IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF APRIL 2019 PRESENT THE HON’BLE MR.L.NARAYANA SWAMY ACTING CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE P.S.DINESH KUMAR WRIT APPEAL No.823/2019 (LB-RES) BETWEEN:
SMT. SHOBHA W/O GANGADHARESHWARA AGED ABOUT 36 YEARS PRESIDENT, KOTAGARLAHALLI GRAM PANCHAYAT, DODDERI HOBLI MADHUGIRI TALUK, TUMAKURU DISTRICT R/A VITTALAPURA VILLAGE DODDERI HOBLI, TANTAVALA MADHUGIRI TALUK TUMAKURU DISTRICT-572 132 ... APPELLANT (BY SHRI. RAJAGOPAL M.R, ADVOCATE) AND:
1. THE STATE OF KARNATAKA REPRESENTED BY ITS SECRETARY RURAL DEVELOPMENT & PANCHAYAT RAJ DEPARTMENT M.S.BUILDING, BENGALURU-560 001 2. THE ASSISTANT COMMISSIONER MADHUGIRI SUB-DIVISION MADHUGIRI-572 132 TUMAKURU DISTRICT 3. THE EXECUTIVE OFFICER TALUK PANCHAYAT MADHUGIRI TALUK MADHUGIRI -572 132 TUMAKURU DISTRICT 4. THE PANCHAYAT DEVELOPMENT OFFICER KOTAGARLAHALLI GRAM PANCHAYAT DODDERI HOBLI, MADHUGIRI TALUK TUMAKURU DISTRICT-572 132 5. RAJANNA B.R S/O LATE RAMAPPA AGED ABOUT 48 YEARS R/O DADIGONDANHALLI, DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMAKURU DISTRICT-572 132 6. LEELAVATHI W/O LATE JAYANNA AGED ABOUT 52 YEARS R/O BADIGONDANHALLI DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMAKURU DISTRICT-572 132 7. BHAGYAMMA W/O HONNESH AGED ABOUT 31 YEARS R/O HONNAPURA VILLAGE DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMAKURU DISTRICT-572 132 8. MAHABOOB PASHA S/O SHAFIULLA AGED ABOUT 30 YEARS R/O KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 9. LAKKAMMA W/O SEEBI RANGAIAH AGED ABOUT 32 YEARS R/O BULASANDRA, DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 10. SUMITRAMMA W/O SANRAMAIAH AGED ABOUT 48 YEARS R/O VIRUPAGONDANAHALLI DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 11. BHAGYAMMA K.S W/O RANGANATH AGED ABOUT 28 YEARS R/O KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 12. PRAKASH G S/O GAJJANNA AGED ABOUT 4 YEARS R/O HONNAPURA, DODDERI HOBLI KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 13. NAGARAJ H S/O HANUMANTHAPPA AGED ABOUT 36 YEARS R/O BHEEMANAKUNTE KOTAGARALAHALLI POST MADHUGIRI TALUK TUMKUR DISTRICT-572 132 ... RESPONDENTS (BY SHRI VIJAY KUMAR Y.H, PRINCIPAL GOVERNMENT ADVOCATE FOR RESPONDENTS NO.1, 2 AND 4;
SHRI KAMARAJU, ADVOCATE FOR RESPONDENTS NO:5 TO 13) THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 05/02/2019 PASSED BY THE LEARNED SINGLE JUDGE IN WP NO.45728/2018 AND ALLOW THE SAID WRIT PETITION AS PRAYED FOR THIS WRIT APPEAL, HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 11.03.2019, COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY, P.S.DINESH KUMAR J, PRONOUNCED THE FOLLOWING:-
J U D G M E N T This appeal is directed against order dated February 5, 2019 passed by the Hon'ble Single Judge in Writ Petition No.45728/2018.
