IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 05TH DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.45728/2018 (LB RES) BETWEEN SMT. SHOBHA W/O GANGADHARESHWARA, AGED ABOUT 36 YEARS, PRESIDENT, KOTAGARALAHALLI GRAM PANCHAYATH, DODDERI HOBLI, MADHUGIRI TALUK & TUMKUR DISTRICT, R/AT VITTALAPURA VILLAGE, DODDERI HOBLI, TANTAVALA, MADHUGIRI TALUK, TUMKUR DISTRICT-572132. ... PETITIONER (BY SRI M R RAJAGOPAL, ADV.) AND 1. THE STATE OF KARNATAKA, REPRESENTED BY ITS SECRETARY, RURAL DEVELOPMENT & PANCHAYATH RAJ DEPARTMENT, M S BUILDING, BENGALURU-560 001.
2. THE ASSISTANT COMMISSIONER, MADHUGIRI SUB DIVISION, MADUGIRI-572 132.
3. THE EXECUTIVE OFFICER, TALUK PANCHAYATH, MADHUGIRI TALUK, TUMKUR DISTRICT-572132 4. THE PANCHAYATH DEVELOPMENT OFFICER KOTAGARALAHALLI GRAM PANCHAYATH, DODDERI HOBLI, MADHUGIRI TALUK, TUMKUR DISTRICT-572 132.
5. RAJANNA B R, S/O LATE RAMAPPA, AGED ABOUT 48 YEARS, R/O BADIGONDANHALLI, DODDERI HOBLI, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
6. LEELAVATHI, W/O LATE JAYANNA, AGED ABOUT 52 YEARS, R/O BADIGONDANHALLI, DODDERI HOBLI, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
7. BHAGYAMMA, W/O HONNESH, AGED ABOUT 31 YEARS, R/O HONNAPURA VILLAGE, DODDERI HOBLI, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
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-572132.
10. SUMITRAMMA, W/O SANRAMAIAH, AGED ABOUT 48 YEARS, R/O VIRUPAGONDANAHALLI, DODDERI HOBLI, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
11. BHAGYAMMA K S W/O RANGANATH, AGED ABOUT 28 YEARS, R/O KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
12. PRAKASH G, S/O GAJJANNA, AGED ABOUT 4 YEARS, R/O HONNAPURA, DODDERI HOBLI, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132.
13. NAGARAJ H S/O HANUMANTHAPPA, AGED ABOUT 36 YEARS, R/O BHEEMANAKUNTE, KOTAGARALAHALLI POST, MADHUGIRI TALUK, TUMKUR DISTRICT-572132. ... RESPONDENTS (BY SRI M.A.SUBRAMANI, HCGP FOR R1 & R2, SRI A.NAGARAJAPPA, ADV. FOR R3 & R4, SRI KAMARAJU, ADV. FOR C/R5 TO R13.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR THE RECORDS PERTAINING TO THE IMPUGNED NOTICE DTD:26.9.2018 ISSUED BY THE R-2 VIDE ANNEXURE-E, PERUSE THE SAME AND DECLARE THAT THE SAME IS IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE AND THE PROVISIONS OF THE KARNATAKA GRAM SWARAJ AND PANCHAYATH RAJ ACT 1993 AND NOT TENABLE IN THE EYE OF LAW AND AS A CONSEQUENCE THEREOF AND QUASH THE IMPUGNED NOTICE DTD:26.9.2018 ISSUED BY THE R-2 VIDE ANNEXURE-E.
THIS WRIT PETITION COMING ON FOR ‘ORDERS’ THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner who is the President of the Kataaralahalli Grama Panchayat, Dodderi Hobli, Madhugiri Taluk has challenged the notice at Annexure-E dated 26.09.2018 whereby meeting has been convened on 16.10.2018 to consider the Motion of No-Confidence that has been moved by the Members.
2. This Court by its order dated 12.10.2018 had permitted the meeting to be conducted but the result of the said meeting however was subject to the final decision to be passed.
3. It is stated that interim order dated 12.10.2018 granted by the learned Single Judge has been taken up before the Division Bench in W.A.No.2949/2018 wherein, interim order has been passed in the said Appeal to the effect that the resolution of the Motion of No-Confidence will not be given effect to.
4. The petitioner states that the complaint of the Members was submitted to the Assistant Commissioner on 14.08.2018 and the meeting was convened on 16.10.2018 and clearly there is a violation of Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (hereinafter referred to as ‘the Rules’ for short) insofar as the Assistant Commissioner is be required to fix a date not later than 30 days from the date of notice to move Motion of No-Confidence and he shall give to the Members a notice of not less than fifteen clear days of such meeting in Form-II.
5. Hence, in the present case, it is contended that the date fixed being 16.10.2018 is beyond 30 days as prescribed under Rule 3(2) of the Rules and in view of the fact that the adherence to the said procedure has to be considered strictly, the instant writ petition is to be allowed.
6. As regards the said position, learned Government Pleader states that clearly there is a violation of Rule 3(2) of the Rules and so also, learned counsel for the respondents concedes that there is violation of Rule 3(2) of the Rules.
7. In view of the admitted position that there is a violation of Rule 3(2) of the Rules insofar as time prescribed in convening the meeting to consider the Motion of No-Confidence being established, on this ground alone, the notice at Annexure-E is liable to be quashed and accordingly, notice dated 26.09.2018 issued by the Assistant Commissioner is set aside.
8. Insofar as request of the learned counsel for respondent Nos.3 to 13 that liberty be reserved to move a fresh Motion of No-Confidence in accordance with law, Sri.M.R.Rajgopal, learned counsel for the petitioner submits that such liberty cannot be reserved and advanced various legal contentions.
