Karnataka High Court
Smt. Rajamma W/O Balanjaneya vs The State Of Karnataka on 13 October, 2022
Bench: S.Sunil Dutt Yadav, Umesh M Adiga
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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,
Digitally signed by
J MAMATHA BALLARI, DIST: BALLARI-583101.
Location: High
Court of
Karnataka,
Dharwad Bench 3. THE PANCHAYAT DEVELOPMENT OFFICER,
Dharwad.
Date: 2022.10.17
11:23:56 +0530
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
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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
JUDGMENT
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 'No Confidence' 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 'No Confidence' 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
WA No. 100415 of 2022
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, 'Act'). 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 'No
Confidence Motion' 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
WA No. 100415 of 2022
been violated. Learned Single Judge has, however,
rejected the writ petition while observing that 'Adyaksha'
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 'Adyaksha' who is
subjected to the 'No Confidence Motion' 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
2005(1) Kar.L.J. 230
WA No. 100415 of 2022
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
WA No. 100415 of 2022
Commissioner, Mysore2 requires reconsideration. After a
detailed consideration, larger Bench of this Court in WA
No.200087/2022 has come to a conclusion giving a finding
that the law declared in Puttegowad's case (supra) lays
down correct law and does not require reconsideration. It
is further observed that in effect, first proviso to Section
49(1) of the Act becomes directory. In the reference made
while considering WP No.102077/2022, larger Bench had
an occasion to deal with reference as follows:
"Whether 10 days notice prescribed in the latter
part of first proviso to sub-section (1) of Section
49 is to be given to the Adhyaksha of the Gram
Panchayat or the Assistant Commissioner AND
whether such notice is mandatory or directory?"
8. Reference has been answered at para-19 as
follows:
"In view of the above, we hold that the
"ten days clear notice" found in first
proviso of Section 49(1) of the Act, has to
be duly signed by half of the members of a
2002 (1) KLJ 16
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WA No. 100415 of 2022
Panchayath and shall be submitted by any
two members signing it, to the concerned
Assistant Commissioner. Further, as held
by this full bench in Shankaragouda
(supra), the members of a panchayath are
bound to give ten days notice in Form-I as
stipulated in Rule 3 of the Rules to the
concerned Assistant Commissioner, who
thereafter, shall issue notice to all the
members convening a meeting to consider
the motion of no confidence."
9. Accordingly, in WP No.102077/2022, reference
has been answered to the effect that members of the
Panchayath are bound to give ten days notice in Form-I as
stipulated in Rule 3 of the Rules to the concerned Assistant
Commissioner, who thereafter, shall issue notice to all the
members convening a meeting to consider the motion of
'No Confidence'. Further reference is made to the
reference in WA No.200087/2022, wherein observations
have been made that Assistant Commissioner need not
wait for expiry of ten days and that law declared in
Puttegowda's case (supra) does not require any
reconsideration.
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WA No. 100415 of 2022
10. A reading of both references would make it
clear that references have been answered by way of
answer to the questions raised to the effect that no doubt,
ten days clear notice is to be made. But once such notice
is made, Assistant Commissioner, need not wait for expiry
of ten days which is the legal position regarding the notice
period as made out in the reference in WA
No.200087/2022 & WP No.102077/2022 consisting of
three judges each.
11. No doubt, it is true that giving of notice for ten
days is mandatory. However, after discussing various
aspects, it is also held, as is made out from the reference,
that as regards the Assistant Commissioner, once notice is
given by the members, he need not wait for expiry of ten
days and that has been reiterated and followed in WP
No.102077/2022. Accordingly, that is the only manner in
which reference could be understood. We find no such
contradiction in terms of answers made to the reference as
pointed out above. There is no doubt that notice of ten
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WA No. 100415 of 2022
days must be given by the members and at the same
time, the Assistant Commissioner need not wait for expiry
of ten days. In the present case, though notice was given
by the members on 4.8.2022, the Assistant Commissioner
having issued notice on 11.08.2022 though within a period
of ten days would not in any way be in contravention of
law as answered in the reference. Once the larger Bench
has laid down the law, it would not be appropriate for a
bench of a lesser strength to reopen the said aspect. On a
plain reading of the reference in WA No.200087/2022 and
WP No.102077/2022, we find no such ambiguity.
12. No doubt, it is submitted that the aspect of
locus standi was not considered in the 1st round of
litigation and accordingly, the petitioner ought not to have
been denied the right to canvass the validity of notice
issued. Though the learned Single Judge has rejected the
petition on locus standi, we have considered the
contention of the petitioner on its merits and have rejected
the same. Accordingly, we find no reason to interfere with
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WA No. 100415 of 2022
the impugned order of the learned Single Judge. The writ
appeal stands dismissed as devoid of merit. Pending
applications, if any, do not survive for consideration and
accordingly, they are disposed off.
Sd/-
JUDGE
Sd/-
JUDGE
JTR
