IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.57162/2018 (LB- RES) Between:
Smt. Sujatha Y., W/o Dr. Chinappa Y. Chikkahagade, Aged about 38 years, Member and X-Adhyaksha, Muthanallur Gram Panchayath, Sarjapura Hobli, Anekal Taluk, Bengaluru – 560 099. … Petitioner (By Sri Nagarajappa A., Advocate) And:
1. The Assistant Commissioner, Bengaluru South, Sub Division, Bengaluru, Kandaya Bhavan, 2nd Floor, K.G. Road, Bengaluru – 560 009.
2. The Executive Officer of Taluk, Panchayath, Anekal Taluk, Anekal, Bengaluru Urban District – 562 106.
3. Smt. Subha, W/o Sridhar, Aged about years, Vide President of Muthanallur Gram Panchayath, R/at Muthanallur, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
4. Gowramma, W/o Ganesh P., Aged about 40 years, Member, Muthanallur Gram Panchayath, Narayanbhatta Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
5. N. Jyothy, W/o Venkatswamy Reddy, Aged about 39 years, Member, Muthanallur Gram Panchayath, Muthanallur Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
6. Gowramma, W/o Harish, Aged about 40 years, Member, Muthanallur Gram Panchayath, Komasandra Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
7. Sugunamma, W/o Chikkaeerappa, Aged about 38 years, Member, Muthanallur Gram Panchayath, Muthanallur Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
8. Nanjappa, S/o Pappaya, Aged about 40 years, Member, Muthanallur Gram Panchayath, Muthanallur Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
9. Rajareddy S., S/o Late Nanjunreddy, Aged about 54 years, Member, Muthanallur Gram Panchayath, Muthanallur Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
10. A.E. Murugesh, S/o Erasappa, Aged about 38 years, Member, Muthanallur Gram Panchayath, Allibomasandra Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
11. T. Srinivasa Reddy, S/o Timarayappa, Aged about 55 years, Member, Muthanallur Gram Panchayath, Allibomasandra Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106.
12. Shivakumar, S/o Gopalareddy, Aged about 25 years, Member, Muthanallur Gram Panchayath, Narayanbhatta Village, Sarjapur Hobli, Anekal Taluk, Bengaluru Rural District – 562 106. … Respondents (By Sri M.A. Subramani, HCGP for R-1 & R-2; Sri Nagendra Naik R., Advocate for R-3 to R-12) ***** This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the resolution dated 14.11.2018 vide Annexure-E issued by respondent No.1 and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner, who is an elected member of Muthanalluru Grama Panchayat was elected as ‘Adhyaksha’ of the said Grama Panchayat on 06.07.2015.
2. The motion of no-confidence was moved by the members and the Assistant Commissioner had issued notice at Annexure-D dated 23.10.2018 convening the meeting to consider the motion of no-confidence on 14.11.2018. The motion of no-confidence was considered and the said motion was passed in the meeting, as a result of which, the petitioner was removed from the post of ‘Adhyaksha’. Subsequently, in order to fill up the post of ‘Adhyaksha’, election was notified on 15.12.2018 to be held on 29.12.2018. It is to be noted that the petitioner had abstained from the meeting held on 14.11.2018 in which the motion of no-confidence was considered.
3. The petitioner, on 19.12.2018 after notification of election has filed the petition seeking to challenge the resolution dated 14.11.2018 whereby, the motion of no-confidence came to be passed against the petitioner.
4. The learned counsel for the petitioner contends that the complaint having been submitted to the Assistant Commissioner on 23.08.2018, the meeting was sought to be convened on 14.11.2018 clearly beyond the period contemplated under Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 [for short ‘Rules’].
5. The petitioner submits that in light of settled legal position, which is not in dispute and that the procedure under Rule 3(2) of the Rules is to be construed to be mandatory, the question of petitioner having approached belatedly cannot be a defence.
6. The petitioner submits that mandatory procedure, not adhered to would vitiate all actions and hence, the non-compliance of procedure under Rule 3(2) of the Rules would result in vitiation of notice, resolution passed. It is contended that the non-
adherence to the procedure under Rule 3(2) of the Rules would also vitiate the election proceedings held to fill up the post of ‘Adhyaksha’, as election proceedings were held consequent to the passing of motion of no- confidence on 14.11.2018.
7. It is further submitted that the election process is also vitiated insofar as no election for the post of ‘Adhyaksha’ could have been notified without there being a notification under Rule 3(9) of the Rules to the effect that previous ‘Adhyaksha’ ceased to hold the office. It is also submitted that such notification is mandatory, more so, where the person removed was not present at the meeting.
