Smt. Hanamavva W/O Hulappa ... vs The Assistant Commissioner ...
2022 Latest Caselaw 12150 Kant

                           1




 IN THE HIGH COURT OF KARNATAKA AT DHARWAD
                                              ®
       DATED THIS THE 8TH DAY OF AUGUST 2022

                       PRESENT

        THE HON'BLE MR. JUSTICE B. VEERAPPA

                          AND

 THE HON'BLE MR.JUSTICE H.T. NARENDRA PRASAD

                          AND

         THE HON'BLE MR. JUSTICE R. NATARAJ

     WRIT PETITION NO. 102077 OF 2022 (LB-RES)

BETWEEN:

SMT. HANAMAVVA
W/O HULAPPA HIREKURABAR
AGE:55 YEARS
OCC: HOUSEHOLD WORK
R/O VADAGERI
ILKAL TALUK
BAGALKOT DISTRICT.                   ... PETITIONER

(BY SRI ANAND R.KOLLI, ADVOCATE)

AND:

1.     THE ASSISTANT COMMISSIONER
       BAGALKOT
       PIN-581701.
                          2




2.   KASTURBIBAYI MALLAYYA MUGANUR
     W/O MALLAYYA MUGUNAR
     AGE:35 YEARS
     OCC: HOUSEHOLD WORK
     R/O ILKAL, TQ: ILKAL
     DISTRICT BAGALKOT.
     PIN 587202.

3.   SRI. BHARAMAPPA PARASAPPA VAGGAR
     AGE:45 YEARS
     OCC: AGRICULTURIST
     R/O VADAGERI
     TQ:ILKAL
     DISTRICT BAGALKOT
     PIN-587202.

4.   SRI. PAWADGOUDA PAWADGOUDA GOUDAR
     S/O PAWADGOUDA GOUDAR
     AGE 50 YEARS
     OCC: AGRICULTURE
     R/O VADAGERI,
     TQ: ILKAL
     DISTRICT BAGALKOT
     PIN:587202.

5.   SMT. DYAMAVVA HOLIYAPPA METI
     AGE 40 YEARS
     OCC: HOUSEHOLD WORK
     R/O DAMMUR
     TQ:ILKAL, DISTRICT BAGALKOT
     PIN-587202.

6.   SRI. BHALAPPA FAKIRAPPA BASARIGIDAD
     S/O FAKIRAPPA BASARAGIDAD
     AGE 50 YEARS
     OCC: AGRICULTURE
     R/O DAMMUR
     TQ: ILKAL
     DISTRICT BAGALOKOT
     PIN-587202.
                           3




7.    SMT. SAVITA VEERANNA BADIGER
      W/O VEERANNA BADIGER
      AGE 30 YEARS
      OCC: HOUSEHOLD WORK
      R/O GORAJNAL
      POST: TALLIKERI, TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

8.    SRI. IRAYYA RUDRAYYA GOUDAR
      S/O RUDRAYYA GOUDAR
      AGE 45 YEARS
      OCC: AGRICULTURE
      R/O ILAL, TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

9.    SRI. CHANDRASHEKHAR DEVINDRAPPA JAGGAL
      S/O DEVINDRAPPA JAGGAL
      AGE 48 YEARS, OCC: AGRICULTURE
      R/O ILAL, TQ: ILKAL
      DISTRICT: BAGALKOT
      PIN-587202.

10.   SRI. RANGAPPA PIDAPPA TALAWAR
      S/O PIDAPPA TALAWAR
      AGE 51 YEARS
      OCC: AGRICULTURE
      R/O GORAJNAL
      TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

11.   SRI. BHARAMAPPA KARIYAPPA MADAR
      S/O KARIYAPPA MADAR
      AGE:56 YARS
      OCC: AGRICULTURE
      R/O DAMMUR, TQ: ILKAL
      DISTRICT: BAGALKOT
      PIN-587202.

12.   SMT. SATTEVVA KARIYAPPA MADAR
                           4




      AGE 38 YEARS
      OCC: HOUSEHOLD WORK
      R/O VADAGERI
      TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

13.   SMT. KARIYAVVA MASAPPA KABBARAGI
      AGE 39 YEARS
      OCC: HOUSEHOLD WORK
      R/O VADAGERI
      TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

14.   SMT. YALLAVVA SRAKAPPA KAMBALI
      AGE 55 YEARS
      OCC: HOUSEHOLD WORK
      R/O VADAGERI, TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.

