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2004 DIGILAW 394 (KAR)

H. M. MALLIKARJUNA v. STATE OF KARNATAKA

2004-06-25

S.N.KUMAR

body2004
S. N. KUMAR, J. ( 1 ) THE petitioner is an elected member of the third respondent-Grama panchayat. He was also elected as Adhyaksha of Grama Panchayat on 17-12-2002. The requisite number of members of the Grama Panchayat have moved a No-confidence against the petitioner. The second respondent-Assistant Commissioner issued a notice dated 5-5-2004 as per Annexure-A, informing the petitioner that the meeting of Panchayat will be convened on 22-5-2004 at 11. 00 a. m. at the Grama Panchayat office to consider the said No-confidence motion. On 22-5-2004 at 11. 00 a. m. , it was noticed that two locks were put to the door of Panchayat and about 400 men and women had assembled in front of Grama Panchayat office protesting against the No-confidence motion. One person by name elias consumed poison. In spite of the efforts made by the Assistant commissioner for a period of one hour, he could not conduct the meeting and therefore he postponed the meeting. On 24 5-2004 as per annexure-B issued an endorsement to the petitioner to the aforesaid fact and informed him that notice of the meeting for consideration of No- confidence motion would be intimated to him once again. Aggrieved by the said endorsement, the petitioner has preferred this writ petition. ( 2 ) NOW an application in LA No. I is filed for stay of the said endorsement on the ground that the petitioner has been sent with a notice dated 19-6-2004 wherein it is informed to him that the meeting of the Panchayat will be convened on 7-7-2004 for consideration of No- confidence motion, which was postponed earlier. ( 3 ) RESPONDENTS have entered appearance and they have filed their statement of objections. The second respondent contends that on 21-5-2004 the jurisdictional police issued a wireless message stating that there is a Law and Order situation at the premises of Panchayat and a criminal case has been registered by the jurisdiction police in a Crime no. 31 of 2004 under Section 363 of the IPC, as per Annexure-R3. It is stated that after the aforesaid communication, the Assistant commissioner tried his level best to conduct the meeting of No- confidence motion as scheduled. He visited the Grama Panchayat Office, but there was a big crowd gathered around the Grama Panchayat Office. The door of the Grama Panchayat Office was locked by the unknown persons. It is stated that after the aforesaid communication, the Assistant commissioner tried his level best to conduct the meeting of No- confidence motion as scheduled. He visited the Grama Panchayat Office, but there was a big crowd gathered around the Grama Panchayat Office. The door of the Grama Panchayat Office was locked by the unknown persons. The jurisdictional police were also present to maintain the Law and Order, but the situation had deteriorated, the police were unable to handle the Law and Order situation. Therefore, the Deputy superintendent of Police requested the second respondent to postpone the meeting of No-confidence motion fixed on 22-5-2004. It is also stated that one of the family members of the Panchayat by name Samsuddin was kidnapped. The family members of the kidnapped person samsuddin were agitating to postpone the No-confidence motion meeting and one of the Panchayat member's brother by name Elias consumed poison in front of Grama Panchayat Office. Under these circumstances, in spite of the best efforts made by the second respondent to conduct the meeting, he could not do so. Therefore, the meeting was postponed. It is stated that in accordance with law meeting of no-confidence would be convened. ( 4 ) BOTH in the writ petition as well as in the rejoinder, it is stated by the petitioner that the second respondent in collusion with the other members, who have moved No-confidence motion, have managed to see that the meeting is adjourned. Therefore, the petitioner contends that once a meeting duly convened for considering the No-confidence motion is adjourned, the notice lapsed and there is no question of convening a meeting over again on the basis of the said notice. But it is open to the authorities to convene a meeting in accordance with law if a fresh request for No-confidence motion is made by the requisite members of the Panchayat. Therefore, the petitioner contends that the endorsement issued at Annexure-B and the fresh notice convening the meeting are liable to be quashed. ( 5 ) ONE of the members of the Panchayat who have moved for no-confidence motion has filed an application for impleading opposing the prayer of the petitioner. Therefore, the petitioner contends that the endorsement issued at Annexure-B and the fresh notice convening the meeting are liable to be quashed. ( 5 ) ONE of the members of the Panchayat who have moved for no-confidence motion has filed an application for impleading opposing the prayer of the petitioner. ( 6 ) LEARNED Counsel for the petitioner contends that having regard to the language