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2008 DIGILAW 765 (KAR)

Shivaram v. Assistant Commissioner, Basavakalyana

2008-12-11

S.ABDUL NAZEER

body2008
Judgment :- Abdul Nazeer, J The Petitioner is the Adhyaksha of Gram Panchayat of Ladwanti village, Basavakalyan Taluk, Bidar District. The Gram Panchayat consists of twelve members. Eight members of the Gram Panchayat moved a motion of no confidence against the petitioner under sub-rule(1) of Rule 3 of Karnataka Panchayat Raj (Motion of no confidence against Adhyakasha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short "the Rules"). On the basis of the said motion of no confidence, the first respondent issued notice at Annexure C dated 210.2008 to the members of the Grama Panchayat under sub-rule(2) of Rule 3 of the Rules, convening a special meeting of the members of the Grama Panchayath on 111.2008 at 10.00 a.m. for consideration of the said motion of no confidence. The petitioner has called in question the validity of the said notice in this Writ Petition. 2. I have heard the learned counsel for the parties. 3. Learned Counsel for the petitioner would contend that two members out of eight members who have moved the motion of no confidence are deemed to be disqualified from the membership of the panchayat under sub-Section (1)(c) of Section 13 of the Karnataka Panchayat Raj Act, 1993 (for short "the Act"). Therefore, they cannot participate in the meeting convened for consideration of the said motion. It is further argued that an application seeking their disqualification has been filed before the State Election Commission and pending disposal of the said application, they can be neither be the signatories to the proposed motion of no confidence nor can they participate in the meeting convened for the said purpose. Therefore, he prays for quashing of the impugned notice. 4. Learned Advocates appearing for the respondents submit that, in order to move the motion of no confidence, it is sufficient if 1/3rd of the members of the Panchayat sign the proposed motion. Therefore, there was no impediment for moving the motion of no confidence, because eight out of twelve members of the panchayat have signed the motion. It is further argued that though an application for consideration of disqualification of two members viz., respondent Nos. 3 and 4 is pending before State Election Commission, no order has been passed on the said application. Therefore, there is no bar for them to participate in the meeting convened for consideration of motion of no confidence. It is further argued that though an application for consideration of disqualification of two members viz., respondent Nos. 3 and 4 is pending before State Election Commission, no order has been passed on the said application. Therefore, there is no bar for them to participate in the meeting convened for consideration of motion of no confidence. In this connection, they have relied on the decision of this Court in the case of N. Gundappa Poojary Vs Assistant Commissioner, Outtur Sub-Division, Puttur, Daksihna Kannada District 1997 (2) KLJ 497. 5. In the light of the rival contentions of the parties, the question for consideration is whether the respondent Nos. 3 and 4 can join the other members of the Panchayat in moving the motion of no confidence against the petitioner and participate in the meeting convened for consideration of the said motion pending disposal of the application before the State Election Commission seeking their disqualification? 6. Section13 of the Act provides for vacation of the seat by members. The relevant provisions for the purpose of this case are sub-Sections (1)(c) and (2) of Section 13 of the Act, which are as under: "13. Vacation of seat by members: (1) If a member of a Grama Panchayat,- (a)xxxxxx .(b) xxxxxxxxxx .(c) absents himself for more than three consecutive ordinary meetings of the Grama Panchayat without the leave of the Grama Panchayat, his seat shall be deemed to be or to have become, as the case maybe, vacant. .(2) If any question arises as to whether a person is, or has become subject to disqualification under sub-Section (1), the State Election Commission may either suo motu or on a report made to it and after giving an opportunity to the person concerned of being heard, decide the question." 7. Section 49 of the Act provides for moving the motion of no confidence against the Adhyaksha or Upadhyaksha of the Grama Panchayat. Rule 3 of the Rules contemplates the procedure for effectuating the right of members to have the Adhyaksha removed if not less than two thirds of the members have expressed their lack of confidence in the Adhyaksha. The said Rule is as under: "3. Rule 3 of the Rules contemplates the procedure for effectuating the right of members to have the Adhyaksha removed if not less than two thirds of the members have expressed their lack of confidence in the Adhyaksha. The said Rule is as under: "3. Motion of No-confidence: .