EKANATH v. ASSISTANT COMMISSIONER, GULBARGA — 1992 DIGILAW 144 (KAR)

P. K. SHYAMSUNDAR, J. ( 1 ) A Pradhan of the Mandal Panchayat is the petitioner in this writ petition and he challenges a move for expressing no confidence in him initiated admittedly by 12 of the 29 members of the Mandal Panchayat. The no confidence motion in question had actually been moved at the meeting held for that purpose on 27-12-1991 and it was also declared to have been carried successfully as could be seen from the proceedings of the panchayat under Annexure-F. It has to be noticed the Assistant Commissioner of Gulbarga had chaired the same. The concluding portion of Annexure-F states that the petitioner was unseated by a majority of the votes cast against his continuance and, therefore, he ordered the cancellation of the continuation of the petitioner as Pradhan. Subsequently the Tahsildar notified the vacancy caused by the removal of petitioner from the office of Pradhan and fixed the 24th January, 1992 as the date on which the poll would be held if necessary to fill up the vacancy of Pradhan of Dharwad Mandal Panchayat. That notification is produced at Annexure-H. ( 2 ) IN the context of that notification this Court passed an interim order directing the with holding of the results of that poll pending disposal of that writ petition. I am told and there is no dispute about it, respondent No. 4, Basavaraj who got himself impleaded as a party respondent in this writ petition was the sole nominee for the office of the Pradhan and in the usual course should have been declared elected as unopposed but that declaration has been stayed by this Court. He very eagerly awaits the declaration of that result. Therefore, it is, I propose to dispose off this petition finally on merits although it appears today in the list of order cases. ( 3 ) I have heard both sides fully. Issue Rule. ( 4 ) SRI Raikote, learned counsel for the petitioner, urged before me three points insupport of the relief sought by the petitioner. The first of them is, the meeting notice at Annexure-A is to be held to be otiose because the no confidence motion had to be but was not considered within 30 days from the date on which it was tabled before the Assistant Commissioner. The first of them is, the meeting notice at Annexure-A is to be held to be otiose because the no confidence motion had to be but was not considered within 30 days from the date on which it was tabled before the Assistant Commissioner. ( 5 ) SECTION 47 of the Zilla Parishads Act prescribes the mode of moving a no confidence motion against a Pradhan or Upa-Pradhan of Mandal Panchayat. Clause (3) of Section 47 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act ('the Act' for short) deals with the convening of a meeting for considering a no confidence motion and prescribes the time-limit within which the Deputy Commissioner has to hold a meeting having received the notice of a no confidence motion. It reads:"the Deputy Commissioner shall then convene a meeting for the consideration of a motion at the office of the Mandal Panchayat on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in such manner as may be prescribed: provided that where the holding of such meeting is stayed by an order of a court, it shall be adjourned and the said officer shall hold the adjourned meeting on a date not later than thirty days from the date on which he receives the intimation about the vacation of stay after giving to the members notice of not less than fifteen clear days of such adjourned meeting". In this case, the notice tabled with the Assistant Commissioner expressing want of confidence in the petitioner although dated 20-11-1991 is found to have been submitted on 30-11-1991 to the Assistant Commissioner. In this case, the notice tabled with the Assistant Commissioner expressing want of confidence in the petitioner although dated 20-11-1991 is found to have been submitted on 30-11-1991 to the Assistant Commissioner. The said motion was fixed for consideration by the General Body of the Mandal Panchayat on 27-12-1991 as indicated in the notice issued by the Assistant Commissioner at Annexure-B. The argument put-forward by Sri Raikote is that the 30 days period enjoined by Section 47 (3) of the Act if computed from 20th November, 1991 which is the date of the notice at annexure-A, the meeting scheduled on 27-12-1991 as per Annexure-B to consider that notice being clearly beyond 30 days, it cannot be taken up for consideration because it was long past the deadline of 30 days prescribed by Section 47 (3 ). There might have been some substance in this argument had it not been for the fact that the notice although addressed to the Assistant Commissioner had actually been tendered to the Deputy Commissioner on 27th November but thereafter retendered to the assistant Commissioner on 30th November, 1991. All this transpires from the original records maintained by the Assistant Commissioner to which we have had access through the courtesy of the Government Advocate who procured it and presented it before me. So, the effective count-down begins not from 27th November, 1991 but from 30-11-1991 because it was only on that day the notice tabled by the members seeking leave to move a no confidence motion was actually tendered to the apposite authority viz. the Assistant Commissioner, Gulbarga. There appears to have been some mix-up in the matter with the notice having been (sic) left with the Deputy commissioner who directed it to be placed before the Assistant Commissioner. Although clause (3) of Section 47 carries the name of the Deputy Commissioner, the notice, it appears, had to be delivered to the Assistant Commissioner. It is only after coming to know of this