15.   POORNIMA RAMESH KELUR
      W/O RAMESH KELUR
      AGE 45 YEARS
      OCC: HOUSEHOLD WORK
      R/O GORAJNAL
      POST TALLIKERI
      TQ: ILKAL
      DISTRICT BAGALKOT
      PIN-587202.                        ... RESPONDENTS

(BY SMT.VIDYAVATI, AAG FOR R1:
 SRI PADMANABHA V.MAHALE, SENIOR COUNSEL
 FOR SRI S.L.MATTI FOR R2 TO R15)

      THE REFERENCE IS MADE ON 13.06.2022 BY A SINGLE
DIVISION BENCH TO DECIDE AS TO "WHETHER THE 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
                                  5




COMMISSIONER AND WHETHER SUCH NOTICE IS MANDATORY
OR DIRECTORY?
     THE REFERENCE, COMING ON FOR ORDERS THROUGH
VIDEO CONFERENCING, THIS DAY, B. VEERAPPA J., MADE
THE FOLLOWING:


                   I. ORDER ON REFERENCE

        A learned Single Judge while considering a

challenge     to   a   notice    issued   by   the    Assistant

Commissioner under the Karnataka Grama Swaraj and

Panchayath Raj Act, 1993 (henceforth referred as Act

of   1993)     and     Karnataka     Panchayath       Raj    (No

confidence         motion       against    Adyaksha          and

Upadhyaksha)         Rules, 1994 (henceforth referred as

Rules    of   1994)    entertained    a   doubt      about   the

correctness of the Judgment of another co-ordinate

Bench in Parvathi vs The Assistant Commissioner,

Haveri Sub-Division, Haveri and others reported

in ILR 1997 Kar 3230, where it was held that the

Assistant Commissioner, need not wait for ten days

after receiving the notice from the members of a
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panchayath      expressing    lack   of     confidence   in   an

Adhyaksha or Upadhyaksha and he may convene a

meeting before the expiry of 10 days from the date of

he receiving the notice from the members.


         The learned Single Judge noticed that the

Judgment in Parvathi (supra) was upheld by a

Division Bench of this Court in M.Puttegowda and

others vs The Assistant Commissioner, Mysore

2002 (1)KLJ 16. The learned Judge referred to a

pathbreaking     Judgment in Sharadabai vs State of

Karnataka and others in W.P.No.101890/2022

where the distinction between the words "send" and

"give" a notice contemplated under Rule 3(2) of the

Rules, 1994 was scintillatingly examined in great

detail    and   it   was     held    that     "giving    notice"

contemplated tendering it actually,            while "sending

notice" could be construed as tendered when it is

actually served. The learned Single Judge held that in
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view    of   the   Judgment       of   the   Full   Bench   in

C.Puttaswamy vs Smt.Prema reported in AIR

1992 Kar 356, the procedure of giving 15 days clear

notice is mandatory and therefore as there was no 15

days clear notice, quashed the notice issued by the

Assistant Commissioner. The learned Single Judge

approvingly quoted another Judgment of a co-ordinate

Judge in Smt.Roopa vs State of Karnataka and

others reported in ILR 2019 Kar 1373.


       The learned Single Judge held that in Parvathi

(supra), the learned Judge had proceeded on an

assumption that the 10 days notice as prescribed in

the latter part of the first proviso to sub section (1) of

Section 49, is required to be given to the Assistant

Commissioner. The learned Judge held "on a close

reading of the said provision, this Court does not find

that the 10 days notice is to be given to the Assistant

Commissioner. On the other hand, having regard to
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the provisions contained in Section 52 of the Act, a

meeting of the Gram Panchayat shall be held by the

Adhyaksha, whenever he thinks fit or upon the written

request of not less than one-third of the total number

of members as provided in sub-section (2) of Section

52 of the Act." Therefore, this Court is of the opinion

that the 10 days notice as prescribed in the latter part

of the first proviso to sub-section (1) of section 49 is

required to be given by not less than one-half of the

total number of members to the Adyaksha of the

Gram Panchayat. It is only after the 10 days minimum

notice is given to the Adhyaksha that the further

process as provided in Rule 3 of the Rules, 1994

would commence, in the form of a written notice of

intention to make the motion as provided under the

proviso to section 49 to be given in Form-I to the

Assistant Commissioner. When such written notice is

given by the required number of members, the
                             9




Assistant Commissioner is required to convene a

meeting for consideration of said motion which shall

be not later than 30 days from the date on which the

said of notice under sub-rule (1) is delivered by him.

