M. C. PUTTASWAMY v. ASST. COMMR. TARIKERE — 1980 DIGILAW 249 (KAR)

N. R. KUDOOR, J. ( 1 ) THIS Writ Petition is listed under 'b' group for hearing. ( 2 ) THE petitioners, five in number, in this writ petition under Art 226 and 227 of the Constitution have challenged the validity and legality of Annexure-A dated 20-5-1980, an order passed by the i respondent Assistant Commissioner, tarikere Sub-Division, granting an interim order of stay, staying the further proceedings of the Village panchayat of Muthanagere Village in kadur Taluk of Chickmagalur Disitrict, and also to show cause for holding the meeting on 1-5-1980 in spite of receipt of stay order from his Courit. ( 3 ) A few facts relevant, for the consideration of the points canvassed before me are as follows: the 1st petitioner is the chairman and petitioners 2 to 5 are some of the members of the Village Panchayat muthanagere, which will be hereinafter referred to as thes Panchayat. Respondents 2 to 6 are also the members of the panchayat/. One Parameshwarappa is the Vice Chairman of the Panchayat. Respondents 2 to 6 made an application before the 1st respondent adducing certain allegations against the panchayat among which one of the allegations was that a meeting of the panchayat was proposed to be convened on 1-5-80, which was contrary to the provisions of sub-section (3) of S. 36 of the Karnataka Village Panchayats and Local Boards Act, 1959 (for short 'the Act' ). The 1st respondent entertained that application in case no. R. A. Mis. 1180-81. The Isf; respondent made an ex parle interim order staying the holding of the meeting proposed to be held on 1-5-80 as per the order dated 30-4-1980. It appears that the Panchayat held its meeting on 1-5-1980 as scheduled. That fact was brought to the notice of the 1st respondent whoi, made another order dated 20-5-80 at Annexure-A which reads as follows:"1. This is an appeal under S. 200 and 202 of the Karnataka Village panchayat and Local Boards Act 1959, the grounds of the appeal are as follows: - 2. In spite of issue of stay order by this Court in case No. RA Mis. 1180-81 dt. 30-4-80 the V. P. Muthanigere has conducted the meeting on 1-5-80 contravening the orders of this court. The Panchayat has failed to perform the duties under S. 202 of the Act. Therefore, a case is made out for issue of stay order. In spite of issue of stay order by this Court in case No. RA Mis. 1180-81 dt. 30-4-80 the V. P. Muthanigere has conducted the meeting on 1-5-80 contravening the orders of this court. The Panchayat has failed to perform the duties under S. 202 of the Act. Therefore, a case is made out for issue of stay order. Interim Stay Order further proceedings of the Panchayat is hereby stayed. The reispondents is (sic) hereby instructed to show cause why the meeting was held on 1-5-80 in spite of receipt of stay order from this court. "it must be noticed that the respondents to this order were all the 5 petitioners herein and also the Vice Chairman and Secretary of the Panchayat and they were arrayed as parties in their official, and not individual, capacity. The petitioners have challenged the validity of this order. ( 4 ) RESPONDENTS 2 to 6 filed their statement of objections opposing the petition. ( 5 ) SRI P. S. Hadimani, who, is appearing for respondents 2 to 6, has raised two points by way of preliminary objection against the maintainability of the Writ Petition. They are (1) that the order Annexure-A passed by the 1st respondent was against the Panchayat and as such the petitioners have no locus standi to challenge that order on behalf of the Panchayar, since as per law only the Secretary of the Panchayat could defend the action on behalf of the panchayat; and (2) assuming that the petitioners have a locus standi to bring the action under Art. 226 and 227 of the Constitution against the impugned order, they have an alternative remedy to approach the 1st respondent and move the Court to vacate the interim, order and also show cause for holding the meeting on, 1-5-1980 since the order impugned was an exparte interim order- ( 6 ) AS against this, Sri A. V. Ganga- dharappa, the learned Advocate for the petitioners, argued that the petitioners have not filed this petition to vindicate the rights of the Panchayat but, on the other hand,, in defence of their own right which they had acquired being elected to the panchayat and as such they have a right to function as Chairman and members of the Panchaya. t and to carry on the activities of the Panchayat and they were prevented from doing so by the impugned order. t and to carry on the activities of the Panchayat and they were prevented from doing so by the impugned order. As regards the second objection, his contention is that the order passed by the 1st respondent was wholly without jurisdiction and as such the petitioners can maintain the Writ Petition even though there is an alternative remedy to move the Court to vacate the exparte interim stay and also drop the show cause notice. ( 7 ) I shall now proceed to consider the preliminary objections raised in the order in which they were advanced- ( 8 ) COMING to the first point, it will be useful to read some of the relevant provisions of the Act and also the karnataka, Panchayait Secretries' powers and Duties Rules, 1961 (for short 'the Rules' ). Sub-section (1) of set. 36 of the Act provides for cabling an ordinary meeting of the Panchayat once in every month Sub-section (2) provides for calling a special meeting- sub-section, (3) lays down that seven clear days notice is required for an ordinary meeting and two clear days notice for a special meeting. S- 80 of the Act provides that for every paixchayat there shall be a Secretary who shall be appointed by the Commissioner in accordance with such rules as mey be prescribed. Rule 16 of the. Rules reads thus:"the Secretary shall have the power to file complaints and suits on behalf of the Panchayat and to conduct the business on its behalf under the orders of the Panchayat. "the order impugned Annexure-A has its source from an earlier exparte ad- interim order passed by the 1st- respondent dated 30-4-80 Annexure R-2 (produced by respondents 2 to 6 along with their statement of objections) by which the holding of the Panchayat meeting proposed to be held on 1-5-80 was stayed till the final disposal of the petition filed by respondents 2 to 6 dated 30-4-1980 making certain allegations againsit the functioning of the Panchayat. The order