Karnataka High Court
Sri.Baburao vs The State Of Karnataka & Ors1772 on 21 December, 2018
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 21ST DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
W.P.No.202220/2018 (LB-RES)
Between:
Sri Baburao
S/o Late Ramachandra Rathod
Aged about 39 years
Occ: President, Gram Panchayath
Srinivas Saradagi
Tq. & Dist. Kalaburagi
... Petitioner
(By Sri Santosh Hanmantharao Patil, Advocate)
And:
1. The State of Karnataka
By its Secretary
Department of Panchayat Raj
& Rural Development
M.S.Building, Bengalooru - 560 001
2. The Deputy Commissioner
Kalaburagi - 585 101
3. The Assistant Commissioner
2
Kalaburagi - 585 102
4. The Executive Officer
Taluka Panchayat
Kalaburagi - 585 102
5. Gram Panchayat
Srinivas Saradagi
Represented by its
Panchayat Development Officer
Tq. & Dist. Kalaburgi - 585 102
6. Smt. Shashikala
W/o Chandrakant Nagashetty
Aged about 48 years
Occ: Vice-President, Gram
Panchayath, Srinivas Saradagi
R/o Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
7. Sharabai D/o Yemaji Rathod
Aged about 32 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
8. Sharanagowda
S/o Madhavrao Biradar
Aged about 35 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
9. Nagappa S/o Ambaraya Killi
Aged about 50 years
Occ: Member Gram Panchayath
Srinivas Saradagi
3
R/o Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
10. Ranappa S/o Saibanna Misi
Aged about 52 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
11. Smt. Kesalibai
W/o Noorsingh Rathod
Aged about 48 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Gondikeri Tanda
At Post: Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
12. Smt. Yashodha
W/o Rajkumar Pawar
Aged about 35 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Tukaram Naik Tanda
At Post: Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
13. Smt. Sonabai
W/o Subhash Rathod
Aged about 40 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Tukaram Naik Tanda
At Post: Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
14. Smt. Sainabai
W/o Subhash Rathod
4
Aged about 45 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Madihal Tanda
At Post: Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
15. Mohan S/o Meru Aade
Aged about 36 years
Occ: Member Gram Panchayath
Srinivas Saradagi
R/o Madihal Tanda
At Post: Srinivas Saradagi
Tq. & Dist. Kalaburagi - 585 102
...Respondents
(By Sri K.M. Ghate, AGA for R1 to R3;
Sri Chandrashekhar Dasankeri,
Advocate for R4 - Absent;
Sri Arunkumar Amargundappa,
Advocate for R5 - Absent;
Sri Ganesh Naik, Advocate for
Sri Ravi B. Patil, for R6 to R15)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India praying to quash the
impugned notice in No.Sam/Kam/Chunavane/23/2018-
19 dated 20.07.2018 issued by the third respondent, the
copy of which has been produced at Annexure-A.
This petition coming on for Preliminary Hearing in
'B' Group, this day, the Court made the following:
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ORDER
Petitioner who is the Adhyaksha of Srinivasa Saradagi Gram Panchayat is calling in question the notice dated 20.07.2018 (Annexure-A) issued by the third respondent whereunder a meeting of the Gram Panchayat has been convened to be held on 06.08.2018 at 11.00 a.m., for considering the no- confidence motion moved against the petitioner.
2. I have heard the arguments of Sri Santosh Hanmantharao Patil, learned counsel appearing for petitioner and Sri K.M.Ghate, learned Additional Government Advocate appearing for respondent Nos.1 to 3 and Sri Chandrashekhar Dasankeri, learned counsel appearing for respondent No.4 and Sri Arunkumar Amargundappa, learned counsel appearing for respondent No.5 and Sri Ganesh Naik, learned counsel appearing on behalf of Sri Ravi B. Patil for respondent Nos.6 to 15.
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3. It is the contention of Sri Santosh Hanmantharao Patil, learned counsel appearing for petitioner that impugned notice is contrary to Rule 3(2) of Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short 'the Rules') and allegations made in the no confidence motion would not attract the ingredients of Section 49(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short 'the Act'). Hence, he prays for quashing of the said impugned meeting notice.
4. Per contra, learned counsel appearing for respondents would support the initiation of action against the petitioner for his removal as Adhyaksha of Gram Panchayat through no confidence motion.
