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2022 Supreme(Online)(Kar) 231
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WA No. 100415 of 2022
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 13TH DAY OF OCTOBER, 2022
PRESENT
THE HON'BLE MR JUSTICE S.SUNIL DUTT YADAV
AND
THE HON'BLE MR JUSTICE UMESH M ADIGA
WRIT APPEAL NO. 100415 OF 2022 (LB-ELE)
BETWEEN:
SMT. RAJAMMA W/O BALANJANEYA
AGE. 57 YEARS, OCC. HOUSEHOLD WORK
PRESIDENT OF GRAM PANCHAYAT, SHIDIGINAMOL
VILLAGE, R/O 56 WARD NO. 2,
SHIDAGINAMOLA VILLAGE
TQ. HAGARIBOMMNALLI, DIST.BALLARI 583101
&APPELLANT
(BY SRI. SRINAND A PACHHAPURE, ADVOCATE)
AND:
1.
THE STATE OF KARNATAKA
REP. BY ITS UNDER SECRETARY,
FOR RURAL DEVELOPMENT AND
PANCHAYAT RAJ DEPARTMENT,
M.S. BUILDING, BENGALURU-560001.
2.
THE ASSISTANT COMMISSIONER,
BALLARI, DIST: BALLARI-583101.
3.
THE PANCHAYAT DEVELOPMENT OFFICER,
SHIDIGINAMOL GRAM PANCHAYAT,
TAL: HAGARIBOMMANALLI, DIST: BALLARI-583101.
4.
THE SECRETARY,
SHIDIGINAMOL GRAM PANCHAYAT,
TAL: HAGARIBOMMANALLI, DIST: BALLARI-583101.
5.
SMT. D. SOMAVATI
AGE: 25 YEARS, OCC: MEMBER OF SHIDAGINAMOL
Digitally signed by
J MAMATHA
Location: High
Court of
Karnataka,
Dharwad Bench
Dharwad.
Date: 2022.10.17
11:23:56 +0530
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WA No. 100415 of 2022
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL, TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
6.
SMT. MAHANANDI
AGE: 45 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
7.
SRI. P. RUDRAYYA
AGE: 40 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
8.
SRI. CHANNABASAVANAGOUDA
AGE: 52 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
9.
SRI. T. SEENAPPA
AGE: 30 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
10.
SMT. G. RATNAMMA
AGE: 26 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
11. SRI. GADILINGAPPA
AGE: 45 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
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WA No. 100415 of 2022
DIST: BALLARI-583101.
12. SMT. G. SUJATA
AGE: 28 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
13. SRI. K. YERRISWAMY
AGE: 35 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
14. SRI. BUSHAPPANAVAR SHIVAJI
AGE: 45 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
15.
SMT. BABULAKSHMI
AGE: 40 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
16. SMT. SUMALATA T.
AGE: 30 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
17. SMT. JYOTI V.
AGE: 30 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
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WA No. 100415 of 2022
18. SMT. JAYAMMA
AGE: 40 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
19. SMT. NEELAMMA
AGE: 35 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
20.
SRI. M. P. GADILINGANAGOUDA
AGE: 45 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
21.
SRI. INDRANATHREDDY
AGE: 45 YEARS, OCC: MEMBER OF SHIDAGINAMOL
GRAM PANCHAYAT, SHIDAGINAMOL,
R/O: SHIDAGINAMOL,
TAL: HAGARIBOMMANAHALLI,
DIST: BALLARI-583101.
&RESPONDENTS
(BY SMT. K. VIDYAVATHI, AAG FOR SRI. PRAVEEN K UPPAR,
HCGP FOR R1 & R2)
(SRI. MANJUNATH G PATIL, ADVOCATE FOR R5-R16, R20 & R21)
THIS WRIT APPEAL IS FILED U/S.4 OF KARNATAKA HIGH
COURT ACT, 1961, PRAYING THIS HON BLE COURT TO, PRAYED
BEFORE THIS HON BLE COURT BE PLEASED TO SET ASIDE THE
IMPUGNED ORDER DATED 27/09/2022 PASSED BY LEARNED
SINGLE JUDGE IN WRIT PETITION NO.103239/2022 AND ALLOW
THE WRIT APPEAL, IN THE INTEREST OF JUSTICE.
