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2023 DIGILAW 92 (KAR)

Deepak v. State of Karnataka

2023-01-16

ANANT RAMANATH HEGDE

body2023
JUDGMENT/ORDER 1. Heard the learned counsel Sri Jairaj K.Bukka appearing on behalf of petitioner the learned Additional Government Advocate appearing for respondents No.1 to 4 and learned counsel Sri K.M.Ghate, appearing on behalf of respondents No.8 to 20. 2. This petition is filed questioning the no confidence motion issued against Chandrashekar Buya who is holding the office of Adhyaksha of Markal Grampanchayat. The said Grampanchayat has 18 members. Among them, 13 members have requested the Assistant Commissioner to convene the meeting to discuss the no confidence motion against Adhyaksha. The respondent No.4-Assistant Commissioner has issued a notice on 8/11/2022 convening a meeting on the issue of 'no confidence motion' and the meeting was scheduled on 24/11/2022. This notice is under challenge on the following two grounds; a) 15 days clear notice is not provided before convening the meeting and the same contravenes Rule 3(2) of the Karnataka Panchayat Raj (Motion of No- Confidence against Adhyaksha an Upadhyaksha of Gram Panchayat) Rules, 1994 (for short the 'Rules'.) b) The notice is not sent by the officials of Grampanchayat which is in contravention of mandate of Rule 3(2) of the Rules. The Village Accountant who claims to have issued the notice to the Members of the Grampanchayat is not the employee of the Grampanchayat or the employee of the office of the Assistant Commissioner, as such the notice is vitiated. 3. Respondents No.8 to 20 in this petition are the persons who have expressed no confidence. 4. This court has granted an interim order on 18/11/2022 and in terms of the said interim order, the court directed meeting to be held as scheduled and directed the votes to be cast through ballot papers and further directed the results to be kept in a sealed cover and to be placed before the Court. Pursuant to the court direction, the meeting was held as scheduled, the Members have expressed their opinion through the ballot and the result is not announced. The ballot papers are submitted to this Court in a sealed cover. 5. The interim order granted by this Court was called in question by the respondents No.8 to 20 who have expressed no confidence in Adhyaksha. That writ appeal is pending in W.A.No.200217/2022. 6. Learned counsel for the petitioners raised a preliminary objection stating that this writ petition cannot be considered on merit in view of pendency of writ appeal in W.A.No.200217/2022. The interim order granted by this Court was called in question by the respondents No.8 to 20 who have expressed no confidence in Adhyaksha. That writ appeal is pending in W.A.No.200217/2022. 6. Learned counsel for the petitioners raised a preliminary objection stating that this writ petition cannot be considered on merit in view of pendency of writ appeal in W.A.No.200217/2022. It is the submission that the Division Bench of this Court has passed an interim order restraining this court not to proceed further in this matter. 7. Learned counsel Sri K.M.Ghate appearing on behalf of respondents No.8 to 20 would submit that there is no interim order staying further proceedings in this matter as contended by the learned counsel for the petitioners and accordingly would submit that the matter has to be heard on merits. 8. This court has considered the said order dtd. 14/12/2022 passed in Writ Appeal No.200217/2022. The order reads as under :- "Learned Government Advocate accepts notice for respondent Nos.1 to 4. Learned counsel for the appellants submits memo for dispensation of notice to respondent Nos.5 and 6. Since notice to them was not ordered before the learned Single Judge, notice to them is dispensed with as prayed for. Issue notice to respondent Nos.7 to 10. Simultaneously, learned counsel for the appellant is permitted to serve notice on Sri P.S. Kumman, learned counsel for respondent No.7 and Sri Jayaraj K. Bukka, learned counsel for respondent Nos. 8 to 10 as they represented them before the learned Single Judge. List on 2/1/2023." On reading of this order, it is crystal clear that the Division Bench of this Court has not passed any order prohibiting this Court from considering the petition on merit. 9. Under these circumstances, the contention of the learned counsel for the petitioners that the hearing has to be deferred till the disposal of the case in Writ Appeal No.200217/2022 cannot be accepted. Thereafter, this Court has considered the case on merit and proceeded further to pass this order. 10. Learned counsel Sri Jairaj K.Bukka appearing on behalf of the petitioners raised the following contentions- (a) This court has directed the Assistant Commissioner to produce the original inward and outward registers to substantiate the contention of the State that the clear 15 days' notice is served on the petitioners. Pursuant to the direction issued by this Court, the original registers have been secured. Pursuant to the direction issued by this Court, the original registers have been secured. From the original inward and outwards registers, it is apparent that there is entry in the outward register for having dispatched the notices on 8/11/2022. However, there is no reference/entry in the inward register on 8/11/2022, to show that the notices have been returned to the office of the Assistant Commissioner on the same day after due service. Since there is no poof relating to the service of notice on 8/11/2022, the meeting is vitiated. (b) Under sub-rule (2) of Rule 3 the said Rules, the notice relating to no confidence motion has to be sent and served by the officials of the Assistant Commissioner's office or the officials of Grampanchayat concerned. The officials of Grampanchayat concerned can identify the members and can serve the notice and the officials of the Tahasildar's office being no way concerned with the Grampancayat members, cannot identify the members and they cannot serve the notice and they are not empowered to serve the notice under Rule 3(2) of the said Rules. Since notice is alleged to have been served by the village accountant working under the Tahasildar, the service of notice is improper. 