5. Having heard the learned counsel appearing for parties and on perusal of case papers, this Court is of 7 the considered view that issue regarding applicability of rules insofar as it relates to no confidence motion moved under Section 49(2) of the Act has been considered by this Court in W.P.No.32295/2018 and by order dated 28.09.2018, it has been held that sub-section (2) of Section 49 of the Act, there is no prescription for rules being framed and the said provision has remained in- vacuum and the substantive law will have to prevail and it will have to be given full effect to. It has been held as under:
"21. Above analysis of sub-rule (2) of Rule 3 would be applicable insofar as where no confidence motion is moved under sub- section (1) of Section 49 of the Act. Thus, the incidental question which would arise for consideration in this writ petition would be:
"As to what would be the effect of existing Rules in respect of no- confidence motion moved under sub- section (2) of Section 49 of the Act?"8
22. The expression or language under sub-section (1) of Section 49 would clearly indicate that where members of Grama Panchayat intends to move a motion of no confidence against Adhyaksha or Upadhyaksha of a Grama Panchayat by expressing want of confidence in him/her, a meeting specially convened for the said purpose would be governed by the procedure as prescribed under Rules. In sub-section (1) of Section 49, the expression that can be found is "in accordance with the procedure as may be prescribed". Thus, prescription ought to be there as otherwise expression found in the substantive statute prevails. In this background, when sub- section (2) of Section 49 is read it would clearly disclose that it is a non-obstante clause and expression used in sub-section (2) of Section 49 reads "Notwithstanding anything contained in sub-section (1)". A non-obstante clause need not necessarily always be co-extensive with the operative part so as to have the effect of going down the clear and unambiguous intent of a enactment. 9 In other words, it means that it is equivalent to saying that inspite of provision the enactment falling will have its full operation or to put it differently, the non-obstante clause can be used as a device to over-ride it in specified circumstances. Even though expression "notwithstanding" is worded widely, its scope may be restricted having regard to the intention of the legislature covered from enacting clause or other related provisions will have to be looked into.
23. In this background, when sub-
section (2) of Section 49 as extracted hereinabove is perused or read, it would leave no manner of doubt that when a no confidence motion is moved under sub- section (2) of Section 49 the legislature has clearly intended to exclude expressions found in sub-section (1) of Section 49 from its purview. In this background, it can be noticed that proviso to sub-section (1) of Section 49 does not find a place in sub-section (2) of Section 49. Since learned members of the bar are ad-idem on the issue of larger 10 interpretation of sub-section (2) of Section 49 is before the Division Bench of this Court in W.A.No.844/2018 and connected matters, this Court would not embark upon addressing the said issue and it is left at it, except arriving at a conclusion to hold that 1983 Act cannot be read into sub-section (2) of Section 49 of the Act.
24. Undisputedly, no rules have been prescribed insofar as resolution of no confidence motion moved under Section 49(2) against a Adhyaksha or Upadhyaksha of a Grama Panchayat and the existing rules are silent. In the absence of same, it has to be necessarily held that it has remained in- vacuum or in other words, expression found in substantive law will have to be given full effect."
6. In fact, Division Bench of this Court in the matter of Smt. Lakshmamma vs. State of Karnataka and others rendered on 12.10.2018 in W.A.Nos.844/2018 & 853/2018 and connected 11 matters has held that procedure and method for consideration of motion under sub-section (2) of Section 49 of the Act shall have to be provided by separately promulgated Rules and any such motion under sub- section (2) of Section 49 of the Act cannot be proceeded under the Rules of 1994. In that view of the matter, contention of learned counsel appearing for petitioner that 1994 Rules would be applicable or violation of Rule 3(2) of the 1994 Rules requires to be considered for the purpose of rejection and accordingly, it is hereby rejected.
7. Insofar as contention with regard to no- confidence motion in question does not attract ingredients of sub-section (2) of Section 49 of the Act is an argument loaded with fallacy and requires to be rejected inasmuch as, a bare reading of the no confidence motion (Annexure-R1) would clearly indicate that certain allegations of financial irregularity as well 12 as specific allegations of misuse of power and authority in the execution of the schemes has been alleged. It is also in this background, third respondent by taking into consideration the circular dated 07.02.2018 has obtained report from jurisdictional Executive Officer i.e., fourth respondent herein and after satisfying himself about the allegations made in the no confidence motion would attract ingredients of sub-section (2) of Section 49 of the Act has convened the meeting for consideration of no confidence motion. Said exercise undertaken by the third respondent would not find foul with sub-section (2) of Section 49 to enable this Court to exercise jurisdiction under Article 226 of the Constitution of India. No grounds are made out. Hence, writ petition stands rejected.
Sd/-
JUDGE NB* Ct: RRJ