Venkataram vs Assistant Commissioner, Kolar

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(Kar) 673

High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Venkataram & Another
Versus
Assistant Commissioner, Kolar
Writ Petition Nos. 27171 of 2009 & 27172 of 2009 (LB-ELE)
Decided On : 15-09-2009

Appearing Advocates:
For the Petitioners:H. Kantharaja, Advocate.
For the Respondent: M.C. Nagashree, HCGP.

Headnote:KARNATAKA GENERAL CLAUSES ACT, 1899 - Section 27: [A.N.Venugopala Gowda,J] Meaning of "Service by Post"- Karnataka Panchayat Raj (Motion of No-confidence against Adhyaksha & Upadhyaksha of Grama Panchayat) Rules, 1994 - Rule 3(2) - No-confidence motion - giving of 15 days clear notice in Form-II - Requirement of - Whether 15 days clear notice is to be construed with reference to the date on which "notice was given" or the date on which the "notice is served" ? - Held, Notice envisaged for making No-confidence motion is directory in nature and violation of the same does not vitiate the proceedings. The present provision which contemplates 15 days clear notice is also analogous in letter and spirit. Therefore, the same is to be construed as directory and not mandatory. Date of receipt of notice is not the determining factor, but, the date of giving of notice is to be considered for reckoning the period of notice. The intention of the legislature in using the words "he shall give to the members a notice of not less than 15 clear days of such meeting in Forum-II" is clear that, what is contemplated is ’giving of notice’ in the prescribed Form and ’not the service’. Further, Section 27 of the Karnataka General Clauses Act, 1899 and also the actual wording in Rule 3 (2) of the Rules, wherein, what is contemplated is ’giving of notice’ and not ’serving of notice’ . On facts held, Though the period left for present elected body is less than 6 months, in case Adhyaksha and /or Upadhyaksha, have lost the confidence of the members, they cannot function as Adhyaksha and Upadhyaksha any longer i.e., if the motion is successfully carried through. For the post of Adhyaksha and/ or Upadhyaksha, an election can take place for the remaining period.
KARNATAKA PANCHAYAT RAJ ACT, 1993 - Section 13(1)(c) & Karnataka Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994, Rule 3 (1), (2) & (3): [A.N.Venugopala Gowda,J] No-confidence motion - Submission of the requisition in prescribed Form-1 - Failure to enclose the proposal of no-confidence with prescribed Form-I - Non-compliance of Rule 3(1) whether fatal to the no-confidence motion? Held, When the notice of the majority members makes it clear their intention, mere non-enclosing the proposal would be only an irregularity and the same does not cause any prejudice to the other side. Non-compliance has to be seen in the background as to whether the same has caused any prejudice to the person aggrieved. On facts held, The enclosures submitted along with the representations submitted by 10 members to the respondent, in sum and substance, has all the requirements of Form-1 stipulated under Rule 3 (1) and since, the petitioners have not pleaded any prejudice having been caused to them on account of the proposed no confidence motion not containing on it, Form-1 according to relevant rule and since it is too well settled position of law that, if no prejudice is established to have resulted there from, it is obvious, no interference is called for.

Judgment :-

Venugopala Gowda, J

Petitioners are the ‘Adhyaksha’ and ‘Upadhyaksha’ respectively of Madderi Grama Panchayath of Kolar Taluk, which has 14 elected members. 10 members of the Panchayath submitted a requisition dated 24.07.2009 to the respondent, expressing No-confidence in petitioners and requested respondent to convene a special meeting of the Panchayath, to consider the proposed motion of No-confidence. Respondent issued Notice in Form – II under Rule 3(2) of the Karnataka Panchayath Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of Grama Panchayath) Rules, 1994 (for short ‘the Rules’). Respondent notified the members and also Adhyaksha and Upadhyaksha that, a special meeting to consider the motion of No-confidence is convened to be held at 11.00 A.M. on 20.08.2009 in the office of Grama Panchayath. Petitioners alongwith two other members questioned the said notice in O.S.No. 512/2009 in the Court of the Principal Civil Judge, (Junior Division) Kolar. Alongwith the suit, they filed I.A.-I under Order 39 Rule 1 & 2 of Civil Procedure Code, to restrain the Assistant Commissioner, Kolar Sub-Division, Kolar and the Secretary of the Panchayath, from conducting the meeting on 20.08.2009. It was stated that, till fulfilling of the requirements stipulated under section 47 of the Karnataka Panchayath Raj Act, 1993 (for short ‘the Act’), such meeting should not be held. Defendants filed objection statement to I.A. No.1. The said Court arrived at a finding that, notice issued by the Assistant Commissioner was not in accordance with law and hence I.A.-1 was allowed. As a result thereof, 11th and 12th defendants were restrained from conducting No-confidence motion on 20.08.2009. However, 11th defendant was directed to conduct No-confidence motion against plaintiffs 1 & 2, by issuing a fresh notice, after complying with the requirements under Section 47 of the Act. Indisputably, said order has remained unchallenged.

2. 10 members of the Panchayath thereafter, submitted requisitions dated 22.08.2009 expressing No-confidence in the petitioners. Requisitions were submitted to the respondent, by 4 members in the presence of Secretary of the Panchayath. Requisitions had enclosures i.e., proposed motion of No-confidence against both the petitioners. Copies of the said requisitions are as at Annexures C & D. Though, Annexures C & D refer to enclosures, petitioners have not produced the enclosures. Based on the said requisitions, respondent issued notices under Rule 3(2) of the Rules, to petitioners and all other elected members of panchayath. Respondent has given notices dated 31.08.2009 as at Annexures A & B, fixing the meeting to be held at the Panchayath Office at 11.00 A.M. on 16.09.2009. Petitioners have questioned in these writ petitions, the said notices, mainly on three grounds, namely:

i) Notices of intention of moving No-confidence motions (Annexures C & D) being not in the prescribed Form-1, the same are illegal.

ii) Notices issued in Form-II (Annexures A & B) are in violation of Rule 3(2), since there is no 15 days clear notice before the meeting date i.e., from the date of service.

iii) The life of present body of panchayath, which will come to an end on 24.02.2010, being less than 6 months from the meeting date, no useful purpose could be achieved even by expressing No-confidence and removing the petitioners from their offices, as election cannot be conducted to a body which has a life span of less than 6 months.

3. Sri. H. Kantharaja, Learned Counsel appearing for petitioners reiterated the aforesaid grounds. In support of the 1st and 2nd contentions, reliance was placed on the following decisions.

“1. SANGAPPA vs THE ASSISTANT COMMISSER, BIJAPUR DISTRICT AND ANOTHER (ILR 2004 KAR 1102)

2. SMT. SUJATHA vs THE ASSISTANT COMMISSIONER, BELLARY & OTHERS

(W.P. No. 293/2007 Dated 19-1-2007)

3. M. MUNIYAPPA AND ANOTHER vs STATE OF KARNATAKA AND OTHERS (1999

(4) KAR L.J. 42)

4. K. NARASIMHIAH vs H.C. SINGRI GOWD

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2009 Supreme(Kar) 673

High Court of Karnataka THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA Venkataram & Another Versus Assistant Commissioner, Kolar Writ Petition Nos. 27171 of 2009 & 27172 of 2009 (LB-ELE) Decided On : 15-09-2009

High Court of Karnataka
THE HONOURABLE MR. JUSTICE A.N. VENUGOPALA GOWDA
Venkataram & Another
Versus
Assistant Commissioner, Kolar
Writ Petition Nos. 27171 of 2009 & 27172 of 2009 (LB-ELE)
Decided On : 15-09-2009