Judgment:
- 1- IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE21T DAY OF OCTOBER, 2014 :BEFORE: THE HON'BLE MR.JUSTICE RAM MOHAN REDDY WRIT PETITION NO.49167/2014 (LB-ELE) R …PETITIONER BETWEEN: MRS. CHIKKAMUNIYAMMA, W/O. VENKATAIAH, AGED ABOUT45YEARS, PRESIDENT, VILLAGE PANCHAYATH, K.GOLLAHALLI DIVISION-I, RESIDENT OF KENCHANAPALYA VILLAGE, K.GOLLAHALLI POST, KENGERI HOBLI, BANGALORE SOUTH TALUK. (BY SRI S.P.SHANKAR, SENIOR COUNSEL FOR SRI S.VICTOR MANOHARAN, ADVOCATE) THE ASSISTANT COMMISSIONER, BANGALORE SOUTH SUB-DIVISION, BANGALORE- 560 001. THE GRAM PANCHAYATH, K.GOLLAHALLI, KENGERI HOBLI, BANGALORE SOUTH TALUK-560 085, REPRESENTED BY PANCHAYATH DEVELOPMENT OFFICER. SMT.B.NAGARATHNAMMA, W/O.K.M.VENKATESH, AGED ABOUT33YEARS, MEMBER OF GRAMA PANCHAYATH, K.GOLLAHALLI DIVISION NO.1, KENCHANAPALA VILLAGE, AND:
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2. 3.-. 2- K.GOLLAHALLI POST, BANGALORE SOUTH TALUK- 560 085. .. RESPONDENTS (BY SRI D.NAGARAJ, AGA FOR R1 & R2 SRI S.CHENNARAYA REDDY & SRI C.SHANKAR REDDY, CAVEATOR FOR R3) THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS FROM R1 RELATING TO THE NOTICE OF ALLEGATIONS CONTAINED IN LETTER DTD2509.2014 PRODUCED AT ANNX-A, SUBMITTED BY R-3 AND OTHERS AND TO QUASH THE NOTICE OF MEETING ISSUED IN FORM-2 DATED2909.2014 ISSUED BY THE R-1 HEREIN, A COPY OF WHICH IS PRODUCED AT ANNX-C. THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:- ORDER
Heard Sri S.P.Shankar, learned Senior Counsel for the petitioner, perused the pleadings and examined the motion of no confidence against petitioner-Adhyaksha and the show cause notice convening the meeting on 27.10.2014 to consider the motion of no confidence. Learned Senior Counsel points to the contents of the motion of no confidence- Annexure-A to contend that the remiss mentioned therein requires an opportunity of hearing to be extended to the petitioner, regard being had to Sub Section 4 of Section 48 of the Karnataka Panchayat Raj Act, 1993, (‘the Act’ for short) without - 3- which, no confidence motion must fail. Learned Senior Counsel places reliance on a decision of the learned Single Judge in T.Bhagyalakshmi v. State of Karnataka reported in 1998(1) Kar.L.J.
731.
2. There can be no dispute that Section 48 of the Act provides for Resignation or removal of Adhyaksha or Upadhyaksha and Sub-Section 4 provides that, every Adhyaksha and Upadhyaksha of Grama Panchayat would be entitled to an opportunity of hearing before being removed from his office for persistent remiss in discharge of duties as Adhyaksha or Upadhyaksha. The opinion expressed in T.Bhagyalakshmi’s, case supra, is in consonance with the Statute.
3. Section 49 of the Act provides for Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat, where under every Adhyaksha or Upadhyaksha of the Grama Panchayat, shall be deemed to have vacated his office, if a resolution expressing want of confidence is passed by a majority of not less - 4- than two-thirds of the members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure prescribed. The right extended under Section 49 of the Act is to the members to have the Adhyaksha removed, if not less than two-thirds of the members have expressed their lack of confidence in the Adhyaksha.
4. Rule 3 of the Karnataka Panchayat Raj (Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat) Rules, 1994, for short Rules, provides for effectuating the substantive right given to the members under Section 49 of the Act. Therefore, Rule 3 and Section 49 cannot be independent provisions, but have to be viewed together. If so viewed Section 49 of the Act, does not extend any right in favour of person holding the office of ‘Adhyaksha’, except for conferring right in favour of the members of the Panchayat to remove the ‘Adhyaksha’. Viewed in this perspective, rule can only be examined in the context of Section 49 for effectuating which provision the rule is framed. Any member can therefore complain - 5- of non-compliance of the requirement of Rule 3 of the Rules and thereby seek invalidation of the notice in whose favour a right under Section 49 of the Act is invested and not ‘Adhyaksha’. In other words, the ‘Adhyaksha’ is a person who is required to face a motion of no confidence and survives to the post, if only the number of members supporting the motion fall short of the requisite number of two-thirds of the membership of the Panchayat. If that is complied with, then effect is that Adhyaksha is deemed to have vacated the office. Thus, it is the expression of loss of confidence by not less than two-thirds of the members of the Panchayat for removing the ‘Adhyaksha’ from the office under Section 49 of the Act. It is in this context that the learned Single Judge having examined the aforesaid provisions i.e, Section 49 of the Act and Rule 3 of the Rules held that the person holding the office of ‘Adhyaksha’ or ‘Upadhyaksha’ cannot invoke the extraordinary jurisdiction under Article 226 of the Constitution of India, but must allow himself to face the no confidence motion in Abdul Razak v. The Assistant - 6- Commissioner, Davanagere Sub-Division, Davanagere and others 2005(1) Kar.L.J.230.
5. Having noticed the aforesaid two statutory provisions, one under Sub Section 4 of Section 48 of the Act for removal of the Adhyaksha or Upadhyaksha for persistent remiss and the other being a motion of no confidence against Adhyaksha or Upadhyaksha under Section 49 r/w Rule 3 of the Rules, it is crystal clear that both provisions operate independent of each other.
6. Merely because Annexure-A no confidence motion, the signatories being members of the Grama Panchayat mention certain acts in discharge of duties by the Petitioner Adhyaksha not agreeable with the members, does not necessarily mean, that it is not a no confidence motion under Section 49 of the Act. If the members of the Grama Panchayat have not initiated action against the Petitioner under Sub-Section 4 of Section 48 of the Act for persistent remiss, petitioner must be more than happy that the members have not sought her removal, but on the other hand have moved - 7- a no confidence motion to quietly ask her to vacate the office, having lost confidence in the members. The consequences of a proceeding under Sub-Section 4 of Section 48 of the Act touching upon petitioner’s misconduct is much more severe than vacating the post of Adhyaksha for lack of confidence.
7. In the circumstances, the submission of the learned Senior Counsel cannot be countenanced. Petition devoid of merit is rejected. Sd/- JUDGE KSR