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2019 DIGILAW 478 (KAR)

N. Rama Murthy v. State of Karnataka

2019-02-21

S.SUNIL DUTT YADAV

body2019
JUDGMENT : S. SUNIL DUTT YADAV, J. 1. The petitioner, who is a member of the fourth respondent Vishwanathapura Gram Panchayat has sought to challenge the Government Order at Annexure-A dated 17.04.2018, whereby the petitioner has been removed from the post of 'Adhyaksha' of the said Gram Panchayat and his membership was cancelled pursuant to an inquiry initiated in exercise of the power under Section 43-A and 48(4) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (for short 'the Act'). 2. The relevant facts that are made out are as follows: M/s. Fortius Land Developers LLP had approached the Panchayat Development Officer of Vishwanathapura Gram Panchayat with a request to allot the civic amenity site Nos. 1 and 2 for the purpose of building a club house. A General meeting was convened to consider the said proposals and it was resolved to seek approval of the Taluk Panchayat before proceeding further. Subsequently, a special meeting was also convened and it was resolved to allot the civic amenity sites to the developer after obtaining permission of the Taluk Panchayat. It is stated that on 28.07.2016, the Taluk Panchayat permitted the Gram Panchayat to execute the Lease Deed and the same was executed on 15.09.2016. The lease amount was also deposited in a fixed deposit. However, a show-cause notice came to be issued on 27.02.2017 calling upon the petitioner to show cause as to why action should not be initiated under Section 48 of the Act. Eventually, the Lease Deed executed in favour of the developer came to be cancelled pursuant to the directions of the State Government on 05.12.2017. The emergency meeting of the Gram Panchayat had resolved to give effect to the Government Order. Pursuant to the said decision, the Panchayat Development Officer had requested the Sub-Registrar, Devanahalli Taluk to cancel the Lease Deed. In response to the show cause notice, detailed reply was furnished by the petitioner. The petitioner submits that proceedings were initiated by the Principal Secretary, Department of Rural Development and Panchayat Raj and that the only effective date of hearing was on 24.07.2017 and when time was sought for, adjournment was declined and the matter was posted for orders while providing for a week's time to enable the petitioner to file his written submissions. 3. 3. The petitioner has contended that the inquiry is faulty, as the show cause notice is only as regards the proposed action under Section 48 of the Act and does not refer to the provision of Section 43A and hence on this ground itself, the impugned order passed under Section 43A of the Act requires to be set aside. It is further submitted that action under Section 43A envisages an inquiry which would include an opportunity of being heard and that, in the present case no sufficient opportunity has been afforded to the petitioner; The petitioner has further contended that the only substantive opportunity afforded was when the matter was called on 24.07.2017, when the request for adjournment was turned down and the matter was posted for orders providing one week's time to file written arguments. Previously, inquiry was fixed on 22.05.2017 which came to be adjourned to 14.06.2017 and 24.07.2017, and it is only on the last of the dates that the Presiding Officer had conducted the proceedings. As regards the merits of the matter, various contentions have been urged as a rebuttal to the allegations made. As regards the allegation that the matter was not listed in the agenda for the purpose of discussion, it has been submitted that in the meeting on 28.06.2016, the matter was discussed and decision was taken. It is also submitted that the meeting in which the decision was taken, was conducted in accordance with the Karnataka Panchayat Raj (Conduct of Meetings of Gram Sabha) Rules, 1994, more particularly in adherence to Rule 4(3). In respect of the allegation of misconduct, as regards the decision taken to lease out the civic amenity sites to the developer M/s. Fortius Land Developers LLP, it is contended that the decision taken by the Gram Panchayat was that the prior permission of the Chief Executive Officer, Taluk Panchayat was required to be obtained as is evident from Annexure-N. It is pointed out that in fact as per Annexure-P which is an official communication to the Panchayat Development Officer, permission has been afforded to enter into a lease deed subject to the condition that the deposit that would be made by the Developer would not be utilized for any other purpose and only the interest could be made use of. That Section 209 of the Act invests power in the Gram Panchayat to alienate the property subject to the Rules made by the Government. As per the Rules made by the Government viz., Karnataka Panchayat Raj (Acquisition and Transfer of Moveable and Immoveable Properties by Gram Panchayat) Rules, 1996, it is provided that the transaction relating to alienation would be subject to previous permission of the Taluk Panchayat. In the present case, the lease deed that has been executed in favour of the developer on 15.09.2016 was subsequent to permission accorded by the Chief Executive Officer, Taluk Panchayat on 28.7.2016 and hence there is no illegality. It is further contended that if the allotment of civic amenity site in Survey No.12 of Banderamanahalli Village relates to a different Gram Panchayat and not Vishwanathapura Gram Panchayat, appropriate recourse could be had for cancellation of the resolution. Lastly, it is contended that the allotment of civic amenity site having been cancelled by the State Government by Government order dated 05.12.2017 and the Gram Panchayat having taken action for cancellation of the lease deed, no prejudice as such has been caused to the Gram Panchayat. 