Yellappa Basvani Tashildar vs The State Of Karnataka on 12 March, 2008

[Cites 12, Cited by 1]

Karnataka High Court

Yellappa Basvani Tashildar vs The State Of Karnataka on 12 March, 2008

Equivalent citations: AIR 2008 (NOC) 2879 (KAR.) = 2008 (5) AIR KAR R 245, 2008 (5) AIR KAR R 245

Bench: B.S.Patil

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Sri. Yellappa Basvgni Tash.i1dar,  :.

Age: Major, Occ; Agﬂcultum, "  < V ._
Member, Telu1:%PaJi19hayat, 3?  "  
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Sri. Mara1ti.§?arshi:ifa1;1~Eiu%gji,"~~.. ' -
Aged %4B/y:a1*s, Occ: 'Agricultum,
President Taluka Panéhay "t,-. Belga1'_1_1i1_.
R] o YaJ1_ur, Téduka   

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 .}Dcparnnent of Rural Development-as:
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W.P. 12061/2006 C/W W.P.12062/2006 2 These Writ Petitions are ﬁled under Article 226 8r. 227 of the Constitution praying to quash the impugned order-"'passed by the 1" respondent-State Government dated 27.02.2006 as per Annexure-H as illegal and void and etc.. -- 2. These petitions coming on for ﬁnal disposai"

having been heard and reserved for I3I'0ﬂ011_I1CB!IiBI1"[VOf-- o1ti_er,q this day the Court made the following!" A

1. In these two writ peﬁﬁonsviieojntxnon i1uestions:'i)f fact and law are raised. Hence, toeether and are disposed of by this . iv

2. The cha1ieoi§g.Ii1ade -,the"petitioners is directed against the order itiypp holding that the petitioners of misconduct in the discharge of their dutriiiespas Adhyaksha respectively of the Ta1ui{.a"'Panchayath; Bfegeum, Beigaum District -41-- t1i..it~ '1A'i':|::|'IA' « rnrnnurni '':~-\ {Jun an-n';-I ru-ants 4-1' a. ' C93,:-'i;3{'._'.'_'u.hJx.».I.I..|a:.gu.: «.su.n.uuvu.: .I..u.u..I..I."" Luv uctliu. 1:126 . J..l..I. ~"f"i'i.f"-« the writ titions are assed ii at i _ separately,' nature of the allegations made and the nature of held is similar, hence it is felt appropriate to dispose of _ itheseicases together.

" ii.' The facts ieatiing to these writ petitions, stated in nutsheii A are, that the petitioner in W.P.No.12061/2006 and the 8/ w.p.1:2oe1/eooe C/w W.P.12062/2006 3 'petitioner in W.P. No.12062/ 2006 were elected as Members of the Taluk Panchayath, Belgaurn for a period of 5 the eleetious 1; -..d_ 9. ztnizizeesi 0:1. 316012905, ';oiée:"a-.1 the "i'aIuKa' Panchayath was heid or; goon. i' The Executive Officer of theV.eTa_iults"

members of the Taluka iniiltilieiimeeting.

The Executive ,. and Upadhyaksha and other the Adhyaksha of the Taluka proceedings of the (peﬁtiouer _i':2Qf6~3..:]'tf2GO6) interrupted the proceedings and raised' the issu'e ofiuiiiiication of the area into Maharastra Siiizorfzii-:settleniei1tv----e1""the border dispute between Karnataka for a long time and proposed a resolution for siibiiiissiorif petition to the Central Government and the Suprezneelclhoiurt in this matter. At this stage. "the Executive 0 I "B 3 § lie 1-O-

J3.

-1 permit the proposal to be tabieci for discussion as the subject did not come within the powers, functions and jurisdiction of L W W.P.12061/2006 C/w W.P.1206'2/2006 4 the Taluka Panchayath and that such a resolution will be illegal. He also informed that as the matter was the Adhysksha permits.-:d the discusisn on t}1ect'*rf's'r:';V'n3r. the Member (petitioner in P.i\io.1i;{"61.j 26.' 5),.' 'ch 'r=esu!_teci in serious protest from they o_ther""members;'"'i~ ; pandemoniurn as the members _shouet.inj; 'slogans for and against the proposal {§4espite?"i.ei1'ottsV_ byuuthe Executive Oﬁicer to restore peace of the meeting in a dtscip1iued::__ma1uier;~ it'"Was___Viiot possible as there was utter Eﬂizyrts ms-Me by Le E..ecI....l.='.. Oﬁiner tciicnunvhsce "*0 M''"'"''"''*''- "t m discuss u.|.t.= borin- issue wefe in vain' ' . *}"\tsav«1esuit, the Executive C'Jﬂ"icer alo' ngwith the Oﬁicers the On the same day, the Executive = narrssted A'the.....s,b'ove incident submitted a report V.V,da.:teti~. _ to the Chief Executive Oﬂicer, Zilla A copy of the said report is produceri by ' i the at Annexure-D. * on the report of the Executive Oﬂicer of the Taluka lifahchayath, the Chief Executive Oiﬁcer of the Zilla Panchayath, Belgaum, wrote to the State Government addressing a letter to !\E'}./ W.P.12061/2006 C/w W.P.12062/2006 5 the Private Secretary to the Minister for Rural development and Panchayat Raj and Minor irrigation Annexure-E bIinging.'4'te.V_the nnﬁnn n .IuI.\IInIl.r\l' \Jl I-IL 'oy me" Execuﬁve Gn"'icer. Theieai 09.05.2006 vide An.nexum--A was isaned..by§ the to ﬂan unrnrnnn +119 -inn-iﬂn-n 1' n "I£II"|'f\l=|1'1C«I=I""'!.1V'tE-..ﬁ'i'aL'-.|¥'4iV.f! \.v .54 ._-as-nun.' tr'._|J the petitioners calling upon then: toV"3liow-cenaepavvhy ., should not be initiated against under'-S'eciion':';136 of the Act for removing them _lllemher fAdhyaksha of the Taluka Panchayathpﬂfoir were given time till = statement and

