IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 14TH DAY OF OCTOBER 2019 BEFORE THE HON'BLE MR.JUSTICE S.SUNIL DUTT YADAV WRIT PETITION NO.38836 OF 2019 (LB-RES) C/W WRIT PETITION NO.41024 OF 2019 (LB-RES) BETWEEN:
SRI D NARENDRA WADIYAR, S/O LATE SHIVAPPA WADIYAR, AGED ABOUT 65 YEARS, (SENIOR CITIZEN BENEFIT NOT CLAIMED) ELECTED MEMBER, TALUK PANCHAYAT SORABA, R/O MOODYDODDIKOPPA, SORABA TALUK, SHIVAMOGGA DISTRICT – 577 429. …PETITIONER (BY SRI M.R.RAJAGOPAL, ADVOCATE) AND:
1. THE DEPUTY COMMISSIONER, SHIVAMOGGA DISTRICT, SHIVAMOGGA – 577 429.
2. THE EXECUTIVE OFFICER, TALUK PANCHAYAT, SORABA, SHIVAMOGGA DISTRICT – 577 429.
3. SMT.NAYANA S RAO, W/O N.H.SREEPADA RAO, AGED ABOUT 46 YEARS, ADHYAKSHA, TALUK PANCHAYAT, SORABA, R/O NISRANI VILLAGE, SORABA TALUK, SHIVAMOGGA DISTRICT – 577 429. ...RESPONDENTS (BY SMT.PRATHIMA HONNAPURA, AGA FOR R1, SRI B.J.SOMAYAJI, ADVOCATE FOR R2, SRI S.R.HEGDE HUDLAMANE, ADVOCATE FOR R3) **** THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE DISSENTING NOTE AS RECORDED IN THE PORTION OF THE PROCEEDINGS OF THE MEETING DATED 13.08.2019 IN ANNEXURE-C AND THE ORDER DATED 13.08.2019 AS PER ANNEXURE-D BY R2; DECLARE THAT EITHER UNDER SECTION 141 OR UNDER SECTION 156 OF THE KARNATAKA GRAM SWARAJ AND PANCHYATH RAJ ACT, 1993, R-2 LACKS INHERENT AUTHORITY TO PASS THE ORDER AS PER ANNEXURE-D DATED 13.08.2019, AS SUCH THE SAME IS VOID.
IN WRIT PETITION NO.41024 OF 2019: BETWEEN:
MRS.NAYANA S RAO, W/O SRI N.H.SREEPADA RAO, AGED ABOUT 46 YEARS, ADHYAKSHA, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIVAMOGA DISTRICT – 577429. …PETITIONER (BY SRI S.R.HEGDE HUDLAMANE, ADVOCATE) AND:
1. H.SURESHAPPA HAVANANAVAR, AGE: MAJOR, VICE PRESIDENT, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT - 577 429.
2. D.NARENDRA WADIYAR, AGE: MAJOR, ELECTED MEMBER, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
3. SMT.ANJALI, W/O SANJEEV, AGE: MAJOR, ELECTED MEMBER, TALUKA PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
4. SMT.INDIRA, AGE: MAJOR, ELECTED MEMBER, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
5. SUNIL GOWDAR, AGE: MAJOR, ELECTED MEMBER TALUKA PANCHAYATH SORABA SORABA TALUK, SHIMOGA DISTRICT – 577 429.
6. SMT.LATHA, W/O SURESH, AGE: MAJOR, ELECTED MEMBER, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
7. SMT.JYOTHI N, AGE: MAJOR, ELECTED MEMBER TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
8. SMT.RENUKA, W/O MANJUNATH, AGE: MAJOR, ELECTED MEMBER, TALUKA PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
9. SMT.MANJAMMA, AGE: MAJOR, ELECTED MEMBER, TALUK PANCHAYATH SORABA,, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
10. SRI N.G.NAGARAJ, AGE: MAJOR, ELECTED MEMBER, TALUK PANCHAYATH SORABA, SORABA TALUK, SHIMOGA DISTRICT – 577 429.
11. EXECUTIVE OFFICER, TALUKA PANCHAYATH, SORABA, SHIVAMOGGA DISTRICT – 577 429.
12. DEPUTY COMMISSIONER, SHIVAMOGGA, SHIVAMOGGA DISTRICT – 577 201.
...RESPONDENTS (BY SRI M.R.RAJAGOPA FOR R1 TO R10, SRI B.J.SOMAYAJI, ADVOCATE FOR R11, SRI R SUBRAMANYA AGA A/W SMT.PRATHIMA HONNAPURA, AGA FOR R12) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DECLARE THE RESOLUTION PASSED BY THE R-1 AS PER ANNEXURE-C, DATED 13.08.2019 IS ILLEGAL WITHOUT AUTHORITY OF LAW; DIRECT THE R-12 TO CANCEL THE RESOLUTION PASSED BY THE R-1 TO 10, HOLDING IT IS ILLEGAL AND WITHOUT AUTHORITY OF LAW.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard learned counsel for the petitioner and learned Additional Government Advocate.
