Rajamma W/o Balanjaneya v. State Of Karnataka, Rep. By Its Under Secretary, For Rural Development And Panchayat Raj Department
2022-10-13
S.SUNIL DUTT YADAV, UMESH M ADIGA
body2022
DigiLaw.ai
JUDGMENT : S.SUNIL DUTT YADAV J. The appellant has called in question the validity of order dated 27.09.2022 passed in WP No.103239/2022, whereby the learned Single Judge has dismissed the writ petition. 2. The said writ petition was filed calling in question the validity of Notice dated 11.08.2022 vide Annexure-A, whereby notice was issued by the Assistant Commissioner convening the meeting to consider the motion of ‘No Confidence’ on 29.08.2022. 3. The facts that are made out as is relevant for the present purpose is that, the petitioner was elected as a Member to the Shidaginmol Gram Panchayat from 30.12.2020, subsequently, was elected as President of said Gram Panchayat. The application was submitted moving motion of ‘No Confidence’ against the petitioner and as against the application moved on 17.06.2022, the petitioner had approached this Court in WP No.102408/2022 and eventually, said writ petition came to be allowed and notice dated 27.06.2022 was set-aside reserving liberty to the members to move fresh notice in compliance of first Proviso to Section 49(1) of the Gram Swaraj & Panchayat Raj Act, 1993 (for short, ‘Act’). It is submitted that thereby fresh complaint came to be made and the application was submitted to the Assistant Commissioner on 4.8.2022 with a prayer to move the ‘No Confidence Motion’ against the petitioner. It is submitted that on the very same day, i.e. on 4.8.2022, the Assistant Commissioner has issued notice on 11.08.2022 calling for meeting on 29.08.2022. The said action came to be challenged before the learned Single Judge on various grounds including that the time period prescribed under the first proviso to Section 49(1) of the Act requires that the Assistant Commissioner shall wait till expiry of 10 days before issuance of notice convening the meeting. 4. It is contended that in the present case, notice was issued within a period of seven days and accordingly, time period prescribed under Section 49(1) of the Act has been violated. Learned Single Judge has, however, rejected the writ petition while observing that ‘Adyaksha’ of Gram Panchayat has no locus standi to challenge the said notice after relying on the judgment of this Court in Abdul Razak Vs. The Assistant Commissioner, Davanagere Sub-Division, Davanagere & Others, 2005(1) Kar.L.J. 230 .
Learned Single Judge has, however, rejected the writ petition while observing that ‘Adyaksha’ of Gram Panchayat has no locus standi to challenge the said notice after relying on the judgment of this Court in Abdul Razak Vs. The Assistant Commissioner, Davanagere Sub-Division, Davanagere & Others, 2005(1) Kar.L.J. 230 . It was further observed that even if there is any irregularity, it would not confer any right on ‘Adyaksha’ who is subjected to the ‘No Confidence Motion’ and accordingly, rejected the petition. 5. Learned counsel for the petitioner has challenged the said order before this Court and submits that question of locus standi was not considered during the earlier round of litigation and could not have been relied upon in the 2nd round of litigation so as to reject the petition on technical ground. It is further submitted that there is ambiguity insofar as stipulation of first proviso to Section 49(1) of the Act, which provides that 10 days clear notice is to be given. It is contended that when a larger Bench of this Court has held that period of 10 days is mandatory, question of further holding that the Assistant Commissioner need not wait till expiry of 10 days is a contradiction which cannot stand and accordingly, submits that clarification is required. 6. Heard both sides. 7. It must be noted that the only point as argued in the present appeal is that there is ambiguity in the law laid down by the Larger Bench of this Court in WA No.200087/2022 and WP No.102077/2022, as regards mandatory nature of the notice period of 10 days as contemplated under the first proviso to Section 49(1) of the Act. It must be noted that in WA No.200087/2022, reference made was as regards purport of first proviso to Section 49(1) of the Act and as to whether notice of at least 10 days is required to be understood as mandatory and if that were to be so, ratio laid down in M. Puttegowda & Others Vs. The Assistant Commissioner, Mysore, 2002 (1) KLJ 16 requires reconsideration. After a detailed consideration, larger Bench of this Court in WA No.200087/2022 has come to a conclusion giving a finding that the law declared in Puttegowad’s case (supra) lays down correct law and does not require reconsideration. It is further observed that in effect, first proviso to Section 49(1) of the Act becomes directory.
