Karnataka High Court
H B Vijayamma W/O. Hulugappa vs The State Of Karnataka on 11 June, 2014
Author: A.N.Venugopala Gowda
Bench: A.N.Venugopala Gowda
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11 T H DAY OF JUNE 2014
BEFORE
THE HON'BLE MR.JUSTICE A.N.VENUGOPALA GOWDA
WRIT PETITION No.105626 OF 2014 [LB-ELE]
BETWEEN:
H B VIJAYAMMA W/O. HULUGAPPA
AGE: 45 YEARS,
ADHAYAKSHA OF BUJANGANAGARA GRAMA
PANCHAYAT,
R/O. BUJANGANAGARA,
SANDUR TALUK, DIST: BELLARY.
... PETITIONER
(By Sri. GURUBASAVARAJ S M ADV.)
AND:
1. THE STATE OF KARNATAKA,
RURAL DEVELOPMENT AND PANCHAYAT RAJ
DEPARTMENT, VIKAS SOUDHA,
M.S.BUILDING, BANGALORE-01.
R/BY ITS SECRETARY.
2. THE ASSISTANT COMMISSIONER,
BELLARY, DIST: BELLARY.
3. BUJANGANAGARA GRAMA PANCHAYAT
R/BY ITS SECRETARY,
BUJANGARAGARA, TQ: SANDUR,
DIST: BELLARY.
... RESPONDENTS
(By SRI. A.G.MALDAR, AGA FOR R1 & 2)
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THIS WRIT PETITION IS FILED UNDER
ARTICLES 226 & 227 OF CONSTITUTION OF INDIA
PRAYING THIS HON'BLE COURT TO QUASH THE
IMPUGNED NOTICE DATED 22.05.2014 VIDE ANNEXURE-O
ISSUED BY THE 2ND RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR
PRELIMINARY HEARING, THIS DAY, THE COURT
MADE THE FOLLOWING: -
O R D E R
The petitioner, sitting Adhyksha of Bujanga Nagara Gram Panchayth, Sandur Taluk, Bellary District, has filed this writ petition, to quash a meeting notice dated 22.05.2014, as at Annexure 'O', issued by respondent No.2 and for issue of a writ in the nature of mandamus as against respondent No.2 to take appropriate action on the communication dated 27.01.2014 vide Annexure 'F'.
2. Sri. Gurubasavaraj S.M., learned advocate for the petitioner, firstly, contended that the 2 n d respondent has acted arbitrarily and illegally in issuing the meeting notice vide Annexure 'O', without considering the communication dated 27.01.2014 vide Annexure 'F'. Secondly, had :3: action been taken on the basis of the communication as at Annexure 'F', there would not have been any occasion to convene a meeting to consider the proposed motion of no-confidence i.e., in terms of Annexure 'O'. Thirdly, the impugned action of respondent No.3 is contrary to law.
3. Sri.A.G.Maldar, learned AGA, on the other hand contended that the petitioner has no locus standi to challenge the validity of the no- confidence meeting notice as at annexure 'O', in view of the ratio of law in the decision in the case of ABDUL RAZAK Vs. THE ASSISTANT COMMISSIONER, DAVANAGEER SUB-DIVISION, DAVANAGERE AND OTHERS reported in 2005(1) KLJ 230. He submitted that, in W.P. No.103567/2014 filed by the petitioner, the ratio of law of the said decision was applied and it was held that the petitioner has no locus standi to challenge the motion of no-confidence dated :4: 14.02.2014. He submitted that in view of the order passed in the said case, as at Annexure 'N', the writ petition is liable to be rejected in limine. He further contended that Annexure 'F' having been submitted to respondent No.2 and not to the State Election Commissioner, the 2 n d respondent has no legal obligation to consider and decide the issue relating to alleged disqualification of the members of Panchayath and in the circumstances, the writ petition being untenable may be rejected.
4. Perused the writ record. Point for consideration is, whether any interference with the impugned meeting notice is called for?