11. Learned counsel Sri K.M.Ghate appearing for respondents No.8 to 20 would raised the following contentions :- a) That two of the respondents among respondents No.8 to 20 have filed caveat on 10/11/2022 anticipating that the petitioners would challenge the notice and this fact would indicate that the notice is served on all the persons on 8/11/2022. b) The acknowledgment submitted by the village accountant which is submitted by the along with the memo dtd. 30/11/2022, would reveal that the notice is sent on 8/11/2022 and served on 8/11/2022, thereby a clear 15 days notice is given to the members before convening the meeting for deciding no confidence motion. c) The burden is on the petitioner to establish that 15 days' clear notice is not served when notice dtd. 8/11/2022 contains the signature of all the members of Grampanchayat and when the petitioners have not mentioned the date of receipt of the notice. 12. Learned Additional Government Advocate Sri Virangouda M.Biradar appearing on behalf of respondents No.1 to 4 would raised the following contentions : a) The notice dtd. 8/11/2022 contains the signature of all the members of Grampanchayat and when the petitioners have not mentioned the date of receipt of the notice. 12. Learned Additional Government Advocate Sri Virangouda M.Biradar appearing on behalf of respondents No.1 to 4 would raised the following contentions : a) The notice dtd. 8/11/2022 is served on the same day, however it was served late in the evening on the same day, as such the necessary entries could not be made in the inward register maintained by the office. b) The Assistant Commissioner has sworn to an affidavit on 2/12/2022, wherein it is stated the notices were served on the members on 8/11/2022. 13. This court has considered the rival contentions raised at the Bar and also perused the records. 14. There is no difficulty in understanding the position of law that while convening a meeting to discuss no confidence motion, 15 days clear notice has to be given to the members. 15. The two questions that are to be decided in this case is whether the notice dtd. 8/11/2022 is served on all the members giving 15 days clear notice before the scheduled meeting on 24/11/2022. 16. Second thing is whether the notice said to have been served by the village accountant attached to the office Tahasildar is a valid service under Rule 3(2) of the said Rules. 17. As far as the second question is concerned there is no difficulty in holding that the rule does not contemplate service of notice only through the employees the Grampanchayat. In fact, under the said rule there is no reference to service of notice through employees of the Grampanchayat office at all. What is mandated under Rule 3(2) of the Rules is, that notice has to issued by the Assistant Commissioner. The village accountant who has served the notice is the employee in the revenue department and is under the control of Assistant Commissioner. Under the circumstances, if the notice is served by the Village Accountant on the concerned Grampanchayat members, said service of notice cannot be said to be in contravention of Rule 3(2) of the said Rules. Who has served the notice is not of much importance. What is important is whether the 15 days clear notice is given to the concerned Members or not. Who has served the notice is not of much importance. What is important is whether the 15 days clear notice is given to the concerned Members or not. Under these circumstances the contention that the notice is served through the village accountant on the members of the Grampanchayat is not in accordance with Rule 3(2) of the said Rules cannot be accepted and same has to be rejected. 18. As far as the first contention that clear 15 days' notice is not given before the scheduled meeting is concerned, this court has consider the memo dtd. 30/11/2022. Along with the memo, the copy of the acknowledgment which containing the signature of all the Grampanchayat Members is enclosed. The said acknowledgment reveals that the acknowledgment is dtd. 8/11/2022. However, in the said acknowledgement dtd. 8/11/2022, the date on which the signature is affixed by the respective members is not forthcoming. 19. Learned counsel for the petitioner would submit that when the notice was served to the petitioners, the column pertaining to the date in the said notice was kept blank and the date is inserted subsequently. 20. As far as contention of the petitioners that in the notice containing the signatures of the petitioners, the date of issuance of notice was kept blank is concerned, it is to be noticed that no such plea is found in the petition. And it is also to be noted that as against the signatures found in the acknowledgment dtd. 8/11/2022, the petitioners have not mentioned the date on which they have put the signature on the said acknowledgment. Under the circumstances, the court has to presume that the signatures have been put on the date mentioned in the acknowledgment. If at all the notice is sought to be served on a subsequent date other than the date mentioned in the acknowledgement, nothing prevented the petitioners from mentioning the date of service of notice. Moreover, it is to be noticed that the petitioners have not taken the contention that the document dtd. 8/11/2022 produced along with the memo dtd. 30/11/2022, did not contain the date when they signed the said document. Moreover, it is to be noticed that the petitioners have not taken the contention that the document dtd. 8/11/2022 produced along with the memo dtd. 30/11/2022, did not contain the date when they signed the said document. For the aforementioned reasons and also considering the affidavit filed by the Assistant Commissioner and also considering the entry made in the outward register which reveals that the notice was dispatched on 8/11/2022, this Court is of the view that the notice was served on the petitioner on 8/11/2022. In other words, there is no material to hold that the notices have not been served on the petitioners on 8/11/2022 or it is served on some other date after 8/11/2022. Once it is held that the notice is served on 8/1/2022, there is no difficulty in holding that the petitioners had clear 15 days' time before scheduled meeting. 