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2020 Supreme(Kar) 1858
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R DEVDAS, J.
Smt Damayanthi W/o Vasu C H President – Appellant
Versus
The State of Karnataka Rep By Its Secretary Department Of Urban Development Vikasa Soudha Ambedkar Veedhi Bengaluru and Ors – Respondent
Writ Petition No.4904 of 2021(LB-RES)
Decided On : 23-03-2021
Advocate Appeared:
For the Appellant :Sri Lethif B, Advocate
For the Respondent:Smt Prathima Honnapura, Aga, Sri Pundikai Eshwar Bhat, Advocate, Sri K Chandranath Ariga , Advocate
Point of law: Provisions of Section 42 is directory and not mandatory. Moreover, the provision of issuance of notice and the time required is for the benefit of the members of the Council/Municipality.
Headnote:
Karnataka Municipalities Act, 1964 - Section 42(9) - General Clauses Act – Section 36 - Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha) Rules, 1994 - Rule 3(1) - Election - Town Municipality – President - Meeting notice - Petitioner is President of Vitala Town Panchayath - Election to Town Municipality was held in year where 18 members were elected from different wards for a period of five years - Petitioner was elected as President in election held and she took charge - Her grievance is that respondent-chief Officer of Town Panchayath has issued a meeting notice dated scheduling a special general meeting on following a request to move No Confidence Motion given by 12 members of Town Panchayat against petitioner - Whether 10 days' notice as prescribed in proviso to Section 42(9) of Karnataka Municipalities Act is directory or mandatory - Whether President/Vice-President against whom No Confidence Motion is moved, can be permitted to press into service fulfillment of giving ten days notice.
Finding of the court:
Court is of opinion that decision of Hon'ble Supreme Court squarely covers issue - As held by Hon'ble Supreme Court, provisions of Section 42 is directory and not mandatory - Moreover, provision of issuance of notice and time required is for the benefit of members of Council/Municipality - Even in their case Hon'ble Supreme Court has held that if a few members were not served with notice like other members and there was a shortage of 2-3 days, that by itself cannot be held to be prejudicial even to members let alone President against whom motion of no confidence is sought to be moved - President, at any rate cannot have a grievance that notice which was issued was not of ten clear days - As ascertained, factually, out of 18 members of Town Municipality 13 have attended meeting and their decision has been put in a sealed cover.
Result: Writ petition is dismissed
ORDER :
R. DEVDAS, J.
1. The petitioner is the President of Vitala Town Panchayath. The election to the Town Municipality was held in the year 2016 where 18 members were elected from different wards for a period of five years. The petitioner was elected as the President in the election held on 14.01.2019 and she took charge on 16.01.2019. Her grievance is that the respondent-Chief Officer of the Town Panchayath has issued a meeting notice dated 02.03.2021 scheduling a special general meeting on 12.03.2021 at 11.00 a.m., following a request to move No Confidence Motion given by 12 members of the Town Panchayat against the petitioner.
2. The main ground on which the writ petition is filed is that in terms of the first proviso to Section 42(9) of the Karnataka Municipalities Act, 1964, ten days’ notice has to be given of the intention to move the resolution and this mandatory provision has not been followed. It is submitted that the notice is dated 02.03.2021 and the meeting is scheduled to be held on 12.03.2021 and therefore in terms of the General Clauses Act, if the date on which the notice is issued is excluded, only 9 days or lesser than 9 days notice is given.
3. In this regard, learned Counsel for the petitioner places reliance on a decision of a Division Bench in the case of Janardhana Vs. Deputy Commissioner, Bijapur, in W.A.No.2392/1982 decided on 01.10.1982 reported in the short notes of cases 1982 Kar.L.J. 60. It is submitted that the Division Bench has held that atleast 10 days notice of the no confidence motion is required to be given and if there is no clear 10 days notice between the issuance of the notice and the holding of the meeting, any resolution passed at a meeting called before the expiry of 10 days, whatever may be the resolution of the meeting, cannot be considered as valid. It was held that a resolution passed in breach of a statutory provision cannot be upheld. The High Court in exercise of its discretion cannot refuse to quash the invalid resolution.
4. Per contra, learned Counsel Sri K.Chandranath Ariga, appearing for the respondent-Members of the Town Panchayath who have moved the No Confidence Motion submits that the decision in the case of Janardhana Vs. Deputy Commissioner, Bijapur was held to be per incuriam, in Subhash Tukaram Sangaonkar Vs. State of Karnataka and Another 1998 (2) Kar.L.J. 26. The learned Counsel would submit that the learned Single Judge noticed a decision of the Hon’ble Supreme Court in the case of K.Narasimhiah Vs. H.C.Singri Gowda and Others reported in AIR 1966 SC 330 and therefore proceeded to hold that it would suffice if notice of intention of moving a motion of No Confidence as required under proviso to Section 42(9) of the Act is given and the meeting is called for, as provided under sub-section (2) of Section 47 of the Act. Another decision in the case of Smt.Manjula Vs. State of Karnataka and Others in W.P.No.10233/2014 decided on 05.03.2014 was also pressed into service.
5. Heard the learned Counsels and perused the petition papers.
6. What is required to be considered is whether the 10 days’ notice as prescribed in the proviso to Section 42(9) of the Karnataka Municipalities Act is directory or mandatory and whether the President/Vice-President against whom the No Confidence Motion is moved, can be permitted to press into service the fulfillment of giving ten days notice.
7. The Hon’ble Supreme Court in the case of K.Narasimhiah (supra) was also considering the case of an elected President of a Municipality who was aggrieved by a special general meeting and a resolution passed by the members expressing no confidence in the Municipal President. The request for expressing no confidence was moved by the requisite number of members to the President. The President did not take steps for convening the meeting and therefore, the Vice-President acted in the matter calling a meeting to discuss the resolution to express No Confidence in the President. A notice was issued by the Vic
