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Karnataka High Court
Somashekara Desai - Appellant
Versus
State of Karnataka - Respondent
Decided On : 02-14-89
W.P. : 16660 of 1988
Karnataka Zilla Parishads - Validity of notice under Section 47 - Summary of Acts and Sections: Section 47 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act, 1983 - The court discussed the mandatory or directory nature of the provisions of Section 47 (3) of the Act and its interplay with Section 55 of the Act. The court also considered the procedure for moving a vote of no confidence against Pradhana or Upapradhana and the notice requirements under the Act.
Fact of the Case:
The petitions raised a common question of law regarding the validity of the notice prescribed under Section 47 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act, 1983. The petitioners contended that the notice for moving a vote of no confidence against them did not comply with the mandatory requirement of Section 47 (3) of the Act.
Finding of the Court:
The court held that the period of notice prescribed under Section 47 (3) is not mandatory but only directory. The court also clarified that while the notice may be considered directory, it is imperative for the Assistant Commissioner to comply with this requirement to prevent unnecessary litigation.
Issues: The issues before the court included whether the language of Section 47 (3) of the Act is mandatory or directory, whether the meeting held under Section 47 (3) is a meeting within the scope of provisions of Section 50 of the Act, and whether any resolution passed in such a meeting could be validated in terms of provisions of Section 55 of the Act.
Ratio Decidendi: The court determined that the language of Section 47 (3) is directory, considering the object and intendment of that section. The court also clarified that the notice requirements under Section 47 (3) must be complied with by the Assistant Commissioner to prevent unnecessary litigation.
Final Decision: The petitions were dismissed, and the parties were directed to bear their own costs. The court clarified that while the notice under Section 47 (3) may be considered directory, it is imperative for the Assistant Commissioner to comply with this requirement to prevent unnecessary litigation.
( 1 ) THESE two writ petitions raise a common question of law touching the validity of the notice prescribed under the provisions of section 47 of the Karnataka Zilla Parishads, taluk Panchayat Samithis, Mandal panchayats and Nyaya Panchayats Act. 1983 (hereinafter called. 'the Act')
( 2 ) IN W. P. No. 16660 of 1988 the petitioner is an elected member and pradhan of the Mandal Panchayat in question. The notice of meeting for moving a vote of no confidence against him was served on 13-10-1988 i. e. , on the date of the meeting and this matter was not on the agenda. of the meeting held on 19 -9-1988. In the circumstances it is contended by the learned counsel Sri Rayareddy that that the notice is bad in law being violative of mandatory requirement of the IInd Part of sec. 47 (3) of the Act.
( 3 ) IN W. P. No. 12221 of 1988 the petitioner is an elected Pradhana of the mandal Panchayat in question and his grievance is that the notice of meeting for moving a vote of no confidence against him was despatched on 20-7 1988, was received by him on 2 8 1988 and the meeting was convened on 10-8-1988 and thus the notice of meeting falls short of the period of 1 5 days prescribed in the II Part of section 47 (3) of the Act.
( 4 ) IN both these cases the petitioners have not made a grievance of the requirement of first part of Section 47 (3) of the Act.
( 5 ) ACCORDING to the learned counsel for the petitioners, the provisions of Section 47 of the Act are mandatory and therel'ore if the notice of meeting for moving a vote of no confidence falls short of the requirement of the provisions, the meeting itself is bad in law and consequently the motion that was put to vote against them is a nullity in the eye of law.
( 6 ) ON the other hand, the learned High court Government Pleader has contended that the provisions of Section 47 (3) of the act are not mandatory but only directory and in the light of the decision of the supreme Court in K. NARASIMHAIAH. vs. H. C. SINGRI GOWDA AND OTHERS (A. I. R. 1 966 S. C. 330) which was followed by this Court in W. P. Nos. 8 162 and 8 163 of 1988 disposed of on 8-2-1989 and w. P. Nos. 13898 and 13899 of 1988 disposed of on 28- 9-1988. the petitioners cannot complain of the invalidity in the notices served on them.
( 7 ) THE Scheme of Section 47 of the Act should be noticed first for considering the contentions of the learned counsel for the parties. Under Section 47 (2) of the Act, a written notice of intention to make the motion in such form as may be prescribed, signed by not less than one half of the total number of members of the Mandal panchayat. together with a copy of the proposed motion shall be delivered in person by any two of the members signing the notice to the Deputy Commissioner. Section 47 (3): The Deputy commissioner shall then convene a meeting lor the consideration of a motion at the office of the Mandal Panchayat on a date appointed by him which shall not be later than thirty days from the date on which the notice under sub-section (2) was delivered to him. He shall give to the members a notice of not less than fifteen clear days of such meeting in such manner as may be prescribed: (Proviso is not necessary for the purpose of this case ). Section 47 (4): The Deputy commissioner shall preside at such meeting. The quorum for such meeting shall be two thirds of the total number of members of the Mandal Panchayat. Explanation: In the determination of two thirds of total number of members under this section, any fraction arrived at shall be construed as one. Section 47 (7): As soon as the meeting convened under this section commences, the Deputy Commissioner shall read to the members of the Mandal Panchayat, the motion for the consideration of which the meeting has been convened and shall put it to vote without any debate. Section 47 (9): If the motion is carried with the support of not less than two thirds of the total number of members of the mandal Panchayat, the Pradhana or upapra
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