8. It is contended that the procedure to hold election in light of Rule 3(11) of the Rules cannot be proceeded with till appropriate notification under Rule 3(9) has been made and that comes out from a plain reading of Rule 3(9) and Rule 3(11) of the Rules. Hence, it is contended that the election process whereby new ‘Adhyaksha’ has come to be elected is vitiated.
9. The learned Additional Government Advocate, on the other hand, submits that the petitioner has approached the Court belatedly and on the ground of laches, the petitioner is not to be granted any relief. It is further submitted that the contention regarding violation of Rules 3(9) and 3(11) of the Rules so as to vitiate the election held to the post of ‘Adhyaksha’ cannot also be considered in light of the undue delay in approaching this Court and that no grounds have been urged as regards such contention in the petition.
10. It is further pointed out that in the absence of specific grounds relating to non-adherence of Rules 3(9) and 3(11) of the Rules, the contention being factual in nature, there has been no opportunity to the respondents to meet such contentions and such contentions taken at the time of disposal of the matter, cannot be taken note of.
11. Heard Sri A.Nagarajappa, the learned counsel for the petitioner as well as Sri M.A.Subramani, learned Government Pleader appearing for the respondent Nos.1 and 2. Other respondents, though represented, their learned counsel were not present at the time when the matter was taken up.
12. The contention of the petitioner that the procedure under Rule 3(2) is mandatory is not disputed and is a settled legal position. Learned Government Pleader also states that non-adherence to the procedure under Rule 3(2) of the Rules is not in dispute, but the belated approach in seeking legal redressal by the petitioner would disentitle the petitioner from any reliefs.
13. The meeting was convened on 14.11.2018 and the petitioner having notice of the said motion has absented himself on the said date and not having filed the petition immediately thereafter, has in fact filed the petition more than a month after the resolution relating to motion of no-confidence has been passed against the petitioner. Such belated action by the petitioner would disentitle the petitioner to the discretionary relief that could be granted in exercise of power under Article 226 of the Constitution of India.
14. It is settled legal position that merely because a case is made out in law or that there has been violation of legal right, the remedy sought for does not follow as a matter of course. The Court in its discretion in appropriate circumstances would deny the relief to the petitioner. In the present case, having taken note of the fact that the motion of no-confidence was considered in the meeting held on 14.11.2018 on which date the petitioner has remained absent, the notification for election subsequently being notified on 15.12.2018, the present writ petition came to be filed on 19.12.2018, there has been delay in approaching the Court.
15. Taking note of the delay in approaching the Court, on the ground of laches, the relief to the present petitioner is rejected. As regards the contention that the election process itself is illegal in light of non- notifying of the vacancy in accordance with Rule 3(9) of the Rules and holding of election without adhering to Rule 3(9) of the Rules in light of the mandate in Rule 3(11) of the Rules would result in vitiation of election process also cannot be considered in the absence of necessary pleadings and providing an opportunity to the State to rebut or controvert the said assertion of the petitioner.
16. The last contention of learned counsel for the petitioner is that the complaint that has been made is with allegations which are specific and detailed and hence, on this ground alone, the motion of no- confidence being one as contemplated under Section 49(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for brevity), the same is liable to be set aside.
17. In light of the observations made in the case of Smt.Lakshmamma v. State of Karnataka and Others reported in 2019 (1) Kar.L.J.94 (DB) wherein, the Division Bench as regards the contention that the motion of no-confidence with allegations contemplated under Section 49(2) of the Act cannot be proceeded with till appropriate Rules are framed by the State. The Division Bench has held that in case of writ petitions decided and pending adjudication, the motion of no- confidence is to be treated as one moved under Section 49(1) of the Act. In this regard, this Court has held in the order dated 09.01.2019 passed in Writ Petition No.39213/2018 (LB-RES) that as regards such of the motions of no-confidence, which were pending as on the date of judgment in Writ Appeal Nos.844/2018 and connected matters, the observations made to treat the motion of no-confidence as the one under Section 49(1) of the Act was also to be extended to the motion of no- confidence which had been pending as on the date the writ appeals came to be disposed of.
18. Accordingly, the motion of no-confidence that was pending, though with allegations, is liable to be treated as the one being under Section 49(1) of the Act. Therefore, the said contention is rejected.
Accordingly, this petition is dismissed, subject to the above observations.
VGR Sd/- JUDGE