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2019 DIGILAW 568 (KAR)

C. Pushpa v. State of Karnataka

2019-03-06

S.SUNIL DUTT YADAV

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JUDGMENT : S. Sunil Dutt Yadav, J. The petitioner is the Adhyaksha of K. Bettahalli Gram Panchayat and has challenged the notice issued by the Assistant Commissioner dated 11.12.2018 fixing the date for consideration of the motion of no confidence as 26.12.2018. 2. The undisputed facts being that the election of the members of the Gram Panchayat held was on 05.06.2015. The Adhyaksha was elected immediately thereafter. It is stated that Adhyaksha having resigned on 13.07.2017 the petitioner came to be elected as Adhyaksha on 24.07.2017. The motion of no-confidence came to be moved against the petitioner by submission of a petition to the Assistant Commissioner on 27.11.2018. 3. The petitioner has assailed the issuance of notice by the Assistant Commissioner on the sole ground that as per the second proviso to Section 49(1) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as 'Act'), no motion of no-confidence could be moved within the period of 'first 30 months from the date of his election'. Hence it is contended that the petitioner having been elected as an Adhyaksha on 24.07.2017 the question of entertaining motion of no-confidence within the period of first 30 months from the date of commencement of his term is not permitted under the law. 4. Learned Senior Counsel Shri. Vivek Reddy appearing for respondent Nos. 4 to 18 submits that the period of 30 months is to be calculated from the date of election of Adhyaksha for the first time and the question of permitting any other interpretation would result in absurdity. Learned Senior Counsel also contends that Section 51 of the Act makes it clear that even in the event of any vacancy that is created, an Adhyaksha or Upadhyaksha subsequently elected would hold office so long as Adhyaksha or Upadhyaksha who was elected at the first instance would hold the office. 5. Sri. M.A. Subramani, learned Government Pleader would also contend that the period of 30 months is to be calculated from the date of election of Adhyaksha for the first time. 6. Having heard the counsel on both the sides the point that arises for consideration is:- What is the point of commencement of 30 months as envisaged under second proviso to Section 49(1) of the Act? 7. 6. Having heard the counsel on both the sides the point that arises for consideration is:- What is the point of commencement of 30 months as envisaged under second proviso to Section 49(1) of the Act? 7. A plain reading of second proviso to Section 49(1) of the Act appears to indicate that there is a bar as regards moving of a motion of no-confidence 'within the first 30 months from the date of his election'. It is to be noted that the term of office as regards Adhyaksha under Section 46 of the Act is 5 years from the date of his election or till he ceases to be a member of the Grama Panchayat which ever is earlier. It ought to be noticed that earlier the term of office under the un-amended Section 46 of the Act was 30 months. Similarly the prohibition under the second proviso to Section 49(1) of the Act earlier was one year. The time of one year and five years as found under Section 49(1) and Section 46 of the Act have been altered by way of an amendment insofar as the term of office of Adhyaksha or Upadhyaksha is now five years as per the amendment inserted on 30.04.2015 by amendment Act No. 17/2015, and almost contemporaneously an amendment of second proviso to Section 49(1) of the Act which provides for the period of prohibition to move a motion of no confidence came to be altered to 30 months as per the amendment made on 23.02.2016 by amendment Act No. 44/2015. Hence, it becomes clear that the legislature in its wisdom while making the amendment to Section 46 as well as Section 49 of the Act has by a conscious legislative intent altered the period of prohibition as well as the period of office of the Adhyaksha or Upadhyaksha as noticed by amendments. Hence, it becomes clear that the legislature in its wisdom while making the amendment to Section 46 as well as Section 49 of the Act has by a conscious legislative intent altered the period of prohibition as well as the period of office of the Adhyaksha or Upadhyaksha as noticed by amendments. To accept the contention that the period of 30 months as a prohibition to move the motion of no-confidence, would commence from the date of the Adhyaksha having been elected, though would appear at first blush to be a correct literal interpretation, adoption of such an interpretation in the present facts would lead to absurdity where the prohibition under Section 49(1) of the Act is sought to be made applicable where the Adhyaksha is elected for the second time consequent to the resignation of the Adhyaksha elected at the earlier instance. If this interpretation is accepted then the bar envisaged under the second proviso to Section 49 would come into play whenever an Adhyaksha is elected. If Adhyaksha resigns or vacancy arises and an Adhyaksha is elected once again and if the bar under second proviso is to operate then no motion of no-confidence can be moved during the whole term of 60 months. Obviously such an interpretation would lead to absurdity. The correct interpretation keeping in mind, the objective and intent of the statute by adopting an appropriate rule of interpretation would be to assign the appropriate meaning for the word 'from the date of his election' by taking into account the period as prescribed under Section 46 read with Section 51 of the Act, which would be that the term of 30 months is to be calculated from the date of the first election of Adhyaksha. This also becomes clear from the use of the words 'within first 30 months' as provided under second proviso to Section 49 of the Act. 8. It is to be noticed that by way of an interim order passed by this Court on 19.12.2018 notice of the Assistant Commissioner was stayed. In view of the construction to be placed to the provisions as noticed above, the petition is dismissed holding that the period of 30 months would commence from the date of election of first Adhyaksha and hence, it is clear that the commencement of 30 months could not be from 24.07.2017. In view of the construction to be placed to the provisions as noticed above, the petition is dismissed holding that the period of 30 months would commence from the date of election of first Adhyaksha and hence, it is clear that the commencement of 30 months could not be from 24.07.2017. The period of 30 months already having expired the motion under Section 49(1) of the Act is permissible. Accordingly, the writ petition is dismissed.