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p. m., beilemi the Government. The show cause notice further Jnadep it eiear if no statement written or oral '~ wag will he proceeded with, treating that not have any explanation to offer and action wouldibe in accordance with the provisions contain' ed 'pundef eeiaioﬁ 136 of the Act.

The petitioners submitted their written explanation on .,1'?§.06.2006, but they did not appear for personal hearing ﬁxed on 29.05.2006 at 3.00 p.m. In the written reply submitted, the la."

'K/Y W.P.12061/2006 C/w w.P. 1206212006 6 petitioners asserted that their action seeking permission to have a discussion and to pass a resolution in the hueetisig'...o£._tJ1_.. 11}'lIJ'ITQ+ -in 1- A rnnffan .

suaunua a u.uCu.n.ua._y mu: I-LI. um. u.uaI.u.-T w of o ffiéi' dispute between and iviafnarasiitraawas weii» , witnm' the power and junsd' iction ofithe f!'ai1?i1-ti:1,.F5:ancha3fiath'Va3,nd the Executive Officer was wrong insisting thatV'i' ; table the proposal and have discussion on to pass a resoluﬁon in that rega1t:i__sh.o1ﬂ_d :b_e.::given. petitioners denied that they had _ They also contended on1y"£e)€encising._.their light of freedom nt' spmnh n....:1 1. was their 5'-gt-... and due; m ewmss the whee 'f 'uu::L' people Wh' ' rnembers of the Taiuka Panchayath. « It by the petitioners that under Rule 3_(rn) ofthe Panchayat Raj (Business) Rules, in the opinion of the Adhyaksha is neceissary to the notice of the Panchayat, could be brouight eeriseihe Talulca Panchayat and permission could be 'agivenuto discnss the same in the discretion of the Adhyaksha.

-The State Government has considered the matter in the " of the defence taken by the petitioners and other relevant " V materials. It referred to the provisions mtnﬁned 1.1_11der in, , "U/ W.P.12061/2006 C/W W.P.12062/2006 7 Section 141(2)(i] (wrongly referred as 141(1)(i) in the impugned order) which prescribes the procedure for conduct of 'meetings of the Taluka Pahchayat, The 3.5.2.111. p1'ovLgicI_1 gta_-g ;. A4 'No proposition shall be disagssed .o'r"difLargV_ meeting unfess it has beef; entercti' w.wem'r" 5 .... ...m-,... _ or .%e.:vof:'a L meeting_. in the wﬁttenV'nf-{quest A " V member may propose anyfesoiagtion with or incidental to' the:'subﬁét:ts :n¢:.;a3d in Vhhmé list of business. The any urgent or"can_o'e;! afty resoluthion' "within six months after I ;iassingVVVti-iemevcf in? accordance with clause (In). in': vnzwnhar :1 nine 3': . _ .......{_, ..'................. .. 3...... 1...... ............. ...£..... -... the meeting and be guided by the majority A of cafes Qivenfor or against the proposal'. . s Referring to the above provision, the State Government has found that the subject matter pertaining to border diopute

-between Kanlataka and Malinarashtra was not on the agenda of 5 lulu: an 11917 1' _ 11_,m wgm _1_1__ o was-an-swan. 4 an-u.o\v-In-4-wt-J V-an-an-In at ur- fhp ntﬂinnrw rns-5-H 0 "A4 / WZV W.P. 1 2061/2006 C/w W.P. 1206212006 8 notices for discussion of the said subject at the meeting. Hence, the member had no right to propose or table the said' .subgeet for It t"----'--~--~_.r_.t rt*--=-

d1s.cus....~ ten !=-....n.d for p.%s1...ﬁg any msostttton. wt.» s not an urgent s"'o"ect of roiime. in-.att11e«-- couid be proposed for discussion at ginistsnce;/die 0 Adhyaksha. It is also evidentgthett the" suh_iect for discussion at the instance oi' allowed and taken for discussioiiﬂoy instance of the Member-petitioner who was one of the members ..nv:e1tter be taken up for ditanmnsinn- "f,--._,;.1'§,"'*~_,l,E_fI;'1'I_'V"v. ma I"ggQ'r'd_ ed 9_ ﬁndit-ta 1- n

