Judgment:
ORDER
A.N. Venugopala Gowda, J.
1. Petitioners are the 'Adhyaksha' and 'Upadhyaksha' respectively of Madderi Grama Panchayath of Kolar Taluk, which has 14 elected members. 10 members of the Panchayath submitted a requisition dated 24.07.2009 to the respondent, expressing No-confidence in petitioners and requested respondent to convene a special meeting of the Panchayath, to consider the proposed motion of No-confidence. Respondent issued Notice in Form - II under Rule 3(2) of the Karnataka Panchayath Raj (Motion of No-confidence against Adhyaksha and Upadhyaksha of Grama Panchayath) Rules, 1994 (for short 'the Rules'). Respondent notified the members and also Adhyaksha and Upadhyaksha that, a special meeting to consider the motion of No-confidence is convened to be held at 11:00 a.m on 20.08.2009 in the office of Grama Panchayath. Petitioners alongwith two other members questioned the said notice in O.S No. 512/2009 in the court of the Principal Civil Judge, (Junior Division) Kolar. Alongwith the suit, they filed I.A. - I under Order 39 Rule 1 & 2 of Civil Procedure Code, to restrain the Assistant Commissioner, Kolar Sub-Division, Kolar and the Secretary of the Panchayath, from conducting the meeting on 20.08.2009. It was stated that, till fulfilling of the requirements stipulated under Section 47 of the Karnataka Panchayath Raj Act, 1993 (for short 'the Act'), such meeting should not be held. Defendants filed objection statement to I.A No. I. The said court arrived at a finding that, notice issued by the Assistant Commissioner was not in accordance with law and hence I.A. - I was allowed. As a result thereof, 11th and 12th defendants were restrained from conducting No-confidence motion on 20.08.2009. However, 11th defendant was directed to conduct No-confidence motion against plaintiffs 1 & 2, by issuing a fresh notice, after complying with the requirements under Section 47 of the Act. Indisputably, said order has remained unchallenged.
2. 10 members of the Panchayath thereafter, submitted requisitions dated 22.08.2009 expressing No-confidence in the petitioners. Requisitions were submitted to the respondent, by 4 members in the presence of Secretary of the panchayath. Requisitions had enclosures i.e., proposed motion of No-confidence against both the petitioners. Copies of the said requisitions are as at Annexures C & D. Though, Annexures C & D refer to enclosures, petitioners have not produced the enclosures. Based on the said requisitions, respondent issued notices under Rule 3(2) of the Rules, to petitioners and all other elected members of panchayath. Respondent has given notices dated 31.08.2009 as at Annexures A & B, fixing the meeting to be held at the Panchayath Office at 11:00 a.m on 16.09.2009. Petitioners have questioned in these writ petitions, the said notices, mainly on three grounds, namely:
i) Notices of intention of moving No-confidence motions (Annexures C & D) being not in the prescribed Form - I. the same are illegal.
ii) Notices issued in Form-II (Annexures A & B) are in violation of Rule 3(2), since there is no 15 days clear notice before the meeting date i.e., from the date of service.
iii) The life of present body of panchayath, which will come to an end on 24.02.2010, being less than 6 months from the meeting date, no useful purpose could be achieved even by expressing No-confidence and removing the petitioners from their offices, as election cannot be conducted to a body which has a life span of less than 6 months.
