IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.9711 OF 2019 C/W WRIT PETITION NO.11697 OF 2019 (LB-ELE) W.P. No.9711/2019:
Between:
T. V. Mohan S/o Late Venkatappa Aged 48 years Residing at Taralu Village Uttarahalli Hobli Bangalore South Taluk Bengaluru – 560 082. ... Petitioner (By Sri. Abdul Ameen, Advocate a/w Smt. Vaibhavi, Advocate) And:
1. The State of Karnataka By Secretary Department of Panchayath Raj M. S. Building Bengaluru – 560 001.
2. Assistant Commissioner Bengaluru South Sub-Division Kandaya Bhavan, 2nd Floor K. G. Building, Bengaluru – 560 009.
3. Taralu Village Panchayath Represented by its Panchayath Development Officer Uttarahalli Hobli Bengaluru South Taluk Bengaluru – 560 061.
4. Executive Officer Taralu Village Panchayath Uttarahalli Hobli Bengaluru South Taluk Bengaluru – 560 061.
5. Smt. Geetha .V Aged major D/o. Not known Members of Tharalu Village Panchayath 6. Sri B K Krishna Reddy Aged major D/o. Not known Members of Tharalu Village Panchayath 7. Smt. Pushpa Aged major D/o .Not Known Members of Tharalu Village Panchayath 8. Smt. Jayamma Aged major D/o. Not known Members of Tharalu Village Panchayath 9. Smt. Lalitha .S Aged major D/o. Not known Members of Tharalu Village Panchayath 10. Smt. Shanthamma Aged major D/o. Not known Members of Tharalu Village Panchayath 11. Smt. V. Suguna Aged major D/o. Not known Members of Tharalu Village Panchayath 12. Smt. Laxmisarasamma Aged major D/o. Not known Members of Tharalu Village Panchayath 13. Sri. Renukaprasanna Aged major S/o. Not known Members of Tharalu Village Panchayath 14. Sri. Narayanappa Aged major S/o. Not known Members of Tharalu Village Panchayath 15. Sri Mahesh Kumar Aged major S/o. Not known Members of Tharalu Village Panchayath 16. Smt. Venkatalakshmamma Aged major D/o. Not known Members of Tharalu Village Panchayath 17. Sri. Aralappa Aged major S/o. Not known Members of Tharalu Village Panchayath 18. Smt. Lalitha Aged major D/o. Not known Members of Tharalu Village Panchayath 19. Smt. Mangala Aged major D/o. Not known Members of Tharalu Village Panchayath 20. Sri Balaraj P Aged major S/o. Not known Members of Tharalu Village Panchayath 21. Sri Barnad Aged major S/o. Not known Members of Tharalu Village Panchayath 22. Smt. Jesintha Meri Aged major D/o. Not known Members of Tharalu Village Panchayath All are the members of Tharalu Village Panchayath Uttharahalli Hobli Bengaluru South Taluk – 560 061.
23. The Senior Assistant Director Horticulture Department District Panchayat Bengaluru South Taluk (Returning Officer). … Respondents (By Sri M. A. Subramani – HCGP –for R-1, R-2 & R-23; Sri M. Pradeep, Advocate for R-3 & R-4;
Sri Nagarajappa, Advocate for R-5 to R-14, R-16 to R– 20 & R-22;
Sri C. R. Venkatesh, Advocate for R-15 & R-21) This Writ Petition is filed under Article 226 of the Constitution of India, praying to quash the notice dated 11.02.2019 issued by the respondent No.2 Assistant Commissioner, Bangalore South Division, Bangalore produced at Annexure-M to the writ petition;
Quash the report dated 23.02.2018 submitted by the respondent No.4 – Executive Officer, Taralu Village Panchayat, produced at Annexure-G to the writ petition, issued by the respondent No.1 and etc.
W.P. No.11697/2019:
Between:
T. V. Mohan S/o Late Venkatappa Aged 48 years Residing at Taralu Village Uttarahalli Hobli Bangalore South Taluk Bangalore – 560 082. ... Petitioner (By Sri. Abdul Ameen, Advocate a/w Smt. Vaibhavi, Advocate) And:
1. The State of Karnataka By Secretary Department of Panchayath Raj M. S. Building Bengaluru – 560 001.
2. Assistant Commissioner Bengaluru South Sub-Division Kandaya Bhavan, 2nd Floor K. G. Building Bengaluru – 560 009.
3. Taralu Village Panchayath Represented by its Panchayath Development Officer Uttarahalli Hobli Bengaluru South Taluk Bengaluru – 560 061.