THIS
WRIT APPEAL
COMING
ON
FOR
PRELIMINARY
HEARING, THIS DAY, S.SUNIL DUTT YADAV J., DELIVERED THE
FOLLOWING:
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WA No. 100415 of 2022
The appellant has called in question the validity of
order dated 27.09.2022 passed in WP No.103239/2022,
whereby the learned Single Judge has dismissed the writ
petition.
2.
The said writ petition was filed calling in
question the validity of Notice dated 11.08.2022 vide
Annexure-A, whereby notice was issued by the Assistant
Commissioner convening the meeting to consider the
motion of 8No Confidence9 on 29.08.2022.
3.
The facts that are made out as is relevant for
the present purpose is that, the petitioner was elected as a
Member to the Shidaginmol Gram Panchayat from
30.12.2020, subsequently, was elected as President of
said Gram Panchayat. The application was submitted
moving motion of 8No Confidence9 against the petitioner
and as against the application moved on 17.06.2022, the
petitioner
had
approached
this
Court
in
WP
No.102408/2022 and eventually, said writ petition came to
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be allowed and notice dated 27.06.2022 was set-aside
reserving liberty to the members to move fresh notice in
compliance of first Proviso to Section 49(1) of the Gram
Swaraj & Panchayat Raj Act, 1993 (for short, 8Act9). It is
submitted that thereby fresh complaint came to be made
and the application was submitted to the Assistant
Commissioner on 4.8.2022 with a prayer to move the 8No
Confidence Motion9 against the petitioner. It is submitted
that on the very same day, i.e. on 4.8.2022, the Assistant
Commissioner has issued notice on 11.08.2022 calling for
meeting on 29.08.2022. The said action came to be
challenged before the learned Single Judge on various
grounds including that the time period prescribed under
the first proviso to Section 49(1) of the Act requires that
the Assistant Commissioner shall wait till expiry of 10 days
before issuance of notice convening the meeting.
4.
It is contended that in the present case, notice
was issued within a period of seven days and accordingly,
time period prescribed under Section 49(1) of the Act has
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been violated. Learned Single Judge has, however,
rejected the writ petition while observing that 8Adyaksha9
of Gram Panchayat has no locus standi to challenge the
said notice after relying on the judgment of this Court in
Abdul
Razak
Vs.
The
Assistant
Commissioner,
Davanagere Sub-Division, Davanagere & Others1. It
was further observed that even if there is any irregularity,
it would not confer any right on 8Adyaksha9 who is
subjected to the 8No Confidence Motion9 and accordingly,
rejected the petition.
5.
Learned
counsel
for
the
petitioner
has
challenged the said order before this Court and submits
that question of locus standi was not considered during the
earlier round of litigation and could not have been relied
upon in the 2nd round of litigation so as to reject the
petition on technical ground. It is further submitted that
there is ambiguity insofar as stipulation of first proviso to
Section 49(1) of the Act, which provides that 10 days clear
1 2005(1) Kar.L.J. 230
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notice is to be given. It is contended that when a larger
Bench of this Court has held that period of 10 days is
mandatory, question of further holding that the Assistant
Commissioner need not wait till expiry of 10 days is a
contradiction which cannot stand and accordingly, submits
that clarification is required.
6.
Heard both sides.
7.
It must be noted that the only point as argued
in the present appeal is that there is ambiguity in the law
laid down by the Larger Bench of this Court in WA
No.200087/2022 and WP No.102077/2022, as regards
mandatory nature of the notice period of 10 days as
contemplated under the first proviso to Section 49(1) of
the Act. It must be noted that in WA No.200087/2022,
reference made was as regards purport of first proviso to
Section 49(1) of the Act and as to whether notice of at
least 10 days is required to be understood as mandatory
and if that were to be so, ratio laid down in M.
Puttegowda
&
Others
Vs.
The
Assistant
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Commissioner, Mysore2 requires reconsideration. After a
detai