3. Sri H. Kantharaja, learned Counsel appearing for petitioners reiterated the aforesaid grounds. In support of the 1st and 2nd contentions, reliance was placed on the following decisions:
1. Sangappa v. The Assistant Commissioner, Bijapvr District and Anr. : ILR 2004 KAR 1102
2. Smt. Sujatha v. The Assistant Commissioner, Bellary and Ors. W.P No. 293/2007 DATED 19.01.2007
3. M. Muniyappa and Anr. v. State of Karnataka and Ors. : 1999 (4) Kar.L.J. 42
4. K. Narasimhiah v. H.C. Singri Gowda and Ors. : AIR 1966 Supreme Court 330
5. Munnalal Agarwal v. Jagdish Narain and Ors. : (2000) 1 Supreme Court Cases 31
4. Smt. Nagashree, learned HCGP, by making available record maintained by the respondent, contended that, writ petitions have to fail, on more than one ground. Firstly, there is wilful suppression of material facts by the petitioners i.e., in not bringing to the notice of court, proceedings of O.S. 512/2009 and W.P. No. 24886/09, which was dismissed on 19.08.2009. Secondly, notices as at Annexures A & B, were given by the respondent on 31.08.2009, both by muddam and by registered post acknowledgement due and that, notices so given, were served on several members of the Panchayath on 3i.08.2009 itself. Thirdly, 1st petitioner made a request to the respondent on 22.08.2009, seeking copies of representations submitted by members of the panchayath and the proposed motion, which clearly shows that, petitioners are aware of proposed motion of No-confidence having been moved before the respondent. Learned Government Pleader placed reliance on a decision In the case Of Munirathnamma v. The Assistant Commissioner, Kolar Sub-division and Anr. ILR 2007 KAR 690 and contended that, the decision in the case of Sangappa (supra) has been considered and explained by the Division Bench. Reliance was placed on the decision in the case of Smt. Laxmawa v. The State of Karnataka, Represented by its Secretary and Ors. : ILR 2007 KAR 1028 to contend that, procedure indicated under the Rules is not. mandatory and the interpretation so placed in the case of Sangappa and also in the case of Mallamma v. State of Karnataka 2002 (5) KAR. L.J 2541 was held to be, not a good proposition of law and that the noncompliance has to be seen in the background as to whether the same has caused any prejudice to the person aggrieved.
5. Sri H. Kantharaja, learned Counsel, in reply, contended that, notices as at Annexures A & B were indisputably served on 03.09.2009 and 01.09.2009 respectively on the petitioners and hence there is no 15 days clear notice between date of service and the meeting date. Consequently, mandatory effect of Rule 3(2) is defeated and the same being an illegality, meeting scheduled to be held on 16.09.2009, cannot take place. He contended that, the word 'give notice' in the Rule should be construed strictly and also in a broader perspective. According to him, purpose of stipulating 15 days clear notice is that, person against whom No-confidence is expressed, should have sufficient time to deliberate with the elected members, make them understand that, proposal being misconceived, should be dropped. He further contended that, in the cases of M. Muniyapa & Smt. Sujatha (supra) it has been held that, notice under Rule 3(2) is mandatory, in that there should be 15 days clear notice.
6. In view of the rival contention, following points arise for my consideration.
I. Whether, the respondent has committed an illegality in acting on the representations as at Annexures C & D, though they are strictly not in Form - I stipulated under Rule 3(1) of the Rules?
II. Whether, 15 days clear notice is required to be construed with reference to the date on which 'notice was given' by the authority or the date on which the 'notice is served' on the members?
III. Whether, a No-confidence motion cannot be moved if the panchayath has less than 6 months life?
Re-point.I:
7. Indisputably, 10 elected members of the panchayath submitted requisitions to the respondent on 22.08.2009. Annexures C & D make reference to the proposed No-confidence motions. Record produced by learned HCGP shows that, proposed motions were enclosed to the representations as at Annexures C & D. The enclosed, proposed No-confidence motions would show that, they have all the contents of Form - I, prescribed under Rule 3(1) of the Rules. Except mentioning Form - I and the Rule under which they are being submitted, the representations as at Annexures C & D, in detail, refer to factual situation. This Court, in more than one decision has held that, submission of the requisition in prescribed Form - I, need not be actually accompanied by a proposed motion of No-confidence, as was held in the case of Maltamma v. State of Karnataka reported in 2002 (5) Kar.L.J 2541. In the case of Smt.Laxmavva (supra), Division Bench has held as follows:
No doubt, a reading of the provision show that it may be mandatory in nature. But we have to see whether non-compliance is only an irregularity or fatal to the motion itself.