4. Executive Officer Taralu Village Panchayath Uttarahalli Hobli Bengaluru South Taluk Bengaluru – 560 061.
5. Smt. Geetha .V Aged major D/o. Not known Members of Tharalu Village Panchayath 6. Sri B K Krishna Reddy Aged major S/o. Not known Members of Tharalu Village Panchayath 7. Smt. Pushpa Aged major D/o. Not Known Members of Tharalu Village Panchayath 8. Smt. Jayamma Aged major D/o. Not known Members of Tharalu Village Panchayath 9. Smt. Lalitha .S Aged major D/o. Not known Members of Tharalu Village Panchayath 10. Smt. Shanthamma Aged major D/o. Not known Members of Tharalu Village Panchayath 11. Smt. V. Suguna Aged major D/o. Not known Members of Tharalu Village Panchayath 12. Smt. Laxmisarasamma Aged major D/o. Not known Members of Tharalu Village Panchayath 13. Sri. Renukaprasanna Aged major S/o. Not known Members of Tharalu Village Panchayath 14. Sri. Narayanappa Aged major S/o. Not known Members of Tharalu Village Panchayath 15. Sri Mahesh Kumar Aged major S/o. Not known Members of Tharalu Village Panchayath 16. Smt. Venkatalakshmamma Aged major D/o. Not known Members of Tharalu Village Panchayath 17. Sri. Aralappa Aged major S/o. Not known Members of Tharalu Village Panchayath 18. Smt. Lalitha Aged major D/o. Not known Members of Tharalu Village Panchayath 19. Smt. Mangala Aged major D/o. Not known Members of Tharalu Village Panchayath 20. Sri Balaraj P Aged major S/o. Not known Members of Tharalu Village Panchayath 21. Sri Barnad Aged major S/o. Not known Members of Tharalu Village Panchayath 22. Smt. Jesintha Meri Aged major D/o. Not known Members of Tharalu Village Panchayath All are the members of Tharalu Village Panchayath Uttharahalli Hobli Bengaluru South Taluk – 560 061.
23. The Senior Assistant Director Horticulture Department District Panchayat Bengaluru South Taluk-560061 (Returning Officer) … Respondents (By Sri M. A. Subramani – HCGP –for R-1, R-2 & R-23; Sri L. Rajanna, Advocate for R-5 to 17 & R-19 to R-22; Sri M. Pradeep, Advocate for R-3 & R-4) This Writ Petition is filed under Article 226 of the Constitution of India, praying to quash the notice dated 07.03.2019 issued by the 23rd Respondent produced at Annexure-P to the writ petition and etc.
These Writ Petitions coming on for Orders this day, the Court made the following:
ORDER In W.P. No.9711/2019:
The petitioner who was elected as Adhyaksha of third respondent – Taralu Gram Panchayat had challenged the notice issued by the Assistant Commissioner at Annexure-M dated 11.02.2019, whereby the meeting was convened on 28.02.2019 to consider the motion of no-confidence moved by the members.
2. The petitioner’s main contention is that the complaint pursuant to which the notice has been issued at Annexure-M dated 11.02.2019 is the one that falls within Section 49(2) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (‘the Act’ for brevity), as there are allegations made in the said complaint.
3. It is submitted that notice was issued on the basis of the complaint made. The Assistant Commissioner refers to the report of Executive Officer, Taluk Panchayat, Bengaluru South and the said report was furnished in the context of enquiry as regards the allegations made against the petitioner on a previous instance.
4. It is further contended that the notice had not been served on the petitioner in the manner as contemplated under Rule 3(2) of the Karnataka Panchayat Raj (Motion of no-confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (‘the Rules’ for brevity).
5. The last contention is that even if the election was to be held to fill up the post of ‘Adhyaksha’ of Gram Panchayat, in accordance with requirement of Rule 3(9) of the Rules, there must be a notification by the Assistant Commissioner. The last contention, however, has been raised in the context of Assistant Commissioner having taken steps to fill up the post of ‘Adhyaksha’ and such action of the Assistant Commissioner in holding elections has been challenged in W.P.No.11697/2019.
6. The learned Additional Government Advocate has filed statement of objections and points out that the procedure prescribed for service of notice under Rule 3(3) of the Rules and also refers to service of notice by affixture as provided under Rule 3(3)(d) of the Rules.
