Research › Search › Judgment

Karnataka High Court · body

2011 DIGILAW 881 (KAR)

Gurabasamma v. Assistant Commissioner at Indi

2011-09-06

N.K.PATIL

body2011
Judgment : 1. Petitioner in this petition has sought for a Writ of Certiorari, quashing the notice issued by respondent dated: 17th August 2011 bearing No. Chunavane/CR-17/11-12, vide Annexure-A. 2. It is the case of the petitioner that she has been duly elected as Adhyaksha of the Gabasavalagi Gram Panchayat, Indi Taluk, Gulbarga District, on 16th June 2010.Being Adhyaksha of the said Gram Panchayat, she has been taking all necessary steps to provide all the facilities to the public in general, who come within the jurisdiction of the said Gram Panchayat and has been discharging her duties effectively and sincerely. When it was noticed by her that some of the members have taken the benefits from the Gram Panchayat and drawing the amount in their names for the works executed and some of the members have even acquired disqualification under Section 12 of the Panchayat Raj Act, she has tried to stop them from doing so. In view of the same, some of the members who are inimical to her, have moved the motion of No-confidence against her in the post of Adhyaksha. On the basis of the requisition submitted by 2/3rd members of the Gram Panchayat, the respondent herein has issued the impugned notice of no-confidence dated 17th August, 2011 vide Annexure-A. Being aggrieved by the said notice issued under Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994, petitioner has presented this petition. 3. The principal submission canvassed by Learned Counsel appearing for petitioner is that the respondent has failed to comply with the provisions of Section 49 of the Act R/w. Rule 3(2) of the Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 (hereinafter referred to as the ‘Rules’ for short) for the reason that the said notice has been served to the petitioner only on 26th August, 2011 and there is no clear 15 days’ notice as required under Rule 3(2) of the Rules and therefore, the impugned no-confidence motion moved against the petitioner cannot be sustained and is liable to be set-aside at the threshold. To substantiate the said submission, placing reliance on the decisions of this Court in the case of M.MUNIYAPPA AND ANOTHER VERSUS STATE OF KARNATAKA AND OTHERS ILR 1997 Kar. To substantiate the said submission, placing reliance on the decisions of this Court in the case of M.MUNIYAPPA AND ANOTHER VERSUS STATE OF KARNATAKA AND OTHERS ILR 1997 Kar. 677 and also in the case of SANGAPPA VERSUS THE ASSISTANT COMMISSIONER, BIJAPUR DISTRICT AND ANOTHER ILR 2004 Kar. 1102, he submits that the impugned notice issued is liable to be vitiated at the threshold. 4. As against this, Learned Government Advocate appearing for respondent, inter alia, contended and substantiated that, the impugned notice issued by respondent is strictly in consonance with the relevant provisions of the Rules and interference by this Court is uncalled for. To substantiate the said submission, he has taken me through the statements made in the affidavit sworn to by the Village Accountant and submitted that, notice has been issued on 17th August, 2011, fixing the date of no-confidence on 7th September, 2011, at 11.00 A.M., giving 15 days’ clear notice as provided under Section 49 r/w. Rule 3(2) of the Rules. 5. With regard to the submission of the Learned Counsel for petitioner that, notice was served only on 26th August, 2011 and there is no clear 15 days’ notice, Learned Government Advocate, appearing for respondent submits that the said submission cannot be sustained for the reason that, as a matter of fact, in pursuance of the direction issued by the respondent, the Village Accountant of the Gram Panchayat one, Sri Shanmukhappa has started serving the notice to all the members of the Gram Panchayat from 20th August, 2011 and he has personally visited the petitioner’s house on 20th August, 2011 and on that day, she has refused to take the notice, on the ground that, that day being a Saturday, is an inauspicious day for her and she has asked the Village Accountant to serve the notice on Monday, on 22nd August, 2011. Again, when he tried to serve the notice on 22nd August, 2011 on the petitioner, the petitioner, on one or the other pretext, evaded to receive the notice. Thereafter, when she was told that he would return the notice the next day to the Assistant Commissioner with his report that she is trying to avoid the service of notice petitioner, on the next day, on 26th August, 2011, at about 8.00 A.M., along with her son came to his house and collected the notice. Thereafter, when she was told that he would return the notice the next day to the Assistant Commissioner with his report that she is trying to avoid the service of notice petitioner, on the next day, on 26th August, 2011, at about 8.00 A.M., along with her son came to his house and collected the notice. Therefore, he submits that the conduct of the petitioner clearly proves beyond all reasonable doubts that, she has intentionally and deliberately evaded the service of notice on her and therefore the prayer sought in the petitioner is a liable to be rejected at the threshold. He also submits that the judgments relied upon by the Learned Counsel for petitioner is of no assistance to him in this petition and the facts and circumstances of the said cases are entirely different from the one on hand. In fact, this Court has consistently held that Adhyaksha has no power or locus standi to question the no-confidence motion moved against him or her nor he or she can invoke the extraordinary jurisdiction of this Court, under Articles 226 of the Constitution of India. Therefore, interference by this Court is uncalled for. 6. After hearing the Learned Counsel appearing for both parties and after perusal of the impugned no-confidence notice issued dated 17th August, 2011, fixing the date of no-confidence motion on 7th September, 2011, at 11.00 A.M., i.e. tomorrow in the Gram Panchayat office, it is significant note here itself that the notion of no-confidence has already set in motion as early as on 9th August, 2011, the date of which a requisition was made by 16 members of Gram Panchayat, for moving no-confidence against the Adhyaksha. If we take into consideration the statements made on oath in the affidavit filed by the Village Accountant Gabasavalgi, it can safely be concluded that sincere efforts are, in fact, made to serve the notice on the