9. It is contended that once Motion of No-Confidence has been stayed as in the present case and the same having been set aside by this Court on the ground that the Assistant Commissioner has committed lapse in adherence to Rule 3(2) of the Rules, the question of moving Motion of No-Confidence afresh under Section 49 is impermissible and hence, the question of making any observation or granting liberty to the Members to move Motion of No-Confidence does not arise.
10. It is submitted that under Rule 3(5) of the Rules, there is an obligation on the part of Assistant Commissioner to continue a meeting convened for the purpose of considering the Motion of No-Confidence that has been moved under Rule 3(5) of the Rules and there is no power for adjourning such meeting for any reason whatsoever.
11. The only exception that is pointed out is that it is provided under first proviso to sub-Rule 2 of Rule 3 where there is an order of stay as regards the said motion and another circumstance is as noticed under sub-Rule (6) where meeting fails due to lack of quorum.
12. Hence, it is contended that where the Motion of No Confidence cannot be proceeded as a result of lapse on the part of the Assistant Commissioner due to adherence of Rules, such circumstance has never been envisaged nor any exception is created for convening or continuing the meeting as is evident from a plain reading of sub-Rule 5 Rule 3 of the Rules.
13. It is further contended that though an interpretation as regards to the similar situation has been made in the case of H.M.Mallikarjuna vs. State of Karnataka and others reported in ILR 2005 KAR 909, it is contended that the convening the meeting is to be distinguished from commencing the meeting has not been taken note of.
14. It is further contended that the bar under third proviso to Section 49 which provides that where a Motion of No-Confidence has been considered and negatived by the Grama Panchayat, a fresh Motion of No-Confidence cannot be moved within two years from the date of the decision of Grama Panchayat, would operate in the facts of the present case.
15. Learned counsel for the respondents relies on the order passed in W.P.No.55252/2018 dated 12.12.2018 wherein this Court while considering the question as to whether there was a bar for moving Motion of No-Confidence when earlier Motion of No-Confidence could not be proceeded, due to lack of quorum.
16. This Court has held while referring Rule 3(6) that for the purpose of bar to operate as per the third proviso to Section 49, it is necessary that the Motion of No-Confidence has to be considered and negatived by the Grama Panchayat. On an earlier occasion, this Court while so holding, held that where the meeting has been dissolved without quorum and the notice under sub-Rule(1) has lapsed, the question of Motion of No-Confidence having been considered and negatived does not arise, as notice itself has lapsed and the meeting has dissolved.
17. Learned AGA contends that lapse on behalf of the Assistant Commissioner cannot be taken note of and the Assistant Commissioner is obligated under law to follow the procedure prescribed under Rule 3(2) of the Rules and any lapse on the part of the Assistant Commissioner cannot amount to conferring a benefit to the Adyaksha and Upaadyaksha of the Grama Panchayat on technicalities.
18. Sri.A.Nagarajappa, learned counsel appears on behalf of respondent Nos.3 and 4 and adopts the arguments of respondent No.6.
19. Heard the learned counsel for both sides.
20. The contention of the petitioner is that though the motion of No-Confidence which was moved on an earlier occasion was not taken up for consideration in the meeting it is sufficient to construe as if the meeting has been convened. It is contended that in the light of the fact that there is a bar on the Assistant Commissioner from adjourning the meeting convened for the purpose for considering the Motion of No-Confidence for any reason as provided under sub-Rule 4 and 6 of the Rule 3 of the Rules, for all practical purposes the meeting is to be taken to be held and Motion of No-Confidence deemed to be considered.
21. It must be noted that the lapse on the part of the Assistant Commissioner in convening the meeting in accordance with Rule 3(2) of the Rules would result in vitiating the notice moved by the Members expressing No-Confidence for Adyaksha and Upadyaksha. When the Motion of No-Confidence has failed due to such lapse of the Assistant Commissioner, the question as to interpretation to be placed under sub-Rule 5 is requires to be considered. It is clear that on a purposive interpretation, the reason for failure of the Motion of No-Confidence if is due to lapse on the part of the Assistant Commissioner, the said act of the Assistant Commissioner which is obligatory cannot be construed to confer any benefit of such lapse to the very elected officers who are sought to be removed through a Motion of No-Confidence.
22. As regards the interpretation to be placed under third proviso to Section 49, it may be noted at the outset that the Rules ought to be read subject to the provision of the Act. Section 49 is the substantive provision of the Act which creates a bar as per third proviso only where the Motion of No-Confidence has been considered and negatived by the Grama Panchayat. Accordingly, the reliance placed on Rule 3(5) to the effect that meeting cannot be adjourned except as provided for which should be taken that adjournment on any other ground is to be deemed as if meeting had taken place is liable to be rejected.
23. In the facts and circumstances of the present case, when the Motion of No-Confidence has failed in the light of violation of Rule 3(2) of the Rules, the question of the said Motion of No-Confidence having been considered and negatived does not arise as the Motion of No-Confidence has not been placed before the meeting as is contemplated under the Rules. If such Motion of No-Confidence has not been placed before the Meeting, the question of treating the resolution of No-Confidence has been negatived after having been considered, does not arise. In fact as per Rule 3(6) if there is no quorum, the notice given is taken to have lapsed. Hence, the question of placing the Motion of No-Confidence for consideration before the Gram Panchayath does not arise.
24. Accordingly, the bar as provided under third provision of Section 49 cannot be said to operate in the facts and circumstances of the present case. Accordingly, the contention of the learned counsel for the petitioner is rejected. Liberty is reserved to the respondents to move Motion of No-Confidence, if permissible, in accordance with law.
Accordingly, the petition is disposed of.
Sd/- JUDGE VM CT-HR