4. The learned Additional Government Advocate on the other hand contends that the show-cause notice and reply furnished by the petitioner is to be construed to be part of the inquiry as envisaged and that no prejudice has been caused to the petitioner in the present case. 4. The learned Additional Government Advocate on the other hand contends that the show-cause notice and reply furnished by the petitioner is to be construed to be part of the inquiry as envisaged and that no prejudice has been caused to the petitioner in the present case. It is also contended that the show cause notice though refers to Section 48 of the Act, but also clearly calls upon the petitioner to furnish his reply as regards removal from membership and hence the non-mentioning of Section 43A of the Act in the show cause notice has not in any way caused prejudice; that the petitioner had 'managed to incorporate the subject matter under the head "other matters to be discussed" in the agenda of the meeting'; that the developer had relinquished C.A. Site No.1 and C.A. Site No.2 to the Gram Panchayat which was reserved for the purpose of developing the Park, play ground for children, public library and other infrastructure like public toilets and hence, leasing out the site to the developer was illegal, that there was no discussion in the meeting wherein a decision appears to have been taken to lease the C.A. sites to the developer and in fact there has been over writing as regards the date of the meeting; that the explanation given by the petitioner in response to the show cause notice was not satisfactory. It was contended that the decision taken in the General Meeting to lease out the property that was reserved and set apart for a civic amenity site for the purpose of construction of a club house to "M/s. Fortius Land Developers," without the same being listed in the Agenda, was in violation of Section 209 of the Karnataka Gram Swaraj and Panchayat Raj Act, Rule 4(3) of the Karnataka Panchayat Raj (Conduct of Meetings of Gram Sabha) Rules, 1994, in so far as the specific item ought to have been mentioned in the agenda. 5. Statement of objections had also been filed by respondent No.3 and 4 raising similar objections as that of the State. 6. After having heard counsel on both the sides, the points that arise for consideration are: 1. Whether the inquiry held in the present case is in violation of principles of natural justice and requires to be set aside? 2. Statement of objections had also been filed by respondent No.3 and 4 raising similar objections as that of the State. 6. After having heard counsel on both the sides, the points that arise for consideration are: 1. Whether the inquiry held in the present case is in violation of principles of natural justice and requires to be set aside? 2. Whether the petitioner makes out a case that there has been no illegality in the decision taken to lease out the civic amenity site Nos.1 and 2 to M/s. Fortius Land Developers LLP.? 7. Re. Point No.1: The primary objection of the petitioner is that the inquiry conducted is in violation of principles of natural justice which has vitiated the inquiry. The inquiry that is contemplated under Section 48 of the Act as regards removal of the Adhyaksha is after affording an opportunity for hearing. Similarly, the mandate of Section 43A is also that a member may be removed after inquiry is instituted and after affording him an opportunity of being heard. In the present case, the contention that the show-cause notice itself is defective cannot be accepted in so far as the show-cause notice specifically refers to removal of the membership as well as proposed action under Section 48 of the Act. It is clear that the reference to removal of membership is as regards inquiry contemplated under Section 43A of the Act. Hence, merely non-mentioning of provision of Section 43A does not affect the validity of the show-cause notice. As regards the inquiry, though neither Section 48 nor Section 43A of the Act provide for any procedure for the conduct of inquiry nor are there any Rules governing the procedure of holding of an inquiry, the procedure of conducting the inquiry should be such that principles of natural justice are adhered to. While it would not be appropriate to detail the steps as such that require to be followed in the inquiry, as this aspect is left to the State and appropriate Authority, this Court nevertheless could examine the procedure adopted in the particular facts of the present case and can come to a finding as to its legality. While it would not be appropriate to detail the steps as such that require to be followed in the inquiry, as this aspect is left to the State and appropriate Authority, this Court nevertheless could examine the procedure adopted in the particular facts of the present case and can come to a finding as to its legality. The inquiry in the present matter has the effect of casting a stigma and would visit serious consequences disentitling him from re-election for the remaining term of office as regards the post of Adhyaksha and Upadhyaksha (as provided under Section 48 of the Act) and if an order under Section 43-A is passed, that would not only result in loss of membership but would also result in such member being disqualified from contesting election to any Panchayat for the 'next six years'. 8. "Xxx xxx xxx" 9. The contention of the petitioner that the inquiry was concluded in a hurried manner without affording any opportunity of personal hearing, is a matter that requires consideration. Before adverting to the various contentions raised, the contention of the learned Additional Government Advocate that issuance of show-cause notice and affording an opportunity to reply to the same is by itself sufficient and is to be construed to be a part of the inquiry process and requires to be considered. The issuance of the show cause notice and an opportunity afforded to the petitioner to reply relates to a pre-inquiry stage. As was rightly held by this Court in Writ Petition No.201726 of 2017 (LB-RES), in the case of Shivanagouda v. State of Karnataka and Others, by order dated 15.09.2017, the issuance of show-cause notice and considering the reply should not be treated as a substitute or as supplementing the inquiry as mandated under Section 43-A and Section 48(4) of the Act. Having addressed this contention as above, the contentions regarding adherence to principles of natural justice during the inquiry proceedings are considered herein below. 