IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.299 OF 2019 (LB – ELE) Between:
Sri. H. G. Kumar Naik S/o Late Ganga Naik Aged about 48 years President Hiriyuru Grama Panchayath Arasikere Taluk Hassan District – 573 103 Resident of Banavara Hobli Cheluvanahalli Post Hassan District – 573 103. ... Petitioner (By Sri. Chandrakanth R. Goulay, Advocate) And:
1. The State of Karnataka, Rep. by its Secretary, Department of Rural Development, and Panchayath Raj, M.S. Building, Bengaluru-560 001.
2. The Assistant Commissioner, Arasikere Sub Division, Hassan District-573 103.
3. The Executive Officer, Arasikere Taluk, Hassan District-573 103.
4. Sri. Revanna @ Revana Siddappa, Aged Major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
5. Smt. Palakshamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
6. Sri. Paramesha Naik, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
7. Smt. Prema, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
8. Sri. Ramalingappa, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
9. Smt. Renukamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
10. Smt. Jyothi, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
11. Sri. Chandrashekara, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
12. Smt. Vishalamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
13. Smt. Kaatamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
14. Smt. Rajamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
15. Smt. Shobhabai, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
16. Sri. Shankarappa, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
17. Sri. Nandeesh, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
18. Sri. Lokesh B.R., Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
19. Sri. Kariyamma, Aged major, Member of Hiriyuru Grama Panchayath, Arasikere Taluk, Hassan District-573103.
... Respondents (By Smt. Prathima Honnapura, AGA for R1 & R2) This petition is filed under Article 226 of the Constitution of India, praying to quash the impugned notice dated 15/17.12.2018 passed by the respondent No.2 as per Annexure-D as arbitrary, illegal and void and etc.
This petition coming on for Preliminary Hearing, this day, the Court made the following:
ORDER Learned AGA accepts notice for respondent Nos.1 and 2.
2. Petitioner, who is a member of Hiriyuru Grama Panchayath was elected as a President of the said Grama Panchayath on 29.06.2015. Petitioner states that there were previous efforts to move a motion of no-confidence against him and same was subject matter of adjudication in W.P.No.52414/2018, wherein, this Court vide order dated 04.12.2018 noted that there is a violation of the period prescribed for convening a meeting as per Rule 3(2) of the Karnataka Panchayath Raj (Motion of no-confidence against Adhyaksha and Upadhyaksha of Grama Panchayath) Rules, 1994, and quashed the notice of the Assistant Commissioner to convene the meeting to consider the motion of no- confidence. However, liberty was reserved to the members to initiate fresh proceedings for no-confidence in accordance with law. The members soon after the order passed in W.P.No.52414/2018 have initiated a fresh process and lodged notice/complaint expressing their intention at Annexure-C. A bare perusal of the said complaint clearly reveals that it is one that falls within Section 49(1) of the Karnataka Panchayath Raj Act, 1993 (hereinafter referred as ‘Act’ for short). Apart from general allegations, no allegations as contemplated under Section 49(2) of the Act have been made.
3. Section 49(2) of the Act clearly stipulates that the allegations contemplated relate to misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or project of the Panchayath or of misappropriating funds or other assets of the Panchayath during the term of his membership or otherwise indulging in corruption or misconduct in the course of exercising his function.
4. Motion of no-confidence allegations, which are general in nature cannot be permitted to be moved under Section 49(2) of the Act. Learned counsel for the petitioner however would contend that the motion of no- confidence initiated is in consonance with a motion under Section 49(2) of the Act and that in order to have security as regards tenure of the members, the only way to reconcile under Section 49(1) and 49(2) of the Act is to hold that all motions of no-confidence should be in the nature of one contemplated under Section 49(2) of the Act., If not, there would be no security as regards tenure after 30 months. Hence, it is contended that after the initial period of 30 months, the motion of no- confidence if moved must be one under Section 49(2) of the Act and motion of no-confidence under Section 49(1) of the Act is permissible.
5. The learned counsel for the petitioner further states that if it is not so construed after the period of 30 months, all elected President and Vice-Presidents will be removed by moving a motion simplicitor under Section 49(1) of the Act. It is further submitted that Section 49(2) of the Act would be rendered redundant if after the period of 30 months resort is had to removal by moving a motion of no-confidence simplicitor under Section 49(1) of the Act.
6. The contentions of the petitioner cannot be accepted. Section 46 of the Karnataka Gram Swaraj and Panchayath Raj Act, 1993 clearly states that the term of office of every Adhyaksha and every Upadhyaksha of the Grama Panchayath shall be five years save as otherwise as provided in this Act. The removal under the Act could be by a motion under Section 49 of the Act or disqualification or removal by analogous provision. This is obviously subject to process of removal by expressing no-confidence under Section 49 of the Act, which provides for moving of motion of no-confidence either simplicitor or with allegations.
7. The tenure of the members for five years is not absolute and subject to the provisions of Section 49 of the Act. It is clear that Section 49 of the Act contemplates two acts of motion of no-confidence i.e., simplicitor or one with allegations. This Court has interpreted that for the initial period of 30 months, removal could be only by way of motion of no-confidence with allegations. As regards the subsequent period, it cannot be said that motion of no-confidence simplicitor cannot be moved and it is only with allegation under Section 49(2) of the Act that ought to be moved. This would be plainly against the intention of the legislature and also the law laid down by the Division Bench in the case of Lakshmamma Vs. The State of Karnataka in W.A.Nos.844/2018 & 853/2018 and connected matters. The Division Bench has clearly observed at para No.40 that “else 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. This, in our view, is the only appropriate way of interpreting the provisions as existing, particularly looking to the purport and object thereof.”
Further, as noticed, complaint being one, which is general in nature is clearly one that falls under Section 49(1) of the Act. No case has been made out for interference except and referred to above. Hence, no grounds are made out to interfere with the motion of no- confidence. Accordingly, writ petition fails and is rejected.
Sd/- JUDGE SN/KLV