Therefore, 30 days period as provided under sub-rule

(2) of Rule 3 commences from the date when the

written notice is given by the required number of

members in terms of sub-rule(1) of Rule 3 to the

Assistant Commissioner. This cannot be confused with

the 10 days notice that is required to be given in

terms of the first proviso to sub-section (1) of Section

49 to the Adhyaksha. This Court is also of the opinion

that if such interpretation is not given, then, the

provision requiring "at least 10 days notice" would be

rendered otios, which again will be contrary to the

settled rules of interpretation.

      In the wisdom of the legislature, if 10 days

notice is prescribed before any motion of resolution of
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no     confidence         against         the        Adhyaksha          and

Upadhyaksha is to be moved, then, it should be for a

specific purpose and object. It may be that when once

the Adhayakha receives such a notice from one-half of

the total number of members of the Gram Panchaya,

expressing their intention to move a 'no confidence

motion' against him/her, then the Adhyaksha or

Upadhyaksha,         as       the        case        may        be,     may

himself/herself resign from the post. In such a

situation the members need not wait for another 30

days   as   provided         in     sub-rule         (2)   of    Rule    3.

Nevertheless,        since        the     opinion          rendered      in

Smt.Roopa (supra) which was also followed by this

Court in Smt.Sharadabai (supra) is based on a

decision    of   a     Full       Bench         of    this      Court    in

C.Puttaswamy (supra), wherein it was held that the

provisions are mandatory in nature and there are

other divergent opinions which are now brought to the
                             11




notice of this Court, this Court is of the opinion that

the matter requires to be referred to a Larger Bench.

The reference proposed is:

     "Whether the 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?"


Accordingly, the Hon'ble Acting Chief Justice has

constituted this Bench.

                II. FACTS OF THE CASE

1.   The seminal facts that lead to the filing of the

writ petition before the learned Single Judge are that

the petitioner was the President of Vadageri Grama

Panchayath. The respondents 2 to 15 being the

members filed a representation in Form-I expressing

no-confidence   in   the   petitioner.   Based   on   this,
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respondent No.1 issued a notice dated 09-05-2022 in

Form-II convening a meeting on 25-05-2022 to

consider the motion of no-confidence. This notice is

challenged before the Learned Single Judge on various

grounds.


  2. We heard the learned counsel for the parties on

the reference.

 III. Arguments advanced by the learned counsel for

                     the petitioner

    3. In support of the reference, the learned

counsel for the petitioner,      Sri Anand R. Kolli,

submitted that first proviso to Section 49(1) of the Act

has to be read independently without reference to the

Rules framed under Section 49(1) of the Act.         He

further contended that as per proviso to Section 49(1)

of the Act, one-half of total number of members of the

Gram Panchayat has to give at least ten days notice of
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their intention to move resolution of 'no-confidence

motion'. But the proviso is silent as to whom the

notice should be submitted. Hence, Section 52 of the

Act has to be read along with Section 49 of the Act.

As per Section 52 of the Act, notice has to be

submitted to the Adhyaksha. If Adhyaksha does not

resign within ten days of notice, then as per Rule 3 of

the Rules, one half of the members has to submit

representation to the Assistant Commissioner in Form

No.1, as prescribed under Rule 3(1) of the Rules.

Thereafter, the Assistant Commissioner has to issue

notice under Rule 3(2) of the Rules.              He further

contended that even in respect of Taluk Panchayat, as

per Sections 140 and 141, notice has to be submitted

to   the    Adhyaksha.       Even   with    regard   to   Zilla

Panchayat, as per Sections 179 and 180 of the Act,

notice     has   to   be   submitted   to   the   Adhyaksha.

Therefore, he contended that notice of 'no-confidence
                           14




motion' by one-half of the members of the Gram

Panchayat as per the proviso has to be submitted to

the Adhyaksha of the Gram Panchayat and not to the

Assistant Commissioner.

     4. He further contended that in view of the

Judgment of this Court in Puttegowda (supra), the

Rules are mandatory and therefore, the Assistant

Commissioner   is bound to wait for 10 days before

issuing notices to the members convening a meeting

of the members to consider the no confidence motion.