21. Learned counsel Sri K.M.Ghate would raise a contention that the present petition is not filed by the Adhyaksha against whom the no confidence motion is sought to be moved. He would further contend that the petition is filed by the members of the Grampanchayat and since no confidence motion is not aimed against them, the petitioners have no locus standi to file the writ petition. 22. As against this, learned counsel Sri Jairaj K.Bukka appearing for the petitioners would contend that in terms of the judgment of this Court in the case of Fakheerappa Durgappa Harija v. Assistant Commissioner, Gadag (ILR 2005 KAR 2592) the petition cannot be filed by the Adhyaksha of the Grampanchayat and it has to be filed by the members of the Grampanchayat. 23. Learned Additional Government Advocate appearing for respondents no. 1 to 7 would submit that the question as to the locus standi of the members to file a writ petition challenging the notice issued by the Assistant Commissioner scheduling no confidence motion is referred to a larger Bench in terms of order dtd. 11/10/2022 passed in W.P.No.20241/2022. This court in this case is not deciding the question as to whether the petitioners have the locus standi to question the impugned notice Assuming that the writ petition by the present petitioners, is maintainable, then also the petitioners have not made out a case that notice is not served on them on 8/11/2022. 11/10/2022 passed in W.P.No.20241/2022. This court in this case is not deciding the question as to whether the petitioners have the locus standi to question the impugned notice Assuming that the writ petition by the present petitioners, is maintainable, then also the petitioners have not made out a case that notice is not served on them on 8/11/2022. From the materials on record discussed above and for the reasons assigned above, this court is of the view that the clear 15 days' notice is given to the petitioners and other members in respect of scheduled meeting relating to the no confidence motion. 24. It is the contention of the learned counsel for the petitioners that in the inward register the entry is not made on 8/11/2022 relating to return of notice. This contention does not come to the rescue of the petitioners for the simple reason that the explanation submitted learned Additional Government Advocate for respondents No.1 to 4 that it was late in the evening by the time the notice notices were served on all the Members of the Grampanchayat and as such, there was no entry in the inward register is satisfactory in the facts and circumstances of the case discussed above. Moreover, since the Assistant Commissioner has filed an affidavit stating that notices have been served on 8/11/2022 and the fact that there was no entry in the inward register on 8/11/2022 does not assume importance to hold that notice is not served on 8/11/2022. 25. Under the circumstances, this Court is of the view that the petitioners have not made out a case for grant of any order in this petition. 26. As already noticed, this court has permitted the Assistant Commissioner to proceed with the 'no confidence motion' and the direction was issued to cast the votes through ballot papers and directed the production of ballots to this court in a sealed cover. Since this court has taken a view that clear 15 days' notice was given to the Members before scheduling the meeting to discuss the 'no confidence motion', this court deems it appropriate that the direction is to be issued to the Assistant Commissioner to open the sealed cover in the presence of petitioners and respondents No.8 to 20 and other members. The Assistant Commissioner shall announce the result of Markhal Grampanchayat, Bidar Taluk on 20/1/2023. 27. The Assistant Commissioner shall announce the result of Markhal Grampanchayat, Bidar Taluk on 20/1/2023. 27. The Registry of this Court shall hand over the sealed cover to the learned Additional Government Advocate Sri Viranagouda M.Biradar appearing for respondents No.1 to 4. The petitioners shall appear before the office of the Assistant Commissioner at 11 O'clock on 20/1/2023. The Assistant Commissioner shall also endeavour to issue the notice in this regard to the other members of the said Grampanchayat who are not parties to this proceeding. However, despite issuing such notice if the notice is not served on them there is no need to postpone the announcement of the results. The Assistant Commissioner is also permitted to issue the notice the Members who are not parties to this writ petition through Whatsapp or other social media platform. 28. The Assistant Commissioner shall announce the result on 20/1/2023, after opening the ballots at 11 O'clock. It is made clear that the petitioners and respondents no. 8 to 20 shall appear before the Assistant Commissioner, Bidar on 20/1/2023 at 11 O'clock without awaiting any further notice. 29. It is further made clear that till the Assistant Commissioner announces the result, there shall not be any financial transaction concerning to the Markhal Grampanchayat and no decision involving any financial implication shall be taken. Accordingly, the writ petition is dismissed.