7. The learned Additional Government Advocate states that the notice could also be served by registered post as per Rule 3(3)(c) of the Rules. He further states that the notice was sent to be served to the Panchayat Development Officer in the Panchayat Development Office. However, the Panchayat development Officer by his communication dated 12.02.2019, has reported that the petitioner was not available and the persons in his residence have refused to accept notice. It is further stated that the notice was affixed on the wall of residence of the petitioner and photographs have been taken while affixing the said notice as per Annexure R-5. The notice has been sent by registered post on 11.02.2019. Hence, there is no reason to doubt the veracity of affixing the notice on the wall of petitioner’s residence. In fact, copy of the photographs are produced at Annexure R-4 and the said photograph contains the copy of Kannada newspaper Prajavani dated 12.02.2019 that has been kept next to the notice affixed so as to indicate the date of affixing the notice. The said facts being placed on record in the form of statement of objections filed on behalf of respondent Nos.1 and 2 are to be accepted and no case or circumstances are made out so as to disbelieve the said submission.
8. The Panchayat Development Officer has also filed an affidavit stating that the petitioner was not present when the Gram Panchayat Secretary had sought to serve copy of notice and the family members had refused to receive the notice and hence, notice was affixed on the front portion of the residence of petitioner. The affidavit is enclosed with the photographs affixing the notice and affidavit has been filed and therefore, no grounds are made out to disbelieve the version as set out.
9. It is also stated that the notice as regards other Gram Panchayat members had been received by all of them. Hence, as regards the contention of the petitioner regarding service of notice, the notice has been served in the manner as provided for under Rule 3(3)(c)(d) of the Rules and accordingly, the ground sought to be made out by the petitioner regarding non-service of notice is liable to be rejected.
10. As regards the contention of the petitioner that the resolution that is moved is one that falls within the ambit of Section 49(2) of the Act, as the notice that was issued contains as reference to the report of the Executive Officer, Taluk Panchayat dated 23.02.2018. It is to be seen that the complaint, as such, does not make any allegation and there is merely a reference to the proceedings at an earlier instance. The Assistant Commissioner has to merely act on the basis of complaint made by the members and has no discretion to construe the complaint in any other manner. A perusal of the complaint, a copy of which is produced at Annexure-K in W.P.No.11697/2019 makes it clear that the motion of no-confidence is one without allegations. A mere reference to the report of Executive Officer in the notice does not in any way transform the complaint made under Section 49(1) of the Act to be one under Section 49(2) of the Act.
Further, the action of Assistant Commissioner cannot be in any way change the nature of complaint that has been made by the members. Accordingly, the complaint made by the members being unambiguous without making any allegations, the notice issued by the Assistant Commissioner is to be construed accordingly. The motion of no-confidence is to be construed as the one made under Section 49(1) of the Act. Accordingly, the contentions of the petitioner is rejected and petition is dismissed.
11. This Court, by way of an interim order passed on 27.02.2019 had permitted the proceedings to be conducted pursuant to the notice at Annexure-M dated 11.02.2019. However, it was made clear that proceedings were subject to the final orders to be passed.
12. In light of the submission that the motion of no-confidence has been passed and in light of dismissal of the present writ petition, the proceedings of the meeting held on 28.02.2019 is to be given effect to.
Accordingly, the petition is disposed of, subject to the above observations.
In W.P.No.11697/2019:
This Court, by its order dated 15.03.2019 had stayed the election process that had been commenced to fill up the post of ‘Adhyaksha’. In view of dismissal of the W.P.No.9711/2019, the post of Adhyaksha is required to be filled by election.
2. Learned counsel for the petitioner further states that the procedure as provided under Rule 9 of the Rules is required to be strictly adhered to and once the petitioner has been removed, the said fact is required to be notified on the notice board of the office of Gram Panchayat with necessary communication to the ‘Adhyaksha’, and if ‘Adhyaksha’ was not present in the meeting, he is required to be informed of the same. Insofar as the election proceedings are to be initiated afresh for electing ‘Adhyaksha’, the Assistant Commissioner is to ensure that the requirement under Rule 9 of the Rules is to be complied with. The earlier Calendar of Events at Annexure-P are set-aside and fresh Calendar of Events is to be notified.
Petition is accordingly disposed of, subject to the above observations.
Sd/-
JUDGE SJK