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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
R.DEVDAS, J.
Smt Sharadabai W/O Sri Nagaraj Naik – Appellant
Versus
The State Of Karnataka Rural Development And Panchayath Raj Department – Respondent
Writ Petition No.101890 of 2022 (LB-RES)
Decided on : 31-05-2022
Karnataka Gram Panchayat and Panchayat Raj Act, 1993 - Section 49 - Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats & Nyaya Panchayats Act, 1983 - Section 47(3) - Karnataka Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 - Rule 3, 3(2) – Panchayats - Petitioner contends that meeting notice falls short of 15 clear days as contemplated in sub-rule (2) of Rule 3 of Rules and therefore, on that ground alone, impugned meeting notice is required to be quashed and set aside - Whether provisions contained in Rules are mandatory or directory in nature, this Court need not be detained any further – Held, One factual difference which was pointed out by the learned Counsel for the petitioner, which may require further consideration, is that having regard to the mandatory nature of the provision of the Rules, there may be a deficiency of one day and therefore this Court is required to consider as to whether there is 15 clear days notice as provided in the Rule. No doubt, in the decision of the Hon’ble Supreme Court in the case (supra), the emphasis in the provision which fell for consideration therein was use of the word “send” by registered post and whereas in the present context, in the place of usage of the word ‘send’, what is found in the Rule is the usage of the word ‘give’ - To that extent, learned Counsel for petitioner is right in his submission that since the terminology used in sub-rule (2) is that the Assistant Commissioner shall “give” 15 clear days notice to the members of Gram Panchayat, the notice sent to the petitioner through RPAD, having been sent and petitioner receiving the same, it can be clearly held that it does not fulfill the requirement of the Rule of 15 clear days notice- Writ petition allowed.
ORDER :
R.DEVDAS J.
Though notice sent to respondent No.3 Gram Panchayat is awaited, having regard to the fact that for deciding the case on hand, the presence of the third respondent may not be necessary, therefore, with the consent of the learned Counsel for the petitioner and the learned HCGP, the matter is taken up for Final Disposal.
2. The petitioner who was elected as the Adhyaksha of the third respondent-Gram Panchayat on 04.02.2021 is before this Court, aggrieved of the impugned meeting notice dated 13.05.2022 issued by the second respondent-Assistant Commissioner, Harapanahalli, Vijayanagar District.
3. A representation dated 11.05.2022 is said to have been given by 15 members of the Gram Panchayat to the Assistant Commissioner, requesting for holding a meeting to consider motion of No-Confidence against the Adhyakasha. The Assistant Commissioner, having satisfied himself as to the requirement contemplated under Rule 3 of the Karnataka Panchayat Raj (Motion of No-Confidence Against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994, (hereinafter referred to as ‘the Rules’ for the sake of brevity) issued the impugned notice dated 13.05.2022, fixing the meeting for consideration of No-Confidence on 01.06.2022.
4. Learned Counsel for the petitioner contends that the meeting notice falls short of 15 clear days as contemplated in sub-rule (2) of Rule 3 of the Rules and therefore, on that ground alone, the impugned meeting notice is required to be quashed and set aside. In this regard, learned Counsel for the petitioner seeks to place reliance on a decision of this Court in the case of Smt.Roopa Vs. The State of Karnataka, rep. by the Principal Secretary, Department of Panchayat Raj and Others, reported in ILR 2019 KAR 1373. Learned Counsel submits that this Court has taken note of the decision of the Full Bench of this Court in the case of C.Puttaswamy Vs. Smt.Prema reported in AIR 1992 KAR 356, wherein it was held that the Rules governing the procedure of a motion of
No Confidence against Adhyaksha and Upadhyakasha of the Gram Panchayat (earlier Mandal Panchayat) are mandatory in nature. In that context, Rule 3(2) of the Rules, 1994, fell for consideration before this Court in the case of Smt.Roopa (supra) and it was held that the provisions are mandatory in nature and deficiency if any, are not curable.
5. The learned Counsel, however, submits that the other grounds raised in the writ petition, such as there being no allegation as contemplated under subsection (2) of Section 49 of The Karnataka Gram Panchayat and Panchayat Raj Act, 1993, may not survive for consideration, since Sub-rule (2) of Section 49 which was inserted by Act No.44 of 2015 with effect from 25.02.2016 was omitted by subsequent amendment Act No.49 of 2020 and deemed to have come into effect from 31.03.2020.
6. After notice was issued to the respondents and the learned HCGP was directed to secure the original records to ascertain as to when the impugned notice was despatched or sent by the Assistant Commissioner and when it was received by the petitioner, the learned HCGP has furnished the original records.
7. On perusal of the original records, it is evident that the notice dated 16.05.2022 was personally served on the petitioner on 17.05.2022. The petitioner has acknowledged receipt of the notice by affixing her signature in the acknowledgement form along with the other members of the Gram Panchayat. All the signatures are also identified by the Panchayat Development Officer of the Gram Panchayat. The original records were shown to the learned Counsel for the petitioner and the learned Counsel for the petitioner accepts the fact that the notice dated 16.05.2022 was served on the petitioner on 17.05.2022 personally. The records would also show that the meeting notice was also sent through Registered Post Acknowledgement Due on 18.05.2022. It is the contention of the petitioner that she received the notice by RPAD on 20.05.2022.
8. Having accepted the fac
The requirement of a fifteen clear days' notice for no-confidence motions is mandatory, computed from the date of dispatch, excluding both the date of dispatch and the date of the meeting.
The issuance of a fifteen-day notice for a no-confidence motion is mandatory; however, failure to provide such notice does not invalidate proceedings unless it can be shown to cause prejudice.
The court confirmed that the 15 days notice requirement for a no-confidence motion is met by issuance, not receipt, affirming the legitimacy of the notices issued under the governing rules.
Procedural requirements for considering a motion of no confidence are mandatory and must be strictly followed, as interpreted from Rule 3(2) of the Rules of 1994.
The legal point established is that the notice for a no confidence motion must be served on time and through a valid channel, and only those with standing can challenge the notice.
The main legal point established is that the word 'shall' in a rule may not be mandatory but directory, and the affected party must demonstrate prejudice caused by not following the rule.
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