Karnataka High Court
Smt. Megha W/O Vijakumar And Ors vs The Deputy Commissioner on 5 September, 2011
Author: N.K.Patil
Bench: N.K. Patil
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH AT GULBARGA DATED THIS THE 5TH DAY OF SEPTEMBER 201 ia BEFORE THE HON'BLE MR. JUSTICE N.K. PATIL -- WRIT PETITION NO.83585 OF 2011 (LB-ELE) Between 1. Smt. Megha W/O Vijakumar,. Age:35 years, Occ: Adhyakshya = TMC Aland, R/O H.No.8-4-22, ~ Near Sri Ram Mandir, Brahmin Galli, Aland, Dist. Gulbarg Bie... Sri. Basheer Ahmed § s/C O Ibrahimsab Shabdi, Age: 38 years, Occ: Upadyakehya, TMC Aland; R/G Near Teen Dukan Bhalier Peth, Aland, Dist: Gulbarga. Smt. Mashakiee Ww /O Arif Ansari, Age: 32, years,-Gec: Member, TMC Aland R/O Old Ansari Mouia, Aland, Dist. Gulbarga. Smt. Rafika Begum W/O Adbul Qhyyum Qureshi, ~. Age: 41 years, Occ: Member TMC, 'Aland, R/O Mangwada Area, ' Darga Base, Aland, Dist. Gulbarga. Sri. Maadhu S/O Yellappa Waddar, "Age: 34 years, Occ: Member, TMC Aland, R/O Matki Road, Aland. 6. Shahjirao S/O Ladappa Mane, Age:36 years, Occ: Member, TMC Aland, R/O Sultanpur Gali, Aland. (By Shri. R. J. Bhusare & Shri. B. V. Jalde, Advecates) 7". 7 And 1. The Deputy Commissioner, Gulbarga. 2. The Chief Officer, Aland, Dist: Gulbarga. - _ ns ... Respondents (By Shri. Amresh S. Roja, Advocate) =. | eee a This Writ Petition is fiied under Articles 226 and 227 of the Constitution of. India, praying 'to issue a Writ of Certiorari *o quash Annexure-A issued by the 2"4 respondent dated 02.09.2011 bearing No.ALAND/CHUNAVANE/2011- 12/834 as illegal etc. ~ This. writ petition coming on for Preliminary Hearing this day, the Court made the following: ORDER
: 7 _ Assailing the correctness or otherwise of the 'No Confidence ~ motion' notices moved against the os Adhyaksha and Upadhyaksha, both dated 2nd "September 2011 issued to petitioners 1 and 2, by second respondent vide Annexures A and B, petitioners have presented this writ petition.
2. The facts in brief are that, the first petitioner is. .
Municipal Council, Aland, Gulbarga District. They have :
called in question the impugned notices, issued to petitioners 1 and 2,° calling : for special general body meeting on 6" September 2011 at 11:00 A.M. for moving 'No Confidence . motient against them. Bo I have heard learned. counsel appearing for petitioners and perused the entire material available on file. :
a, 4. It is the. specific contention of the learned io ; counsel appearing for petitioners that the impugned notices issued are contrary to the relevant provisions of the Karnataka Municipalities Act for the reason that SS only three days' clear notice is issued, including Saturday and Sunday, when in fact, sub Section (9) of po | Section 42 of the Karnataka Municipalities Act, 1964 (hereinafter referred to as 'the Act' for short) stipulates for at least ten days' clear notice of the intention. "to.
confidence motion' moved against the Athyates and Upadhyaksha is liable to: be. set aside for, viola ating te. mandatory provisions of the Act. |
5. After critical: evalua of the entire material placed before me, it is seen 'the impugned notices are issued _ for. moving' 'No confidence m motion' against the petitioners : in the posts. ot Adbyaksha and Upadhyaksha respectively, hing the date of special general body meeting on 6m S Se eptember 2011, at 11:00 A.M., in the i Meeting Hall of the Municipality Office. The bone of
- 7 contention of the petitioners is that there is no clear ten days notice as required under Section 42(9) of the Act and cherefore, it is liable to be quashed. In this regard, SS it is. significant to note that out of 20 members of the Town Municipal Council, Aland, 14 members have
--_ submitted their requisition to the Adhyaksha of the Town Municipal Council, Aland, seeking to call for a special general body meeting as provided under Section.