-----w-év-v------vvoau v a 0 Ir I-5-I-5!-tl-4-I-$6 I-I-INII-It a.a"" pet ﬁ}t""v§i't3'tus'"I't:a c~«t,+-~t-at}. -.-.;"s.:---.ct-~t-ts 145, 146 at 147' of the Act, Vxneithei" the nor the Members of the Taiuka Panchayathhiihad duty or function to discuss and .. ., the ssid'v*--t'na'tter pertaining to the border dispute a matter leﬁ for a. separate Forum having authoiityf such issues. It was therefore held that the '._bordt%.te. dtgﬁttm did not legitimately constitute the duty or _-s;_1t:=t1-1___I._, -1' t___ ___lu__a _s_a_I:I_-h.r.a._\,r._t.. t- he d.1§.1£'-!.'.-.'3S...d. aw... r°so1vtm' '"'d a.a"" it 'ms *'"'t t4':'r' f't1ne'"'n of the 'i'""t1ka 0' hi-ianchayath the articuiation of the same before the Taiuka Panchayath was against public interest and for extraneous I W W.P.12061/2006 C/W W.P.12062/2006 9 purposes alien to the duties and functions of the Taluka Panchayath.

8. Based on the above ﬁndings. the State to the conclusion that the pctitioners<WereAgu'i1ty_,;ojf it ' alleged against them which entaiied son ,tia_n provided u_nder ofthe "iSeeoIdi11gly;'i' the Panchayath and of iss vitiated the atn'm_sphei'e"' ' xfiunctioning and developmentgoff the divisive activity creating of the panchayath on were ordered to be removed from the post' i Adhyaksha of the Taluka _ Paneaghayth ..inin1ediate eﬁect. T Aggrieved by the same, the " 1- o u present L at . e.1...ons ....=-m ..L-d

9..W Vﬁlounsel appearing for the petitioner contends «:was no fair and reasonable opportunity given to the 3.00 p.m., the petitioners were under the ' I!' ve th .ir s v. He contends that though time was _.- j__ __d an .1-5; 1;

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\.F'ﬂ.In 'i'I.LuteLS they had already ﬁled written replies, they wouid be given time W W.P.12061/2006 C/W W.P.12062,/2006 10 to give their oral statement. It is also contended by the Counsel for the petitioners that once the allegations were t_h__. u

- u-u-..-u.n-.1-u.--J Iv I-I-no 9!-II-lolflﬂ. gﬂ nfhnrihr m a lunar! to ﬁts-..*ne th*r*aﬁer "i"C'f:f:1'i in th* *""r by providing , lead evidence. Reliance is placed 4by'-the:w-!earned ' Counsel on a decision rendexedby theinpex case of:

Khan: chant! Vs Union qr India in 1953 so

300. It is also contendedLt.'1attheﬂ1;e;iott.iof.the Exact-am Officer of the Taluka Panchayat was neﬁﬁoners and no opportunity was to next contended that r-

petitioner in w..?. who was discharging his duties as the attention of the Court to v e_V$ect;it§n with removal of Adhyaksha and Hence. he contends that action if at all any tee Mieitttieatea and taken against the petitioner in ﬂvW.P. 2006 only under Section 140(4) of the Act. A with the allegation made charging the petitioners misconduct, learned Counsel has contended that the actions of the petitioners in expressing their views, feelings and we w.P.12o61/2006 C/w W.P.12062/2006 1 1 emotions will not amount to misconduct. He has contended e that this was not a new incident that was happeninqgwissiisuch :eec.u.:o*-s were in fee. pass..d in the %. ...:=.zi V:-Deputy Commissioneis used to suspend the ﬁS"i'"?.iL"i'1"' .- fie -pier'-~'. V neiiance on the decisions of the Ape); fjinpcase of i of India on on. V: J.Ahm¢d. r.sra9me"api'Am mg, contend that the action of not constitute m1sco' nduot. Reliance :«9n:th.e judsnnent rendered in the case of Ram and On, reported in _ 1574, freedom of speech und-.. A.¢L= 1$§(£,\a) meant. t..- -.g'-3.1-'t_ e-"press _n_.s _p1__.1-n Hy .-. )-...,....-d- [T iii any G"1'|£nr 7 mannerpairid V this" Right can be reasonably restricted only for mentioned in Article 19(2). He " «..hasv-':oiaq_A-placed on the decision reported in the case of Board snamananpur, through Bishan " it it '|i"e'pj,._'.__JiVe1V:i-(«it Magistrate, Bhahlahanpur, reported in AIR j 1953 369, in support of his contention that removal it it V' of the petitioners on the ground of misconduct was illegal. is also placed on the decision in the case of i .Rhanua..a..._.h.t.In! 1!; 3:91: of and Ann,

-- -1- ---3.'---

L, W W.P.12061/2006 C/w w.P.12o62/2006 12 in 1999(1) XL! 731, to emphasize the fact that there "was no persistent remis on the part of the petitioners.