Considering the facts of the case, (which are in para-materia with the facts of the case on hand), it has been held as follows:
10. On perusal of the records, especially the written notice, we find that there is substantial compliance of Rule 3(1) of the Rules. In such case, mere attaching the copy of the proposed motion would he duplicity of the work and that by itself cannot be a ground to set at naught the democratic exercise of the members in functioning of these local Governments. When the notice of the majority members makes it clear their intention, mere non-enclosing the proposal would be only an irregularity and in our view does not cause any prejudice to the other side.
11. The learned Single Judge, in the case of Mallamma, has merely relied upon the language of Rule 3(1) and held that if the notice does not accompany (separately) the proposed, motion of no confidence, is bad in law. We do not agree with this proposition. In our view, noncompliance has to be seen in the background as to whether the same has caused any prejudice to the person aggrieved.
12. In the facts and circumstances of the present case and after perusal of the notice, we find that since the notice also incorporates the proposal of no-confidence motion, there is substantive compliance of the requirement of Rule 3(1) of the Rules, As such, the reliance placed, by the Learned Counsel in the case of Mallamma, is of no assistance to the facts of the case.
(Emphasis supplied by me)
Considering the fact that, enclosures submitted along with the representations submitted by 10 members to the respondent, in sum and substance, has all the requirements of Form - I stipulated under Rule 3(1) and since, the petitioners have not pleaded any prejudice having been caused to them on account of the proposed no confidence motion not containing on it, Form-I and the relevant Rule and since it is too well settled position of law that, if no prejudice is established to have resulted therefrom, it is obvious, no interference is called for, the 1st contention urged for consideration, for the very reasons indicated by the Division Bench in the aforesaid pronouncement, is untenable and hence is negatived.
Re-Point II:
8. To answer this contention, it is necessary to notice Rule 3(2) of the Rules, which reads as follows:
The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion at the office of the Grama Panchayath on the date appointed by him which shall not be later than thirty days from the date on which the notice under Sub-rule (1) was delivered to him. He shall give to the members a notice of not, less than fifteen clear days of such meeting in Form - II.
(Underlining is by me)
A plain reading of the Rule indicates that, what is contemplated is 'giving of 15 days dear notice'. Respondent has correctly followed the Rule. Notice of the meeting proposed to be held on 16.09.2009, was given by the respondent vide Annexures A & B on 31.08.2009. Notices were despatched on 31.8.2009 through Secretary of the Village Panchayath, for being delivered to the elected members of the panchayath, which includes, both the Adhyaksha and Upadhayaksha. Several members of the Panchayath have received the notices on 31.08.2009 itself. Notices as at Annexures A & B, were simultaneously sent by the respondent to all the Panchayath members by RPAD on 31.08.2009. The contention of Sri. Kantharaja is that, since notices were served on petitioners on 03.09.2009 and 01.09.2009 respectively, there is noncompliance with the mandatory requirement of Rule 3(2). Learned Counsel by referring to the decisions in the cases of Sangappa and Smt. Sujatha (supra) submitted that, facts being identical, what was taken into consideration therein, being the date of service of notice, it was argued that, this Court by following the said pronouncements, will have to take the date of service, which being 03.09.2009 and the meeting date being on 16.09.2009, there being less than 15 days intervening period, notices being derogatory to Rule 3(2), will have to be deemed as illegal and the meeting as scheduled, should not take place, since, it is a special meeting, for the special purpose, which should be held strictly in accordance with law and not otherwise. Learned Counsel placed reliance on the decision in the case of K. Narasimhiah, (supra) wherein Hon'ble Supreme court has held as follows:
11. 'Giving' of anything as ordinarily understood in the English language is not complete unless it has reached the hands of the person to whom it has to be given. In the eye of law however 'giving' is complete in many mattes where it has been offered to a person but not accepted by him. Tendering of a notice is in law therefore giving of a notice even though the person to whom it is tendered refuses to accept it. We can find however no authority or principle for the proposition that as soon as the person with a legal duty to give the notice despatches the notice to the address of the person to whom it has to be given, the giving is complete. We are therefore of opinion that the High Court was wrong in thinking that the notices were given to all the councilors on the 10th October. In our opinion, the notice given to five of the Councilors was of less than three clear days.