Annexure-A proceeds on the basis that the Panchayat conducted its meeting on 1-5-1980 in spite of the receipt of the stay order passed by the 1st respondent. Undoubtedly, the order Annexure-A was directed against the conduct of the Panchayat and not against the individual acts of the petitioners in their personal capacity. The order Annexure-A proceeds on the basis that the Panchayat conducted its meeting on 1-5-1980 in spite of the receipt of the stay order passed by the 1st respondent. Undoubtedly, the order Annexure-A was directed against the conduct of the Panchayat and not against the individual acts of the petitioners in their personal capacity. The Secretary of the Panchayat was a party to the order annexure-A along with the Chairman, vice Chairman and the Members of the panchayat. Among them, some were the appellants and some were arrayed as respondents. If the Panchayat was aggrieved by the order impugned, certainly it was open to the Panchayat to direct the Secretary to take such steps as it would think fit as provided in Rule 16 of the Rules. The Panchayat did not choose to do so. It is only the petitioners among whom the 1st petitioner is the Chairman and petitioners 2 to 5 are some of the members of the Panchayat have filed this petition to vindicate their so called individual right as put in by their learned Advocate Sri Gangadharappa. From the order impugned, I am unable to conceive that the order is directed against the petitioners in their personal capacity, but on the other hand it seems to me that it was exclusively directed against the Panchayat regarding the conduct of its functions. No doubt the respondents mentioned in the order were directed to show cause why the meeting of the Panchayat was held on 1-5-80 in spite of the receipt of the stay order from the 1st respondent. But that order was made against the respondents not in their individual personal capacity but in respect of their collective action in conducting the meeting of the panchayat. Thus, it is obvious from the order impugned that it was directed against the Panchayat as such and in that view it was only the secretary as authorised by the Fanr chayat that could take any action against thq order as provided under Rule 16 of the Rules. The view I take on this aspect gains substantial support from a decision of this Court in Village panchayat Committee, Harihal v. channappa (1 ). The view I take on this aspect gains substantial support from a decision of this Court in Village panchayat Committee, Harihal v. channappa (1 ). ( 9 ) NOW coming to the second point, it is contended by Sri Gangadharappa, that the 1st respondent has no jurisdiction to pass the impugned order and as such wholly illegal; so the validity of that order can be challenged in a writ petition under Art. 226 and 227 of the Constitution even though it is an ex parte ad-interim order. As i said before, the source oi the impugned order Annexure~a was from an earlier order passed by the 1st respondent as per Annexure R-2 staying the holding of the meeting of the Panchayat proposed to be held on 1-5-80 till the final disposal of, the petition filed by respondents 2 to 6 in which they requested the 1st respondent to take action against the Panchayat since the Panchayat had not complied with certain provisions of the Act in conducting its affairs. The 1st respondent took cognizance of the petition in case No. R. A. Mis 1/80-81 and proceeded to pass the ad-interim order Annexure R-2. The impugned order was passed by the 1st respondent for the alleged disobedience of the order of stay passed by him as per annexure R-2. Sec. 202 of /the Act gives power to the Deputy Commissioner to act when it is brought, to his notice that a Panchayat has made default in the performance of any duty specified by or , under any of the provisions of the Act or of any law for the time being in force in the manner specified therein. Sub-section (3) of sec. 107 of the Act gives power to the assistant Commissioner of the revenue sub-division to exercise such powers conferred on a Deputy Commissioner under the Act by an order of the government published in the official gazette. The 1st respondent in the instant case acted in exercise of the powers conferred on her under Sec. 197 (3) and Sec. 198 of the Act. It is not argued before me that the powers of the Deputy Commissioner was not delegated to the 1st respondent as required under Sec. 191 (3) of the act. In view of the above provisions, i am inclined to hold thajt the 1st respondent was competent to entertain the petition filed by respondents 2 to 6. It is not argued before me that the powers of the Deputy Commissioner was not delegated to the 1st respondent as required under Sec. 191 (3) of the act. In view of the above provisions, i am inclined to hold thajt the 1st respondent was competent to entertain the petition filed by respondents 2 to 6. In that view of the matter, it cannot be said that the order impugned was beyond the competence of the 1st respondent. ( 10 ) ONCE it is held that the 1st respondent is competent to pass the order, the next question that would arise consideration will be whether that order could be challenged in a writ petition invoking the extraordinary jurisdiction of this Court. Undoubtedly the earlier order Annexur R-2 out of which the impugned order flows was an ex parte ad-interim order of stay of the holding of the Panchayat meeting proposed to be held on 1-5-80 tall final disposal of the petition filed by respondents 2 to 6. The respondent 2 to 6 have produced a notice issued by the 1st respondent to 3ie parties to appear before her on 31-8-1980 regarding the case No. RA Mis. 1|80- 81 as per Annexure R-3. Certainly it was open to the petitioners herein to appear before the 1st respondent and file objections regarding the exparte ad-interim order of stay passed by the 1st respondent and it seems to me that that would be the only proper course for the petitioners to take under the circumstances and in case the 1st respondent would pass an order adverse to the petitioners then it would be open to the petitioners to challenge that order in the appropriate higher forum. In that view, I am, inclined to hold that the writ petition is misconceived. ( 11 ) FROM what has been stated above, it follows that issue of a rule nisi would serve any purpose. In that view, the writ petition is dismissed. In the circumstances of the case, I direct each party to bear his own costs. --- *** --- .