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2004 DIGILAW 507 (KAR)

SHAKUNTALA v. ASSISTANT COMMISSIONER

2004-08-12

D.V.SHYLENDRA KUMAR

body2004
D. V. SHYLENDRA KUMAR, J. ( 1 ) THIS Writ Petition is filed by the Adhyaksha of Salotagi Gram Panchayat in Indi taluk of bijapur District who is confronted with a no confidence motion moved by the requisite number of members of the Panchayat and in response to which the Assistant Commissioner has fixed a meeting for consideration of such motion on 16. 8. 2004, challenging the fixation of the meeting on the premise that it was not incumbent upon the Assistant Commissioner to have fixed such a meeting, that notice of this nature for fixing a meeting should have been issued by the adhyaksha herself, that having not been done, the meeting scheduled to be held on 16. 8. 2004 is not in accordance with law, that notice fixing the meeting is required to be quashed etc. ( 2 ) SRI Gachchinamath, learned Counsel appearing for the petitioner submits that the provision relating to fixation of a meeting in a Gram Panchayat is governed by Section 49 r/w Section 52 of the Karnataka Panchayatraj Act, that Sub-section 2 of Section 52 says that it is the Adhyaksha who can call for a special meeting, that it can be so convened either by the Adhyaksha herself or if so requisitioned by not less than 1/3rd of total number of members and in the instant case, requisite number of members having not called upon, the Adhyaksha to fix a special meeting, the meeting fixed by the Assistant Commissioner is not in conformity with Sub-section 2 of Section 52 and as such the notice is required to be quashed and further proceedings prevented. ( 3 ) LEARNED Government Pleader Sri H. B. Narayana, is directed to take notice on behalf of the first respondent and requested to assist the Court. Learned Government Pleader has brought to my notice not only the provisions of Section 49 but also Rule 3 of the Karnataka Panchayatraj (Motion of no Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994. Learned Government Pleader has brought to my notice not only the provisions of Section 49 but also Rule 3 of the Karnataka Panchayatraj (Motion of no Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994. Submission of the learned Government Pleader is that in terms of Section 49 which is the one which provides for moving of a motion of no confidence either against an Adhyaksha or upadhyaksha, the person holding the office vacates the post if the motion is supported by a majority of not less than 2/3rd of total number of members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. A meeting for moving a no confidence motion is a special type of meeting convened for the specific purpose and such a meeting is required to be convened in accordance with the procedure as prescribed. The procedure is prescribed by Rule 3 for purpose of convening such a meeting. Rule 3 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 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 quoram 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 third 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. ( 7 ) 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. ( 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. " 4. A meeting of this nature and for such purpose will be fixed by the Assistant Commissioner on any two members who have signed the notice and supported by not less than l/3rd of the total number of members with such a request as prescribed in Form No. 1 to the Assistant commissioner. 5. It is not in dispute that the Assistant Commissioner on receiving such a notice has called for a meeting in terms of Rule 3 of the Rules. However, what is contended by Sri Gachchinamath learned Counsel is that the requirement of such Section 2 of Section 52 is not complied and therefore the meeting convened is bad in law. Unfortunately, for the petitioner it is not the procedure envisaged under Sub-section 2 to Section 52 that is required to be followed for the purpose of moving a no confidence motion against an Adhyaksha or Upadhyaksha. It is the provisions of Section 49 that governs the situation and the procedure prescribed there under being under Rule 3 of the Rules, the contentions urged on behalf of the petitioner are not tenable, fails and the Writ Petition dismissed. 6. Learned Government Pleader permitted to file his memo of appearance within 4 weeks.