After a detailed consideration, larger Bench of this Court in WA No.200087/2022 has come to a conclusion giving a finding that the law declared in Puttegowad’s case (supra) lays down correct law and does not require reconsideration. It is further observed that in effect, first proviso to Section 49(1) of the Act becomes directory. In the reference made while considering WP No.102077/2022, larger Bench had an occasion to deal with reference as follows: “Whether 10 days notice prescribed in the latter part of first proviso to sub-section (1) of Section 49 is to be given to the Adhyaksha of the Gram Panchayat or the Assistant Commissioner AND whether such notice is mandatory or directory?” 8. Reference has been answered at para-19 as follows: “In view of the above, we hold that the “ten days clear notice” found in first proviso of Section 49(1) of the Act, has to be duly signed by half of the members of a Panchayath and shall be submitted by any two members signing it, to the concerned Assistant Commissioner. Further, as held by this full bench in Shankaragouda (supra), the members of a panchayath are bound to give ten days notice in Form-I as stipulated in Rule 3 of the Rules to the concerned Assistant Commissioner, who thereafter, shall issue notice to all the members convening a meeting to consider the motion of no confidence.” 9. Accordingly, in WP No.102077/2022, reference has been answered to the effect that members of the Panchayath are bound to give ten days notice in Form-I as stipulated in Rule 3 of the Rules to the concerned Assistant Commissioner, who thereafter, shall issue notice to all the members convening a meeting to consider the motion of ‘No Confidence’. Further reference is made to the reference in WA No.200087/2022, wherein observations have been made that Assistant Commissioner need not wait for expiry of ten days and that law declared in Puttegowda’s case (supra) does not require any reconsideration. 10. A reading of both references would make it clear that references have been answered by way of answer to the questions raised to the effect that no doubt, ten days clear notice is to be made.
10. A reading of both references would make it clear that references have been answered by way of answer to the questions raised to the effect that no doubt, ten days clear notice is to be made. But once such notice is made, Assistant Commissioner, need not wait for expiry of ten days which is the legal position regarding the notice period as made out in the reference in WA No.200087/2022 & WP No.102077/2022 consisting of three judges each. 11. No doubt, it is true that giving of notice for ten days is mandatory. However, after discussing various aspects, it is also held, as is made out from the reference, that as regards the Assistant Commissioner, once notice is given by the members, he need not wait for expiry of ten days and that has been reiterated and followed in WP No.102077/2022. Accordingly, that is the only manner in which reference could be understood. We find no such contradiction in terms of answers made to the reference as pointed out above. There is no doubt that notice of ten days must be given by the members and at the same time, the Assistant Commissioner need not wait for expiry of ten days. In the present case, though notice was given by the members on 4.8.2022, the Assistant Commissioner having issued notice on 11.08.2022 though within a period of ten days would not in any way be in contravention of law as answered in the reference. Once the larger Bench has laid down the law, it would not be appropriate for a bench of a lesser strength to reopen the said aspect. On a plain reading of the reference in WA No.200087/2022 and WP No.102077/2022, we find no such ambiguity. 12. No doubt, it is submitted that the aspect of locus standi was not considered in the 1st round of litigation and accordingly, the petitioner ought not to have been denied the right to canvass the validity of notice issued. Though the learned Single Judge has rejected the petition on locus standi, we have considered the contention of the petitioner on its merits and have rejected the same. Accordingly, we find no reason to interfere with the impugned order of the learned Single Judge. The writ appeal stands dismissed as devoid of merit. Pending applications, if any, do not survive for consideration and accordingly, they are disposed off.