Karnataka High Court
Munirathnamma vs The Asst. Commissioner, Kolar ... on 18 January, 2007
Equivalent citations: 2007 (2) AIR KAR R 357
Author: S.R. Bannurmath
Bench: S.R. Bannurmath, V. Jagannathan
JUDGMENT
S.R. Bannurmath J.
1. The appellant, aggrieved by the rejection of its Writ Petition No. 8619/06 dated 3.7.2006 by the learned Single Judge, has approached this Court in the present appeal.
2. The appellant who was Adhyaksha of Abbenahalli Grama Panchayat has approached this Court in the said writ, petition challenging the validity or otherwise of the notice dated 30.5.2006 issued by the first respondent Assistant Commissioner as well as for quashing the no confidence resolution held on 17.6.2006.
3. The facts of the case are not much in dispute. As already noted, the appellant is the Adhyaksha of the Abbenahalli Grama Panchayat. It appears, the members had moved the Assistant Commissioner to convey a meeting as per Section 49 read with Rule 3 of the Karnataka Pancyahat Raj (Motion of no confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 to pass resolution of no confidence against the appellant. As per the Rules, the Assistant Commissioner on 30.5.2006, issued notice conveying the meeting on 17.6.2006.
4. It is the contention of the appellant before the learned Single Judge as well as this Bench that since under Rule 3(2) of the Rules, the Assistant Commissioner is required to give the members notice of not less than 15 clear days of such meeting in Form No. 2 and according to the appellant, the notice itself was despatched on 2.6.2006 and received by the appellant on 3.6.2006, there is shortage of one day, the notice issued is illegal and consequent to the no confidence motion meeting held and resolution passed on 17.6.2006 is liable to be quashed.
5. The learned Single Judge, considering the contentions, opined that mere infirmity or irregularity in the notice cannot, by itself annul the proceeding or permit the court to put back the Adhyaksha or Upadhyaksha to the post. The learned Single Judge further opined that once majority of number of the members as required propose no confidence motion in a democratic way, persons like appellant should not resort on technical ground to cling to the post when majority of the members do not have any confidence in him. It is this judgment which is impugned before us.
6. Relying upon pronouncement of the learned Single Judge of this Court in the case of Sangappa v. The Assistant Commissioner, Bijapur and Ors. contended that, as another learned Single Judge in that case has held that "the issuance of 15 days clear notice is mandatory. Excluding the date on which notice is served and the motion is conveyed, if there is any lapses or contravention, the impugned notice is liable to be quashed.
7. In this regard, it is to be noted that admittedly, the no confidence motion notice is issued by the Assistant Commissioner on 30.5.2006 and the meeting is conveyed on 17.6.2006. As such, prima facie, 15 days clear notice is issued by the Assistant Commissioner. Even accepting the contention of the learned Counsel that the said notice was despatched from the office of the Assistant Commissioner on 2.6.2006, at the most, there may be shortage of one day. In this regard, as observed by this Court in the case of M. Muniyappa v. State of Karnataka reported in 1999(4) KLJ 42, we feel that the appellant cannot succeed on hyper technical ground by invoking jurisdiction of this Court under Article 226 of the Constitution of India.
8. It is to be noted that on the date of receipt of the notice, the appellant was aware that the proposed meeting is convened by the Assistant Commissioner to discuss the 'No Confidence Motion' on 17.6.2006. The first opportunity for the appellant to find out the alleged illegality in holding of the proposed meeting is on the date. The appellant, did not at any stage question the validity of the notice issued by him for the meeting scheduled to be held on 17.6.2006. Even on 17.6.2006 when the motion came up for discussion, the appellant absented himself and thereby acquiesced to the holding of the said motion. As such, it appears that he has been removed in accordance with the procedure followed by the Assistant Commissioner and thereby the appellant acquiesced the entire process. Having done so, now at the belated stage i.e., after passing of the 'No Confidence Motion' that too with full majority, cannot turn around and question the consequences confronting the very meeting on the ground that the provision of rule was mandatory and its violation was enough to vitiate the proceedings.
9. The jurisdiction of this Court under Article 226 is discretionary. It is not in every case where illegality or irregularity is committed the Court will interfere invoking the jurisdiction under Article 226 of the Constitution of India. That is particularly so when the violation alleged is of a provision which is in essence a procedural in nature and not a violation of fundamental right. The conduct of the aggrieved party who make such grievance against any such illegality or irregularity is as much important as the alleged illegality or irregularity. It is to be remembered that in the case by a democratic process the members of the Panchayath have unanimously moved for the 'No Confidence Motion' and the 'No Confidence Motion' did take place which is culminated in the fresh election. Moreover the appellant, except the hyper technical question, has not shown what is the prejudice caused to him by receipt of the notice by one day later. What he could not do in 14 days could not have been accomplished in 15th day. Hence, looking at the case from any angle, we find that the learned Single Judge was justified in rejecting the writ petition. Agreeing with the same, we find no merit in the writ appeal and the same is rejected.