R IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE 8TH DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION Nos.383-384/2019 (LB-RES) Between:
1. Mrs Malathi B Acharya, W/o Mr. Bhaskara Acharya, Aged about 44 years, President of Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113, Resident of ‘Manasa’, D No.6-116(W), Basthi Bommarabettu, Hiriadka Post, Udupi Taluk and District-576113.
2. Mr. Chandrashekar S/o Mr. Annayya Poojari, Aged about 43 years, Vice President of Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113, Resident of ‘Kamala Nivas’, Guddangadi Post, Bommarabettu Village, Udupi Taluk and District-576113. ... Petitioners (By Dr. S. Arumugham, Advocate) And:
1. The State of Karnataka, Represented by its Secretary, Department of Panchayath Raj, Vidhana Soudha, Bangalore-560001.
2. Assistant Commissioner, Kundapura Sub-Division, Kundapaura, Udupi District-576201.
3. Taluk Panchayath, Represented by its Executive Officer, Udupi, Udupi Taluk-576101.
4. Bommarabettu Village Panchayath, Represented by its Panchayath Development Officer, Udupi Taluk and District-576113.
5. Mr. Dayanand Poojari, S/o Mr. Sariya Poojari, Aged about 43 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
6. Mr. Ratnakar Shetty, S/o Mr. Shankar Shetty, Aged about 38 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
7. Mrs. Saroja Naik, W/o Mr. Manjunatha Naik, Aged about 45 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
8. Mrs. Savitha Naik, W/o Mr. Jayaram Naik, Aged about 43 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
9. Mrs. Sujatha, D/o Mr. Gopala Sherigara, Aged about 47 Years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
10. Mr. Narayana, S/o Mr. Subba Poojari, Aged about 42 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
11. Mrs. Vinaya, W/o Mr. Gopala Sherigara, Aged about 45 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
12. Mrs. Revathi, W/o Mr. Udaya Naik, Aged about 37 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
13. Mrs. Jayanthi, Aged about 49 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
14. Mrs. Pushpalatha, W/o Mr. Raju Banara, Aged about 46 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
15. Mr. Harish Salian, S/o Mr. Sudhakara Madiwala, Aged about 34 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
16. Mrs. Mamatha, W/o Mr. Umesh Nayak, Aged about 44 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
17. Mr. Gopala, S/o Mr. Ganga, Aged about 44 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
18. Mrs. Usha, W/o Mr. Gopala Naik, Aged about 46 years, Member, Bommarabettu Village Panchayath, Hiriadka Post, Udupi Taluk and District-576113.
... Respondents (By Smt Prathima Honnapura, AGA for R-1 to R-4;
Sri. K. Prasanna Shetty, Advocate for C/R-5 to C/R-18) ***** These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India praying to quash the Impugned notices at Annexure-A dated 17.12.2018 served on the 19.12.2018 issued by the R-2 at Annexure-A and etc.
These Writ Petitions coming on for Preliminary Hearing this day, the Court made the following:
ORDER The petitioners who are President and Vice President of respondent No.4 – Bommarabettu Village Panchayath, have challenged the notice issued by the Assistant Commissioner at Annexure-E, whereby a meeting has been convened on 10/01/2019 to consider the written notice of the members expressing their intention to move the motion of no-confidence that has been delivered to the Assistant Commissioner on 17.12.2018.
2. The petitioners specifically contend that once the notice as aforesaid has been given to the Assistant Commissioner in accordance with the procedure prescribed under Section 49(1) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the ‘Act, 1993’ for short), the first proviso of Section 49(1) would mandate that the notice ought to have been given in addition to the members and the President and Vice-President of the Panchayath as well. It is further contended that the notice issued to the members subsequently in terms of Rule 3(2) of the Karnataka Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 (hereinafter referred to as ‘the Rules’ for short) ought to have been accompanied with copy of the complaint. The petitioners also submit that a motion of no confidence simpliciter is impermissible as it would result in curtailing the security of the tenure at the will of the members without any justifiable cause.