5. The members of the Panchayath having submitted a requisition on 08.01.2014, the 2 n d respondent has issued notice under Rule 3(2) of the Karnataka Panchayath Raj (Motion of no confidence against Adhyaksha and Upadyaksha of Grama Panchayat) Rules 1994. The meeting is scheduled to take place at 2.00 p.m. on :5: 12.06.2014. W.P. No.103567/2014 filed by the petitioner questioning a notice of meeting relating to the motion of no-confidence issued by the 2 n d respondent was dismissed on the ground that the decision in the case of ABDUL RAZAK (Supra) is squarely applicable and that the petitioner has no locus standi to challenge the impugned meeting notice.
6. The finding recorded in the order as at Annexure 'N' squarely applies to the instant case. Following the decision in the case of ABDUL RAZAK (Supra), it has to be held that the petitioner has no locus to question the meeting notice re: motion of no-confidence moved against him by the members of Gram Panchayath on the grounds of procedural irregularity or improper service, etc.
7. Insofar as, the mandamus sought based on Annexure 'F' is concerned, the 2 n d respondent is not the competent authority to consider the requisition. If any of the members of the :6: Panchayath have incurred disqualification, the issue is required to be decided by the State Election Commissioner either suo motu or on a report made to it, then in terms of Sub-section (2) of Section 13 of Karnataka Panchayath Raj Act, 1993.
8. This issue has been dealt with in detail in the decision in writ petition no.8905/2014 decided on 19.02.2014. It has been held therein as follows:
"5. Pursuant to a resolution dated 07.11.2013, as at Annexure-A, Smt. Jayamma, President of the Panchayat has filed a complaint under S.13(2) of the Act vide Annexure-B, before the 2nd respondent, to declare the seats of respondents 4 to 7 herein as having become vacant.
6. Respondents 4 to 7 and another person having submitted a Motion of No-Confidence to the 2nd respondent, on 23.01.2014, expressing 'no confidence' in the President of the Panchayat, 2nd respondent has given a meeting notice dated 28.01.2014, to all the members of Panchayat.:7:
7. Mere pendency of a complaint vide Annexure-B, before the 2nd respondent, cannot be a ground for the 2nd respondent for not acting on the notice submitted in Form-I, under Sub-Rule(1) of Rule 3 by the five members of the Panchayat, expressing No Confidence in the Adhyaksha of the Panchayat. The jurisdiction to decide the question as to whether a person is, or became subject to any of the disqualifications under sub-S.(1) of S.13(1) of the Act has been vested with the State Election Commission and not with the 2nd respondent. Hence, the pendency of Annexure-B, with respect to a complaint of the President of the Panchayat dated 07.11.2013 is of no legal consequence in the matter of giving of the meeting notice by the 2nd respondent, to all the members of the Panchayat.
8. In N. GUDDAPPA POOJARY Vs. ASSISTANT COMMISSIONER, PUTTUR & OTHERS, ILR 1997 KAR 1009, it has been held as follows:
" 5. A plain reading of the provision suggests that as and when a question regarding disqualification of a Member is raised the same shall have to be determined by the Assistant Commissioner. No such determination has however been made by the Assistant Commissioner in the instant case, no matter the petitioner claims to have raised the issue before the Assistant Commissioner. In the absence of any determination as aforesaid, it is difficult to hold that Respondents - 3 and 4 had lost their membership so as to disentitle them to participate in the No Confidence Motion :8: proceedings. The first limb of the petitioner's case fails and is accordingly rejected."
(emphasis supplied by me)
9. Since, the 2 n d respondent has no legal obligation to consider the requisition submitted vide Annexure 'F' and has no competence to act on it, the mandamus sought as against respondent no.2 cannot be issued.
In the result, there being no merit in the contentions raised by Sri. Gurubasavaraj, learned advocate for the petitioner, the writ petition is rejected.
Sri.A.G.Maldar, learned AGA, is permitted to file memo of appearance within four weeks from today.
SD/-
JUDGE RK/-