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2004 DIGILAW 468 (KAR)

KARIYA BOMMAGOUDA v. ASSISTANT COMMISSIONER

2004-07-23

D.V.SHYLENDRA KUMAR

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D. V. SHYLENDRA KUMAR, J. ( 1 ) PETITIONER, had been elected as Upadhyaksha of Bankanal Grama Panchayat, Sirsi Taluk, U. K. District. It appears the requisite number of members of the Panchayat gave notice to the assistant Commissioner proposing to move the no-confidence motion against the petitioner. The assistant Commissioner in turn notified all the members a meeting scheduled for the said purpose, which was fixed on 21-2-2004 and to the misfortune of the petitioner the motion was carried as six members out of eight members, who constituted the Panchayat voted in support of the no-confidence motion. It is thereafter, the petitioner has approached this Court, feeling aggrieved about the manner in which the no-confidence proceedings were conducted against him. ( 2 ) SRI Hadimani, learned Counsel for the petitioner submits that the Assistant Commissioner has not followed the requisite procedure as contemplated under Section 49 of the Karnataka panchayat Raj Act, 1993 read with Rule 3 of the Karnataka Panchayat Raj (Motion of No confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994. It is the submission of the learned Counsel for the petitioner that all the members, who had been put on notice by the Assistant Commissioner had not been provided with an application of the no-confidence motion, which had been given by the members who sought for moving the matter. Learned Counsel submits that non-furnishing a copy of the application that had been submitted by the members moving the no-confidence motion, amounts to violation of Rule 3 of the Rules and as such the proceedings are vitiated. In support of his submission, learned Counsel has placed reliance on a decision of this Court rendered in Mallamma v. State of Karnataka and Ors. , 2002 (5) Kar. L. J. 254 : ILR 2002 Kar. 4253. ( 3 ) SECTION 49 of the Act provides for the motion of no-confidence against Adhyaksha or upadhyaksha of a Grama Panchayat. It is required to be passed by a majority of not less than 2/3rd of the total number of members of the Gram Panchayat at a meeting specially convened for the purpose for the motion to be carried. ( 3 ) SECTION 49 of the Act provides for the motion of no-confidence against Adhyaksha or upadhyaksha of a Grama Panchayat. It is required to be passed by a majority of not less than 2/3rd of the total number of members of the Gram Panchayat at a meeting specially convened for the purpose for the motion to be carried. ( 4 ) THE procedure to be followed is prescribed by the Karnataka Panchayat Raj (Motion of no-confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994, and the manner of issue of notice is governed by Rule 3 of the Rules. Section 49 of the Act and Rule 3 of the Rules read as under. " section 49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat. Every Adhyaksha or Upadhyaksha of Grama Panchayat shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed: provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the total number of members and at least 10 days notice has been given of the intention to move the resolution: [provided further that no resolution expressing want of confidence against an Adhyaksha or upadhyaksha, shall be moved within one year from the date of his election: provided also that where a resolution expressing want of confidence in any Adhyaksha or upadhyaksha has been considered and negatived by a Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, within one year from the date of the decision of the Grama Panchayat]. Rule 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. 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, 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 Adhyaksha 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. 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. If there is no quorum, within one hour after the time appointed for the meeting, the meeting shall stand dissolved and notice given under sub-rule (1) shall lapse. 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. If there is no quorum, within one hour after the time appointed for the meeting, the meeting shall stand dissolved and notice given under sub-rule (1) shall lapse. As soon as the meeting convened and 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. The Assistant Commissioner shall not speak on the merits of the motion and he shall not be entitled to vote thereon. 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. 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. 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 ( 5 ) A notice of no-confidence motion moved by the members is required to be given to the assistant Commissioner in writing and as in Form I along with a copy of the proposed motion. Thereafter if the notice is in compliance with all necessary requirements, the Assistant commissioner will in turn notify all the members of the proposal to move such a motion as indicated in sub-rule (3) of Rule 3 of the Rules. The Assistant Commissioner is required to issue notice to individual members in Form. Form II, Rule 3 (2) are extracted below for ready reference: "form II [see Rule 3 (2)] sub: No-confidence motion against Adhyaksha or Upadhyaksha of. . . . . The Assistant Commissioner is required to issue notice to individual members in Form. Form II, Rule 3 (2) are extracted below for ready reference: "form II [see Rule 3 (2)] sub: No-confidence motion against Adhyaksha or Upadhyaksha of. . . . . Grama Panchayat - Reg. A meeting to consider the no-confidence motion against the Adhyaksha or Upadhyaksha of. . . . Grama Panchayat will be held on. . . . . (week day) the. . . . . day (date) of. . . . . (Month) 19. . . . . (Year) at. . . . . (time) in the office of the said Grama Panchayat. You are therefore requested to attend the said meeting on the date and at the place and time mentioned above. Assistant Commissioner To sri/smt. . . . . " ( 6 ) I have heard Sri Hadimani, learned Counsel for the petitioner. Sri Nagendra Naik, learned counsel for respondents 2 to 5 and Sri H. B. Narayana, learned HCGP for the 1st respondent. ( 7 ) ON a perusal of the decision of this Court, relied upon by the learned Counsel for the petitioner, it is obvious that the decision was rendered in the context of non-compliance of the requirement of sub-rule (1) of Rule 3. e. , the members who proposed the motion of no-confidence had not appended a copy of the proposed motion along with their notice an application to move the no-confidence motion. There was infirmity even in the issue of notice by the intended members, who wanted to move the no-confidence motion. ( 8 ) IN the present case, the submission of Sri Hadimani, learned Counsel for the petitioner, is that the Assistant Commissioner while issuing notice to individual members had not enclosed a copy of the no-confidence motion that had been issued by the requisitioning members. Learned counsel submits, that therefore, the proceedings are vitiated. ( 9 ) ON a perusal of sub-rule (3) of Rule 3, it is obvious that the Assistant Commissioner is required to issue notice to individual members in Form. Form II does not mandate enclosing a copy of the no-confidence motion. No doubt a fair procedure and principles of natural justice would commend enclosing a copy of the no-confidence along with a copy of the notice to the members but it is not a requirement of law as such. Form II does not mandate enclosing a copy of the no-confidence motion. No doubt a fair procedure and principles of natural justice would commend enclosing a copy of the no-confidence along with a copy of the notice to the members but it is not a requirement of law as such. The procedure that has been followed by the assistant Commissioner in the instant case is in conformity with the requirement of sub-rule (3) of Rule 3 of the Rules. ( 10 ) IT is on the premise that the individual notices to the members issued by the Assistant commissioner was not accompanied by the no-confidence motion that had been given by the moving members that the proceedings are sought to be annulled by the petitioner and before this court. In a democratic process the will of the majority is the ultimate test. A non-compliance with a statutory provision no doubt fails short of the requirement of law. But, I am of the view that by way of an interpretive process, it is not proper for this Court to upset the will of the majority and by resorting to technicalities. In the instant case as I do not find any violation of the statutory provision governing the procedure required to be followed to carry a no-confidence motion. There is no occasion for this Court to interfere with what had happened. No occasion for this Court to issue a writ. This writ petition is dismissed.