(1) A written notice of intention to make the motion under the proviso to Section 49 shall he 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." 8. Section 13(1)(c) of the Act creates a legal fiction that if a member of Grama Panchayat keeps himself absent for more than three consecutive ordinary meetings of the Grama Panchayat without the leave of the Grama Panchayat, his seat shall be deemed to be or to have become, as the case may be, vacant. It is also relevant to note here Section 52 of the Act, which provides for the procedure for holding the meeting of the Grama Panchayat. sub-Section(3) of Section 52 of the Act states that seven clear days notice of an ordinary meeting specifying the place, date and time of such meeting and the business to be transacted there at shall be given by the Secretary of the Grama Panchayat to the members in accordance with the said provision. Respondent Nos.3 and 4 contend that their absence in the meeting of the Grama Panchayat was neither deliberate nor intentional. It is argued that they were not issued with notice of the meeting as provided under sub-Section (3) of Section 52 of the Act. Respondent Nos.3 and 4 contend that their absence in the meeting of the Grama Panchayat was neither deliberate nor intentional. It is argued that they were not issued with notice of the meeting as provided under sub-Section (3) of Section 52 of the Act. If any question arises as to whether a person is or has become subject to disqualification under sub-Section (1) of Section 13 of the Act, the State Election Commission has to either suo-motu or on a report made to it and after giving an opportunity to the person concerned of being heard has to decide the question as provided under sub-Section (2) of Section 13 of the Act. Admittedly, an application seeking disqualification of respondent Nos.3 and 4 is pending before the State Election Commission. The question as to whether respondent Nos.3 and 4 have to be disqualified from the membership of the Grama Panchayat or not has to be decided by the State Election Commission in accordance with sub-Section (2) of Section 13 of the Act. Therefore, till the determination of this question, it cannot be held that respondent Nos.3 and 4 are disqualified from the membership of the Grama Panchayat so as to disentitle them to attend the no confidence motion proceedings. This Court in N. Gundappa Poojarys case (supra) has held that if any question regarding disqualification of member is raised, the same shall have to be determined by the Assistant Commissioner. In the absence of any determination as aforesaid, it is difficult to hold that members had lost their membership. It has been held as under: "4. I have given my anxious considerations to the submissions made but find no merit in the same. The argument so strenuously advanced by Mr. Shastry, appears to overlook the provisions contained in Section 13(2) of the Act, according to which, should any question arise as to whether a member is or has become subject to any disqualification under Section 13(1), the Assistant Commissioner, may either suo motu or on a report made of him in that regard decide the same. Section 13(2) reads thus:- "If any question arises as to whether a person is, or has become subject to disqualification under Section (1), the Assistant Commissioner may either suo motu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question". 5. Section 13(2) reads thus:- "If any question arises as to whether a person is, or has become subject to disqualification under Section (1), the Assistant Commissioner may either suo motu or on a report made to him and after giving an opportunity to the person concerned of being heard, decide the question". 5. A plain reading of the provision suggests that as and when a question regarding disqualification of a member is raised the same shall have to be determined by the Assistant Commissioner, no such determination has however been made by the Assistant Commissioner in the instant case, no matter the petitioner claims to have raised the issue before the Assistant Commissioner. In the absence of any determination as aforesaid, it is difficult to hold that respondent 3 and 4 had lost their membership so as to disentitle them to participate in the no confidence motion proceedings. The first limb of the petitioners case fails and is accordingly rejected." 10. It is thus clear that in case of a dispute with regard to disqualification of a member of the Grama Panchayath, unless and until a member is disqualification after holding an enquiry under sub-Section (2) of Section 13 of the Act, he continues to be a member of Grama Panchayat. If that is so, respondent Nos. 3 and 4 continue to be the members of the Grama Panchayat till a determination is made by the State Election Commission. Therefore, they can not only join the other members of the Panchayat in moving the motion of no confidence but also can participate in the meeting convened for the consideration of the said motion of no confidence. There is no merit in the writ petition and it is accordingly, dismissed. No costs.