      IV. Arguments advanced by the learned Senior

        Counsel for respondent Nos. 2 to 15:


  5. Per contra, Sri Padmanabha V.Mahale, learned

Senior counsel appearing for respondent Nos.2 to 15

contended that Section 49 of the Act and Rules

framed under Section 49(1) of the Act has to be read

together. A combined reading of Section 49(1) of the
                            15




Act and the Rules makes it clear that one-half of the

total number of members of the Gram Panchayat has

to      submit   representation   to   the    Assistant

Commissioner. He further contended that there is no

ambiguity in the provisions of the Act. The procedure

prescribed under Section 52 of the Act is for a general

meeting while a meeting to consider a no confidence

motion is a special meeting convened by the Assistant

Commissioner. He submitted that the 10 days (Ten)

notice prescribed in the later part of the first proviso

to sub-section (1) of Section 49 of the Act shall be

given to Assistant Commissioner and Adhyaksha of

the Grama Panchayat and the same is mandatory and

Assistant Commissioner need not wait for ten days but

can issue a notice to convene the meeting before ten

days.

     V. Arguments advanced by learned AAG for State
                            16




  6. Smt. Vidyavati, learned Additional Advocate

General appearing for the State contended that

Section 49 of the Act r/w Rules is a complete code and

is specially enacted for the purpose of moving 'no-

confidence   motion'   against   the   Adhyaksha     and

Upadhyaksha. Section 49 of the Act r/w Rule 3 of the

Rules, makes it clear that notice prescribed in the first

proviso to Section 49(1) of the Act has to be

submitted to the Assistant Commissioner and not to

the Adhyaksha.


  7. We have given our anxious consideration to the

arguments advanced by the learned counsel for the

parties and the records carefully.

                   VI. Consideration

     8. In order to answer the reference, it is

pertinent to note the provisions of law relating to no-

confidence motion under the Act of 1993 and the Rule
                                  17




3 of the Rules of 1994 and for the sake of brevity are

extracted below:


     "49.    Motion       of    no-confidence      against
     Adhyaksha       or    Upadhyaksha        of   Grama
     Panchayat.-      (1)       Every    Adhyaksha      or
     Upadhyaksha of Grama Panchayat shall
     forthwith be 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 total
     number     of    members           of   the   Grama
     Panchayat at a meeting specially convened
     for the purpose in accordance with the
     procedure as may be prescribed:
     Provided that no such resolution shall be
     moved unless notice of the resolution is
     signed by not less than one-half of the total
     number of members and at least ten days
     notice has been given of the intention to
     move the resolution:
            Provided further that no resolution
     expressing want of confidence against an
     Adhyaksha       or        Upadhyaksha,     shall   be
                       18




moved within the first thirty months from
the date of his election:
     Provided also that where a resolution
expressing   want   of     confidence   in    any
Adhyaksha    or   Upadhyaksha       has      been
considered and negatived by a Grama
Panchayat a similar resolution in respect of
the same Adhyaksha or Upadhyaksha shall
not be given notice of, or moved, within
two years from the date of the decision of
the Grama Panchayat.


Rule 3. Motion of No-confidence.-- (1) A
written notice of intention to make the
motion under the proviso to Section 49
shall be in Form I signed by not less than
specified in Section 49(1) of the total
number of members together with a copy
of the proposed motion shall be delivered
in person specified under sub-section (2) of
Section 49, the allied particular allegations
with notice enlisted in written witnesses
and evidences submitted in person by any
                           19




two of the members signing the notice to
the Assistant Commissioner.

(2)   The     Assistant        Commissioner      shall
thereafter    convene      a     meeting   for    the
consideration of the said motion at the
office of the Grama Panchayat 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:       The    Assistant
Commissioner shall make sure that the
allegations delivered are specific in the
attached list of notice to prepare a report
within seven days in respect of Taluk
Panchayat Executive Officer.

      Provided that where the holding of
such meeting is stayed by an order of a
Court, the Assistant Commissioner shall
adjourn the said meeting and shall hold the
adjourned meeting on a date not later than
thirty days from the date on which he
                      20




receives the intimation about the vacation
of stay, after giving to the members, a
notice of not less than fifteen clear days of
such adjourned meeting.

