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2004 DIGILAW 443 (KAR)

PUTTALINGAMMA v. ASST. COMMISISONER

2004-07-12

D.V.SHYLENDRA KUMAR

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( 1 ) THE petitioner is at present occupying the post Adhyaksha at Kesthur village in Maddur Taluk of Mandya District. The petitioner is faced with a no coincidence motion which was been moved by the members of this Panchayat and in respect of which the Assistant Commissioner has fixed a meeting to be held on 13. 8. 2004 is questioning the legality of this notice, the present writ petition is filed contending that the notice is not a in conformity with the requirement of Rule 3 of the Karnataka Panchayatraj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules 1994. ( 2 ) SRI Shivaramu, learned counsel appearing for the petitioner submits that the notice which is dt. 15. 7. 2004 fixing the meeting to be on 13. 8. 2004 had been served on the petitioner only by 31. 7. 2004. It is the submission of the learned counsel that every member of the Panchayat should be given 15 days clear notice of the fixation of the meeting and reckoned from the date of receipt of the notice by the petitioner, 15 days interval is not available and as such submission is that the notice is not in conformity with requirements of the Rules. ( 3 ) LEARNED counsel in this regard places reliance on the reported decisions of this Court in MUNIYAPPA AND OTHER VS. STATE OF KARNATAKA (ILR 1997 KAR 677) followed in the case of SANGAPPA VS. ASSISTANT COMMISISONER BIJAPUR DISTRICT (ILR 2004 KAR 1103 ). Submission of the learned counsel for the petitioner is that whenever the mandatory requirements of Rule 3 is not complied, the notice automatically becomes bad and is liable to be quashed and if so, the meeting as proposed cannot be held and if at all fresh dates will have to be fixed etc. , ( 4 ) SRI H. B. Narayana, learned HCGP takes notice on behalf of the 1strespondent and I have heard him. ( 5 ) A perusal of the material placed before the Court indicates that the complaint is in the context of the notice dt. 15. 7. 2004 and meeting fixed on 13. 8. 2004. There is no other non-compliance or violation pointed out in respect of the notice by itself fixing the meeting to 13. 8. 2004. ( 5 ) A perusal of the material placed before the Court indicates that the complaint is in the context of the notice dt. 15. 7. 2004 and meeting fixed on 13. 8. 2004. There is no other non-compliance or violation pointed out in respect of the notice by itself fixing the meeting to 13. 8. 2004. What is submitted that such notice was handed over to the petitioner by the official of the 1strespondent only on 31. 7. 2004 and if it is taken as from this day, it falls short of the requisite period of 15 days notice to members. ( 6 ) THE notice dt. 15. 7. 2004 fixing meeting on 13. 8. 2004 by itself is not bad in law or in violation of any of the provisions of the Act or Rules. What is contended is that the meeting scheduled to be held on 13. 8. 2004 cannot be carried on because the petitioner does not have 15 days clear notice from the day the petitioner received a copy of the notice fixing the meeting. The argument proceeds on the premise that a notice of this nature is received by the petitioner on a particular day and because of this notice becomes bad and so also the meeting. Outcome of the proceedings in the meeting and as to the very notice gets vitiated is sought to be made dependent on the date on which the petitioner receives the notice. That again is a matter for verification on factual basis. There is no machinery by which this aspect can be verified by this court at this stage. It is not necessary for this Court while exercising writ jurisdiction to examine each and every factual aspect asserted by any person and proceed further in the matter for examination of the legal effect based on such factual premises and at a stage even when the motion of no confidence is not held and the meeting itself is yet to be conducted. ( 7 ) I am of the view that it is not necessary for this Court to interfere in such circumstances and at this stage when the assertion that the proceedings are illegal entirely hinges upon an assertion made by the petitioner based on which proceedings are sought to be invalidated. No occasion for this Court to interfere at this stage. No occasion for this Court to interfere at this stage. ( 8 ) PERSONS elected in a democratic set up should retain their office by demonstrating the requisite majority in a process known to law rather than seeking shelter on technicalities for remaining in the post. ( 9 ) SRI Shivaramu, learned counsel for the petitioner has made an alternative submission that the petitioner belonging to Scheduled Caste women category is the only available person for the post in the Panchayat and even assuming that the motion is carried against her in the next ensuing election, she will be the only candidate and she will come back and occupy the post of Adhyaksha and the whole exercise is set at naught and need not be put to operation if the present notice is held to be bad. ( 10 ) IN the circumstances, assuming that the petitioner may come back and occupy the seat of Adhyaksha as a sole candidate surviving in the contest, that will not in any way either validate or invalidate the earlier proceedings the consequence of which will have to be followed in accordance with the provisions of the law. The fact that the petitioner may again come back and occupy the post of Adhyaksha is not circumstance based on which the present examination is required to be made. Such possibility does not alter the present position. In the circumstances, I do not find any reason to interfere at this stage. The writ petition is rejected. ( 11 ) LEARNED Government Pleader who has been directed to take the notice may file his memo of appearance within six weeks time. --- *** --- .