Karnataka High Court
Smt. Laxmi W/O Devappa Sutar vs State Of Karnataka on 10 February, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF FEBRUARY, 2014
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
WRIT PETITION NO.102618/2014 (LB-ELE)
BETWEEN:
SMT. LAXMI
W/O DEVAPPA SUTAR
AGED ABOUT 55 YEARS
OCC: HOUSEHOLD WORK
R/O. GUNJI VILLAGE
TQ. KHANAPUR
DIST. BELGAUM ... PETITIONER
(BY SRI. RAMACHANDRA A. MALI, ADVOCATE)
AND:
1. STATE OF KARNATAKA
REP. BY ITS SECRETARY
DEPT. OF PANCHAYAT RAJ &
RURAL DEVELOPMENT
M. S. BUILDING
BANGALORE-01
2. THE ASST. COMMISSIONER
BELGAUM SUB-DIVISION
BELGAUM
3. THE GRAM PANCHAYAT
GUNJI, TQ. KHANAPUR
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DIST. BELGAUM
REP. BY ITS SECRETARY ... RESPONDENTS
(BY SRI. A. G. MALDAR, HCGP)
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THIS WRIT PETITION IS FILED UNDER ARTICLES 226
& 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
CALL FOR THE RELEVANT RECORDS IN THE IMPUGNED
NOTICE DATED 23.01.2014 ISSUED BY THE SECOND
RESPONDENT HEREIN AND QUASH THE IMPUGNED
NOTICE DATED 23.01.2014 ISSUED BY THE 2ND
RESPONDENT HEREIN PRODUCED AT ANNEXURE-E AS
THE SAME BEING TOTALLY ARBITRARY, ILLEGAL AND
NOT SUSTAINABLE IN LAW.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri.Ramachandra Mali, learned counsel for petitioner and Sri.Maldar, learned HCGP for respondents 1 and 2. Perused the case papers.
2. The short point that arises for consideration in this petition is whether there is violation of Rule 3 of the Karnataka Panchayat Raj (Motion of No-Confidence :3: against Election of Adyaksha and Upadyaksha) Rules, 1994 by second respondent.
3. Facts in brief leading to filing of present petition can be crystalised as under:
In the election held during 2010 to the Gunji Grama Panchayat petitioner was elected from Ward No.17 and in the elections held for the post of Adyaksha and Upadyaksha, petitioner came to be elected as Adyaksha. Certain members who constituted more than 1/3rd of total members of Gram Panchayat submitted a notice of their intention to move a no confidence motion against petitioner on 31.12.2013. A notice dated 08.01.2014 came to be issued by second respondent convening a meeting on 22.01.2014 at 3.00 p.m. for consideration of no confidence motion moved against petitioner. Said notice was challenged before this Court by petitioner in W.P.100746/2014 contending interalia that from the date of notice to the :4: date of proposed meeting, 15 days time gap not being there and contending that there is non-compliance of sub-rule (2) of Rule 3 of Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 (for short 'the Rules'). Said Writ Petition was filed on 18.01.2014. Learned Government Pleader filed a memo in the said writ petition stating that impugned notice has been withdrawn by second respondent and sought for leave to issue fresh notice to convene the meeting.
Placing said memo on record, writ petition came to be dismissed as having become infructuous. Liberty was given to second respondent to issue fresh notice and proceed in accordance with law.
4. It is pursuant to the said liberty granted by this Court, second respondent has now issued a notice dated 23.01.2014 - Annexure-E convening a meeting on 11.02.2014 for consideration of no-confidence motion :5: dated 31.12.2013 moved against the petitioner, which is impugned in the present petition.
5. Sri Ramachandra Mali, learned Advocate appearing for petitioner would contend that in the instant case, there has been violation of sub-rule (2) of Rule 3 of the Rules namely, 30 days notice which is mandatory for convening of the meeting from the date of receipt of requisition of no-confidence motion to the date of meeting proposed to be held. He would submit that representation intending to move no-confidence motion having been submitted on 31.12.2013 and proposed meeting is sought to be held on 11.02.2014 is beyond 30 days and said meeting ought to have been held on or before 30.01.2013 and as such, suffers from vice of violation of sub-rule (2) of Rule 3 of the Rules. Hence, he seeks for quashing of the same.