procedure, those interested in the removal of the petitioner had taken steps lo rectify the mistake committed in tendering the (sic) to the Deputy commissioner and then made amends by tendering it to the Assistant Commissioner. Therefore, that event having taken place on 30-11-1991 as indicated in the records, the meeting held on 27-12-1991 as per Annexure-D was clearly without any blemish and hence the first point urged by Mr. Therefore, that event having taken place on 30-11-1991 as indicated in the records, the meeting held on 27-12-1991 as per Annexure-D was clearly without any blemish and hence the first point urged by Mr. Raikote fails and is rejected. ( 6 ) THE second point of Mr. Raikote is about the effective strength of the Mandal Pancbayat required for moving a no confidence motion against the petitioner. The total strength of the Mandal Panchayat is said to be 21 out of which Mr. Raikote says three were vacant and counsel maintains that that is because of the resignations tendered by three persons with the result the effective strength of the Mandal pancbayal stood reduced to 18 from the statutory roll call of 21. Out of that (sic) 2/3rd had admittedly expressed want of confidence in the petitioner on the date when the no confidence motion was actually moved. On 27-12-1991, the day when the no confidence motion was moved, there were in all 13 members present at the meeting out of which 12 voled in favour of the no confidence motion with only one person having voted against it. If 18 is the effective strength of the Mandal panchayat then 12 out of 18 having been present and voted against the petitioner, the motion of no confidence must be held to have been carried numerically with the result the expression of no confidence in the petitioner should he held to be valid in ihe eye of law. But, the argument of Mr. Raikote is the statutory strength of the Mandal panchayat being 21, he could not have been cast away by only by 12 of the 21 persons being present and voting him out of office. According to counsel the expression 'total number of members of the Mandal Panchayat' referred to in clause (4) and again in clause (a) of Section 47 would mean 2/3rd of the number of members of ihe Mandal Panchayat as fixed by the statute. Counsel says if the total number of members fixed by statute is 21 then the quorum for a meeting to consider a no confidence motion and Ihe quantification of ihe support for carrying on such a motion should not be less than 2/3rd of the total number constituting the Mandal Panchayat under the statute and not 2/3rd of the existing strength of the Mandal Panchayat. ( 7 ) THE above point urged by Mr. Raikole touching the number of members required to be present at a meeting in which a no confidence motion is sought to be moved would have given much scope for considerable argument and very close consideration as well, had it not been for the fact thai this controversy has since been settled by a Full Bench of this Court and, therefore, this question is no longer res-integra. In K. M. Ramakrishne Gowda v S. A. C. , ILR 1990 Karnataka 3770 a Full Bench of this Court had occasion to consider this question being one of the questions referred to the Full Bench for consideration. It is sufficient to refer to Ihe head-note to the decision which answered the question as to what should be the effeclivc strength of the Mandal Panchayat to be considered for the purpose of Section 47 of the Act. Answering the question my learned Brothers Hakeem, J. and Rajendra Babu, J. , held: "section 47 membership fluctuating: at no point of time can be said that composed of full strength under Section 5: hence deeming provisions under Section 5 (8) Total number of members' can only mean members entitled to sit and vote, in consonance with object and purpose of Act No difference between nominated members under Section 5 (3) and elected under Section 5 (1) In comprising total number for Section 47 nominated members under Section 5 (3) also included Under Section 5 (1) to (7) only seats fixed distinguishing between seats and members In Section 47 members not seats-Quorum and majority for motion of no-confidence not static but varying If total number of members would mean total number of seats vacant or not filled up, seriously cripples functioning of Panchayat expression to take colour or meaning from text or context-Pragmatic view to be taken to allow working of enactment in full force not bog-down its functioning number available for the game to settle issue rather than that fixed for the team-Court by consideration of legislative intent to supplement written word with 'force and life' to meet different fact situations. (emphasis supplied) my learned Brother Shivashankar Bhat did not subscribed to the view (sic) as above and remained in minority. (emphasis supplied) my learned Brother Shivashankar Bhat did not subscribed to the view (sic) as above and remained in minority. ( 8 ) (SIC) that as it may, the decision subscribed to by the Majority of the Full Bench is binding on me and I am (sic) to hold that 2/3rd members should be quantified with reference to the effective strength of the Mandal Panchayat after discarding from consideration the number of seats actually vacant. Therefore, if out of 21 seats three seats were vacant and 18 was the effeclive strength of the mandal Panchayat, 13 of them having participated in the meeting (sic) 12 of them having voted against, the petitioner, there is little room for any argument that the meeting was not validly convened or the proceedings at the meeting suffered from any deficiency. This is the view that should commend to me on the basis of the pronouncement of the Full Bench referred to (supra.) But, then, Mr. Raikote says that