11. The learned Government Pleader has contended:

petitioners had committed miscond;uct'*by't'omiuig[ 'adisciission' f on a sensitive subject which was the d1.._es n.._.d -_._.I _.1._rI.s -1' t._- _a_l1_.1<.a~~ a_.n-h-.},r,t,a.n_ mcned ill-will M-'ong various sec"uo'1s arru""" den-t';:ar"b=" =-M" Tue conduct of the petitioners. it is contended', The actions of the member the against the Authority of disharmony in the residents_of_Athe"'area,V_' functions of the Taluka Panchayat.asiiprnentionedaiunder-9 Sections 145, 146 and 147 of the Act, contended that petitioners had resorted to = were their powers and functions and it was "ﬂuent Government 1"-'ieader has auso _1__ contended the petitioners had deliberately abstained from hearing and did not avail the opportunity of personal i heaﬂing and hence they cannot be heard to say that there was _,Vany violation of principles of Natural Justice. He also asserts that 'misconduct' as deﬁned under Section 136 of the Act Iv] W.P.12061/2006 C/w w.P.12o62/2006 13 includes any such disgraceful conduct on the part of petitioners which is highly reprehensible, irresponsible and at distlnrhlng me peace '_In t.h__. l c H ___._..-J .

12. I have heard the learned ccunsel itolti'. the it petitioners and the learned Govemni.ent:1'.l'Ieadler considered the entire materials» hefore The" V n c n ' ., n ' 1, u "u. n V nueshcn that arises for ccns'.dera*J.en in the "WI pe 1 Mr. W Govemment removing thg.patiti_ne-m f_i'"s.m"the post of Members 'of '--'tF't:1ltJ_IeLit dPcmchayat is illegal at? t

13. It has outset that the petitioners had been Iemovgd' on the ground that they had committed miscondtiot 'tn "ttctjng against the interest of the V' alsoﬂof State by raising an issue that was not Taluk Panchayat and which vitiated the W.P. 12061/2006 C/W W.P.12062/2006 14 personal hearing by ﬁxing the date of their appearance on 29.05.2006 at 3.00 p.m. Though they did not chooseVV_0t9::iaVail 1-an rrruru-ti-I-11 113117

4. 1,." ' . ' '._ * "

I-I.-'l.D lltﬂ-I'-I-I-I-I.l.LI.l.-_y F319 L.|.|:I.I. 1.1. t-I-I..I»I.r:\-ulna.' I-3-.a-v ' '!n and a.' ' submitted their written A pewsal ' by them makes it clear that they proposal of unifying the area wiizhthe of e. wen within their jurisdiction they eeee with an intention to pass a. xesoiiition have also stated that the Executive witoneiiiii-'~asseIting that no such permission the subject and ﬂees a meal'.-3""? '" * *-'* »**=m=-end. r LIAILI. Jays. I..|..I.UuIt. &\v'B!oI-0

15. The pe'ﬁtioti::r- 12062/2006 stated in his reply that as »-- Karnataka Taluk Panchayat _ (Flusiriessi. R111 .1999 _' nv m__tter, the opinion of the P'anehayat"woui¢i"he 'omught before the Taluica Panchayat and 0 it _ that"tJ1e .._reso«h1ﬁon to be passed was one such matter in his he has categorically asserted in the reply submitted , giving permission to discuss any subject of interest to the id Taiuka Panchayat or to the people in general was within his discretion as Adhyaksha and that he had acted within his power ii.«.i/ Y w.p.12o51/2005 C/w W.P. 1206212006 15 and authority. The reply submitted by the petitioner in the one gem I5' connected writ petition bog W1_P.. No.12Qt51 *~--..

I I-1-In csafnn 'I on-f in 1-31:: avian: 1-n: r,|1n1\ -1-uni-3-"gm.-u 'Va; I-I-In\t 35'-I-I-I\t 'fl-1't\'L, I-I-I '-I-I-KI $31..-.l.¢l.Dl..«, -Isl-'I mu J". Mn .11' w Q', asserts that the subject was propose-ft by pass a resolution as it was within ;3owier's.and"-auﬁ1orﬁ:.t of ' the Panchayat.

16. Tho '"'v'iors and 5.5-eta'.-._ns.-- of-the. 'r-'-.:1<~2?--%c-uu- enumerated in Chapter of Panchayat Raj Act, 1993. The is and Powers of Taluk Panchayiat,V Section 145 states t_ha.tH perform the functions speciﬁed,' in scxhea.u1§oi:,1"si1h--cr:ause (2) of Section 145 enjoins a duty on so far as the Taluk Panchayat Linen-"1_io1neti* which inciude the construction and augi'nent_atie1:1° of water supply works, filing of half yearly report 1 :the activities of Grama Panchayats within the taluk, adequate number of class rooms and mam' tamm' ' g school buildings in proper condition, providing water / l\/V ComInittees,,z1'1amely, (a) General Standing Committee; 0) w.p.12o51/2006 c/w w.P.12o62/2006 16 supply and sanitation; and acquiring land for locating the manune pits away from the dwelling houses in the

17. Section 146 of the Act provides that the V' assign to a Taluk Panchayat functiorislhin' 'relation l 1' Government by the sﬁectton'-A14'? of the Act provides for General ' It states that the Taluk_ to do all acts necessary out of the functions entrusted. toxj '%'a¢1e;§s¢ga particular, and without prejudice to the exercise all powers speciﬁed under this 'Act. _ of the Act pmvides for Standing .:.=' "-I" A '1' In 1' l.IuIy.:l_;1-l|.I.Ia-lv*3o 1 4 ('A Dav: fhI!'l'I" I-nu-nus Q GI-an-v-up: 'In Kl') all I.'