42(9) of the Act, to move the 'No Conf: idence Motion a against the Adhyaksha and Upadhysksha with < a copy © the same to the second respondent, ; as ear ly 4 as. on. a August 2011. When the seid request - was neither considered nor any decision was taken on 1 the same, the members had no other option but 'to submit a representation aie! gna September 2011 to the second respondent as jrovidéd urider gdb Sections (9 (9) and (10) of Section 49 | cw. Section 48 of the Act, who in turn, has issued the impugned notice dated 2.4 September 20 11, fixing the special general body meeting for moving 'No confidence Motion' against the petitioners 1 and 2 herein "ont Gib September 2011, at 11:00 A.M. in the Meeting Hall of the Town Municipality office. It is SS pertinent to note that here itself that, as per Section 48 of the Act, three days' clear notice is sufficient in a case ee of great urgency. In the case on hand, when majority members have requisitioned the Adhyaksha to cailfor a special general body meeting for moving 'No Confidence: .
being the Adhyaksha of the Town Municipai Council, * has not been diligent in proceeding in accordance with the relevant provisions of the Act. Therefore, having no other alternative, the members were forced to submit a representation io the second respondent. who in turn, invoking sub-Sestions 9 'and 10) of Section 49 r/w. Section 48 of the Act, has called for the special general body meeting, for moving the 'No confidence motion' a against the petitioners 1 and 2, giving three days' clear ms ; notice. I do not find any infirmity or unreasonableness in the impugned notices issued to petitioners 1 and 2. It is pertinent to note that when the members requisitioned the Adhyaksha/petitioner No.1 regarding moving of 'No confidence motion' on 16 August 2011, b the petitioners were well aware of the fact that the members have lost the confidence in them and are intending to move the 'No confidence motion' against can be concluded that there was abundant time at the disposal of the petitioners +1 and 3-0 take action. But they have failed to do so. When once. they have lost the confidence of majority of members, it is the duty of the elected Adhyaksha or the Upadhyaksha to accept the same gracefully and face tite no confidence motion and try. to win 'their confidence with good deeds. Instead of that, approaching this Court at the eleventh hour, by filing the writ petition on 3™ September 2011, on when the special general body meeting to move the 'No . confidence motion' is scheduled to be held tomorrow, ie on 6 'September 2011, is not justifiable nor the sanie is appreciable. Hence, interference by this Court,
- at this hour is uncalled for nor the petitioners have made out a good ground to invoke the extraordinary jurisdiction of this Court, under Article 226 of the Constitution of India. |
6. At this stage, learned counsel appearing for.
petitioners submits that the Division Bench of this _ Court in a reported judgment has held that 'there should be a clear ten days' notice for moving a 'No confidence motion' and in the absence of the same, the proceedings to be held invalid. In this connection, it is worthwhile to refer to the judgment of the Hon'ble Apex Court in the case of EK. Narasimhan, Vs. AC. "Singri Gowda and others. [ALR 1966 Supréme Court 330 (V 53 C 66), wherein at paragraphs 20 and 2 1, it has held thus:
"20. We are, therefore, of opinion that ihe fact that some of the councillors received : less than three clear days notice of the os meeting - did not by itself make the proceedings of the meeting on 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 fo 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 thet the - oo proceedings of the meeting were prejudiciaily affected by the "irregularivy in the service ff | - notice." -
21. We have, 'therefore, come to the"
conclusion that the failure tc. 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 a@ppellarit." (emphasis supplied) i the ratio of law' taid down by the Apex Court in the aforesaid judgment is is taken into consideration, it can be seen: that in the case on hand, it is definitely not the case of the petitioners that the proceedings are : prejudically affected by any irregularity. Therefore, in view of the aforesaid decision also, the prayer sought for os by: petitioners cannot be considered and is liable to be | rejected.
107. For the foregoing reasons, the writ petition filed by petitioners stands dismissed as devoid of. merits.
Ordered accordingly.
In view of disposal of main writ petition on merits, the prayer sought in I.A.I1/2011 for irapleading does not survive for consideration and is acccrdingly, dismissed.
JUDGE BMV*