the decision of the Full Bench should be treated as per incuriam because it did not refer to a decision of the Supreme Court in Moolchand v State of Uttar Pradesh, AIR 1967 SC 112 . I am afraid the learned counsel vainly calls my attention to the said decision because a careful perusal of the (sic) does not disclose anything that could possibly throw any light on the question which I am seized, (sic) Mr. Raikote invited my attention to paragraphs 4 and 6 of the said decision. Out of deference to counsel I propose to extract them. They read:" (4) The meeting of the Board took place on February 6,1961. Mr. Agarwala, munsiff, Meerut, presided over the meeting. All the ten members who were present, voted for the motion of no confidence and the Munsiff declared the motion to have been carried. The appellant, by his writ petition, desired the proceedings of the meetings to be quashed and the resolution expressing no confidence in the appellant be not given effect to by the State of UP and the district Magistrate. (6) The High Court held that Ram Nath had been proved to be in arrears in payment of house tax on February 6, 1961, and that Kesho Ram Gupta and rcghnandan Prasad were not in arrears in payment of the Tehbazari tax for the year 1959-60 and house tax respectively. (6) The High Court held that Ram Nath had been proved to be in arrears in payment of house tax on February 6, 1961, and that Kesho Ram Gupta and rcghnandan Prasad were not in arrears in payment of the Tehbazari tax for the year 1959-60 and house tax respectively. It held that a member of the Board did not cease to be a member on his incurring the disqualification under Section 13-D (g) and that be became disqualified merely to exercise office and to act as a member. The learned Judges observed: "during the continuance of the disqualification the person's right to act as a member falls into a state of suspension. On removal of the disqualification the state of suspension disappears and his right to exercise office as a member of the board revives unless he has been removed by Government from membership of the board under Section 40 of the Act during continuance of disqualification. " holding that the motion of no confidence was valid as it has been passed by the vote of nine members who constituted the majority of more than half the total number of members of the Board, that being seventeen, and that those nine members of the Board being qualified and duly elected members of the Board, Ram nath's taking part in that meeting did not vitiate its proceedings in view of the provisions of sub-section (2) of Section 113 of the Act, the learned Judges dismissed the writ petition. The learned Judges did not consider the validity of the notice on merits as they were of opinion that the order on writ petition. The learned Judges did not consider the validity of the notice on merits as they were of opinion that the order on writ petition No. 397 of 1961 operated as resjudicate, though in view of their opinion the notice of motion of no confidence would have been invalid if the name of Ram Nath be excluded from the signatories as in that case the number would be eight and so one short of the number required by the provisions of sub-section (2) of Section 87-A of the Act. The meeting held in pursuance of a bad notice would also have been invalid". There is nothing in foregoing paras that are even remotely connected to the case on hand. The meeting held in pursuance of a bad notice would also have been invalid". There is nothing in foregoing paras that are even remotely connected to the case on hand. The question that was under consideration in the decision referred to (supra) related to the effect of disabled members taking part and voting in a meeting convened to move a no confidence motion. Such a question does not arise in this case and nor did it arise before the Full Bench in Ramakrishne's case referred to (supra.) therefore, the omission to refer to Moolchand's case does not render it per-in-curtam. ( 9 ) THE last point urged by Mr. Raikote is that three of the members found in the list of requisitionists for passing a no confidence motion had subsequently resiled and had filed an affidavit stating that their signatures were obtained without acquainting them with the real reason for which their signatures were being taken and, therefore, they had not conscientiously subscribed to the move for ousting the petitioner from office by expressing want of confidence in him. This ofcourse is a matter for enquiry which I cannot hold in this Court. But even assuming that those three persons had been roped-in to the camp without their knowledge and conscientious concurrence the proceedings initiated under Annexure-A does not suffer because the move for tabling a no confidence motion has to be initiated as enjoined by section 47 (2) by half the number of members of the Mandal Panchayat. I see from annexure-A 15 persons had subscribed to that notice and amongst them are admittedly the three dissenters. If for the reason that they were unwilling parties to that notice and, therefore, had to be excluded from the final tally even then 12 of them having stood their ground throughout and that includes the actual passing of the no confidence motion at the meeting held on 27-12-1991, the tabling of the motion for no confidence did not suffer from any deficiency because excluding those three people the tally of 12 was more than half of the total strength of the Mandal panchayat Therefore, the requirement of Section 42 (2) of the Act was clearly complied with. Therefore, there is no substance in this contention also. No other point arises for consideration. ( 10 ) THE writ petition, there fore, fails and is dismissed. --- *** --- .