Smt Sharadabaim W/O Sri. Nagaraj ... vs The State Of Karnataka
2022 Latest Caselaw 7736 Kant

                                                          R



IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

         DATED THIS THE 31ST DAY OF MAY, 2022

                        BEFORE
           THE HON'BLE MR JUSTICE R.DEVDAS
       WRIT PETITION NO.101890 OF 2022 (LB-RES)
BETWEEN:
SMT SHARADABAI W/O SRI. NAGARAJ NAIK ,
AGED ABOUT 40 YEARS, PRESIDENT,
NAGATHIBASAPURA GRAMA PANCHAYATH,
R/AT. KAMARANAHALLI TANDA,
HOOVINAHADAGALI TALUK,
VIJAYANAGAR DISTRICT -583 219
                                            ...PETITIONER
(BY SRI. ANAND R.KOLLI, ADVOCATE)

AND:
1.   THE STATE OF KARNATAKA
     RURAL DEVELOPMENT AND PANCHAYATH RAJ
     DEPARTMENT, 3RD FLOOR,
     M.S BUILDING, BENGALURU - 560 001,
     REP. BY ITS SECRETARY

2.   THE ASSISTANT COMMISSIONER,
     HARAPANAHALLI, VIJAYANAGAR DISTRICT-583 219.

3.   NAGATHIBASAPURA GRAMA PANCHAYATH,
     NAGATHIBASAPURA,
     HOOVINAHADAGALI TALUK,
     VIJAYANAGARA DISTRICT - 583 219
     REP BY ITS SECRETARY.
                                      ...RESPONDENTS
(BY SRI.VINAYAK V.S., HCGP FOR R1 AND R2)
                                -1-




                                          WP No. 101890 of 2022


     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF
CERTIORARI TO QUASH THE NOTICE DATED 13.05.2022
BEARING NO. 14/2022-23 ISSUED BY THE RESPONDENT NO.2
VIDE ANNEXURE-B AND ETC.
     THIS WRIT PETITION COMING ON FOR ORDERS THIS
DAY, THE COURT MADE THE FOLLOWING:
                             ORDER

R.DEVDAS J., (ORAL):

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

WP No. 101890 of 2022

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

WP No. 101890 of 2022

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 sub-section (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

WP No. 101890 of 2022

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 fact that the petitioner received

the meeting notice on 17.05.2022, the learned Counsel for the

petitioner submits that having regard to the mandatory

WP No. 101890 of 2022

provision contained in the second part of sub-rule (2) of Rule 3

of the Rules, 1994, which contemplates fifteen clear days

notice, it is submitted that there is non-compliance of the

requirement of the Rules. Learned Counsel submits that having

regard to the decision in Smt.Roopa (supra), the date on

which the notice was served on the petitioner is required to be

excluded and similarly the date on which the meeting is

scheduled to be held is also to be excluded, in order to meet

the requirement of sub-rule (2). Learned Counsel submits that

15 clear days notice would contemplate exclusion of the date

on which the notice was served and the date on which the

meeting is scheduled to be held. In that view of the matter, it

is submitted that notice of 14 days is given to the petitioner

and therefore this Court should hold that there is non-

compliance of the requirement of the Rules, when there is

deficiency of providing 15 clear days notice and therefore, the

impugned meeting notice is required to be quashed and set

aside.

9. Per contra, the learned HCGP seeks to place reliance

on Venkataram and Another Vs. The Assistant

Commissioner, Kolar Sub-Division, Kolar District, reported

WP No. 101890 of 2022

in 2010 (5) Kar.L.J. 76 which is a judgment rendered by a

learned Single Judge of this Court.

10. Learned HCGP submits that in paragraph-13 of the

decision, it has been held that the notice envisaged for making

No-Confidence motion is directory in nature and violation of the

same does not vitiate the proceedings. It was held that the

date of receipt of notice is not a determining factor, but, the

date of giving notice is to be considered for reckoning the

period of notice. It was held that the words used in sub-Rule

(2) is 'giving of 15 clear days notice' and 'not the service of

notice'. Having regard to the decision in Venkatram's case,

the learned HCGP submits that the provisions contained in Rule

(3) are not mandatory in nature and they are only directory

and even if there is any shortfall, it is held to be a curable

defect.