2. For the sake of convenience, the parties are referred to as per their status in the writ petition.
3. Petitioner is the President of Kotagarlahalli Grama Panchayat, Dodderi Hobli, Madhugiri Taluk. A complaint was submitted to the Assistant Commissioner on August 14, 2018. Accordingly, a notice dated 26.09.2018 was issued to convene the meeting on October 16, 2018 to consider the ‘No Confidence’ motion against petitioner. Petitioner challenged the said notice in the instant writ petition contending inter alia that the notice was in violation of Rule 3(2) of Karnataka Panchayath Raj (Motion of No- Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (hereinafter referred to as ‘Rules’), whereunder the Assistant Commissioner is required to fix the date of meeting not later than thirty days from the date of notice expressing ‘No Confidence’. Admittedly, reckoned from the date, August 14, 2018, the date of complaint, the date fixed for the meeting namely October 16, 2018 was clearly beyond thirty days. The learned Government Pleader as also the learned Advocate for the contesting respondents conceded before the Hon’ble Single Judge that the notice was in violation of Rule 3(2) of Rules. In the circumstances, the Hon’ble Single Judge quashed the impugned notice issued by the Assistant Commissioner dated September 26, 2018 (Annexure ‘E’) reserving liberty to the respondents to move a fresh ‘No Confidence’ motion, if permissible, in accordance with law. Feeling aggrieved by the liberty granted by the Hon’ble Single Judge, petitioner has presented this writ appeal.
4. Shri.M.R.Rajagopal, learned Advocate for the appellant contended that the impugned order passed by the Hon’ble Single Judge holding that the third proviso to Section 49(1) of the Karnataka Gram Swaraj Panchayat Raj Act, 1993 (‘the Act’ for short) has no application for lapsing ‘No Confidence’ motion against Adhyaksha or Upadhyaksha of Grama Panchayat, is unsustainable in law.
5. In substance, petitioner’s sole grievance in this writ appeal is with regard to liberty granted by the Hon’ble Single Judge to the complainants to move a fresh ‘No Confidence’ motion.
6. Section 49 of the Act reads as follows:
“49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.– (1) Every Adhyaksha or Upadhyaksha of Grama Panchayat shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two thirds of the total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed:
Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-half of the total number of members and at least ten days notice has been given of the intention to move the resolution:
Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved within the first thirty months from the date of his election: Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within two years from the date of the decision of the Grama Panchayat.
(2) Notwithstanding anything contained in sub- section (1), no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved except on specific allegation of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or project of the panchayat or of misappropriating funds or other assets of the panchayat during the term of his membership or otherwise indulging in corruption or misconduct in the course of exercising his functions.”
7. It is not in dispute that pursuant to a complaint, the Assistant Commissioner fixed the meeting to consider the ‘No Confidence’ motion, beyond thirty days. The same being in violation of Rule 3(2) of the Rules, the Hon’ble Single Judge has set- aside the meeting notice.
8. Section 49(1) provides for moving a ‘No Confidence’ motion by giving 10 days’ notice of resolution signed by not less than one-half of the total number of members. The second proviso protects an Adhyaksha or Upadhyaksha against any ‘No Confidence’ motion for first thirty months. The third proviso places an embargo from making a subsequent motion within two years from the previous decision.
9. In the instant case, the notice has been set-aside as the same was in violation of Rule 3(5) of the Rules. In substance, the motion was not taken up for consideration in the meeting and rejected.
10. Shri.M.R.Rajagopal, adverting to a decision in H.M.Mallikarjuna Vs. State of Karnataka and others1 submitted that in the said case a meeting was convened and the members were waiting outside the Meeting Hall. The Meeting Hall was closed and locked. About 400 men and women who had gathered outside the Panchayat office were protesting against the 'No Confidence' motion. In the said case, the Assistant 1 ILR 2005 KAR 909 Commissioner was unable to handle the situation and accordingly postponed the meeting. Thus there was no deliberate lapse on the part of the Assistant Commissioner in postponing the meeting. He submitted that in contra distinction, in the instant case, the meeting has been convened deliberately beyond thirty days in violation of Rules and therefore, such a lapse amounts to lapsing of the 'No Confidence' motion. Hence, the ratio in H.M.Mallikarjuna cannot be made applicable in this case.
11. We are unable to be persuaded by argument of Shri. Rajagopal. In the case on hand, the Assistant Commissioner has fixed the date of meeting beyond 30 days. Hence, there occurred a procedural irregularity. It is indisputable that the ‘No Confidence’ motion was not placed for consideration in the meeting.
12. Therefore, in our considered view, the Hon’ble Single Judge has rightly held that the 'No Confidence'
motion has failed due to violation of Rule 3(2) of the Rules. Therefore, the question of motion having been considered and negatived does not arise for consideration. In the circumstances, we are at one with Hon’ble Single Judge’s opinion.
Resultantly this appeal fails and it is accordingly dismissed.
No costs.
Sd/-
ACTING CHIEF JUSTICE SPS Sd/-
JUDGE