 49 empowers the State to prescribe the procedure for carrying out the motion of no-confidence proposed under Section 49(1). He would contend that the question of invoking Section 49(2) does not arise as no allegations have been leveled against the petitioner and that the 1994 Rules have been framed for the purpose of prescribing a procedure in the matter of considering and carrying out the motion of no-confidence, and hence, the enactment of 1994 Rules is by the authority competent to legislate and is pursuant to the power conferred on the State under the provisions of Section 49(1). He would further rebut the argument of unguided or unfettered power being vested with the Assistant Commissioner. He WP 6473-75/2019 20 would point out the fact that the Assistant Commissioner is not an authority under the Act and that the Assistant Commissioner has been specifically empowered under the Rules to carry out the consideration of no-confidence motion alone. That the provisions of Rule 3 clearly delineates the boundaries within which the empowered authority is required to act and also prescribes the manner in which the authority is required to exercise its powers and also the time within which, it should carry out the exercise of consideration of the proposed motion of no- confidence. He would invite the attention to Rule 3(1) which not only mandates the quorum but also requires the proposed motion to be delivered in person by any two members signing the notice of intention. He further takes this Court through Rule 3(2), and submits that the meeting is required to be convened by the Assistant Commissioner in the office of the Gram Panchayat on the date appointed by the Assistant Commissioner and contend that the Rule stipulates that the meeting shall be held not later than 30 days from the date of the intention notice under Rule 3(1) WP 6473-75/2019 21 was delivered. Pursuant to the same, the Assistant Commissioner is required to issue notice of not less than 15 clear days in Form-II. He would contend that the Rule amply safeguards against any mischief by the empowered authority in the matter of considering the motion of no- confidence. He would submit that the Rule clearly states the time within which the authority is required to act. He would also point out that no discretion in the matter of consideration of motion is vested in the authority. Inviting the attention of the Court to sub-rule (3), he would contend that the manner in which the notice is to be served is also detailed. Taking the Court through Rule 3(4), he would submit that the quorum required to put the motion to vote is also stipulated. He would then invite the attention fo the Court to Rule 3(5) to contend that no discretion is vested in the Assistant Commissioner in the matter of conducting the meeting on the appointed date. He would further invite the attention of the Court to Rule 3(6) to point out the only circumstance in which the notice of intention shall stand lapsed and the meeting dissolved. He would also invite the WP 6473-75/2019 22 attention of the Court to the restriction imposed on the Assistant Commissioner to speak on the merits of the motion and also the prohibition, prohibiting him from participating or casting his vote in the meeting and he would sum up by contending that the Rules are the self- contained rules and allegations of arbitrariness cannot be leveled against the Rules as the framers of the Rules have guarded against any arbitrary action and have not vested any discretion in the authority in the matter of carrying out the proposed motion of no-confidence. Hence, he would contend that the Rules do not suffer from the vice of arbitrariness. The manner, method and the time frame within which the power is required to be exercised by the authority are stipulated under the Rules are neither ambiguous nor do confer any unfettered power.
13. The contentions advanced on behalf of the State carries substance and merits consideration. There can be no dispute that the Rules are framed in exercise of the powers conferred under Section 49(1) r/w S.311 of the Act. In that view of the matter, it has to be held that the State is WP 6473-75/2019 23 competent to legislate the Rules. Secondly, as regards the contention of arbitrariness, the same requires to be rejected in the light of sub-rules (1) to (9) of Rule 3 of the 1994 Rules, which clearly demonstrates the parameters under which the authority is required to act. The time frame and the manner of voting and fixation of the number of votes required to carry the motion, rule out any arbitrariness in the exercise of power by the nominated authority.
14. From a reading of the Rules, it is apparent that no discretion is vested in the authority in convening and holding the meeting. The rules provide for safeguards even in the matter of adjournments also and no discretion is vested in the authority holding the meeting. Hence, the contention on behalf of the petitioner that the Rules are required to be declared as ultra vires as they being arbitrary requires to be rejected and is accordingly rejected.
15. It is contended by the learned counsel for the petitioner that Section 49 (1) of the Act read with Rule 3 WP 6473-75/2019 24 postulates four mandatory steps to be performed for compliance with the aforesaid provisions i.e. the notice of intention to make the motion ought to be signed by 1/3rd of the total number of members. That section 49 (1) is controlled by sub-section 2 and no motions without allegations can be entertained and the proposers ought to give 10 days' notice of intention to move and the notice of intention ought to be personally presented.
16. Per contra, the learned High Court Govt. Pleader would submit that there is no quarrel with the proposition made by the petitioner, but would contend that in the instant case there is absolute compliance with the mandate of Section 49(1) of the Act and Rule 3 and hence, he would pray for rejecting the contention. Though there can be no quarrel with the proposition set-out by the learned counsel for the petitioner, learned counsel for the petitioner is unable to point out any infraction of the provision of Section 49(1) of the Act or Rule 3. The contention that sub-section (2) of S.49 controls sub-section(1) is unfounded. The other contention is that the proposed WP 6473-75/2019 25 resolution should also be enclosed and should accompany the notice of meeting circulated amongst the members. The said issue is no more res-integra in the light of the law laid down by the Hon'ble Division Bench in the case of Smt. Laxmavva Vs. The State of Karnataka and Others. The Hon'ble Division Bench was pleased to observe and held in paragraph Nos.10 and 11 as follows:-
"10. On perusal of the records, especially the written notice, we find that there is substantial compliance of Rule 3(1) of the Rules. In such case, mere attracting the copy of the proposed motion would be duplicity of the work and that by itself cannot be a ground to set at not the democratic exercise of the members in functioning of these local Governments. When the notice of the majority members makes it clear their intention, mere non-enclosing the proposal would be only an irregularity and in our view does not cause any prejudice to the other side.