employed in Rule 3 of the Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of grama Panchayat) Rules, 1994 (hereinafter referred to as the "rules" for short), and in the light of the settled legal position that any no-confidence motion is moved, a valuable right of a representative is going to be effected, the provisions are to be strictly construed. Elaborating the said contention, he submits that sub-rule (5) mandatorily provides that a meeting convened for consideration of no-confidence motion shall not for any reason be adjourned. Sub-rule (6) provides, if there is no quorum, within one hour after the time appointed for the meeting, the meeting shall stand dissolved and the notice given under sub-rule (1) shall lapse. He submits that same consequences would follow in the event the meeting is adjourned for any reason. Therefore, he contends that once the meeting was duly convened and for any reason the meeting did not take place, the notice issued calling upon the meeting lapses and the Assistant Commissioner has no jurisdiction to convene one more meeting to consider the No-confidence motion. In that view of the matter, the endorsement issued as per Annexure-B and the notice convening the meeting on 19-6-2004 are without jurisdiction and are liable to be quashed. ( 7 ) PER contra, the learned Government Advocate submits that notice of the meeting was given. In fact the meeting was not convened because of the disturbance. When no meeting is convened, there is no question of adjournment and therefore the notice issued earlier holds good and the second respondent is fully justified in convening the meeting to consider the No-confidence motion. ( 8 ) LEARNED Counsel appearing for the impleading applicant submits that the word "shall" be used in sub-rule (5) of the Rules is not mandatory and it is directory. A similar expression contained in sub- rule (2) of the Rules has been held directly and it is not mandatory. ( 8 ) LEARNED Counsel appearing for the impleading applicant submits that the word "shall" be used in sub-rule (5) of the Rules is not mandatory and it is directory. A similar expression contained in sub- rule (2) of the Rules has been held directly and it is not mandatory. Therefore, he submits that in the circumstances of the case when successfully the meeting was prevented, the meeting notice would not lapse. It is not a case of adjournment of the meeting and therefore the authorities are fully justified in convening another meeting. ( 9 ) IN view of the aforesaid lawful contentions, the point that arises for my consideration is what is the meaning to be given to the phrase "shall not for any reason be adjourned" contained in sub-rule (5) of Rule 3 of the Rules and if no meeting is convened after a meeting notice has been issued whether the authorities are prevented from holding one more meeting on the basis of the same request. ( 10 ) IN order to answer the aforesaid question, it is necessary to have a look at Rule 3 of the Rules which deals with Motion of No-confidence. It reads as under. 3. Motion of No-confidence. (1) A written notice of intention to make the motion under the proviso to Section 49 shall be in form I signed by not less than one-third of the total number of members together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Assistant Commissioner. (2) The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion at the office of the grama Panchayat on the date appointed by him which shall not be later than thirty days from the date on which the notice under sub-rule (1) was delivered to him. (2) The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion at the office of the grama Panchayat on the date appointed by him which shall not be later than thirty days from the date on which the notice under sub-rule (1) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in Form II: provided that where the holding of such meeting is stayed by an order of a Court, the Assistant Commissioner shall adjourn the said meeting and 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, a notice of not less than fifteen clear days of such adjourned meeting. (3) A notice is Form II shall be given to every member including the Adhyksha and Upadhyaksha. (a) by delivering or tendering the said notice to such member; or (b) if such member is not found, by leaving such notice at his last known place of residence or business within the Grama panchayat or by giving or tendering the same to some adult member or servant of his family; or (c) by registered posts; or (d) if none of the means aforesaid be available, by affixing such notice on some conspicuous part of the house, if any, in which the member is known to have last resided or carried on business within the Grama Panchayat. (4) The quorum for such meeting shall be two-thirds of the total number of members of the Grama Panchayat. The Assistant commissioner shall preside at such meeting. EXPLANATION. For determination of two-thirds of total number of members under this sub-rule any fraction arrived at shall be construed