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2025 DIGILAW 225 (KAR)

Noorjahan, W/o Mahimood Sab v. State of Karnataka

2025-06-05

M.I.ARUN

body2025
ORDER : M.I.ARUN, J. Petitioner in WP.No.201376/2025 and petitioner No.1 in WP.No.201230/2025 – Noorjahan W/o Mahimood Sab was the President of Masarkal Gram Panchayat. Sixteen Panchayat members (respondent Nos.7 to 22 in WP.No.201376/2025 and respondent Nos.6 to 21 in WP.No.201230/2025) moved a motion of no-confidence against the petitioner and submitted a request to the jurisdictional Assistant Commissioner to hold the meeting of no-confidence. The same is dated 03.04.2025. Pursuant to the said request, a meeting has been held on 28.04.2025 and the petitioner has been removed from the post of the President. Thereafter, elections have been conducted to the post of President. 2. WP.No.201230/2025 was filed on 25.04.2025, challenging the no-confidence motion held against the petitioner herein. WP.No.201376/2025 has been filed on 14.05.2025, challenging the fresh elections being conducted to Masarkal Gram Panchayat. 3. In both the writ petitions, the ground of challenge is that, as per Rule 3 of the Karnataka Gram Swaraj and Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (hereinafter referred to as ‘the Rules’ for brevity), a minimum number of two Gram Panchayat members are required to be present before the Assistant Commissioner while submitting the request for no-confidence and only thereafter the Assistant Commissioner can take that request and initiate no- confidence motion in accordance with law. It is alleged that as this requirement having not been fulfilled, the no-confidence motion against the petitioner herein is liable HC-KAR to be set aside and the subsequent election conducted to Masrkal Gram Panchayat is also required to be set aside. 4. Per contra, learned Additional Government Advocate and also the learned counsel appearing for private respondents, who are members of Masarkal Gram Panchayat and at whose behest the no-confidence motion was moved against the petitioners, together submit that all the requirements under law has been fulfilled and no-confidence motion has been passed against the petitioner herein in accordance with law. They specifically contend that, in fact all 16 members who are the private respondents herein were present before the Assistant Commissioner when a request was made by submitting the memorandum under Form-1 under Rule 3(1) of the Rules was presented to the Assistant Commissioner. However, it is submitted that by mistake the Assistant Commissioner has not endorsed on the request letter the details of the members present before him while submitting the request. 5. However, it is submitted that by mistake the Assistant Commissioner has not endorsed on the request letter the details of the members present before him while submitting the request. 5. Learned Additional Government Advocate upon instructions further submits that, if required he will file personal affidavit of the Assistant Commissioner to the effect that, 16 members were present when the request for no-confidence under Form-1 under Rule 3(1) was submitted to him as against two persons as envisaged in law. 6. The question that arises for consideration in the instant writ petitions is, “Whether the mandatory requirements are complied with in no-confidence motion moved against the petitioners herein?” 7. As admitted by the petitioner herself except for two Gram Panchayat members no being present before the Assistant Commissioner while submitting the Form-1 under Rule 3(1), all other requirements under law have been complied. 8. Section 49 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 reads as under: “49. As admitted by the petitioner herself except for two Gram Panchayat members no being present before the Assistant Commissioner while submitting the Form-1 under Rule 3(1), all other requirements under law have been complied. 8. Section 49 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 reads as under: “49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.- [1] Every Adhyaksha or Upadhyaksha of Grama Panchayat shall forthwith be 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 total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed: Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the total number of members and at least ten days notice has been given of the intention to move the resolution: [Provided further that no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved [within the first thirty months] from the date of his election: Provided also that where a resolution expressing want of confidence in any Adhyaksha or Upadhyaksha has been considered and negatived by a Grama Panchayat a similar resolution in respect of the same Adhyaksha or Upadhyaksha shall not be given notice of, or moved, [within two years] from the date of the decision of the Grama Panchayat.] [(2) Notwithstanding anything contained in sub-section (1), no resolution expressing want of confidence against an Adhyaksha or Upadhyaksha, shall be moved except on specific allegation of misuse or abuse of power or authority in executing any scheme, action plan or direction of Government or project of the panchayat or of misappropriating funds or other assets of the panchayat during the term of his membership or otherwise indulging in corruption or misconduct in the course of exercising his functions.]” 