1/6 IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 17TH DAY OF OCTOBER, 2017 BEFORE THE HON’BLE Dr. JUSTICE VINEET KOTHARI WRIT PETITION No.47093/2017 (LB-RES) BETWEEN:
SMT. SOMAKSHI W/O BHARATH RAJ, AGED ABOUT 41 YEARS, R/AT HOSALLI VILLAGE AND POST, SRIRANGAPATNA TALUK-571438. … PETITIONER (BY SRI. V. SRINIVAS, ADVOCATE) AND:
1. STATE OF KARNATAKA BY ITS SECRETARY TO PANCHAYATH RAJ DIVISION, VIKAS SOUDHA, BANGALORE-560001.
2. THE ASSISTANT COMMISSIONER PANDAVAPURA SUB-DIVISION, PANDAVAPURA-571421.
3. THE PANCHAYATH DEVELOPMENT OFFICER HOSAHALLI GRAMA PANCHAYAT, HOSAHALLI, SRIRANGAPATNA TALUK 571438.
4. SRI JAYARAMU S/O LATE SHIVANNA, AGED ABOUT 48 YEARS R/AT HOSALLI VILLAGE AND POST, SRIRANGAPATNA TALUK-571438.
… RESPONDENTS (BY SRI. D. R. ANANDESHWARA, HCGP. FOR R-1 & R-2.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE R-2 TO CONSIDER THE OBJECTIONS OF THE PETITIONER VIDE ANNEXURE-E TO THE W.P.
THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Mr. V. Srinivas, Adv. for Petitioner Mr. D.R. Anandeeshwara, HCGP for R-1 & R-2 1. The petitioner-Smt. Somakshi, wife of Bharath Raj, Member of Hosalli Grama Panchayat, has filed this petition, seeking a direction from this Court that the Assistant Commissioner, Pandavapura Sub-Division, Pandavapura, be directed to hold an enquiry in the circumstances in which the Respondent No.4-Sri. Jayaramu, son of late Shivanna has resigned from the post of Adhyaksha of the said Hosalli Grama Panchayat as required under second proviso to Section 48[1] of the Karnataka Gram Swaraj & Panchayat Raj Act, 1993 [hereinafter referred to as ‘Act’, for short].
2. The learned counsel for the petitioner submits before the Court that the Assistant Commissioner will not hold any enquiry in the matter and resignation would be accepted in terms of Section 48 of the Act though the said resignation Annexure-C dated 12.10.2017 has been filed by the Respondent No.4 under coercion and the development activity of the said Grama Panchayat to which the present petitioner also belongs as a Member, is likely to suffer in the process and therefore suitable directions may be given to the Assistant Commissioner to hold enquiry in the matter as already mandated in the provisions of the Act.
3. On the other hand, learned Government Pleader submits that it is premature for this Court to interfere and the petitioner has already filed her objections under the said Proviso vide Annexure-E dated 12.10.2017 itself before the said Assistant Commissioner, Pandavapura Sub-Division and since said Assistant Commissioner is bound to consider such objections and hold enquiry in the matter, therefore, there is no justification for issuing any writ of mandamus in this regard.
4. The provisions of Section 48[1] including the Proviso read as under:
“48. Resignation or removal of Adhyaksha and Upadhyaksha.- (1) The Adhyaksha of the Grama Panchayat may resign his office by writing under his hand addressed to the Assistant Commissioner and the Upadhyaksha of the Grama Panchayat may resign his office by writing under his hand addressed to the Adhyaksha and in absence of the Adhyaksha to the Assistant Commissioner.
Provided that Adhyaksha or Upadhyaksha of a Grama Panchayat shall resign his office or membership, or liable for removal, -
[i] on the grounds of proven physical or mental incapacity certified by a competent authority approved by the State Election Commission; or [ii] on the grounds of securing employment in Central Government or State Government or public undertakings;
Provided further that the Assistant Commissioner shall enquire into the cause of resignation and satisfy that resignation has not been submitted under threat, coercion, undue influence and allurement and is submitted voluntarily.”
5. Having heard the learned Counsel for the parties, this Court is of the opinion that when the provisions of Section 48 itself is very clear and the second Proviso to Section 48 of the Act clearly mandates the Assistant Commissioner to enquire and the words used being ‘shall enquire into the cause of resignation’, there is no justification for assuming that the Assistant Commissioner would not hold an enquiry in the matter. The objections of the petitioner have also been filed before the said Assistant Commissioner.
6. Therefore, expressing the hope and expecting the Assistant Commissioner to hold a dispassionate enquiry as is required by law, the present petition is disposed of in the aforesaid circumstances. It is also expected that such enquiry shall be held expeditiously so that the purpose of the said provision is not defeated. No order as to costs.
Sd/- JUDGE AN/- (Sl.No.28)