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2014 DIGILAW 309 (KAR)

MANJULA v. STATE OF KARNATAKA

2014-03-05

A.N.VENUGOPALA GOWDA

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ORDER The petitioner, sitting Adhyaksha of Yamare Grama Panchayat, Sarjapura Hobli, Anekal Taluk, feeling aggrieved by a notice dated 07.02.2014, given under Rule 3(2) of the Karnataka Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha) Rules, 1994 (for short ‘the Rules’), fixing 06.03.2014 as the date for considering No Confidence Motion, presented against her, has preferred this writ petition. 2. Sri Padmanabha R. Mahale, learned Senior Advocate, firstly, contended that the 2nd respondent has no authority to call for the meeting before expiry of 10 days from the date of receipt of Annexure C from the members of the Grama Panchayat and Annexure D is in violation of proviso under S.49 of the Karnataka Panchayat Raj Act (for short ‘the Act’). Secondly, Annexure D having not been accompanied with the proposed Motion of No Confidence and there being noncompliance of Sub-Rule(1) of Rule 3, in view of the decision in MALLAMMA Vs. STATE OF KARNATAKA AND OTHERS, ILR 2002 KAR 4253, impugned notice is arbitrary and illegal. Thirdly, there being noncompliance with the mandatory procedure prescribed under the Rules, impugned notice calls for interference. 3. Sri H.T. Narendra Prasad, learned AGA, on the other hand, contended that petitioner has no locus standi to maintain this petition on the premise of violation of the requirements of the Rules, in view of the decision in ABDUL RAZAK Vs. THE ASSISTANT COMMISSIONER, DAVANAGERE SUB DIVISION AND OTHERS, reported in 2005 (1) KLJ 230. He submitted that the 2nd respondent having received a requisition vide Annexure C, from 16 out of 19 members of the Panchayat, has performed his statutory duty and has given the meeting notice vide Annexure D, to all the members of the Panchayat and hence, no interference is called for. 4. Sri V. Viswanatha Setty, learned advocate appearing for the respondents 3 to 11 and 14 to 17, adopted the submissions made by Sri H.T. Narendra Prasad and submitted that the petitioner is not entitled to the relief. 5. Perused the writ petition and considered the rival contentions. 6. Yamare Grama Panchayat, Sarjapura Hobli, Anekal Taluk has 19 members. Petitioner is the sitting Adhyaksha. 16 members of the Panchayat having presented AnnexureC, before the Assistant Commissioner, Bangalore South Sub-Division, on 06.02.2014, notice vide Annexure D was given on 07.02.2014 to all the members of the Panchayat. 7. In M. PUTTEGOWDA AND ANOTHER Vs. 6. Yamare Grama Panchayat, Sarjapura Hobli, Anekal Taluk has 19 members. Petitioner is the sitting Adhyaksha. 16 members of the Panchayat having presented AnnexureC, before the Assistant Commissioner, Bangalore South Sub-Division, on 06.02.2014, notice vide Annexure D was given on 07.02.2014 to all the members of the Panchayat. 7. In M. PUTTEGOWDA AND ANOTHER Vs. THE ASSISTANT COMMISSIONER, MYSORE SUBDIVISION, MYSORE, 2002 (1) KLJ 16 (DB), it has been held that from the combined reading of proviso to S.49 and the Rules it is clear that the persons who intend to move the No Confidence Motion shall give at least 10 days’ notice to the Assistant Commissioner for convening the meeting and it would not come in the way of Assistant Commissioner to call for the meeting to consider the Motion for No Confidence before the expiry of 10 days from the date he received the notice. It has been further held that the Assistant Commissioner can call the meeting within 10 days from the date he received the notice and he is not required to wait for the expiry of 10 days before issuing the notice convening the meeting. Thus, the first contention urged by the learned Senior advocate for the petitioner is devoid of merit. 8. In SMT. LAXMAVVA Vs. THE STATE OF KARNATAKA, ILR 2007 KAR 1028, with regard to the interpretation placed on Rule 3, in the case of Mallamma, (supra), it has been held as follows: “7. No doubt, a reading of the provision shows that it may be mandatory in nature. But we have to see whether non-compliance is only an irregularity or fatal to the motion itself.” Further it has been held as follows: “10. On perusal of the records, especially the written notice, we find that there is substantial compliance of Rule 3(1) of the Rules. In such case, mere attaching the copy of the proposed motion would be duplicity of the work and that by itself cannot be a ground to set at naught the democratic exercise of the members in