10. The impugned order has been passed purportedly under Sections 43A and 48(4) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993. It is no doubt true that the show-cause notice came to be issued which has been replied by the petitioner. Section 43A of the Act specifically provides that the member who is subjected to the inquiry is to be afforded an opportunity of being heard. It is no doubt true that the show-cause notice came to be issued which has been replied by the petitioner. Section 43A of the Act specifically provides that the member who is subjected to the inquiry is to be afforded an opportunity of being heard. Section 48(4) of the said Act also provides that "an opportunity is afforded for hearing him". 11. This requirement apart from being prescribed under the statute also flows from the general principle that the nature of inquiry relating to removal of elected members being quasi-judicial necessarily contemplates adherence to principles of natural justice which would include affording an opportunity of personal hearing. 12. The Apex Court in the case of Ravi Yashwanth Bhoir Vs. District Collector, Raigad and others reported in, (2012) 4 SCC 407 while dealing with proceedings relating to disqualification of a President of the Municipal Council has, in detail, stated the principles that are required to be followed in any inquiry and dealt with the expression 'misconduct'. The Apex Court while dealing with the procedure required to be adopted in the inquiry has observed that there should be strict compliance with the principles of natural justice and that "principles of natural justice require a fair opportunity of defence to such an elected office bearer." Para-30 of the judgment is extracted herein-below:- "30. There can be no quarrel with the settled legal proposition that removal of a duly elected member on the basis of proved misconduct is a quasi-judicial proceeding in nature. [Vide Indian National Congress (I) v. Institute of Social Welfare] This view stands further fortified by the Constitution Bench judgments of this Court in Bachhitar Singh v. State of Punjab, and Union of India v. H.C. Goel. Therefore, the principles of natural justice are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defence to such an elected office-bearer." It is also observed that the elected representatives cannot be removed unless a clear case is made out, as such representative is discharging duties in exercise of a statutory right and also represents the interest of those who have elected him. It is further observed that removal would cast a stigma and hence proceedings ought to be strictly viewed. The Apex Court has also observed: "31. It is further observed that removal would cast a stigma and hence proceedings ought to be strictly viewed. The Apex Court has also observed: "31. Undoubtedly, any elected official in local self-government has to be put on a higher pedestal as against a Government servant. If a temporary Government employee cannot be removed on the ground of misconduct without holding a full fledged inquiry, it is difficult to imagine how an elected office-bearer can be removed without holding a full fledged inquiry" 13. In the present case, on perusal of the order sheet as contained in the file made available, it is noticed that the only effective date of hearing was 24.07.2017 and on the said date, time was sought for by the petitioner which having been refused, the matter was posted for orders providing a week's time for filing of written submissions. A copy of the proceedings also reveals that the matter was fixed for hearing on 22.05.2017 which came to be adjourned to 14.06.2017 and on 14.06.2017, once again the matter came to be adjourned to 24.07.2017. 14. Hence it is clear that the request for adjournment made on 24.07.2017 can, by no stretch of imagination be described to be an unreasonable request for accommodation. The demand for an opportunity of personal hearing should be so construed that every reasonable accommodation ought to be provided without sticking to undue technicalities. 15. Hence, in the present case, clearly the mandate under Section 43A as well as Section 48 as regards affording an opportunity of personal hearing has not been fulfilled. In light of the observations of the Apex Court taking note of the nature of consequences that would visit the elected member by virtue of he being removed which would also involve a stigma, clearly the inquiry in the facts of the present case is vitiated. 16. The petitioner has in fact specifically contended that adjournment was sought for only in order to provide certain material which was in the custody of the police officials and there was no intention to prolong the matter. The said accommodation sought for cannot be said to be unreasonable. 17. As regards the contention on the merits of the matter, though various contentions have been advanced, however, in light of the matter being remanded, it would be inappropriate to record finding on the merits of the contentions raised. The said accommodation sought for cannot be said to be unreasonable. 17. As regards the contention on the merits of the matter, though various contentions have been advanced, however, in light of the matter being remanded, it would be inappropriate to record finding on the merits of the contentions raised. Nevertheless, it is made clear that the Authority while concluding the inquiry is to keep in mind the observations of the Apex Court in Ravi Yashwanth Bhoir (supra) as regards to the true purport and meaning of misconduct while deciding the matter. In view of the finding recorded as regards point no. 1 and as the matter is being remanded for reconsideration in light of the observations made above, there is no adjudication on the merits of the contentions raised. Accordingly, no occasion arises for determination of point no. 2. 18. Accordingly, the impugned order at Annexure-A is set aside, the inquiry is to resume from the stage it was on 24.07.2017. However, the Authority is to afford an opportunity of personal hearing, permit the petitioner to produce relevant documents in support of his defence and if found necessary that the allegation requires adducing of oral evidence, the said opportunity is to be afforded. The Authority to keep in mind observations made by the Apex Court in the case of Ravi Yashwanth Bhoir (supra) as regards affording principles of natural justice in all its forms. Needless to state that pleadings and material already placed before the Inquiry Officer is to be taken note of. Contentions of the parties are kept open. Accordingly, the petition is disposed of subject to the above observations.