IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JULY 2019 BEFORE THE HON’BLE MR. JUSTICE H. T. NARENDRA PRASAD W.P.No.11378 OF 2019(LB-ELE) BETWEEN:
Jiyaulla Khan S/o Jamedar Aged about 55 years Former Adhyaksha of Grama Panchayath Karekatte R/o Karekatte Village-577002 Channagiri Taluk Davanagere District. … Petitioner (By Sri.D.K.Ravindra, Advocate for Sri.R.Kothwal, Advocate) AND:
1. The Principal Secretary Rural Development and Panchayath Raj M.S.Building Bangalore-560 001.
2. The Assistant Commissioner Davanagere Sub-Division Davanagere-577002.
3. Karekatte Gramapanchayath Karekatte-577002 Channagiri Taluk Davanagere District Represented by its Panchayath Development Officer 4. Range Forest Officer Also Election Officer Channagiri-577002 Channagiri Taluk Davanagere District.
5. Sri.Annappa D.K S/o Kamappa Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
6. Smt. Savithabai W/o Hanumanthanayaka Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
7. Sri.Nagarajnayaka S/o Gopyanayka Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
8. Sri.Girishnayaka S/o Sevyanayaka Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
9. Smt. Kusuma W/o M.K.Revanasiddappa Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
10. Sri. Devendrappa S/o A.K.Kenchappa Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
11. Smt. Mamatha Patel W/o H.B.Patel Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
12. Sri.Syed Mahaboobsab S/o Syed Akbar Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
13. Smt. Veena B.V W/o Venkateshwara G.H Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
14. Smt. Hallibai W/o Hanumanthanayka Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
15. Smt. Shobha W/o Jagadish Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
16. Smt. Farhanaz W/o Haron Mirza Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District.
17. Sri.Syed Zameer S/o Syed Alisab Major, Member-Grama Panchayath Karekatte-577002 Channagiri Taluk Davanagere District. ... Respondents (By Sri.M.A.Subramani, HCGP for R1, R2 & R4: Sri.N.R.Jagadeeswara, Advocate for R3:
Sri. A.Nagarajappa, Advocate for R5 to R9 and R11 to R14: R10, R15, R16, R17 are served) This writ petition is filed under Articles 226 & 227 of the Constitution of India praying to quash the resolution dated:07.03.2019 electing the respondent No.6 as President of the respondent No.3 Grama Panchayath, produced at Annexure- G and direct the respondent No.1 to consider the representation of the petitioner produced at Annexure-H and remove the R-7, 14 and 16 from the membership of R-3 Grama Panchayath, under Section 43(A)(1)(iii) of Karnataka Grama Swaraj and Panchayathraj Act, 1993 in accordance with Law and also consider the representation of the petitioners produced at Annexure-M, N, P, Q and R and pass appropriate order in accordance with Law and etc.
This writ petition, coming on for preliminary hearing in ‘B’ Group, this day, the Court, made the following:
ORDER The petitioner has sought for quashing the resolution dated 07.03.2019 vide Annexure-G. He is also seeking a direction to consider Annexure-H dated 28.02.2019.
2. The petitioner and several other 13 members were elected as members of the third respondent Grama Panchayath in the election held in the year 2015. The petitioner was elected as the President of the third respondent Grama Panchayath on 10.07.2015. The members of the third respondent Grama Panchayath have moved an application for no confidence motion against the petitioner. By resolution dated 07.03.2019, as per Annexure-G, the petitioner has been removed from the post of Adhyaksha. Being aggrieved by the same, the petitioner has filed this writ petition.
3. Sri D.K.Ravindra, learned counsel for the petitioner submits that there is a recommendation from the third respondent Grama Panchayath as per Annexure-H for disqualifying the three members of the third respondent Grama Panchayath. Since no action has been taken by the first respondent - Government under Section 43-A of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short, ‘the said Act’), they have participated in the election. In view of that the no confidence motion has been moved against the petitioner. Secondly, he contended that the third respondent Grama Panchayath has submitted a recommendation to the Government under Section 43-A of the said Act for disqualifying the three members of the third respondent Grama Panchayat of Channagiri i.e., respondent Nos. 7, 14 and 15 herein on the ground that they have failed to attend four consecutive meetings of the Panchayath and the same has not been considered by the first respondent under Section 43-A of the said Act. Hence, he sought for allowing the writ petition.
5. Sri M.A.Subramani, learned Government Pleader appearing for the State submits that as on the date of passing the resolution at Annexure-G dated 07.03.2019 the three members, i.e. the respondent Nos. 7, 14 and 15 were not disqualified from the membership of the Panchayat. As on today they are members till they are disqualified. They have a right to participate in the meeting. To that effect, he has relied on the judgment of this Court in the case of N.GUDDAPPA POOJARY vs. ASSISTANT COMMISSIONER, PUTTUR AND OTHERS reported in ILR 1997 Kar.1009. Secondly, he contended that in respect of Annexure-H is concerned, the first respondent competent authority will consider the same in terms of Section 43-A of the said Act and pass an order within a reasonable time.
6. Heard the learned counsel for the parties and perused the writ papers.
7. It is not in dispute that the members of the third respondent Grama Panchayath have moved no confidence motion against the petitioner. Subsequently, no confidence motion has been passed against the petitioner and a resolution has been passed as per Annexure-G dated 07.03.2019. The petitioner has been removed from the post of Adhyaksha. As on the date of passing the resolution respondent Nos. 7, 14 and 15 were the members of the Grama Panchayath. As on today, there is no order of disqualifying them from the membership of the third respondent Grama Panchayath. This Court in the case of N.GUDDAPPA POOJARY (supra) has held as hereinbelow:
“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 proceedings. The first limb of the petitioner’s case fails and is accordingly rejected.
6. That brings me to the alternative case set up by the petitioner, according to whom the applications made by the petitioner seeking disqualification of respondents 3 and 4, have not been considered by the Assistant Commissioner, nor has the question raised therein been determined by him. This does not appear to be entirely true for a perusal of orders marked Annexures J & N to the writ petition dated 3rd and 14th of November, 1995 shows that some of these applications have been disposed of by the Assistant Commissioner. All the same, if there are any other applications that remain to be considered and disposed of it is open to him to pursue the same with the Assistant Commissioner. There is nothing on record as at present to suggest that the petitioner has taken up the matter with the Assistant Commissioner with the same seriousness as is shown in the present proceedings. Reserving liberty for the petitioner to approach the Assistant Commissioner for a determination of the issue raised by him, this writ petition fails and is accordingly dismissed. Needless to mention that in case the Assistant Commissioner, has not taken any final view on the subject based on the applications filed before him, he may do so with reasonable dispatch.”
8. In view of the above, the contention of the petitioner that respondent Nos.7, 14 and 15 have no right to participate in the no confidence motion proceedings cannot be accepted.
Hence, in respect of prayer (a) is concerned, the writ petition is dismissed.
9. In respect of prayer (b) is concerned, the petitioner has sought for mandamus to consider Annexure-H. The first respondent is directed to consider the same and pass an order in accordance with law under Section 43-A of the said Act, within a period of seven months from the date of receipt of a copy of this order.
10. With the above observations, this writ petition is disposed of.
Sd/- JUDGE Cm/-