3. Learned Additional Government Advocate submits that the requirement of notice as regards the members or the Adhyaksha is one as contemplated under Rule 3(2) of the Rules, which stipulates that Assistant Commissioner is required to send 15 days clear notice as envisaged prior to the meeting convened by the Assistant Commissioner to consider the said motion. It is further submitted that at the first instance, when the notice of motion of no confidence is delivered to the Assistant Commissioner, the notice is only as regards the Assistant Commissioner and not to any other member including the persons who are subject to the motion of no confidence.
4. The learned counsel appearing for the members, Sri. K.Prasanna Shetty while adopting the arguments of learned AGA submits that since it is a motion of no confidence that has been moved without allegations, no purpose would be served by interpreting the Rules as requiring giving notice to the members and the President and Vice-President who are subject to the motion of no confidence as envisaged under Section 49(1) of the Act, 1993 and that would amount to duplication in so far as Rule 3(2) of the Rules provides for notice subsequently to be given by the Assistant Commissioner to the members including President and Vice-President and hence, the question of giving a notice as contended at the first stage when the same is delivered to the Assistant Commissioner does not arise.
5. Heard the learned counsel for both the sides.
6. The following points for consideration arise:
(i) Whether the notice given to the Assistant Commissioner expressing the intention to move the resolution of no confidence against the Adhyaksha/Upadhyaksha of the Gram Panchayath in accordance with the procedure prescribed under Rule 3(1) of the Rules is required to be given to the President/Vice- President of the Gram Panchayath?
(ii) Whether the notice as contemplated under Rule 3(2) of the Rules that is issued to the members in Form No.1 is also to be accompanied with the copy of the complaint?
(iii) Whether the right to move a motion of no confidence simpliciter is absolute or has been curtailed by the insertion of Section 49(2) of the Act, 1993?
Re-Point No.(1):
Though the words ‘notice of the intention to move the motion of no confidence’ is found in Section 49(1) of the Act, 1993, the notice is in the form of petition/plaint (hereinafter referred to as petition) in Form-I that is required to be given and delivered to the Assistant Commissioner. If the petition is given to the Assistant Commissioner, there is no question of construing the provision so as to mean the petition that has been delivered ought to be given to the other members who are subject to motion of no confidence i.e., the President and the Vice-President. Such construction is impermissible while noticing that the true intent of submitting the petition to the Assistant Commissioner is set into motion the process of the motion of no confidence as provided for under the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and the Rules that have been framed. In fact, though the matter was the subject matter of consideration in the case of Mallamma vs. State of Karnataka and Ors reported in ILR 2002 KAR 4253, wherein this Court has stipulated that the notice given to the Assistant Commissioner in terms of Rule 3(1) of the Rules is required to accompany the notice in Form-I, however, the question as to whether this notice given to the Assistant Commissioner ought to have been given to the President and Vice-President who are the subject matter of the motion of no confidence is not specifically dealt with. Though in the judgment of Ramappa vs. Assistant Commissioner Lingsur and Another reported in ILR 2006 KAR 3364, the matter relates to the notice under Rule 3(2) of the Rules given by the Assistant Commissioner to the members was in question, the Court in Ramappa’s case, while referring to Mallamma’s case, observes at paragraph No.3 that what is envisaged under the Rules is a written notice of intention to move a motion being delivered to the Assistant Commissioner. The Division Bench of this Court in the case of M. Puttegowda and another v. The Assistant Commissioner, Mysore Sub-Division, Mysore reported in (2002) 1 Kant LJ 16 (DB), while considering the similar issue and specifically as regards the notice under Rule 3(2) of the Rules issued by the Assistant Commissioner at paragraph No.9 while referring to the judgment in Smt. Parvathi v. The Assistant Commissioner, Haveri Sub-Division, Haveri reported in 1998 (1) Kar. L.J.399 has explained that the notice that is given under Section 49(1) of the Act, 1993 is to the Assistant Commissioner.