In support of his submissions, he has relied upon judgment of a co-ordinate Bench of this Court in the :6: case of M.MUNIAPPA & ANOTHER vs. STATE OF KARNATAKA & OTHERS reported in 1997(7) Kar.L.J 272 and M.MUNIAPPA & ANOTHER vs STATE OF KARNATAKA & OTHERS reported in 1999(4) Kar.L.J.
42.
6. Per contra, learned HCGP would support the impugned notice contending that under proviso to sub- rule (2) of Rule 3 of the Rules, stay granted by this Court would come to the rescue of Assistant Commissioner to adjourn the meeting to a later date, which should also not be later than 30 days from the date on which he receives intimation about vacation of stay and thereafter by giving a notice to the members not less than 15 clear days of such adjourned meeting, he can convene a meeting and by virtue of matter pending before this Court and liberty having been granted, meeting now convened for consideration of no- confidence motion dated 31.12.2013 cannot be held to :7: be in violation of sub-rule (2) of Rule 3 of the Rules. Hence, he prays for rejection of the writ petition.
7. From the perusal of case papers, it would indicate that no-confidence motion had been moved against the petitioner who is Adhyaksha of a Gram Panchayat on 31.12.2013 by eight members of Gram Panchayat. It is pursuant to the said representation by more than 1/3rd of members, a meeting was convened by notice dated 08.01.2014 wherein it was proposed to hold a meeting on 22.01.2014 (Annexure-B1). However, the said notice was under challenge before this Court. Even before writ petition could be disposed of on merits, learned High Court Government Pleader filed a memo stating that said notice has been withdrawn by second respondent and sought liberty to issue fresh notice and proceed in accordance with law. Placing the said memo on record, writ petition came to be disposed of by following order:
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"Learned High Court Government Pleader files a memo whereunder it is stated that the impugned notice has been withdrawn by 2nd respondent and as such writ petition may be dismissed as infructuous with liberty to 2nd respondent to issue fresh notice and proceed in accordance with law.
Memo is placed on record. Writ petition dismissed as having become infructuous.
Liberty is reserved to the 2nd respondent to proceed in accordance with law."
8. At the outset, it requires to be noticed that procedural law has to yield to substantive law. Section 49 of Karnataka Panchayat Raj Act, 1993 (for short 'the Act') does not contemplate the period of notice except indicating that there should be an intention on the part of not less than 1/3rd of the members to move the said resolution and at least 10 days notice has been given of such intention to move the resolution. If such resolution is passed by a majority of not less than 2/3rd of total number of members than such Adhyaksha or :9: Upadhyaksha shall be forthwith deemed to have vacated the office. Sub-rule (2) of Rule 3 of the Rules indicate that Assistant Commissioner, after receiving the representation or requisition from not less than 1/3rd of total number of members who are expressing their no-confidence against Adhyaksha or Upadhyaksha, is required to convene a meeting for consideration of said motion which shall be not be later than 30 days from the date on which the notice under sub-rule (1) of Rule 3 of the Rules was delivered to him by the members who express their intention.
9. Undisputedly, in the instant case, notice of no-confidence motion was received by the Assistant Commissioner on 31.12.2013 and the earlier meeting called for by notice dated 08.01.2014 was withdrawn by second respondent when it was under challenge before this Court in W.P.No.100746/2014 as noticed herein above. As such, placing the memo filed by learned High : 10 : Court Government Pleader on record, liberty was reserved to second respondent to proceed in accordance with law.
10. Proviso to sub-rule (2) of Rule 3 would clearly indicate that when there is a stay granted by an order of Court, Assistant Commissioner has to adjourn said meeting and can hold the adjourned meeting after stay is vacated on a date not later than 30 days from the date on which he receives intimation about the vacation of stay after giving to the members a notice of not less than 15 clear days of such adjourned meeting. Undisputedly, there was no such stay granted by this Court in the above referred writ petition. As to whether the proposed meeting was required to be held within 30 days from the date of notice of motion i.e., on or before 30.01.2014 is required to be examined in the background of proviso (2) to sub-rule (2) of Rule 3. When the intention of legislature is clear and : 11 : unambiguous namely when order of stay had been granted by this Court would enure to the benefit of Assistant Commissioner to exclude such period to call for final meeting, it cannot be gain said that liberty granted by this Court would not come to the rescue of second respondent to call for a fresh meeting for consideration of the No-Confidence Motion which is beyond 30 days from the date of submission to date of meeting.