petitioner, which the petitioner has tried to evade tactfully. It can be seen that the Village Accountant received the notices on 19th August, 2011 to serve the same on the members/Adhyaksha/Upadhyaksha and from 20th August, 2011, he started serving the notice to each one of the members in person. It can be seen that the Village Accountant received the notices on 19th August, 2011 to serve the same on the members/Adhyaksha/Upadhyaksha and from 20th August, 2011, he started serving the notice to each one of the members in person. On 20th August, 2011, when he visited the petitioner’s house, to serve the notice of meeting of no-confidence on her, he was told to come on Monday, the 22nd August, 2011, as Saturday was in auspicious. Again on 22nd August, 2011, when he visited her house to serve the notice, he was asked to come the next day by the petitioner’s son as the petitioner was out of station. On the next day, i.e. on 23rd August, 2011, when he visited her house to serve the notice, he was again told by petitioner’s son that she had not returned to the village and she would come to collect it in person. Thereafter, the petitioner did not turn up on 24th August, 2011. When he tried to contact her on her cell phone, it was switched off. On 25th August, 2011, again the Village Accountant has tried to serve notice on the petitioner, in the evening. At that time also, she did not receive it on the pretext that, she would consult her son and receive it. The Village Accountant, under the said circumstances, came to the conclusion that the petitioner is trying to avoid the service of the notice, in one way or the other. Having come to the said conclusion, he informed her that he would return the notice the next day to the Assistant Commissioner with his report that she is trying to evade service of notice and returned home. However, on the next day, i.e. on 26th August, 2011, at about 8.00 A.M., petitioner along with her son went to the house of Village Accountant and collected the notice by acknowledging the receipt of the same and thus, at last, it was finally served on 26th August, 2011. If we give a careful look at the dates and events mentioned in the affidavit sworn to by the concerned Village Accountant one can safely come to the conclusion that petitioner, being well aware of the notice of no-confidence motion, has made all efforts to evade the service of notice within the stipulated time, intentionally. If we give a careful look at the dates and events mentioned in the affidavit sworn to by the concerned Village Accountant one can safely come to the conclusion that petitioner, being well aware of the notice of no-confidence motion, has made all efforts to evade the service of notice within the stipulated time, intentionally. She has systematically, in a very scientific manner, giving flimsy reasons, has evaded notice and has made the concerned officer to move from pillar to post. When the petitioner her-self has evaded to take the notice under one pretext or the other, as is evident from the statements made in the affidavit, which neither the petitioner nor her Counsel disputes, it is not fair on the part of either the petitioner or the Counsel for petitioner nor it should lie in their mouth to take a specific stand that there is no 15 days’ clear notice for moving no-confidence. Therefore, the prayer sought for by petitioner cannot be considered and it is liable to be rejected at the threshold. 7. Further, it is pertinent to note that, this Court has consistently held that, Adhyaksha has no power or locus standi to challenge the notice of no-confidence motion or its improper service or the procedural irregularity and it is the right conferred on the members to move the no-confidence, if it is seen that the Adhyaksha is not functioning as per the provisions of the Act and Rules. Any irregularity in issuing notice need not be inquired into, at the instance of the Adhyaksha, as held by this Court in the case of ABDUL RAZAK VERSUS THE ASSISTANT COMMISSIONER, DEVANAGERE SUBDIVISION, DEVANAGERE AND OTHERS, 2005(1) Kar. L.J. 230 which has been subsequently followed in the case of VENKATARAM AND ANOTHER VERSUS THE ASSISTANT COMMISSIONER, KOLAR SUB-DIVISION, KOLAR DISTRICT, 2010(5) Kar. L.J. 76. If we consider the ratio of law laid down by this Court in the aforesaid decision, the Writ Petition filed by petitioner is liable to be dismissed, holding that Adhyaksha has no right, power or locus standi to challenge the notice of no-confidence motion, invoking the extra-ordinary jurisdiction as envisaged under Article 226 of the Constitution of India. 8. If we consider the ratio of law laid down by this Court in the aforesaid decision, the Writ Petition filed by petitioner is liable to be dismissed, holding that Adhyaksha has no right, power or locus standi to challenge the notice of no-confidence motion, invoking the extra-ordinary jurisdiction as envisaged under Article 226 of the Constitution of India. 8. It is relevant to note here itself that, petitioner, in fact, had the knowledge of the notice of no-confidence motion, moved against her well before, as per Rule 3(2) of the Rules, which mandates clear 15 days’ notice and wantonly has evaded to accept the notice and intentionally waited for the mandatory period to elapse and thereafter she has gone to the residence of the Village Accountant to accepted the notice. Having cleverly done this, she has come up with this petition taking the specific ground that there is no clear 15 days’ notice for moving no confidence. Such acts cannot be sustained nor can they be tolerated. Hence, the Writ Petition filed by petitioner is liable to be dismissed with exemplary costs. 9. Further, so far as the aforementioned Judgments relied upon by the Learned Counsel appearing for petitioner is concerned, I am of the firm opinion that, there is no quarrel or dispute with regard to the settled proposition of law laid down therein. But the facts and circumstances of the said cases are entirely different from the one on hand and hence the said Judgments are of no assistance or help to him in the Writ Petition. 10. For the foregoing reasons, the Writ Petition, filed by petitioner is dismissed with costs of Rs. 5,000/-(Rupees Five Thousand only) payable before the High Court Legal Services Committee, High Court of Karnataka, Circuit Bench at Gulbarga, within two weeks from today, failing which, the Member Secretary of the Legal Services Committee is at liberty to recover the said amount, in accordance with law.