7. On a reading of all the judgments referred to above and also noticing the true purport of the notice expressing intention as envisaged under Section 49(1) of the Act, 1993, the notice expressing the intention to move the motion of no confidence is in fact what could be considered as a petition made to the Assistant Commissioner, which would be the first act setting into motion, the process of considering the motion of no confidence as envisaged under Section 49 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and procedure provided for under the Rules. Hence, it would be appropriate to construe that the petition that is delivered by the members to the Assistant Commissioner is one that is given to the Assistant Commissioner expressing their intention that they have no confidence in the elected President and Vice-President. If that is to be so, to interpret the relevant rule to state that this notice in the form of petition of expressing lack of faith in the President and Vice-President as the case may be ought to be given to the other members, does not stand to reason. The initiation of the action is by the Assistant Commissioner and the persons elected as President and Vice-President have no say at that stage of the process. Accordingly, the contention of the petitioners that this notice ought to be given to the President and Vice– President is liable to be rejected.
Re: Point No.2:
8. Taking note of the interpretation of the Division Bench in the case of M. Puttegowda and another vs. The Assistant Commissioner, Mysore Sub-Division, Mysore reported in (2002) 1 Kant LJ 16 (DB) as regards the second contention, it is clear that the law does not mandate furnishing a copy of the complaint or written notice expressing lack of confidence to the President and Vice-President as the case may be. The said aspect has already been dealt with in Ramappa’s case. This Court has held that though what is submitted to the Assistant Commissioner is the notice along with the complaint and documents, if any, but the obligation of the Assistant Commissioner under Rule 3(2) of the Rules does not extend to furnishing anything apart from the notice, in Form-II. Accordingly, the said contention is also liable to be rejected.
Re: Point No.3:
9. As regards the only other contention of the petitioners that motion of no confidence simpliciter ought not to be permitted so as to curtail the tenure of the elected members in an arbitrary manner, the said position as regards the security of tenure has been dealt by this Court in W.P.Nos.124-125/2019, wherein this Court has observed at para No.4 of the judgment, re-produced herein below:-
“x x x It is clear that in so far as the tenure of the members of the bodies are concerned, the tenure is fixed as per Section 46 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 subject to other provisions of the Act. The curtailment of the tenure of the members would be either under Sections 48, 43-A or by Section 49 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. Hence, in the present case, the moving of the motion of no confidence beyond the period of 30 months cannot be faulted. Section 49 envisages the moving of no confidence which could either be one without allegations under Section 49(1) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 or being one with allegations as contemplated under Section 49(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 x x x x”.
In the present case, noticing that the tenure of elected members would be subject to Sections 43 (2), 48 and 49 of the Act and that there is no bar as such to move a motion of No-Confidence under Section 49, no ground is made out for interference in moving motion of No-Confidence now sought to be considered in the meeting to be held on 10.01.2019.
10. It is apt to refer to the observation of a Division Bench of this High Court in the case of Smt.Lakshmamma v. State of Karnataka and Others (W.A. No.844/2018 & connected matters) at Para No.40 wherein the court has specifically observed that right to move a motion of No-Confidence simpliciter under Section 49(1) of the Act is not taken away and would continue despite Section 49(2) of the Act. Consequently, even after the lapse of 30 months, there would be no legal embargo on the members moving the motion of No- Confidence under Section 49(1) of Act. Hence, no grievance can be made as regards permitting a motion of no confidence under Section 49(1) of the Act, 1993, to be moved simpliciter. The general right of the members to move a motion of no confidence without stating any reason, per sub-section (1), was neither intended to be taken away nor has been taken away.
Accordingly, writ petitions are dismissed.
Sd/- JUDGE SMJ/HA