as one. (5) Save as otherwise provided in the Act or these rules, a meeting convened for the purpose of considering a motion under sub-rule (2) shall not for any reason be adjourned. (6) If there is no quorum, within one hour after the time appointed for the meeting, the meeting shall stand dissolved and the notice given under sub-rule (1) shall lapse. (6) If there is no quorum, within one hour after the time appointed for the meeting, the meeting shall stand dissolved and the notice given under sub-rule (1) shall lapse. (7) As soon as the meeting convened under sub-rule (2) commences the Assistant Commissioner shall read to the members of the Grama Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate. (8) The Assistant Commissioner shall not speak on the merits of the motion and he shall not be entitled to vote thereon. (9) If the motion is carried by a majority of not less than two-thirds of the total number of members of the Grama panchayat, the Adhyaksha or Upadhyaksha, as the case may be, shall forthwith cease to function as such and the Assistant commissioner shall, as soon as may be, notify such cessation on the notice board of the office of the Grama Panchayat and also inform the Adhyaksha or Upadhyaksha, as the case may be, regarding such cessation, if he is not present at the meeting. (10) After the cessation is notified under sub-rule (9) the adhyaksha or Upadhyaksha as the case may be shall, immediately hand over all documents, moneys or other properties of the Grama Panchayat in his custody to the Secretary of the grama Panchayat. (11) The election to the office of Adhyaksha or Upadhyaksha shall not be held until the notification under sub-rule (9) removing the Adhyaksha or Upadhyaksha, as the case may be, is published. ( 11 ) SUB-RULE (1) of Rule 3 provides for issue of a written notice of intention to make the motion which has to be in the prescribed form and it should be signed by one-third of total number of members, which has to be delivered in person by any two persons signing the notice. Thereafter the Assistant Commissioner who is not given any discretion in the matter shall convene a meeting within 30 days from the date of notice under sub-rule (1) was delivered to him. He shall give 15 days notice to the members of such meeting. Therefore, the object is clear that once a No-confidence motion is proposed to be moved in accordance with law, the Assistant Commissioner is bound to convene a meeting within 30 days giving 15 days notice to the members. He shall give 15 days notice to the members of such meeting. Therefore, the object is clear that once a No-confidence motion is proposed to be moved in accordance with law, the Assistant Commissioner is bound to convene a meeting within 30 days giving 15 days notice to the members. Only in the event a Court issuing a stay order of convening of the said meeting, the meeting will not be held. Except for that under no circumstance the Assistant commissioner has the power either not to call for the meeting or to postpone the meeting. Sub-rule (3) provides for service of such notice and sub-rule (4) provides for quorum of such meeting. Sub-rule (5) emphasizes the imperative nature of the obligation on the part of the assistant Commissioner. The only exception made to that effect is contained in sub-rule (6), i. e. , after convening of the meeting, for a period of one hour if the requisite number of members constituting the quorum are not present, then the meeting shall stand dissolved and the notice given under sub-rule (1) shall lapse. The reason is obvious. Though the signature of one-third members of the Panchayat is a condition precedent, without which there cannot be a No-confidence motion, having moved No-confidence if members do not assemble at the panchayat office to vote, then the only inference to be drawn is that they have no intention to pass the No-confidence motion. Therefore, sub-rule (6) provides, if there is no quorum within one hour, the meeting shall stand dissolved and the notice under sub-rule (1) shall lapse. Sub-rule (7) deals with the procedure to be followed when a meeting is convened. It categorically provides, as soon as the meeting commences, the assistant Commissioner shall read to the members of the Grama panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate. Sub-rules (9), (10) and (11) deal with the consequences of the motion of the meeting. In this background, what sub-rule (5) says is, once the meeting is convened, it shall not be for any reason adjourned. This provision does not apply to a situation whereafter issuing the notice of the meeting the Assistant commissioner is unable to convene the meeting. Therefore, it is necessary to know the meaning of the words "meeting" and "adjourned". In this background, what sub-rule (5) says is, once the meeting is convened, it shall not be for any reason adjourned. This provision does not apply to a situation whereafter issuing the notice of the meeting the Assistant commissioner is unable to convene the meeting. Therefore, it is necessary