11. Judgment relied upon by learned Advocate appearing for petitioner in MUNIAPPA's case reported in 1997(7) Kar.L.J 272 would not come to the rescue of petitioner for reasons more than one. Firstly, said judgment came to be set aside by a Division Bench of this Court by order dated 16.04.1997 in W.A. Nos.1518-1640/1997 which was carried in Special Leave Petition by the petitioner therein before Hon'ble Apex Court in SLP Nos.9470-71/1997 which came to : 12 : be allowed by order dated 13.02.1998 by agreement of parties. Hon'ble Apex Court had directed the writ petitions itself to be restored and heard again by this Court. Again a co-ordinate Bench of this Court by order dated 05.06.1998 allowed the writ petition and Division Bench by order dated 24.06.1998 set aside the order passed by learned Single Judge and directed that matter be heard and disposed of afresh. Again, a co- ordinate Bench of this Court in the judgment reported in 1999(4) Kar.L.J 42 has examined Section 49 of the Act and Rule 3(2) of the Rules and held that time limit of 30 days from the date on which notice of intention to move motion is delivered to Assistant Commissioner is only directory and not mandatory as Rule does not suggest that motion moved and passed with requisite majority is invalid if special meeting in which it is passed is not convened within the said 30 days. It has also been held that if such special meeting is convened within reasonable time, no matter beyond said 30 days, : 13 : it would be sufficient and substantial compliance with the Rule. It has been held by a Co-ordinate Bench of this Court as under:
"9. Against the above backdrop, if we examine Rule 3 insofar as it directs that a meeting should be held not later than 30 days from the date the motion is made, the only object which is sought to be achieved by the provision is to ensure that motions of no- confidence do not remain unattended. All that is meant to be achieved is that the authority concerned expeditiously arranges to have the motion put to vote after due notice to the members. It ensures that those moving the motion get the earliest possible opportunity to put to test their move. That being so, the requirement of holding a meeting within 30 days cannot be said to be mandatory not only because the consequences of a failure to abide by the requirement are not stipulated but also because the rule does not suggest that a motion duly moved by 2/3rd of the members of the Panchayat would lose its efficacy if for one reason or the other, a meeting is not convened within 30 days. The purpose underlying the provision is also in no way affected or defeated if the meeting is conducted within a reasonable period by the authority concerned no matter beyond the period of 30 days. Substantial : 14 : compliance with the provision would in any such case suffice."
12. In this background, when facts on hand are examined, once again as already noticed herein above, no-confidence motion against petitioner was moved on 31.12.2013 and to consider the said motion, a meeting was convened on 22.01.2014 by notice dated 08.01.2014 which was under challenge before this Court in W.P.No. 100746/2014 which came to be filed on 18.01.2014 and said writ petition came to be disposed of on 22.01.2014 by virtue of a memo filed by learned High Court Government Pleader and liberty came to be reserved to call for fresh meeting by second respondent. It is pursuant to such liberty granted by this Court, a fresh meeting has been convened by second respondent by impugned notice dated 23.01.2014 by fixing the date of meeting on 11.02.2014. Yet again, petitioner has embarked upon a luxurious litigation. This would indicate that petitioner intends to : 15 : hold to his chair even though more than 2/3rd members have expressed no-confidence against petitioner. In fact it has been held by a co-ordinate Bench of this Court in the case of ABDUL RAZAK vs. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE & OTHERS reported in 2005(1) Kar.L.J. 230 that right to remove Adhyaksha from the office is a right conferred on members and Adhyaksha is not having right to challenge the notice and irregularity in such notice is not required to be interfered into at the instance of an Adhyaksha against whom no-confidence motion is moved. It has been held in the said case as under:
"4. Rule 3 is a provision made for effectuating the substantive right given to members under Section 49 of the Karnataka Panchayat Raj Act, 1993. Section 49 is a provision where under every 'Adhyaksha' or 'Upadhyaksha' of a Gram Panchayat shall be forthwith deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less : 16 : than two-thirds of the members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. The right given under Section 49 of the Act is to the members who have such a right to have the 'Adhyaksha' removed if not less than two-thirds of the members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'.
13. In the light of discussion made herein above, it would clearly indicate that petitioner intended not to vacate the office and on technicalities he intends to cling to his chair, come what may and though 2/3rd of Gram Panchayat members have expressed their no-
confidence, which cannot be countenanced by this : 17 : Court. Hence, writ petition is dismissed with costs.
Costs quantified at Rs.5,000/- is payable by petitioner to the State.
SD/-
JUDGE *sp