Learned Counsel also placed reliance on the decision in case of Munnalal Agarwal (supra), wherein Hon'ble Supreme court has held as follows:
The word 'given' occurring in Section 5 of the Act distinctly shows that the legislature intended that that notice must actually be delivered to the tenant within three months from the date of commencement of the Act. Mere sending notice or despatching or posting the notice within three months is not the requirement of Section 5 of the Act. What the provision of the Act contemplated is that notice should be tendered, offered or handed over to the tenant within three months from the date of commencement of the Act and In case the service of notice is after three months of commencement of the Act, the landlord is not entitled to take benefit of such notice. Of course, if the notice for enhancement of rent is sent to the tenant and is refused by him within three months from the commencement of the Act, it would be a valid notice. But it is not the case here.
9. The contention that, having regard to the decisions in the cases referred to supra, it must be held that, mere giving of notice or sending of notice by registered post is not sufficient compliance of Rule 3(2) of the Rules and it is necessary that there should be actual service of notice and that it is the date of service, which is material, is totally unacceptable. In the instant case, a copy of the notice in Form - II prescribed under Rule 3(2) has been given both by registered post with acknowledgement due and also by muddam to the petitioners as well as to all other members of the panchayath. The record produced by learned HCGP shows that, notices as at Annexures A & B were sent on 31.08.2009 itself, by registered post with acknowledgement due to all the elected members including the petitioners. The duty enjoined under Rule 3(2) of the Rules is 'giving of notice' in Form - II. Notice required to be given thereunder is the notice containing the date, hour and place of the meeting of the grama panchayath scheduled to be held for the purpose of moving motion of No-confidence proposed by the elected members.
10. If, as contended by the learned Counsel for petitioners, it is held that, Rule 3(2) can be said to have been complied with only when the notice given by registered post or by muddam is served on the addresses, it will not be possible for the authority to convene the special meeting. It will be impossible for the authority to effect service on all the elected members and then only, hold the meeting by giving notice of 15 clear days. Such an interpretation which is not forth coming by the words used in Rule 3(2) of the Rules, would also give handle to such of the elected members of the panchayath, who intend to postpone the special meeting, since they can very well avoid the service of notice.
11. In this connection, it is relevant to refer to Section 27 of the Karnataka General Clauses Act 1899, reads as follows;
27. Meaning of service by post:- Where (any Mysore Act or Karnataka Act) made after the commencement of this Act authorises or requires any document to be served by post, whether the expression 'serve' or either of the expression 'give' or 'send' or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
From the aforesaid provision also, it is clear that, if a notice is sent by properly addressing, pre-paying and posting by registered post, the notice shall be deemed to have been effected. It is not possible to find out a different intention from the provision contained in Rule 3(2) of the Rules. It is not the case of the petitioners that, the notice sent by registered post was not properly addressed nor is it their case that, service was manipulated and they suffered prejudice on account of delay.
12. A careful reading of the decision in the case of K. Narasimhiah (supra), it is noticed that, the provisions of Section 27(3) of the Mysore Town Municipalities Act, came up for consideration, which relates to the moving of motion of No-confidence, to be preceded by 3 days clear notice. In the context of the provisions of law, Hon'ble Supreme Court has made the following observations.
14. It is necessary also to remember that the main object of giving the notice is to make it possible for the Councillors to so arrange their other business as to be able to attend the meeting. For an ordinary general meeting the notice provided is of seven clear days. That is expected to give enough time for the purpose. But a lesser period - of three clear days - is considered sufficient for 'special general meetings' generally. The obvious reason for providing a shorter period of such meetings is that these are considered more important meetings and Councillors are expected to make it convenient to attend these meetings even at the cost of some inconvenience to themselves. Where the special general meeting is to dispose of some matter of great urgency it is considered that a period of even less than three clear days' notice would be sufficient.