(3) A notice in Form II shall be given to
every member including the Adhyaksha
and Upadhyaksha.--
  (a) by delivering or tendering the said
notice to such member; or

  (b) if such member is not found, by
leaving such notice at his last known place
of residence or business within the Grama
Panchayat or by giving or tendering the
same to some adult member or servant of
his family; or

  (c) by registered posts; or

  (d) if none of the means aforesaid be
available, by affixing such notice on some
conspicuous part of the house, if any, in
which the member is known to have last
resided or carried on business within the
Grama panchayat.
                        21




(4) The quorum for such meeting shall be
two thirds of the total number of members
of the Grama Panchayat. The Assistant
Commissioner      shall     preside    at    such
meeting.
Explanation.-    For   determination    of   two
third of total number of members under
this sub-rule any fraction arrived at shall be
construed as one.

(5) Save as otherwise provided in the Act
or these rules, a meeting convened for the
purpose of considering a motion under sub-
rule (2) shall not for any reason be
adjourned.

(6) If there is no quorum, within one hour
after the time appointed for the meeting,
the meeting shall stand dissolved and the
notice given under sub-rule (1) shall lapse.

(7) As soon as the meeting convened and
sub-rule   (2)   commences      the    Assistant
Commissioner shall read to the members of
the Grama Panchayat, the motion for the
                        22




consideration of which the meeting has
been convened and shall put it to vote
without any debate.

(8) The Assistant Commissioner shall not
speak on the merits of the motion and he
shall not be entitled to vote thereon.

(9) If the motion is carried by a majority of
not less than two thirds of the total number
of members of the Grama Panchayat, the
Adhyaksha or Upadhyaksha, as the case
may be, shall forthwith cease to function as
such and the Assistant Commissioner shall,
as soon as may be, notify such cessation
on the notice board of the office of the
Grama Panchayat and also inform the
Adhyaksha or Upadhyaksha, as the case
may be, regarding such cessation, if he is
not present at the meeting.

(10) After the cessation is notified under
sub-rule      (9)     the     Adhyaksha     or
Upadhyaksha as the case may be shall,
immediately    hand    over   all   documents,
                            23




      moneys or other properties of the Grama
      Panchayat in his custody to the Secretary
      of the Grama Panchayat.


      (11)   The    election    to   the   office   of
      Adhyaksha or Upadhyaksha shall not be
      held until the notification under sub-rule
      (9)    removing     the        Adhyaksha      or
      Upadhyaksha, as the case may be, is
      published."


      9. The Forms prescribed for intimation by the

members and the notice to be given by the

Assistant Commissioner to all the members are as

below:

                        "FORM I
                     (See Rule 3(1))

To,

      The Assistant Commissioner...................

      .......................................................................

.......................................................................

Sir,

Sub: Motion of No-Confidence Against Adhyaksha or

Upadhyaksha of ................... Grama Panchayat.

We, the following members hereby give

notice of our intention to move that

Sri...........................Adhyaksha or upadhyaksha of

.......................... Grama Panchayat shall be removed

from the office of Adyaksha or Upadhyaksha.

Yours faithfully,

Signature of members of Grama Panchayat.

1.

2.

3.

Etc.

"FORM II [See Rule 3(2)]

NOTICE

Sub: No-Confidence Motion Against Adhyaksha

or Upadhyaksha of ...............................Grama

Panchayat reg.

A meeting to consider the No-confidence Motion against the Adhyaksha or Upadhyaksha of ............Grama Panchayat will be held on .......................(week day) the ....................... day (date) of ...............(Month) 19............(Year) at............(time) in the office of the said Grama Panchayat.

You are therefore requested to attend the said meeting on the date and at the place and time mentioned above.

Assistant Commissioner

To,

Sri/Smt.........................

----------------

10. Since the Learned Single Judge has viewed

Section 49 of the Act through the prism of Section 52

of the Act, 1993, it is imperative to refer to Section 52

which is extracted below:

"52. Meeting of the Grama Panchayat.- (1) A Grama Panchayat shall meet for the transaction of business at least once in a month at the office of the Grama Panchayat and at such time as the Adhyaksha may determine.

(2) The Adhyaksha may, whenever he thinks fit, and shall, upon the written request of not less than one-third of the total number of members and on a date within fifteen days from the receipt of such request, call a special meeting.

(3) Seven clear days notice of an ordinary meting and three clear days notice of a special meeting specifying the place, date and time of such meeting and the business to be transacted thereat, shall be given by the Secretary of the Grama Panchayat to the members and such officers as the

Government may prescribe, and affixed on the notice board of the Grama Panchayat.

