IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH. Before THE HON BLE MR. JUSTICE ARAVIND KUMAR. WRIT PETITION No /2014 (LB-ELE)

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1 : 1 : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH Dated this the 8 th day of January, 2014 Before THE HON BLE MR. JUSTICE ARAVIND KUMAR WRIT PETITION No /2014 (LB-ELE) BETWEEN: GOURI SHANKAR S/O MAHADEVAPPA BOGUR AGE: 38 YRS R/O VEERAPUR, PETITIONER (BY SRI DEEPAK S SHETTY, ADVOCATE) AND : 1 ASST.COMMISSIONER DHARWAD SUB DIVN DHARWAD 2 RAMAPUR H RAMAPUR BY ITS SECRETARY 3 SMT.PATIL CHANNAVVA DODDABUDDIVANTHGOUDA

2 : 2 : 4 SRI BASAPPA RAYAPPA SAVALAGI R/O KALLAPUR 5 SRI KAREPPA FAKIRAPPA JOGADI 6 SMT. CHANNAVVA RANGANAGOUDA PATIL R/O KALLAPUR 7 SMT. KAREWWA RAMAPPA MADARA 8 SMT.CHANDRAWWA W/O HANUMANTAPPA BADIGER R/O KALLAPUR

3 : 3 : 9 SRI KRISHNAPPA MADIVALAPPA SIDDAPUR 10. SHAMBANAGOUDA KALLANAGOUDA PATIL 10 SMT.BALAWWA MADIVALAPPA PAWAR RESPONDENTS (BY SRI. A.G.MALDAR, HCGP) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE NOTICE DATED CALLING FOR THE MEETING OF MEMBERS OF RAMAPUR GRAMA PANCHAYATH ON TO MOVE CONFIDENCE MOTION AGAINST THE PETITIONER ISSUED BY R-1 VIDE ANNEXURE-A. THIS PETITION COMING ON FOR PRLY.HG. THIS DAY, THE COURT MADE THE FOLLOWING:

4 : 4 : O R D E R Heard Sri Deepak Shetty, learned Advocate appearing for petitioner and Sri A.G.Maladar, learned HCGP appearing for respondent A No Confidence Motion was brought by the members of Ramapura Gram Panchayat against petitioner by submitting representation dated and notices came to be issued by first respondent in Form No.II pursuant to the said no confidence motion dated Annexure-D fixing the date of meeting on and same has been called in question. 3. Contentions of Sri Deepak Shetty, learned Advocate appearing for petitioner are as under; (i) Notice of meeting dated Annexure-A is contrary to Rule 3(2) of the Karnataka Panchayat Raj (Motion for No-Confidence against Adhyaksha,

5 : 5 : Upadhyaksha of Gram Panchayat) Rules, (ii) As per Section 49 of Karnataka Panchayat Raj Act, 1993 members who intend to move the no-confidence motion should give atleast 10 days notice of their intention to move the resolution and in the present motion submitted by members of Gram Panchayat to the first respondent, they had not given 10 days notice to the petitioner. (iii) Representation of alleged noconfidence motion said to have been given was not accompanied with proposed resolution and said representation dated Annexure-E did not contain such proposed resolution.

6 : 6 : On these grounds, petitioner sought for setting aside the impugned notice. In support of his submissions, he has relied upon following judgments: (1) M.MUNIYAPPA vs STATE OF KARNATAKA reported in 1997(7) KAR.L.J. 272 (2) C.PUTTASWAMY vs PREMA reported in AIR 1992 KAR Per contra, learned HCGP would support the impugned notice and submits that present writ petition by the Adhyaksha of Ramapura Gram Panchayat is not maintainable in view of the law laid down by this Court in ABDUL RAZAK vs THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE & OTHERS reported in 2005(1) Kar.L.J. 230 and as such, he prayed for rejection of writ petition.

7 : 7 : 5. After considering the arguments of learned Advocates, I am of the view that following points would arise for my consideration: (i) Whether writ petition filed by the petitioner as Adhyaksha of Ramapura Gram Panchayat is maintainable? (ii) Whether impugned notice Annexure-A suffers from any vice calling for exercise of extraordinary jurisdiction? 6. A co-ordinate Bench of this Court in ABDUL RAZAK vs THE ASSISTANT COMMISSIONER, DAVANAGERE SUB-DIVISION, DAVANAGERE & OTHERS reported in 2005(1) Kar.L.J. 230 while examining the purport and intent of Section 49 of Karnataka Panchayat Raj Act, 1993 and a right of Adhyaksha to challenge notice of no-confidence motion has opined as under:

8 : 8 : 4. Rule 3 is a provision made for effectuating the substantive right given to members Under Section 49 of the Karnataka Panchayat Raj Act, Section 49 is a provision where under every 'Adhyaksha' or Upadhyaksha' of a Gram Panchayat shall be forthwith deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the members of the Gram Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed. The right given Under Section 49 of the Act is to the members who have such a right to have the 'Adhyaksha' removed if not less than two-thirds of the members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule 3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule 3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'. 5. The examination of the rules can only be in the context of the section and not independent of the main provision for effectuating which provision the rule has

9 : 9 : been framed. Anyone who can complain of non-compliance of the requirements of Rule 3 of the Rules and thereby seek for invalidation of the notice can only be a member in whose favour a right has been given Under Section 49 of the Act and not any other person. An 'Adhyaksha' is a person who is required to face a motion and who can survive to hold the post if only the number of members supporting the motion fall short of the requisite number of twothirds of the membership of the Panchayat. If once that is complied i.e., not less than two-thirds of the Members pass a resolution to that effect, the 'Adhyaksha' is deemed to have vacated the office. It is the expression of lack of confidence by not less than two-thirds of the Members of the Panchayat that removes the 'Adhyaksha' from his office and not the mere notice under Annexure-A. Any irregularity, assuming that it is there, it is not one which is required to be examined at the instance of a person like the 'Adhyaksha' who obviously does not envy the situation of facing no-confidence motion and is eager to have the same quashed by calling in aid technicalities. 7. Undisputedly, present writ petition has been filed by the President of Ramapura Gram Panchayat. Right is given under Section 49 of the Act is to the

10 : 10 : members who have such a right to have the Adhyaksha or Upadhyaksha as the case may be, be removed by not less than 2/3 rd of the members. Procedure prescribed under Rule 3 is to effectuate the purpose and intent of substantive law namely, Section 49 of Karnataka Panchayat Raj Act, and even considering the fact that Full Bench of this Court has held compliance of Rule 3 is mandatory, when facts on hand are examined, it would clearly indicate that notice of meeting Annexure-A dated for considering no-confidence motion meeting is proposed to be held on and merely because petitioner has received said notice on and thereby there is shortfall of 15 days notice, would not be a ground to interfere by this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. It is not the receipt of notice but date of despatch of meeting notice which would be a factor which requires to be considered for examining as to whether there is

11 : 11 : infraction of Rule 3(2). Averments made in the writ petition does not indicate that notice dated Annexure-A having been despatched by first respondent falling short of 15 days. In that view of the matter, I am of the considered view that it is not a fit case for exercising extraordinary jurisdiction. Accordingly, writ petition is rejected without issuing rule or notice to respondents-2 to 11. SD/- JUDGE *sp