to know the meaning of the words "meeting" and "adjourned". ( 12 ) IN 20th Century Dictionary, the meaning of the word "meeting" has been defined as"to come face to face with, to come into company of, to cause to meet, to bring into contact, keeping an appointment with, to come together from different points, to assemble, to come into contact, coming face to face for friendly or hostile ends, an assembly, an organised assembly for transaction of business". ( 13 ) THE word "adjourned" has been defined to mean, to put off to another day, to postpone, to discontinue a meeting in order to reconstitute it at another time or place, to suspend proceedings and disperse for any time specified. ( 14 ) THEREFORE, it is clear that after issue of a meeting notice if the members at the stipulated time in the Grama Panchayat assemble, come to face to face, to transact a business and thereafter for any reason said meeting is adjourned, then it could be said that the meeting was convened and in the said meeting no business was transacted. If the place where the meeting is to be convened, the members were prevented from entering the Hall then, the question of convening the meeting does not arise. If there is no convening of the meeting, the question of adjourning such a meeting would also not arise. Under sub-rule (7) after the number of members assemble, which means after the meeting is convened at the place, the Assistant Commissioner shall read out the members of the Grama Panchayat the motion of No-confidence. If the requisite members are not there within one hour from the stipulated period, the question of the Assistant Commissioner reading to the members of the Grama Panchayat the motion of No-confidence would not arise. Therefore, sub-rule (6) says, if there is no quorum within one hour after the time appointed for the meeting, the meeting shall stand dissolved. If the requisite members are not there within one hour from the stipulated period, the question of the Assistant Commissioner reading to the members of the Grama Panchayat the motion of No-confidence would not arise. Therefore, sub-rule (6) says, if there is no quorum within one hour after the time appointed for the meeting, the meeting shall stand dissolved. If the quorum is there and the Assistant Commissioner reads the motion and then before vote is taken if the meeting is adjourned, probably it could be said having regard to the language employed in sub-rule (5) that it shall not be adjourned for any reason. The said meeting also lapses and the notice issued for the said meeting also lapses though it is not expressly stated in sub-rule (5 ). But when the meeting is not convened at all and when the members are prevented from entering the Hall, the Assistant Commissioner was prevented from entering the Hall, it is not a case of adjournment of the meeting. It is an inability on the part of the Assistant Commissioner in holding the meeting. If he is prevented from entering the Hall to hold the meeting, there is no question of adjourning a meeting, which was not convened at all. Under these circumstances, Adhyaksha or Upadhyaksha enjoy the office as long as they have the confidence of the members. Once such confidence is lost they have no right to continue in the office. When one-third members of the Panchayat in writing give a requisition stating that they have lost confidence, then as required under the Rules, the assistant Commissioner has no option, except to convene a meeting. It is in such a meeting whether the Adhyaksha or Upadhyaksha has confidence of the majority of the Panchayat members is to be decided. A person who has lost confidence of the majority, who has no courage to face No-confidence motion cannot be permitted to indulge in manipulations or prevent holding of the meeting. Similarly, the rules cannot be interpreted to aid such persons, resulting in such persons sticking on to the elected posts against the wishes of the majority. ( 15 ) AS is clear from the statement of objections filed in this case, the petitioner continues to enjoy the support of the majority of the members. Similarly, the rules cannot be interpreted to aid such persons, resulting in such persons sticking on to the elected posts against the wishes of the majority. ( 15 ) AS is clear from the statement of objections filed in this case, the petitioner continues to enjoy the support of the majority of the members. If so, there should not be any hesitation on the part of the petitioner to face the meeting and exhibit his majority. The very fact that even the endorsement informing him that he will be intimated the future date is challenged before this Court shows that he is afraid of facing the meeting, and facing the No-confidence motion. If he has lost the confidence of the elected members, he has no right to continue in the office, as he forfeits his right forthwith. ( 16 ) UNDER these circumstances, I do not find any substance in any of the contentions of the learned Counsel for the petitioner. Accordingly, the writ petition is rejected. --- *** --- .