functioning of these local Governments. When the notice of the majority members makes it clear their intention, mere non-enclosing the proposal would be only an irregularity and in our view does not cause any prejudice to the other side. 11. When the notice of the majority members makes it clear their intention, mere non-enclosing the proposal would be only an irregularity and in our view does not cause any prejudice to the other side. 11. The learned Single Judge, in the case of Mallamma, has merely relied upon the language of Rule 3(1) and held that if the notice does not accompany (separately) the proposed motion of no-confidence, is bad in law. We do not agree with this proposition. In our view, non-compliance has to be seen in the background as to whether the same has caused any prejudice to the person aggrieved. 12. In the facts and circumstances of the present case and after perusal of the notice, we find that since the notice also incorporates the proposal of no-confidence motion, there is substantive compliance of the requirement of Rule 3(1) of the Rules. As such, the reliance placed by the Learned Counsel in the case of Mallamma, is of no assistance to the facts of the case.” 9. With regard to the second contention urged, based on the decision in the case of Smt. Mallamma, (supra), in the case of SMT. LAXMAVVA Vs. STATE OF KARNATAKA AND OTHERS, 2007 (3) KLJ 45, it has been held that, mere attaching a copy of the proposed Motion would be duplication of the work and that by itself cannot be a ground to set at naught the exercise of democratic right of the members and when the majority of the members make their intention clear, mere nonenclosing a copy of proposed Motion would be only an irregularity and does not cause any prejudice to other side, particularly, on account of the notice also incorporating the proposal of No Confidence Motion and thus, there is substantive compliance of the requirement of Rule 3(1) of the Rules. Perusal of Annexure – D makes it clear that the meeting has been called to consider the Motion of No Confidence expressed against the petitioner. 10. With regard to the alleged deficiency in the impugned notice, the finding recorded on point No.1 in the case of SRI VENKATARAM AND ANOTHER Vs. ASSISTANT COMMISSIONER, KOLAR, ILR 2009 KAR 4078 answers the point. It has been held therein as follows: “Repoint I: 7. Indisputably, 10 elected members of the panchayath submitted requisitions to the respondent on 22.08.2009. 10. With regard to the alleged deficiency in the impugned notice, the finding recorded on point No.1 in the case of SRI VENKATARAM AND ANOTHER Vs. ASSISTANT COMMISSIONER, KOLAR, ILR 2009 KAR 4078 answers the point. It has been held therein as follows: “Repoint I: 7. Indisputably, 10 elected members of the panchayath submitted requisitions to the respondent on 22.08.2009. Annexures C & D make reference to the proposed No confidence motions. Record produced by Learned HCGP shows that, proposed motions were enclosed to the representations as at Annexures C & D. The enclosed, proposed Noconfidence motions would show that, they have all the contents of Form-I, prescribed under Rule 3(1) of the Rules. Except mentioning Form-I and the Rule under which they are being submitted, the representations as at Annexures C & D, in detail, refer to factual situation. This court, in more than one decision has held that, submission of the requisition in prescribed Form – I, need not be actually accompanied by a proposed motion of No confidence, as was held in the case of MALLAMMA Vs. STATE OF KARNATAKA (SUPRA).” 11. In the case of Abdul Razak, (supra), it has been held as follows: “4. Rule 3 is a provision made for effectuating the substantive right given to members Under Section 49 of the Karnataka Panchayat Raj Act, 1993. Section 49 is a provision whereunder every 'Adhyaksha' or Upadhyaksha' of a Gram Panchayat shall be forthwith 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 members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. The right given Under Section 49 of the Act is to the members who have such a right to have the 'Adhyaksha' removed if not less than two thirds of the members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'.” Thus, the petitioner, being the sitting Adhyaksha of the Panchayat has no locus standi to maintain this petition on the premise of violation or noncompliance of the requirement of the Rules. In view of the foregoing, there being no case to order Rule Nisi, the petition being devoid of merit is rejected with no order as to costs.