IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.6442/2019 (LB-ELE) Between:
Sri N.Y. Suresh, S/o Yellappa Gowda, Aged about 45 years, President, Karimane Grama Panchayat, Hosanagara Taluk, Shivamogga District, Resident of Nartige Nilskal Post, Hosanagara Taluk, Shivamogga District – 577 425. … Petitioner (By Sri Chandrakanth R. Goulay, Advocate a/w Sri Naveen A.S., Advocate) And:
1. The State of Karnataka, Rep. by its Secretary, Department of Rural Development & Panchayat Raj, M.S. Building, Bengaluru – 560 001.
2. The Deputy Commissioner, Shivamogga District, Shivamogga – 577 425.
3. The Assistant Commissioner, Shivamogga Sub Division, Shivamogga – 577 425.
4. The Executive Officer, Taluk Panchayat, Hosanagara Taluk, Shivamogga District – 577 425.
5. Sri M.T. Satish, Aged Major, Member, Karimane Grama Panchayat, Hosanagara Taluk, Shivamogga District – 577 425.
6. Sri H.T. Ramesh, Aged Major, Karimane Grama Panchayat, Hosanagara Taluk, Shivamogga District – 577 425.
7. Smt. Eramma, Aged Major, Karimane Grama Panchayat, Hosanagara Taluk, Shivamogga District – 577 425.
8. Smt. Vimala, Aged Major, Karimane Grama Panchayat, Hosanagara Taluk, Shivamogga District – 577 425. … Respondents (By Sri M.A. Subramani, HCGP for R-1 to R-3; Sri N.K. Ramesh, Advocate for R-5 to R-8) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the impugned notice dated 19.1.2019 issued by the respondent No.3 as per Annexure-H, as arbitrary, illegal and void and etc.
This Writ Petition coming on for Orders this day, the Court made the following:
ORDER The petitioner has challenged the notice at Annexure-H dated 19.01.2019 issued by the Assistant Commissioner whereby, the Assistant Commissioner had fixed the date of meeting as 08.02.2019 to consider the motion of no-confidence that was moved by the members of Karimane Grama Panchayat, Shivamogga District.
2. The petitioner has relied on the complaint at Annexure-G and contends that it is on the basis of the said complaint that the Assistant Commissioner has issued the notice as per Annexure-H. The petitioner contends that on the face of it, Annexure-G contains allegations as contemplated under Section 49(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for short). Hence, the learned counsel contends that in light of the law laid down in the case of Smt.Lakshmamma v. State of Karnataka and Others reported in 2019 (1) Kar.L.J. 94 (DB), the complaint being one with allegations cannot be considered till appropriate Rules are framed under Section 49(2) of the Act.
3. The learned Government Pleader appearing for respondent Nos.1 to 3 had initially filed a memo on 7.2.2019 and had enclosed copy of the complaint in Form No.1. He points out that the complaint is one as submitted in Form No.1 and apart from Form No.1, no other motion of no confidence as such has been enclosed. However, he points that that there were 18 documents enclosed alongwith Form No.1.
4. It is contended by learned Government Pleader and learned counsel appearing for respondent Nos.6 to 8 that the complaint is to be treated to be one under Section 49(1) of the Act and the documents enclosed with Form No.1 is liable to be ignored.
5. Learned counsel for the petitioner states that the documents enclosed alongwith Form No.1 are to be treated to be a part of the complaint that has been made. Alternatively, it is argued by learned counsel for the petitioner that there has been a FIR lodged against respondent Nos.5 and 6 and there is material on record that respondent No.5 has been accused of the offences punishable under Sections 143, 147, 148, 324, 327, 504, 506 and 149 of IPC read with Sections 3(1) and 3(2) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 and hence, under the provisions of Section 12 of the Act, the member of Grama Panchayat is deemed to have been disqualified and appropriate declaration to that effect is required to be made.
6. Heard learned counsel on both the sides.
7. Insofar as the contention as regards the complaint at Annexure-G is concerned, learned Government Pleader has filed affidavit dated 25.03.2019 of Assistant Commissioner, Sagar Sub-Division, Shivamogga and the Assistant Commissioner has stated emphatically at para-4 that Form No.1 was submitted by four members of Gram Panchayat on 10.01.2019 and an endorsement has been made by him on the said complaint and the signatures of members have been identified by the Panchayat Development Officer. Hence, it is clear that the complaint which is in Form No.1 that has been submitted to the Assistant Commissioner. There is no dispute as such looking into the affidavit filed by the Assistant Commissioner and the records that Form No.1 is the complaint.
8. A plain reading of Form No.1 does reveal that there are no allegations. Though documents have been enclosed alongwith Form No.1, the complaint is one in Form No.1 and could sustain itself de hors the documents enclosed. The notice issued by the Assistant Commissioner refers to Form No.1. If it were to be so, the appropriate manner of construing of complaint is to treat it as the one being without allegations and simpliciter under Section 49(1) of the Act and all other documents are liable to be ignored.
9. Accordingly, on this ground, it is clear that the complaint is to be treated as the one under Section 49(1) of the Act, in fact, there is no separate motion of no-confidence either with or without allegations that has been enclosed alongwith Form No.1. This Court, in the case of Smt.Laxmavva v. The State of Karnataka represented by its Secretary and Others reported in ILR 2007 KAR 1028 has observed that it would not be fatal to the complaint, if Form No.1 is to be treated as a complaint without any separate motion annexed alongwith. Accordingly, Form No.1 submitted is to be taken to be exhaustive of the complaint. If that were to be so, Form No.1 being without allegations, the motion of no-confidence is to be treated as the one Section 49(1) of the Act.
10. Insofar as the alternate contention of the petitioner as regards the action to be taken for disqualification and to treat the members against whom allegations have been made as contemplated under Section 12 of the Act as being deemed to be disqualified is concerned, it is noted that the remedy available to declare a member disqualified is as per the procedure prescribed under Section 13 of the Act.
11. No doubt, Section 13 provides that such action could be taken either suo motu or on a report made to it by the State Election Commission, after giving an opportunity of hearing and then decide the question.
12. In the present facts, it is for the concerned Authorities, to whom this fact of some of the members being involved in criminal cases having been brought to notice, are required to take appropriate action. Once it is brought to the notice of any public Authority including respondents that there are certain allegations occasioning initiation of action for disqualification, the Authority concerned must take note of the material submitted and if convinced, prima facie, that the material available is sufficient so as to warrant detailed enquiry, necessary action is to be taken by the said Authority by referring the same, if a case is made out under Section 13(2) of the Act, to the State Election Commission. However, this aspect of the matter cannot have any impact as such on the proceedings of no-confidence motion.
13. Accordingly, this petition is disposed of, subject to the above observations, making it clear that the notice at Annexure-H dated 19.01.2019 of the Assistant Commissioner and action pursuant to it remain unaffected.
Sd/- JUDGE VGR