2. Learned Additional Advocate General appearing for the State has made his submissions.
3. W.P. No.38836/2019 and W.P.
No.41024/2019 relate to the same controversy and are interconnected and hence taken up together and disposed of by this order.
4. W.P. No.38836/2019 has been filed by the Member of the Soraba Taluk Panchayat who has challenged the proceedings of the meeting dated 13.08.2019 and the order dated 13.08.2019 passed by respondent No.2 as per Annexure-D.
5. W.P. No.41024/2019 on the other hand, has been filed seeking for a declaration that the resolution dated 13.08.2019 found at Annexure-C to the said writ petition is illegal and without authority of law. Said writ petition is filed by Smt. Nayana S.Rao who is the Adhyaksha of the Taluk Panchayat, Soraba, against whom motion of no confidence is moved.
6. The admitted facts being that Smt. Nayana S.Rao was elected as the Adhyaksha of the Taluk Panchayat. The Members of the Taluk Panchayat have moved the motion of no confidence against the Adhyaksha and the said motion came to be considered in the meeting of the Taluk Panchayat on 13.08.2019. The members who were present numbered Ten and motion of no confidence came to be passed. However, the Executive Officer has prepared a Dissent Note stating that 2/3rd of the Members are required to vote on the motion of no confidence and in the absence of such strength, necessary orders to be obtained from the Government. Recording thus, the Executive Officer kept further proceedings pursuant to the motion of no confidence pending.
7. The Executive Officer, however, has subsequently passed an order, copy of which is produced as per Annexure-D, whereby, after due consideration, the Executive Officer has expressed the opinion that in the light of only Ten Members having voted in favour of the said resolution, the said resolution is in violation of law and permits continuation of the respondent No.3 as the Adhyaksha.
8. The petitioner contends that the power that is available to the Executive Officer as per Section 156 (2) of the Karnataka Gram Swaraj and Panchayat Act, 1993 (hereinafter referred to as ‘Act” for the sake of brevity) where he is of the view that the resolution or order is inconsistent with the provisions of this Act or other legal requirements as stipulated in Section 156 (2) of the Act, he is to communicate in the form of a written note containing the reasons for so opining and specifying the law, rule, order, regulation or provision as regards which the proposal or resolution or order is inconsistent with. In the event, if the proposal or resolution or order has been considered once again and passed by the Taluk Panchayath or the Committee or the Adhyaksha to whom such advise has been tendered, the Executive Officer is required to submit the proposal or resolution or order with his advice to the Chief Executive Officer.
9. It is noticed that Dissent Note has been made on the very same day after the resolution is passed. The Executive Officer is required to act thereafter in accordance with the power conferred under Section 156 (2) of the Act.
10. The procedure that has been followed by the Executive Officer in passing the order as per Annexure- D is not contemplated under the Act. In fact, even before any further action was to be taken once the Dissent Note was appended, the Executive Officer ought to have communicated his opinion in terms of Section 156 (2) of the Act by a written note containing the reasons for his opinion and specifying the law, rule, regulation or provision with respect to which the resolution is inconsistent with and if such resolution or order has already been passed, may resubmit the proposal, resolution or order with his advise for fresh consideration.
11. In the present case, since the procedure contemplated under Section 156 (2) of the Act has not been adhered to, the order at Annexure-D is set aside and the Executive Officer is to proceed with further proceedings from the stage of Dissent Note which is already recorded, and take further proceedings in accordance with Section 156 (2) of the Act. In the interregnum, as the motion of no confidence has not reached a logical conclusion as the Executive Officer is still to exercise power under Section 156(2) of the Act, said resolution would not be given effect to, till a final decision is taken.
12. However, in W.P. No.41024/2019, the petitioner has challenged the validity of the resolution on various grounds. In the light of the remand of the matter back to the Executive Officer for consideration in the light of the observations made above, the question of adjudicating on the validity of the resolution at this stage may not arise. In fact, some of the contentions raised by the petitioner are on the same lines of that of the Dissent Note of the Executive Officer. If on remand, the Executive Officer would take action which has the effect of not giving effect to the resolution dated 13.08.2019, the cause of action for the petitioner in W.P. No.41024/2019 to challenge the resolution would not arise. However, all contentions of parties as raised in the present petitions are kept open.
Accordingly, the writ petitions are disposed of.
Sd/- JUDGE SJ