-1 n-

|.'Jl.aﬂ-ll L11.' )1 Plannm 1; Committee; and (C) Social Justice V l _ Conﬁnittee} 149 of the Act provides for Functions of the H H K 'tandingflommittee and Section 150 of the Act provides for the pxjoceclure to be followed by the Committees. n.

we 1'7

18. Section 152 of the Act provides for the powers and duties

-1' th_. Adhyaksha. The Adhyaksha is to be the execuﬁvehead of ' the Tale" Panch vet. and he is required to convene,«~~preside* conduct u1ee"'"g* of the .alu.. - s._..._,.yat. _I:Ie"'is 'I'§q~ui1ed-- discharge all duties i1npos'd ""61 exercise_ .;.'.1 .__.the,fpowe:'s conferred on him under the Act and-Atize "He '~ required to exercise over all sup:e'Ivision"' executive administratioyrof if-'anchayat. }He has the power to accord. sanction'uIiitoi Rs.25,000/- in a year for the of relief to those who me affected ._.y in the Taluk.

19. 'i'here' is "he, in the Act or the Rules which its members, or its Adhyaksha to any regarding transferring any portion of the . xthye S"'te comhg within the jurisdiction of that H 'F5anchayath in favour 'f the "eigh.,cu..'...g State. In fact with the powers, functions and duties of the this subject is quite alien and not in manner connected i "'._iP'a;1chayath. The duties, powers, functions as referred to under

-*:Sections 145 to 149 of the Act do not either directly or indirectly sugg_st that the members of the Taluka Panchayath can have a 2- 11.4 / 'UV w.1=. 12061/2006 C/w w.P.12oe2/2006 18 discussion of this nature in the panchayath. The subject does not deal with the administration, the development tineother m1£I.t...d. w..--1f..... m..e-.s1.z'es pertaining t... the Ts-.lu..e 'i'h'r-for' it 's ' ery clear that th' pe"t1o'ers had u*"d b'3ro_n"» their power, jurisdiction and 'iventtuing' ha i discussion on the subject and the petitioneIseV1irere'_v ; error in forcing the discussion on _subV_iiectA_uini':the:§meeting of the Taluka Panchayath; f c.

20. The next équestioiiiii it he considered is whether of the petitioners can be to misconduct for which, taken. Section 136 of the Act deals with of Panchayath for misconduct. It unde'I_:; Z fihygrnrnaq if 1'1 ﬂu; I.-_ 1 (an Jan uwrnmrnapdngfegl _ .._.., .__...,...,... . ., .. ...........,. .... ..,............. it of Panchayat or otherwise and I_f necessary i'~s¢;r:e'r-L;smc;+i;1..'ng a report from the one: Panchayat and the same}, may remove any member aﬂer givI_'sig him an opportunity of being heard and after such , H "enquiry as if deems riecessary rfsuoh member has been iittlil-'ff: nf rnfonnnrhnnf in Ha J-ianhnsv-no nf' I-n-In Ila:-Hoe no» A!' vvlllvu 'JJ IUIIIN-"'4'u"I"pW9'\ﬂ "W ""I luﬂailliafldiabfuil 'it III!-'l lulrlﬂllﬁolil V, "J any disgraceful conduct or has become inmyable of performing his duties as a member. ' ll\./ W W.P.12061/'2006 C/W W.P. 1206212006 19

21. Section 140 deals with resignation or of Adhyaksha a11d_U_pa_dhyaksl1a. Sub clause (4) 0; g1_*_sg1_1_*gg 1-111: __..

"E-u-erg' Adhyaﬁf-u7., at-ui {IpruT3hya:?r;s§3ﬁ'.ooof_ f Panchayat shall, after oppozyzéniiy is .0-_2__,n 0' hearing him, (and if neceeeénzy aﬁer Vobto:'}u'_n;;e_;a*'Vm;5on ﬁ*om the zma Panchayat gsonsidenrng] me seam) be removable from V Fab ._ or Upadhyalcsha by the 'Cgovém§n;en_t:for_»;jiih:oondua in the a'i'sea'?'uuye"" of di;iies,--j'o perﬁihrieniiy remiss in 7' mg disc.f:i21}g§,:e.o-.;raf. :_?11.:A.r1s13;.r1'.v'i.x1.t!'.';2.'-.=.V_Vm;1;;r';3---9..-'5 Ad.h3,u.1r.:s.'-.a or tem;;méd.0 not cease to be a membe_fVu3;ide}'::sub~s$ec:1:fVfoii'(£?)1sA'iaIlnot be eligible for re- elE3ctI'on. or Upadhyalcsha during the as member of such Tafuk 0' '*S11b'is.iause (:3!estate§'t1iet.- 'V or Upadhyaksha removed from his "oﬂioe winder sub-section (4) may also be removed by the "Goven"u'iient from membership ofthe Taluk: Parwhayat. *. «_ " "ft is thus clear ma" t the aforementioned provisions :"coV1':2.tained under Section 136 and 140 of the Act provide for ﬂveremoval of a member or an Adhyaksha as the case may be, by I\_/I W.P.12061/2006 C/w W.P.12062/2006 20 the Government if he] she is found to have committed nnsconduct in the discharge of his] her duties or foundptoihave whether the conduct of the peﬁﬁoneizfs agnctjints or a disgraceful conduct so 'to entail a coVnseVqueIi[ce"uof " , removal from their post. The i':nisconduc.t':isinotzdeﬁned in the Act. 'Misconduct' in conduct.