11. The learned Single Judge, in the case of Mallamma, has merely relied upon the language of Rule 3(1) and held that if the notice does not accompany (separately) the proposed motion of no-confidence, is bad in law. We do not agree with this proposition. In our view, non-compliance has to be seen in the background as to whether the same has caused any prejudice to the person aggrieved."
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17. In the light of the above, the said contention requires to be rejected and is accordingly rejected. The other limb of argument that the Assistant Commissioner has not personally received the same, stands controverted by the documents produced. This court has summoned and perused the file and found material that backs the Petitioner's allegation . On the other the documents clearly controvert the contention. Learned counsel for the petitioner would make a fervent plea that this court ought to adopt a purposive approach and interpret the provisions in the light of the Societal developments. Though the said contention can be appreciated but in the facts and circumstances of the case it would be a mere academic exercise and the same can be adjudicated in an appropriate case.
18. The further reliance on the ruling of the full Bench in the case of C. Puttaswamy Vs. Smt. Prema, reported in AIR 1992 Karnataka 356 is of no avail as the law in that regard has been settled by the full Bench of the Hon'ble Apex Court in the case of K. Narasimhiah Vs. H.C. Singri Gowda WP 6473-75/2019 27 & Others, reported in (1964) 7 SCR 618:AIR 1966 SC 330. The Hon'ble Apex Court while interpreting the effect of Section 36 of the Municipalities Act, was pleased to observe in paragraph Nos.16 to 21 as follows.
"16. It is important to notice in this connection one of the provisions in Section 36 of the Act. It is in these words:
"No resolution of a municipal council or any committee appointed under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any councillor or member provided the proceedings of the municipal council or committee were not prejudicially affected by such irregularity."
17. It is reasonable to think that the service of notice mentioned in this provision refers to the giving of notice to the Councillors. Quite clearly, any irregularity in the manner of giving the notice would be covered by the words "irregularity in the service of the notice upon any Councillor". It appears to us however reasonable to think that in making such a provision in Section 36 the legislature was not thinking only of irregularity of the mode of service but also of the omission to give notice of the full period as required.
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18. It is interesting to notice in this connection that the English law as regards meetings of borough councils and county councils contain a specific provision that want of service of a summons to attend the meeting (which is required to be served on every member of the council) will not affect the validity of the meeting. It may be presumed that the legislature which enacted the Mysore Town Municipalities Act, 1951, was aware of these provisions in English law. It has not gone to the length of saying that the failure to serve the notice will not make the meeting invalid. It has instead said that any irregularity in the service of notice would not make a resolution of the Council invalid provided that the proceedings were not prejudicially affected by such irregularity. The logic of making such a provision in respect of irregularity in the service of notice becomes strong if the fact that the notice given was short of the required period is considered an irregularity.
19. The existence of this provision in Section 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in Section 27(3) is only directory and not mandatory.
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20. We are therefore of opinion that the fact that some of the Councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already stated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the "irregularity in the service of notice".
21. We have therefore come to the conclusion that the failure to give three clear days' notice to some of the Councillors did not affect the validity of the meeting or the resolution of no confidence passed there against the appellant."
The provisions of Section 57(2) of the Act, 1993 are also virtually in pari-materia and reads as under:-
"57(2) No resolution of a Grama Panchayat or of any Committees of a Grama Panchayat constituted under this Act shall be deemed invalid on account of any irregularity in the service of notice upon any member, provided that the proceedings of the Grama Panchayat or committee were not prejudicially affected by such irregularity."
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19. The sole ground on which the writ petitions are canvassed are, the meeting convened by the empowered authority i.e., the Assistant Commissioner stands vitiated on account of failure on the part of the authority to give 15 days clear notice. The fact remains that none of the petitioners have canvassed the case of any prejudice caused to them. It has not been explained by the petitioners as to how they have been prejudiced by the said irregularity in service of notice. On a conjunctive reading of sub-sections (2) & (3) of Section 57, it is apparent that unless and until the members of the Panchayat are able to demonstrate that they have been prejudicially affected by any irregularity in the service of notice, the meeting convened and resolution passed are deemed to have been duly convened and passed.
20. Though several citations have been filed into court by both the parties, many rulings are not of assistance in settling the controversy arising in the instant writ petitions. In the light of the provisions of Section 57(2), any WP 6473-75/2019 31 irregularity in the service of the meeting notice would not vitiate either the meeting held or the resolution passed.
21. On perusal of paragraph 17 in K.Narasimhaiah's case stated supra, it is apparent that the Apex Court has held that the failure to give clear notice of certain days is a irregularity that would be covered by the irregularity in the service of notice. The Apex Court has held that the omission to give notice of full period is a irregularity. Proceeding further, the Apex Court has been pleased to hold that the provisions of Section 27(3) which mandate the mode of service and the period of notice is to be construed as directory and not mandatory in the light of the provisions of Section 36 and proceeded to hold that the irregularity did not invalidate the resolutions passed in the meeting convened pursuant to certain irregularities. In the light of the law laid down by the Hon'ble Apex Court as aforesaid, the writ petitions must fail. Accordingly, writ petitions stand dismissed.
WP 6473-75/2019 32 Interim order granted earlier stands dissolved. The respondents are at liberty to announce the results forthwith.
In view of disposal of the petitions, I.A. 2/2019 for additional grounds and I.A. 4/2019 for vacating stay do not survive for consideration and is accordingly disposed off.
The original file of the Bandikodigehalli Gram Panchayat be returned to the learned HCGP.
Sd/-
JUDGE KK/Chs* CT-HR