11. The learned Counsel for the petitioner seeks to place

reliance on Jai Charan Lal Anal Vs. State of U.P.and Others

reported in AIR 1968 SC 5 to contend that in somewhat

similar circumstances, the Hon'ble Supreme Court has held that

since the provision considered therein requires the District

WP No. 101890 of 2022

Magistrate to 'send' by registered post not less than seven clear

days notice, the crucial requirement is the date of despatch of

the notice and not the date when which the notice was

received. However, the learned Counsel submits that unlike

the provision which fell for consideration before the Hon'ble

Supreme Court, in sub-rule (2) the word used is "give" and not

"send", as found in the provision.

12. Heard the learned Counsels and perused the petition

papers, including the original records.

13. As regards the question as to whether the provisions

contained in the Rules are mandatory or directory in nature,

this Court need not be detained any further. Since the full

bench of this Court in the case of C.Puttaswamy (supra)

considered similar provisions contained in Section 47(3) of the

Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal

Panchayats & Nyaya Panchayats Act, 1983, having analysed the

provisions contained in Section 47(3) of Act, 1983 and Rule

3(2) of the Rules, this Court in the case of Smt.Roopa (supra)

has held that there cannot be any doubt with regard to either

the expression or phraseology used in these two Sections/Rules

WP No. 101890 of 2022

to arrive at a conclusion that they are in pari materia. It was

therefore held in Smt.Roopa that the provisions contained in

the Rules are mandatory in nature and not directory. The

decision of the Full Bench has not been noticed in the case of

Venkatram (supra).

14. 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 of Jai

Charan Lal Anal (supra), the emphasis in the provision which

fell for consideration therein was the use of the word "send" by

registered post and whereas in the present context, in the place

of the usage of the word 'send', what is found in the Rule is the

usage of the word 'give'. To that extent, the learned Counsel

for the 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 the Gram Panchayat, the notice sent to the petitioner

WP No. 101890 of 2022

through RPAD, having been sent on 18.05.2022 and the

petitioner receiving the same on 20.05.2022, it can be clearly

held that it does not fulfill the requirement of the Rule of 15

clear days notice. However, since it is not disputed having

regard to the original records being furnished to this Court that

the notice dated 16.05.2022 was personally served to the

petitioner on 17.05.2022, this Court is required to consider the

applicability of the principles enshrined in the decision of the

Hon'ble Supreme Court in the case of Jai Charan Lal Anal

(supra).

15. The definition of the word "give" as found in

P.Ramanatha Aiyar's The Law Lexicon Fifth Edition is "make

another the recipient of something; bestow gratuitously". It is

also provided that the word "given" or "giving a notice" means

not only giving a notice, but it indicates when it is received. In

the present context, it is clear that the petitioner was given the

notice and he received the same personally on 17.05.2022.

But the requirement of the Rule is 15 clear days notice. Again,

in the Law Lexicon mentioned above, the words 'clear days' is

defined as 'if a certain number of clear days be given for the

doing of any act, the time is to be reckoned exclusively, as well

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WP No. 101890 of 2022

of the first day as the last'. "Clear days" as used in a statute

requiring the Court to allow three clear days in a criminal case

to intervene between the verdict and the rendition of the

judgment, mean "days exclusive of the day the verdict was

rendered and the day upon which judgment should be

pronounced......." "Where the term "clear days" is used, its

effect is to exclude also the last day. It is therefore clear, as

provided in sub-rule (2) of Rule 3, while computing the period

having regard to the usage of the word "clear days", the two

days viz., the date on which notice is given to the petitioner

and the date on which the meeting is scheduled, are required

to be excluded for the purpose of calculation of 15 clear days

notice. This, is commensurate with the declaration of law made

at the hands of the Full Bench in the case of C.Puttaswamy,

wherein it has been held that the provisions of the Rules are

mandatory in nature. On facts, therefore, it has to be held that

there is non-compliance of 15 clear days notice.

16. For the reasons stated above, this Court is of the

considered opinion that the notice issued by the second

respondent-Assistant Commissioner falls short of the

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WP No. 101890 of 2022

requirement of the Rule and consequently, the impugned

meeting notice cannot be sustained.

17. Consequently, this Court proceeds to pass the

following:

ORDER

i) The writ petition is allowed.

ii) The impugned meeting notice dated 13.05.2022 at Annexure 'B' is hereby quashed and set aside.

iii) Needless to observe that the members of the third respondent-Gram Panchayat are free to move the Assistant Commissioner seeking motion of No- Confidence against the petitioner in accordance with law and the Assistant Commissioner shall also consider such motion or representation which could be given at the hands of the members of the Gram Panchayat in accordance with law.

Ordered accordingly.

Sd/-

JUDGE

JT/-