9. Rule 3(1) of the Karnataka Gram Swaraj And Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 reads as under: “3. Rule 3(1) of the Karnataka Gram Swaraj And Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 reads as under: “3. Motion of No-confidence.-(1) A written notice of intention to make the motion under the proviso to Section 49 shall be in Form I signed by [not less than specified in Section 49(1)] of the total number of HC-KAR members together with a copy of the proposed motion shall be delivered in person [specified under sub-section (2) of Section 49, the allied particular allegations with notice enlisted in written witnesses and evidences submitted in person] by any two of the members signing the notice to the Assistant Commissioner.” 10. The reading of the aforementioned provisions mandates atleast two Gram Panchayat members signing the notice of no-confidence to be present before the Assistant Commissioner while submitting Form-1 (Motion of No-Confidence). 11. Admittedly, there is no endorsement on the said Form-1 nor a separate endorsement is given by the Assistant Commissioner showing that, two of the Gram Panchayat members submitted their request under Form-1 to him. 12. However, learned Additional Government Advocate submits that there were 16 Gram Panchayat members while submitting Form-1 to the Assistant HC-KAR Commissioner and if required jurisdictional Assistant Commissioner is willing to file affidavit in this regard. 13. Further, the private respondents produced photographs at Annexure-R1 in their objection statement showing the said 16 persons submitting Form-1 to the Assistant Commissioner and the petitioner is not in a position to deny the same. 14. A Division Bench of this Court in Writ Appeal No.160/2025 while interpreting Section 49 of the Act and Rule 3 of the 1994 Rules, has held as under: “5.1.4 The above Rule provides that a motion of No- Confidence shall be submitted in Form No.I and that it shall be signed by not less than specified number of members mentioned in Section 49(1) of the Act of 1993, which is not less than two-thirds of the total strength of the members. It is further contemplated that the proposed motion shall be delivered in person. The Motion of No-Confidence was moved by ten members on 27.01.2025. It came to be submitted by the members to the competent authority-Assistant Commissioner. The appellant produced certified copy of the said notice dated 27.01.2025. It is further contemplated that the proposed motion shall be delivered in person. The Motion of No-Confidence was moved by ten members on 27.01.2025. It came to be submitted by the members to the competent authority-Assistant Commissioner. The appellant produced certified copy of the said notice dated 27.01.2025. 5.2 The facts on record go to establish that the requirements of Section 49 of the Act regarding moving of No-Confidence Motion through requisite number of members, and manner of issuance of notice were met with and on that count there was illegality. The allegations of the petitioner of the nature that the motion of No-Confidence was politically motivated etc. were bald and remained totally unsubstantiated, to be referred to only to be rejected. Merely because the document of the notice dated 27.01.2025 which was No-Confidence Motion signed by the requisite number of members, had the seal and signature of the Panchayat Development Officer, the said Motion of No-Confidence has been acknowledged by the office of the Assistant Commissioner. 6. Before learned Single Judge, as also before this Court, the only issue which was seriously put forth and harped by the appellant was about breach of Rule 3 of the 1994 Rules on the ground that the No- Confidence Motion, before came to be submitted to the competent authority-the Assistant Commissioner, passed through the office of Panchayat Development Officer and bear seal and signature of the Panchayat Development Officer. Thereafter, the members of the Panchayat gave the requisition to the Assistant Commissioner. 6.1 Merely because the said notice-the no confidence motion which was otherwise signed by the requisite number of members and came to be given to the competent authority, had a seal of the Panchayat Development Officer and then it was placed before the Assistant Commissioner and acknowledged, no illegality could be said to be occurred in the process. On consideration of the material on record including the original record which was made available to the Court by learned Additional Government Advocate, as noted above, it is not possible to conclude that the process gave a go-by to the requirements of Rule 3(1) of the Rules to violate the said Rule. On consideration of the material on record including the original record which was made available to the Court by learned Additional Government Advocate, as noted above, it is not possible to conclude that the process gave a go-by to the requirements of Rule 3(1) of the Rules to violate the said Rule. 6.2 Learned Single Judge has rightly observed in paragraph 5, extracting from the impugned order, "It is to be noticed here that what is important for the purpose of Section 49 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and Rules is that the requisite number of members must express their intention to keep the motion of no-confidence in the manner prescribed and so long as that intent is manifest in the requisition, a signature by the HC-KAR PDO in the said requisition would not vitiate the notice." 