(4) The officers to whom notice is given under sub-section (3) and other Government officers having jurisdiction over the panchayat area or any part thereof shall attend every meeting of the Grama Panchayat and take part in the proceedings but shall not be entitled to vote.

(5) If the Adhyaksha fails to call a special meeting as provided in sub-section (2), the Upadhyaksha or one third of the total number of members may call such meeting for a day not more than fifteen days after the presentation of such request and require the Secretary of the Grama Panchayat to give notice to the members and to take such action as may be necessary to convene the meeting.

Explanation:- for the purpose of this section, an ordinary or special meeting

includes an extended meeting of such ordinary or special meeting as the case may be.

(6) Every meeting may be allowed to be telecasted if in the opinion of the panchayat the proceeding of a such Gram Panchayat be telecasted."

11. The concept of no-confidence is based on

the concept of amotion in the corporate world, where

a person who has lost confidence of the Board of

Directors is bound to be removed by the person/s

appointing him. A grama panchayath under the Act of

1993 lies at the bottom of hierarchy of local self

governing bodies and membership to it is based on

election amongst resident citizens within the

panchayath area. Amongst the members so elected, a

President and Vice President are elected based on the

applicable reservation roster, to carry on the activities

of the Panchayath. In order to ensure that the

President or Vice President of the Panchayath have a

definite tenure, provision is made in Section 49 of the

Act of 1993 that a no confidence motion cannot be

moved within 30 months from the date of their

election. Further to ensure that the proceedings of a

no confidence motion are conducted in an orderly

manner, Section 49 of the Act, 1993 lays down that

the procedure as may be prescribed may be

followed (emphasis by Court). The procedure is as

prescribed under the Rules, 1994 which contemplates

that a written notice of intention to move a no

confidence in Form-I shall be submitted by not less

than half of the members and shall be presented to

the Assistant Commissioner by two members signing

it. The Assistant Commissioner may thereafter give 15

clear days notice in Form-II to all the members and

convene a meeting on a date which shall not be

beyond 30 days from the date of the members

submitting Form-I. The meeting shall be presided over

by the Assistant Commissioner who shall put the

motion to vote and declare the result, upon which the

concerned Adhyaksha or Upadhyaksha shall cease to

function. The Rules of 1994 have a mandatory flair

since a motion of no confidence would act deleterious

to not only the candidate but the constituency that he

represents and therefore as held by the Full bench of

this Court in Puttaswamy (supra), must be strictly

complied with.

12. The controversy in the present case stems

from the words "at least ten days notice has been

given of the intention to move the resolution" found in

first proviso to Section 49 of the Act of 1993. The

learned Single Judge has noticed that first proviso to

Section 49 does not indicate to whom the notice has

to be issued. The learned Single Judge fell back upon

Section 52 of the Act of 1993 to hold that since a

President can convene meetings whenever he thinks

fit or upon the written request of not less than one-

third of the total number of members as provided in

sub-section (2) of Section 52 of the Act, 10 days

notice should be given to the Adhyaksha who may on

his/her own resign from the post. After that event, if

he does not resign, then the further process as

provided in Rule 3 of the Rules, 1994 should

commence, in the form of a written notice of intention

to make the motion as provided under the proviso to

section 49 to be given in Form-I to the Assistant

Commissioner.

13. Before we delve deeper into the question,

the settled principles of law regarding statutory

interpretation deserve to be underscored.

(i) The words of a statute should be given their

plain and simple meaning 2019 (17) SCC 157

(ii) It is a settled rule of construction that a proviso

must prima facie be read and considered in relation to

the principal matter to which it is a proviso. It is not a

separate or independent enactment. The Hon'ble

Supreme Court in the case of Dwarka Prasad -vs-

Dwarka Das Saraf reported in (1976)1 SCC 128

has held that a proviso must be limited to the subject-

matter of the enacting clause. "Words are dependent

on the principal enacting words to which they are

tacked as a proviso. They cannot be read as divorced

from their context" (Thompson v. Dibdin, 1912 AC

533). If the rule of construction is that prima facie a

proviso should be limited in its operation to the

subject-matter of the enacting clause, the stand we

have taken is sound. To expand the enacting clause,

inflated by the proviso, sins against the fundamental

rule of construction that a proviso must be considered

in relation to the principal matter to which it stands as

a proviso. A proviso ordinarily is but a proviso,

although the golden rule is to read the whole section,

inclusive of the proviso, in such manner that they

mutually throw light on each other and result in a

harmonious construction. The proper course is to

apply the broad general Rule of construction which is

that a section or enactment must be construed as a

whole, each portion throwing light if need be on the

rest. The true principle undoubtedly is, that the sound

interpretation and meaning of the statute, on a view

of the enacting clause, saving clause, and proviso,

taken and construed together is to prevail. (Maxwell

on Interpretation of Statutes, 10th Edn., p. 162)".