The dictionary meaning Jot' »__'_'.*misccnduct' is 'unacceptable ::beha'v'"iour'* v.(g§;:' can be seen from 1'13 'J E. :5' 5:':

E' :1 e 3 R'

-5 E 3 th (I 3' anrin '-

v.:.:.

E border dispute is a is "" emotive issue serious Iepercussionsfif vit_i'is.4ali0wed to be raised at difi'*re't forums, ~~--ioca1 bodies. Establishment of local 3 '' «--bodies'i~such as Gram----Panchayats, Taluka. Panchayats and Zilla "sheen done with the avowed purpose of self-governments to take the powers to the Panehayat level so that each unit at the grass-mot level

-.=:1V..hepi.. a. pc-..i.;on L {Ed out their need and address the same 'oyg taking "p d*'v*"'p"-ental activines. .hese issues ze1..t.1.._g t-

government and of providing basic necessities to the people of I W W.P. 12061 /'$1006 C/'W W.P. 12062 I 2006 2 1 that area. If these issues are allowed to be raised which are emotive issues having divisive tendency creating divisioriatnong t..e mem.,em -1' di_ereut lanyage and mups, it csn1iot..,b'o;t___ibe co-existence of different groups of people jj.i1tt'a§f' V-ELF"-f"'7_p"'*V'§p_ l'-.. I' 'I V fa ;.

member of Taluka Panchayatr by ~' discharge his duties and and" to' those people in the matter of to the area which he represents supply. roads, drainage, health -ae..1§Ip1Ti'§riiber is elected by a particular 'of. a different language. it cannot he me p1._rpose _f ﬁ_gh1i11g against the State 'people and to e' surr L11 t I.l.l. "ea which he Iepresez1ts'Vbe7sevc':red from the junsd' 'iction of the State ~ . guleziged neighbouring State. The petitioners, to think that they have been elected by the had a desire and w1]11n' ' guess to merge their aharea neighbouring State and that it was petitioners' it 'C_*c1li,i;_i,' ttutction to voice the concern. of such people who had it such matters of border dispu 'I out of control and result in large-scale violence and mass M W.P.12061/2006 C/W W'.P.12062/2006 22 destruction of public property. The elected representatives of the local bodies cannot be expected ibcus on such. .. negative resolution to be passed in that regard, smacks of ulterior motive intended only " ; harmonious conduct of the of Teanchayat and also the peaceful and the people of the locality. An elected Iaiuka Panchayat cannot be in :snch._.activiﬁes which have s1.._11 f__r rea..h1't%g co11._eq'n-n-r:s In L- insta..- ca..e, the .....4.:.:.:.........A.:.'.."hL'....+.,.....V.'.':....: 1;. ,1- ...L'.'.-....... -1. ....1.....; .... ..¢...¢...: 1...... . . . . . -.. lJUI..I.I..I.lJ CLEO l..l.'..«1.l,\#..U|.l. I.' lull) ;g|.I.'.7|wJ.3 Ly .l..I.ﬂ.L Hl.i:'I.|.CLI. I--lCJ.CFl.I..I.ﬂ.|J|.JVC and when-they were against by issuing notice g such acts on t'.heir']. justiﬁed their actions and it expression of their freedom of speech hi' a Fundamental Right.

_ 23. or Adhyaksha of' a Taluka Panchayat cannot e 4"-..Ve'xercise..his/her Fundamental Right of freedom to say anything A -.eiieryﬂ1ing and to do such acts in the meeting of the Vﬁparichayat, unmindful of its consequences, disregarding the Licontours of his duties, powers and functions. If any member Ln, 0/ W.P.12061/2006 C/w W.P.12062/2006 23 behaves in such an irresponsible manner. such an act and c-n_.u..t has to be characterised as a. tnisconductVd»~and a a 3 3 3' 3 3- 5 dis El.ru"K;-Lu; w........t. It is a mt%n..u.t bec__u_e;"l1'_'e-.is.___do_ing

-I."

the established and Iecogn1ze' d Eat"

tantamounts to challenging .t}1e___ Stalx?_v."GOVCI11l1J;u@Ill£l. a.t};c1":t§»» _ authorities. It is disgraceful because having elected as the member of the Taluka of Be-lgaum District of Karnataka State, if he and for passing a resolution 'up' t::§;.e.n-"meeting of the Panchayat raising 'oord*r disputes it czeates between t..- two hnmnstic happiness of the v11lag'" es. The only intention the l'"matterVdis_cussed and in intending to have a . ,.,1es01tl3i:iQn.: passedV"to'*--t-he said effect was to whip up the divisive o. to over the emotional raze of the people to ends. This subject matter cannot, at any . _retch. ixnagination. be brought within the puwiew of the pa-were and -.1.n..-ti.I.n.._ of the Taluka Panchayat and ' despite the seine, .l..I. Lu """"ber U1. l.l.I.I.m ..=......a . at-.cl1ay.... 9...... u the Adhyalcsha intended to have a discusdon in tlr '**tter ts pass a resolution to that effect, the same will have to be by U w.p.12o51/2005 C/w W.P.12062/2006 24 characterised as a misconduct on the part of the Member or the A_dhya_k_sha who s ch 11 s;;_ter desijgh.