6.3 The requisite number of members had signed the No-Confidence Motion and the same was thereafter given by the members to the competent authority-Assistant Commissioner. The Gram Panchayat members who are the village persons who function in the grassroot level body of local self government, cannot be expected to be mathematically meticulous in submitting the No- Confidence Motion. They followed the requisite procedure and complied with the essentials of the legal provision applicable. The same may have contained the seal of the Panchayat Development Officer, but, for that reason the motion which was otherwise validly taken out by the requisite number of members and given to the Assistant Commissioner as per the provisions of Section 49 of the Act read with Rule 3 of the Rules, no illegality could be said to have been committed to vitiate the procedure.” 6.4 The factum that the No-Confidence Motion may have gone to and traveled through the Panchayat Development Office was at the best, in the nature of the irregularity and not the illegality. 6.5 The distinction between the 'irregularity' and 'illegality' is well maintained in law. It is trite that procedural lapse which does not have the bearing on the rights of the parties is always condonable. It would not have per se legal consequences. It is only the substantive breach which will have the vitiating effect. 6.5 The distinction between the 'irregularity' and 'illegality' is well maintained in law. It is trite that procedural lapse which does not have the bearing on the rights of the parties is always condonable. It would not have per se legal consequences. It is only the substantive breach which will have the vitiating effect. All defects of substantive nature would be prone to have the adverse effect on the rights of the parties, whereas when an irregularity has occurred which is not in the nature of illegality, the consequence in law may not arise at all. 6.5.1 In Law Lexicon by R. Ramanatha Aiyar, 1997 Edition, irregularity is defined as "a neglect of order or method; not according to regulations; the doing of an act at an unreasonable time, or in an improper manner; the technical term for every defect in practical proceedings or the mode of conducting an action or defence, as distinguished from defects in pleading. Irregularity is failure to observe that particular course of proceedings which, conformable with the practice of the court, ought to have been observed". 6.5.2 An illegality is something which amounts to substantial failure in compliance of requirement. It denotes such breach of rule or requirement which alters the position of a party in terms of his rights or obligations. Illegality denotes a complete defect in the jurisdiction or proceedings. Illegality is properly predictable in its radical defects. It is a situation contrary to the principle of law. As against this, an irregularity as defined lexicographically, is want of adherence to some prescribed rule or mode of proceedings. It consist in omitting the rule something that is necessary for due and orderly conducting of a suit or doing it in an unreasonable time or improper manner. 6.5.3 A thing irregularly done is not regularly done. It is not in conformity of rule or principle. The concepts "illegal", "irregular" and "procedurally irregular", are often understood in terms of their degree which they bear to be not in conformity with rule of particular course of action. The illegality is a breach of law in substantive way and in its high degree which will taint and vitiate the action. 6.5.4 One who commits "illegality" has to be denied the assertion of his right and he stands disentitled to relief in law. The illegality is a breach of law in substantive way and in its high degree which will taint and vitiate the action. 6.5.4 One who commits "illegality" has to be denied the assertion of his right and he stands disentitled to relief in law. Irregularity, as noticed, is breach of procedure of rule or some orderly conduct but not of such nature which could be said to be in the nature of a debilitating defect. It is pardonable in law. The concept of procedural irregularity is indicative of lapse of minor nature in procedure which could not affect adversely rights of a party, nor would exceptionally reverse the obligation of the other side. 6.6 In the present case if the aspect that the No-Confidence Motion had the seal of the Panchayat Development Officer, it was never an illegality but at the best could be viewed as a procedural abrasion.” 15. In the instant case, though an endorsement is not issued by the jurisdictional Assistant Commissioner as to the number of persons who submitted Form-1 to him, there is no reason to disbelieve the statement of the said Assistant Commissioner and the 16 Gram Panchayat members before this Court. 16. Under the said circumstances, it has to be held that the No-Confidence Motion against the petitioner has been moved in accordance with law and that she has been removed from the post of President in accordance with law and elections are conducted thereafter to Masarkal Gram Panchayat in accordance with law. 17. For the aforementioned reasons, the writ petitions are hereby dismissed. The concerned respondent is directed to declare the result of election to the post of President in Masarkal Gram Panchayat.