(iii) If a statute prescribes a particular thing should

be done, it should be done in the manner prescribed

or not at all.

(iv) An interpretation leading to absurdity should be

avoided and instead an interpretation which aids the

purpose of the legislation should be adopted.

(v) It is well settled principle of law that the Court

cannot read anything into a statutory provision which

is plain and unambiguous as held by the Hon'ble

Supreme Court in the case of State of Jharkhand

and another vs. Govind Singh reported in (2005)

10 SCC 437 wherein at paragraphs-15 to 20 it is held

as under:

"15. Where, however, the words were clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or take upon itself the task of amending or altering the statutory provisions. In that situation the judges should not proclaim that they are playing the role of a lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line,

though thin, which separates adjudication from legislation. That line should not be crossed or erased. This can be vouchsafed by "an alert recognition of the necessity not to cross it and instinctive, as well as trained reluctance to do so". (See Frankfurter: "Some Reflections on the Reading of Statutes" in Essays on Jurisprudence, Columbia Law Review, p.

51.)

16. It is true that this Court in interpreting the Constitution enjoys a freedom which is not available in interpreting a statute and, therefore, it will be useful at this stage to reproduce what Lord Diplock said in Duport Steels Ltd. v. Sirs [(1980) 1 All ER 529 : (1980) 1 WLR 142] (All ER at p. 542c-d):

"It endangers continued public confidence in the political impartiality of the judiciary, which is essential to the continuance of the rule of law, if judges, under the guise of interpretation, provide their own preferred amendments to statutes

which experience of their operation has shown to have had consequences that members of the court before whom the matter comes consider to be injurious to the public interest."

17. Where, therefore, the "language" is clear, the intention of the legislature is to be gathered from the language used. What is to be borne in mind is as to what has been said in the statute as also what has not been said. A construction which requires, for its support, addition or substitution of words or which results in rejection of words, has to be avoided, unless it is covered by the rule of exception, including that of necessity, which is not the case here. [See Gwalior Rayons Silk Mfg. (Wvg.) Co.

Ltd. v. Custodian of Vested Forests [1990 Supp SCC 785 : AIR 1990 SC 1747] (AIR at p. 1752), Shyam Kishori Devi v. Patna Municipal Corpn. [AIR 1966 SC 1678 : (1966) 3 SCR 466] (AIR at p. 1682) and A.R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri)

277] (SCC at pp. 518, 519).] Indeed, the court cannot reframe the legislation as it has no power to legislate. [See State of Kerala v. Mathai Verghese [(1986) 4 SCC 746 : 1987 SCC (Cri) 3] (SCC at p. 749) and Union of India v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323 : 1992 SCC (L&S) 248 : (1992) 19 ATC 219 : AIR 1992 SC 96] (AIR at p. 101).]

18. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid", Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them".

(See Lenigh Valley Coal Co. v. Yensavage [218 FR 547]). The view was reiterated in Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama [(1990) 1 SCC 277 : AIR 1990 SC 981] (SCC p. 284, para 16).

19. In D.R.Venkatachalam v. Dy. Transport Commr. [(1977) 2 SCC 273 : AIR 1977 SC 842] it was observed that courts must avoid the danger of a priori determination of the meaning of a provision based on their own preconceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation.

20. While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary.

(See CST v. Popular Trading Co. [(2000) 5 SCC 511 : AIR 2000 SC 1578] ) The legislative casus omissus cannot be supplied by judicial interpretative process.