24. Although leazned counsel for the petitioners: . they were exercising their F'Imdamei1té1"l?.igh,ts was bonaﬁde, not intended to breed hméhgsic the State Government that informing the Adhyaksha any discussion on the the Adhyaksha of the Talukav «-- with their design and pmceeded with order to pass a resolution which petitioners were deliberately m'._t_ter with $11.01; divisive designs. Therefore, 1 the of misconduct as it is a conduct unbecomixig _ of at. Taiukah' hanchayat Memer elected to work ' for the ' 4'''««VDdevelo1).n"1e'i1t of the Taluka Panchayat and for general good of 'people of that area. Reliance placed by the learned counsel i .for the petitioners on the decision in the case of Chintamanrao and Am. 173. state qfllmdhya Pmduh napoma in 4.1.1: 1951 so L_,-t/ W.P.1206l /2005 cm W.P. 12062/2006 25 118 to contend that the petitioners had only exercised their Fundamental Rights is of no assistance. The said. judgtnenitthas 1"! I-II» rt-

.'__..__.--.--_..'I.. --... 3 p.

Luualuuuu as 11 (Jenni Panchayat has got a Fundamental to iissuesfixi t. a d cheumstiances of" the ca-;se« the meeting of the Taluka Panchayat g11i.se5 , his freedom of speech and expIelsaion4._V when subject has absolutely no connection .\oowers.-- hirictions and duties enjoined upon the subject is of such sensitive and'«;.e?:notive will retard peace us.-.. ....q..v._..J ...--.._ _.--..--.._....J.V - _ - and ha. ms! 4 en.._.:i1r~ tobe sta-_.d h m that a use of ..Iii!emher for a totally' " ulterior and extraneous co'a.sidera-itlonsito suit their divisive tendencies and * the claim' that it was their Fundamental to taiseljsuich issues.

_ 25. "As the contention of the learned Counsel for the ' jsctitionérs that pmceedings initiated under Section 136 of the A against the Adhyaksha of the Taluka Panchayat was illegal, it to be stated that the Adhyaksha of the Taluka Panchayat this also a member of the Taluka Panchayat and if he has he / UV W.P.12061/2006 C/W W.P.12062/2006 26 committed misconduct in his capacity as such and even if the impugned order does not refer to Section 140 under inasmuch as an Adhyaksha or Upadhyakshai 4a= in Wen , Section 140 aiso has--"ii1e.:saine ~eii'ect'= Panchayat can be iemoved from the he, ; guilty of misconduct or disgraceinleeeonducti is; the effect under Section 136 in 'r:espec11i of Va. oi the Taluka Panchayat. Only because referred in the impugned order; 'it;ap.tioes'=._net thatthe order passed is vitiated. A... Le Jig...c;ient;.eQ;-e1e12t,.cned'u...der -.....cti.-an 136 and 1-40{4} air" satisﬁed. 'i'he*'efc:~."* ther" 's "1' s"b"'"""'-e '-1 'L'- _ 26. "she next c"on_tention of the petitioner is that there was no no pe_Iso11ai was given to the petitioners before they i _were foungd of the alleged misconduct. It has to be stated it Vppetitiohers were issued with the show cause notice which A p:.contained the allegations made against them and also made

-.re_feirence to the report submitted by the Executive Officer. To tithe said show cause notice, petitioners have given a reply. The ﬂ/1nl/ 'U W.P.12061/2006 C/w W.P.l'2062/2006 27 allegation made in the show cause notices is admitted by the petitioners. In fact they have justified their action t.....y mad -Lght t. do so .._e_ my to represent the 4-14."...

peopie n eiec-"d ﬁrm. In s"ch L.I.l.|.4-"~. contention of the petitioners tha" t they iJee11vv.serfyeci with separate art1c' les of charges fraxna edand shponldvlihave'; 'V 0» given an opportunity of explaining' lttheir stand,-":is.':not legally tenable. If the petitionersgiiéliad ithepnvviadlegatiolnsltnade, then the question of following would have arisen. Even otheitvise, that in the instant case =.vh......il-=-a is!§ﬁ..._1i the State Government opportunity to and were aiso asked to ' pane in person on 29.05.2006 at 3.00 p.m. for 0' hearing. Heweve , the petitioners did not choose to to avail the opportunity of personal hen VThef,r:have only ﬁled their replies, that too admitting 'their in tabling such proposal in the meeting and in Cdisci_is.sin.g t.__. sa__. with intention to pass a resolution. In 1:11" cn""umstan~=s. the contentien o. the metmnem t....ra-... no *'......11' in the matter cannot be accepted.

