IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.7766/2019 (LB-RES) Between:
Smt. Dakshayini, W/o Sri Srinivas, Aged about 53 years, President, Devanuru Village Panchayath, Resident of Devanuru Village, Kadur Taluk, Chikkamagaluru District – 577 228. … Petitioner (By Sri Arun K.S., Advocate) And:
1. The Assistant Commissioner, Tarikere Sub-Division, Tarikere, Chikkamagaluru District – 577 228.
2. The Executive Officer, Taluk Panchayath, Kadur Taluk, Chikkamagaluru District – 577 228.
3. The Panchayath Development Officer, Devanuru Village Panchayath, Devanuru Village, Kadur Taluk, Chikkamagaluru District – 577 228.
4. Smt. Deepa G.H., Aged about 28 years, Member, Devanuru Village Panchayath, Resident of Shanabenagundi Village (S. Koppalu), Kadur Taluk, Chikkamagaluru District – 577 228.
5. Sri Kumaraswamy S.M., Aged about 40 years, Member, Devanuru Village Panchayath, Resident of Lakshmisagara Village, Kadur Taluk, Chikkamagaluru District – 577 228.
6. Smt. Roopa Lokesh, Aged about 30 years, Member, Devanuru Village Panchayath, Resident of Honnenahalli Village, Kadur Taluk, Chikkamagaluru District – 577 228.
7. Smt. Jyothi Santhosh, Aged about 26 years, Member, Devanuru Village Panchayath, Resident of Devanuru Village, Kadur Taluk, Chikkamagaluru District – 577 228.
8. Sri Puneeth Kumar, Aged about 25 years, Member, Devanuru Village Panchayath, Resident of Devanuru Village, Kadur Taluk, Chikkamagaluru District – 577 228.
9. Sri B.L. Shivakumar, Aged about 38 years, Member, Devanuru Village Panchayath, Resident of Bolanahalli Village, Kadur Taluk, Chikkamagaluru District – 577 228.
10. Smt. Anitha B.H., Aged about 27 years, Member, Devanuru Village Panchayath, Resident of Devanuru Village, Kadur Taluk, Chikkamagaluru District – 577 228.
11. Sri Ramesh Naika, Aged about 38 years, Member, Devanuru Village Panchayath, Resident of Jadakanakatte Village, Kadur Taluk, Chikkamagaluru District – 577 228.
12. Sri Shanmukha, Aged about 35 years, Member, Devanuru Village Panchayath, Resident of Kamenahalli Village, Kadur Taluk, Chikkamagaluru District – 577 228.
… Respondents (By Sri M.A. Subramani, HCGP for R-1; Sri Varun Patil a/w Sri A. Mahammed Tahir, Advocates for C/R-4; R-2, R-3, R-5 to R-12 – Served) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned meeting notice dated 05.02.2019 thereby calling a meeting to discuss and decide the no confidence motion against the petitioner herein vide Annexure-H and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The petitioner, who is the President of Devanuru Grama Panchayat, Kadur Taluk, Chikkamagaluru District has challenged the notice issued by the Assistant Commissioner at Annexure-H dated 05.02.2019 convening the meeting on 26.02.2019 to consider the motion of no-confidence moved by the members.
2. It is contended by the petitioner that the notice at Annexure-H has been issued pursuant to the complaint at Annexure-G. It is contended that the complaint is one containing the allegations and in fact, a handwritten endorsement stated to have been made on behalf of the members to the effect that the complaint is one under Section 49(1) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for brevity) was an afterthought and an insertion subsequent to the submission of complaint to the Assistant Commissioner. Hence, it is contended that the proceedings that has been initiated by treating the same to be one under Section 49(1) of the Act is illegal, in light of the law laid down in the case of Smt.Lakshmamma v. State of Karnataka and Others reported in 2019 (1) Kar.L.J.94 (DB) wherein, the Division Bench has held that the motion of no-confidence with allegations under Section 49(2) of the Act cannot be considered till appropriate Rules are framed by the State in that regard.
3. The learned counsel appearing for the respondents–members of the Grama Panchayat submits that a perusal of the notice at Annexure-H would indicate that the motion of no-confidence is to be treated as one under Section 49(1) of the Act. It is further stated that the allegation of tampering with the original complaint is far from truth and an affidavit has been filed by respondent No.4 and it is stated that the provision of law as mentioned in the complaint though handwritten, such endorsement was present at the time when the complaint was submitted before the Assistant Commissioner, and has denied the allegations of tampering of complaint.
4. The learned High Court Government Pleader appearing for the first respondent State has also contended that there is no truth in the allegations made regarding tampering of complaint and in fact, the Assistant Commissioner has referred to Section 49(1) of the Act while issuing notice and proceedings has proceeded on the basis of it being moved simpliciter without there being any allegations.
5. It is further pointed out that in the event, Section 49(1) of the Act is mentioned, the Assistant Commissioner has no discretion to treat it as otherwise even if allegations are mentioned, hence the motion of no-confidence that has been moved and considered is in accordance with law.
6. Heard learned counsel appearing for both the sides.
7. A perusal of the complaint at Annexure-G would indicate that there is a handwritten endorsement to the effect that the complaint was moved under Section 49(1) of the Act. The wordings of the complaint does impute that there has been inconvenience to the public arising out of the negligent attitude of the President.
8. This Court, in the case of Smt.Rekha v.
State of Karnataka and Others as per the order dated 11.01.2019 passed in W.P.No.57691/2018 has laid down the law that once there is a clear mention that the complaint is being moved under Section 49(1) of the Act, the Assistant Commissioner does not have the power to construe the complaint as being one under Section 49(2) of the Act. In light of the said position, despite allegations, if the complaint specifies that it is one under Section 49(1) of the Act, the Assistant Commissioner has no discretion to treat the complaint as one falling under Section 49(2) of the Act. However, there is no necessity to enter into the question as to whether the complaint is one without allegations, in light of the law laid down by this Court in Rekha’s case (supra).
9. No other ground is made out with respect to the violation of Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994.
10. Insofar as the allegation that there is insertion in the complaint, taking note of the affidavit filed by respondent No.4 and also taking note of the statement of objections filed by the State, there is no reason to disbelieve the stand taken by the State as well as the respondent No.4.
11. The nature of the dispute that is sought to be raised also being one which is factual in nature, this Court in exercise of writ jurisdiction would not enter into anything more than prima facie consideration as regards the allegations made. In light of the affidavit filed and the stand taken by the State, there is no reason to disbelieve the version that handwritten portion of the complaint existed as on the date complaint which was submitted to the Assistant Commissioner.
12. This Court by an interim order had clarified that though the proceedings in connection with the matters of no-confidence could be proceeded with, the proceedings would be subject to the outcome of the writ petition. It is stated that the motion of no-confidence has been passed in the meeting.
13. Accordingly, taking note of the observations made above, the petition is dismissed. Consequently, the result of the motion of no-confidence to be given effect to.
Sd/- JUDGE VGR