19. The existence of this provision in Section 36 is a further reason for thinking that the provision as regards any motion or proposition of which notice must be given in Section 27(3) is only directory and not mandatory.
20. We are, therefore, of opinion that the fact that some of the Councillors received less than three clear days' notice of the meeting did not by itself make the proceedings of the meeting or the resolution passed there invalid. These would be invalid only if the proceedings were prejudicially affected by such irregularity. As already sated, nineteen of the twenty Councillors attended the meeting. Of these 19, 15 voted in favour of the resolution of no-confidence against the appellant. There is thus absolutely no reason for thinking that the proceedings of the meeting were prejudicially affected by the 'irregularity in the service of notice.'
(Emphasis supplied by me)
13. Thus it is manifestly clear that, notice envisaged for making No-confidence motion is directory in nature and violation of the same does not vitiate the proceedings. The present provision which contemplates 15 days clear notice is also analogous in letter and spirit. Therefore, the same is to be construed as directory and not mandatory. Date of receipt of notice is not the determining factor, but, the date of giving of notice is to be considered for reckoning the period of notice. The intention of the legislature in using the words 'he shall give to the members a notice of not less than 15 clear days of such meeting in Form - II' is clear that, what is contemplated is 'giving of notice' in the prescribed Form and 'not the service'.
14. In the case of Jayacharan Lal v. State of U.P. : AIR 1968 SC 5, wherein the provision under an identical statute came up for consideration and the word contemplated in the statute was 'sending of notice' was similar to 'giving of notice' in the present Rules. Hon'ble Supreme Court in the said decision has held as follows:
The sub-section says that the District Magistrate shall send the notice not less than seven clear days before the date of the meeting and the word 'send' shows that the critical date is the date of the despatch of the notice. As the notice was sent on the 17th and the meeting was to be called on the 25th, it is obvious that seven clear days did intervene and there was no breach of this part of the section.
(Emphasis is supplied by me)
15. The order passed by the learned Single Judge in the case of Smt.Sujatha (supra) is identical to the one passed by another learned Single Judge in the case of Sangappa (supra). In both the said decisions, no doubt, the requirement of 15 clear days was held with reference to date of actual service. The proposition of law made in the case of Sangappa (supra) was not approved by the Division Bench in the case of Munirathnamma (supra). In both the decisions i.e., Sangappa and Smt. Sujatha (supra), the learned Single Judges have proceeded under the footing that, requirement under Rule 3(2) is 15 days clear notice with reference to the date of service of notice. While saying so, the binding decision of the Division Bench in the case of S. Ramaiah v. State of Mysore and Ors. 1969 (1) Mys LJ 395 was not noticed. In the said case, Rule 9(1) of Mysore Municipalities (President and Vice-President) Election Rules, 1965 was considered. The said Rule provided that, if it becomes necessary to take the votes of Councillors, the Election Officer should convene a meeting of Municipal Council on the appointed date under Rule 3(1)(c) and that notice of the date, hour and place of the meeting shall be sent to every member of the Council by registered post not less than 5 days before the date of meeting. Interpreting the Rule it was held as follows:
But, we do not find any such words in Rule 9(1) which can persuade the view that the commencement of the period of five days to which that rule refers is postponed until the notice sent by registered post is delivered to the addressee. In our opinion, all that is necessary for the Election Officer to do under Rule 9(1) is to despatch the notice by registered post and when he does so the duty enjoined by Rule 9(1) is fully performed.
Further, Section 27 of the Karnataka General Clauses Act, 1899 and also the actual wording in Rule 3(2) of the Rules, wherein, what is contemplated is 'giving of notice' and not 'serving of notice' has not been noticed. The said two decisions (Sangappa and Smt. Sujatha) have thus rendered themselves to be per-incuriam, since there is misreading of the relevant provision of the Act. With due respect to the learned judges who passed the orders in said two cases, I am bound to follow the Division Bench decision in the case of Munirathnamma (supra).
