IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF DECEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.47960/2019 (LB-RES) Between:
Smt. Chandramma, W/o Devendra, Aged about 47 years, President, Theguru Grama Panchayath, Chikkamagalur Taluk, Chikkamagalur District – 577 133. … Petitioner (By Sri Chandrakanth R. Goulay, Advocate) And:
1. The State of Karnataka, Rep. by its Secretary, Department of Rural Development & Panchayatraj, M.S. Building, Bengaluru – 560 001.
2. The Assistant Commissioner, Chikmagalur Sub Division, Chikmagalur – 577 101.
3. The Chief Executive Officer, Zilla Panchayath, Chikmagalur – 577 101.
4. Smt. Myna Manjunath, Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
5. Smt. Nethravathi, Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
6. Smt. Bharathi T.Y., Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
7. Smt. Meena G.P., Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
8. Sri S. Raju, Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
9. Smt. R. Susheela, Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
10. Sri Vinod, Aged Major, Theguru Grama Panchayath, Chikkamagalur Taluk – 577 133.
11. Sri Shivakumar, Aged Major,
(By Smt. Prathima Honnapura, AGA for R1 & R2; Sri D.R. Ravishankar, Advocate for R5 to R14; R3 & R4 – Served and Unrepresented) ***** This Writ Petition is filed under Articles 226 & 227 of Constitution of India, praying to quash the impugned notice bearing No.ELN.CR.01/2019/20 dated 19.09.2019 passed by the R-2 as per Annexure-C as arbitrary, illegal and void and in violation of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 and the Panchayat Raj Act and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The petitioner who is the member of Theguru Gram Panchayath was elected as the President on 01.07.2015. The petitioner had filed the writ petition challenging the notice at Annexure-‘C’ dated 19.09.2019 fixing 05.10.2019 as the date for consideration of ‘motion of no confidence’. It is the contention of the petitioner that the complaint at Annexure-‘B’ contains allegations as contemplated under Section 49 (2) of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 (for short ‘the Act’) and hence notice at Annexure-‘C’ is liable to be set aside.
2. It is contended that in the light of law laid down by the Division Bench in the case of Smt.Lakshmamma v. State of Karnataka and Others reported in 2019 (1) Kar.L.J.94 (DB) [W.A.No.844/2018 disposed on 12.10.2018] no ‘motion of no confidence’ under Section 49 (2) of the Act could be taken up until specific rules in that regard are framed.
3. The learned counsel for petitioner draws attention to the notice and submits that the allegation that is made in the complaint is that though there has been fund allocation to the Panchayath, there has been no work executed utilizing such funds.
4. The learned counsel for respondent members submit that the allegations made are not such so as to treat the motion of no confidence as one under Section 49 (2) of the Act.
5. The allegations that are required to treat motion of no confidence as one under Section 49(2) of the Act requires specific allegations of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or project of the panchayath or of misappropriating funds or other assets of the panchayath during the term of his membership or otherwise indulging in corruption or misconduct in the course of exercising the functions. It is submitted that the words ‘misconduct in the course of exercising his functions’ must be read in terms of the preceding words in terms of the principle ejusdem generis and accordingly, in the present case, the allegations made are vague and cannot be construed to be specific allegation as contemplated under Section 49 (2) of the Act.
6. The learned AGA also contends that there is no infirmity in the notice at Annexure-‘C’ and further submits that when the complaint itself does not specify under which section the complaint for no confidence is being presented, the Assistant Commissioner has exercised his limited power as referred to in the case of Smt. Rekha v. State of Karnataka and Others [W.P.No.57691/2018 Dtd. 11.01.2019] and construed the notice to be one under Section 49 (1) of the Act. Hence, it is submitted that even otherwise, when motion of no confidence is construed to be under Section 49 (1) of the Act, no prejudice whatsoever would be caused to the petitioner.
7. It is to be noted that this court by interim order dated 27.09.2019 had permitted conducting of the meeting on 05.10.2019 pursuant to the impugned notice at Annexure-‘C’, but however, directed that the results would not be announced. It is submitted that motion of no confidence had been considered and passed in the meeting.
8. Heard learned counsel on both sides.
9. A perusal of the complaint at Annexure-‘B’ would reveal that the allegation made is of not utilising the funds allocated. The allegation is too vague to cast stigma on the petitioner. In the light of nature of allegations made, it cannot be said that allegations made is one under Section 49 (2) of the Act. Even otherwise, the Assistant Commissioner has construed the complaint to be under Section 49 (1) as specified in the notice. In fact, the Assistant Commissioner has discretion for scrutiny of the complaint as the complaint does not state as to whether the ‘motion of no confidence’ is one under which Section 49(1) or Section 49(2) of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993. After applying his mind, the Assistant Commissioner has construed the complaint under the appropriate provision i.e., Section 49(1) of the Act. Accordingly, the ‘motion of no confidence’ that has been considered cannot be stated to be one which casts any stigma on the petitioner. The nature of allegations are also not as contemplated under Section 49(2) of the Act.
10. Accordingly, the petition is dismissed.
Consequently, the motion of no confidence that has been passed is now to be declared in accordance with law with consequential orders to be passed.
Accordingly, the petition is disposed off subject to the above observations.
Np/-
Sd/- JUDGE