Ebr W.P.12061/2006 C/w W.P.12062/2006 28 2'7. The further contention of the petitioners that the rules of business, the Adhyaksha was entitled to "t{:j1sigsf':'or discussion any matter in his discretion is totally '1?nisc:cnceived; It has to be stated that the Karnatake,-'Panchaitst 1 Rules, 1999, cannot by any interpreted to confer power onVit1:ié~~../[_\dh1in?£11£_si1aVAitcj iiefore" V 9 'g fn 'H1591-' I-H-I-s'II-Ciel-I-lI.l..I. -, lav I-».I.J.\t'

-I-'Iru LL"-; 'Fn'I-r|'Iru Du-nninatruf a nnaffer pnriniiaifl I.I.l,%7I.l-L E E 5 particuiariy for the purpose psssinkg d'iesoiu,ﬁon to transfer a portion of the vterritory :"cf" to the neighboming§_Stste matter cannot be termed to the notice of the Panchayet or -'permission could be given to discuss in "then vnieetinig .-- the Taluka Panchayat. If the _ Adhyshshe. uses "'hi_sdiscietion under the Karnataka Panchayat .l.'.... .1.' _______ .-.9.

féhé '[')1E'lCf:('I ' t 101' umuuaaiuu, then "the discretion excersied will be alien to his powers which ' Vibe uopfaosed to the very purpose for which the Taluka A is established viz., for the welfan-: and well-being of

-the? local area. On the other hand, Section 141(2)(i) which deals " the matters to be discussed and not to be discussed and MM/ 'U7 I'\I'\I\£ WP. E2061 fzuuu C;"\-'ti' W.P.12062/2006 29 the manner in which it has to be discussed, clearly spells out th_.t no propositions shall be discussed at any ordinary tneeﬁng '"""-es it haw been e1'I..-_.1ed. in the notice convening or in the ca" "fa "pee-"*' meeting a. L... w_L_-en._.I*_equeat*of anch '

28. -h,. subject taken up fot'_V:'diecussion .by'Lth€;'v«;3etitione1'sti' does not fall withi.=1 the h,__tt otthe *pOwers and functions of the '1' Taluka Panchayat and i5 tmope -1' Section 141(2) of the Av-::'1:_.:" was rlgh. and justiﬁegl had worked against the tntetataat oi'. of the State while raising the isstie -concern of the Taluka Panchayat and whioh the vitiate the atmosphere for the the development of the Panchayth. The staté G-t')'-hf£3t'LL*;_en. is ..1..r.» jtigttiﬁed in holding that the attitude of the'._petitioner;~fi'v.nise1""ed divisive te..d.,.n..y i_._t_ending to create . and hen-fze they were guilty of misconduct which entuned tn division' the members of the Parts-ha'"'t on eectnrL...n 1i....s .11..

La:

:3 it from the post of Member and Adhyaksha of the Taluka ~ .. .I5anchayat.

i,._ 'U W.P.1'2061/T2006 C/'W W.P.12062/2006 30

29. The judgments referred to and relied upon by the learned Counsel for the petitioners do not deal with the issues Coo... is ..n...ern_d in this case. Reliance p1aced..'oi'1 the report of the Executive Ofﬁcera of .F's:nci1ayatA.Was'V»p not given to the petitioners and there' wash no opportunity V provided to the petitioners_, in facts and circumstances of the caseias-the admitted their conduct in discussion on the

- which contains the said ""ei'i""t"and else mange not suppii 1.1. w'_l t, in any manner, result." the ﬁght o Hence there is. no vio1at1r_)n'oi' any principies of natural justice.

«L tdan1,en fthe A ex Co in the case of Union of .~::=-.;.'e*a~ -madame F: ..."..¢|....-e-...... .-'95.-.-21'... 1... ism so I-:4-ugnnnn 55-.' 102.7! ar:,;i'iJ;i.1'~"thc case of S.Ic'¢'ai§ﬁrqiera 'v'e. P.uuwu-ur. .%'u... a hang ems. reported in 1939(2) sec 574 have no application facts of the present case. Likewise the decisions of the Aliahabad High Court in the case of President, Municipal Board Shahiahanpur through Bishan Chandra 7:. District Magistrate, l:_:,../ U( W.P.12061/2006 C/w W.P.12062/2006 31 Shahiahanpur reported in A.I.R 1966 Allahabad 369 and the decision of this Court reported in the of smereshggyglglcehmi Vs. of Karnataka an _4§.'i:'r.:

£3'! chair", I , J..|.I.I.I'\a 4.1. mvavvumno caseandtheiawiaiddowriirith SEQ I-u:nn-I 1-19 Inna cg t__ 1_'____ , 'F 1;:-,t§:_ .."'i1I"E:=3E'I'ﬁ'. the instant case. The State Goverximeﬁt has a to ﬁrmly deal with the divisivehhyﬁetis Iiotentialh danger to our society wiiere 'the his to foster unity and cohesion even and other diversities.

31. passing the impugned order is fair "punishment imposed for the illegal and unauthorised in by the petitioners also does riot call ufor by this Court. Hence, the writ devoid of merits, are dismissed.

Sd/-3 Iudqé

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