14. Without meaning any disrespect to the

learned Single Judge, applying the golden rule of

interpretation to Section 49 by giving the words their

plain and simple meaning, the fall out is that the

meeting for considering the no-confidence motion

should be as per the "procedure prescribed". Since the

procedure is already prescribed in the Rules of 1994,

the said procedure has to be baked into Section 49. If

this is done then the notice has to be addressed by

the members in Form No.1 to the Assistant

Commissioner. It is then that the first proviso to

Section 49, kicks in and warrants that such notice

must be "10 clear days", which means that he should

have enough breathing time to act. If the above

interpretation is given, then invariably, the provision

is not rendered nugatory but advances its purpose.

15. A plain reading of Section 49 does not

envisage a situation of providing an option to the

Adhyaksha or Upadhyaksha to resign voluntary at the

request of the members. It does not also contemplate

a situation of providing a notice to the Adhyaksha and

thereafter to the Assistant Commissioner. On the

contrary, it only contemplates a solitary notice that

too in form No.1, which has to be addressed to the

Assistant Commissioner. The Assistant Commissioner,

depending upon his other pre-occupation would fix a

date for the meeting to consider the motion of no

confidence and also preside over it and declare the

result, upon which the Adyaksha or Upadhyaksha may

or may not cease to function.

16. The provisions of Section 52 of the Act of

1993 provides for conduct of general meetings of the

panchayath to transact business of the panchayath

and are not akin to a meeting under Section 49 which

is a meeting "specially convened" by the Assistant

Commissioner for the purpose of considering a no-

confidence motion. It can be easily deduced that a

motion of no confidence is not the business of the

panchayath. Assuming that the members have to

gave a notice to the Adyaksha or Upadhyaksha, that

would lead to disastrous consequences and may

render the concept of a no-confidence a mockery. An

illustration in this regard would best explain this.

"If the members of a panchayath intend to move a resolution and if they give a notice to the President, he may either resign voluntarily or he may protract the issue by convening a meeting which may be adjourned due to various reasons such as lack of quorum etc."

At any rate, a notice to convene a meeting of the

members under Section 52 of the Act has to be

submitted by 1/3rd of the members while in the case

of an intent to move a no confidence, a notice has to

be submitted by half of the members and the

Adhyaksha or Upadhyaksha shall vacate the office, if

2/3rd of the members vote in favour of the motion.

Therefore Section 49 and 52 operate in different

circumstances and for different purposes and bridging

the two would be pairing oranges and apples.

17. In so far as the contention that in respect

of Taluk and Zilla Panchayath, a notice of no

confidence has to be first given to the Adhyaksha and

therefore a similar analogy has to be drawn in respect

of a grama panchayath, the same is misplaced for

more reason than one. The first reason is that the

provisions contained in Section 140 and 179 provide

for such a procedure. The second reason is that the

members to Taluk and Zilla Panchayath are promoted

by political parties and are therefore bound by

defection rules etc. The third reason is that an

Adyaksha or Upadhyaksha of a Taluk or Zilla

Panchayath, subject to the reservation roster, is

elected by the members having a major strength in

the house. Therefore, it is that major political party

that can call the shots by moving a vote of no

confidence. Hence this procedure cannot be applied

to Grama Panchayaths where membership to the

panchayath is not based on political considerations but

the Adyaksha or Upadhyaksha are elected by the

members, who have no political lineage. Hence we

answer the reference and hold that the "ten days clear

notice" found in first proviso to Section 49 of the Act,

1993 has to be given to the Assistant Commissioner

which is mandatory and not to the Adhyaksha of the

Grama Panchayat.

18. Turning to the next leg of the reference

namely whether the Assistant Commissioner has to

wait for the expiry of ten days before issuing a notice

to the members to convene a meeting of the

members to consider the motion of no confidence, this

very Bench in the case of Shankargouda and others

vs. The State of Karnataka and Others in

W.A.No.200087/2022 has held that the Assistant

Commissioner need not wait for ten days and that the

law declared by the Division Bench of this Court in

M.Puttegowda (supra), does not require any

reconsideration.

VI. Answer to the Reference

19. In view of the above we hold that the "ten

days clear notice" found in First proviso of Section 49

of the Act, has to be duly signed by half of the

members of a Panchayath and shall be submitted by

any two members signing it, to the concerned

Assistant Commissioner. Further, as held by this Full

bench in Shankargouda (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.

20. The Registry is directed to place the writ

petition before the learned Single Judge for passing

appropriate orders on the merits of the writ petition in

accordance with law.

Sd/-

JUDGE

Sd/-

JUDGE

Sd/-

JUDGE

Cm/Nsu