16. Yet another factor which should be kept in view is that, petitioners knew about the fact of 10 members in the panchayath expressing their No-confidence in them, in the beginning of August 2009 itself. 10 members had submitted requisitions and proposed motions of No-confidence against both the petitioners. The petitioners along with two others challenged the move, by filing a suit. Civil court did grant temporary relief to the petitioners, but, issued mandatory injunction to the respondent to hold the meeting by following the provisions contained in Section 47, Such being the position, the petitioners who had the notice in the first week of August 2009 itself, had more than 15 days time to debate on the issue, convince the other members and win their confidence. Be that as it may. When the present move as per Annexures C & D was made by the members of the Panchayath, the 1st petitioner has made a request on 24.8.2009 itself, to the respondent to furnish copy. Hence it could be inferred that, petitioners were aware of the No-confidence motion having been moved against them, on 24.08.2009 itself.
17. Even otherwise, looking to the conduct of the petitioners, as held by the Division Bench in the case of Munirathnamma, (supra) jurisdiction of the court under Article 226 being discretionary, even if there were to be any irregularity, the matter need not be interfered with. In the said case, it has been held as follows:
The jurisdiction of this Court under Article 226 is discretionary. It is not in every case where illegality or irregularity is committed the Court. will interfere invoking the jurisdiction under Article 226 of the Constitution of India. That is particularly so when the violation alleged is of a provision which is in essence a procedural in nature and not a violation of fundamental right. The conduct of the aggrieved party who make such grievance against any such illegality or irregularity is as much important as the alleged illegality or irregularity. It is to be remembered that in the case by a democratic process the members of the Panchayath have unanimously moved for the 'No-confidence Motion' and the 'No-confidence Motion' did take' place which is culminated in the fresh election. Moreover the appellant, except the hyper technical question, has not shown what is the prejudice caused to her by receipt of the notice by one day later. What she could not do in 14 days could not have been accomplished in 15th day. Hence, looking at the case from any angle, we find that the learned Single Judge was justified in rejecting the writ petition. Agreeing with the same, we find no merit in the writ appeal and the same is rejected.
(Emphasis supplied by me)
Hence, I do not find any merit in the 2nd contention.
18. Though the period left for present elected body is less than 6 months, in case Adhyaksha and/or Upadhyaksha, have lost the confidence of the members, they cannot function as Adhyaksha and Upadhyaksha any longer i.e., if the motion is successfully carried through. For the post of Adhyaksha and/or Upadhyaksha, an election can take place for the remaining period. Whoever among the members is eligible can get elected to the office and the panchayath can function till the expiry of its life. Hence the 3rd contention is also devoid of merit.
19. It was submitted by Sri Kantharaja that, there was no need for the petitioners to have averred in the writ petition about the said suit and writ petition. According to him, the cause of action for these writ petitions is a fresh cause of action and has nothing to do with the meeting convened earlier, which lapsed on account of meeting having not materialized. It was submitted that, in the said view of the matter, petitioners bonafide believed that there is no need for making any averment with regard to the said suit and writ petition, having been filed earlier. The submission is totally unacceptable. The proceedings of O.S. 512/2009 is certainly a relevant factor, on account of the mandatory injunction order passed therein, in compliance of which the respondent has the obligation to convene the meeting. The cause of action is a continuing one. The petitioners cannot be allowed to claim any bonafides for not stating the said aspect. The conduct of petitioners is not fair, if not fraudulent. It is a deliberate suppression of material fact. Fair play is the basic rule to seek relief in writ jurisdiction under Article 226 of the constitution.
20. Though, I intended to take a serious view of the matter with regard to the conduct of the petitioners not placing on record of this petition, the said facts, but, keeping in view the fact that the petitioners are not well educated, I would refrain from taking such a view.
For the foregoing reasons, the writ petitions are devoid of merit and shall stand dismissed.
Ordered accordingly.