Deepak S/O Omprakash And Ors vs The State Of Karnataka And Ors
2023 Latest Caselaw 927 Kant

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         IN THE HIGH COURT OF KARNATAKA

                  KALABURAGI BENCH

    DATED THIS THE 16th DAY OF JANUARY, 2023

                         BEFORE

 THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

            W.P.No.202962/2022 (LB-ELE)

BETWEEN:

1. Deepak S/o Omprakash,
   Aged 36 years, Occ : Member of
   Gram Panchayat at Markhal,
   R/o Markhal, Tq. & Dist : Bidar - 585 402.

2. Aneelkumar S/o Veershetty,
   Aged 35 years, Occ : Member of
   Gram Panchayat at Markhal,
   R/o Markhal, Tq. & Dist : Bidar - 585 402.

3. Raziya Sultana W/o Syed Haiyath Miyan,
   Aged 53 years, Occ : Member of
   Gram Panchayat at Markhal,
   R/o Markhal, Tq. & Dist : Bidar - 585 402.
                                           .... Petitioners

(By Sri Jairaj K.Bukka, Advocate)

AND:

1. The State of Karnataka,
   Rep. by its Prl. Secretary,
   Depart of Rural Development and
   Panchayat Raj, M.S.Building,
   Bangalore - 560 002.
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2.   The Regional Commissioner,
     Kalaburagi - 585 101.

3.   The Deputy Commissioner,
     Tq. & Dist : Bidar - 585 401.

4.   The Assistant Commissioner,
     Tq. & Dist. : Bidar - 585 401.

5.   The Chief Executive Officer,
     Zilla Panchayat, Bidar,
     Tq. & Dist : Bidar - 585 401.

6.   The Executive Officer,
     Taluk Panchayat, Bidar,
     Tq. & Dist : Bidar - 585 401.

7.   The Panchayat Development Officer,
     Markhal, Tq. & Dist : Bidar - 585 402.

8.   Smt.Mahadevi W/o Saibanna,
     Aged Major, Occ: Member of
     Gram Panchayat Markhal & Vice President,
     R/o Markhal, Tq. & Dist : Bidar - 585 402.

9.   Vaijinath s/o Shankar,
     Aged major Occ: Member
     Gram Panchayat Markhal,
     R/o Chikpet,
     Tq. & Dist : Bidar - 585 402.

10. Shivkumar s/o Ghaleppa,
    Aged Major, Occ: Member of
    Gram Panchayat Markhal,
    R/o Markhal,
    Tq. & Dist : Bidar - 585 402.

11. Khalil Miya S/o Bhikku Miya,
    Aged major, Occ: Member of
                             3



    Gram Panchayat, Markhal,
    R/o Markhal,
    Tq. & Dist : Bidar - 585 402.

12. Digambar S/o Pandharinath,
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Benekanalli,
    Tq. & Dist : Bidar - 585 402.

13. Mahebub S/o Babumiya
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Chikpet,
    Tq. & Dist : Bidar - 585 402.

14. Prakash S/o Narsappa,
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Benekanalli,
    Tq. & Dist : Bidar - 585 402.

15. Padmavathi S/o Vaijinath,
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Markhal,
    Tq. & Dist : Bidar - 585 402.

16. Kavitha W/o Santoshkumar
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Chikpet,
    Tq. & Dist : Bidar - 585 402.

17. Laxmi W/o Pandhari,
    Aged Major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Benekanalli,
    Tq. & Dist : Bidar - 585 402.
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18. Chitramma W/o Laxman
    Aged Major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Benekanalli,
    Tq. & Dist : Bidar - 585 402.

19. Sundra Bai S/o Vaijinath,
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Markhal,
    Tq. & Dist : Bidar - 585 402.

20. Nazmun Begum W/o Babumiya,
    Aged major, Occ : Member of
    Gram Panchayat Markhal,
    R/o Markhal,
    Tq. & Dist : Bidar - 585 402.
                                           ... Respondents

(By Sri Viranagouda M.Biradar, AGA for R1 to R4;
    Sri K.M.Ghate, Advocate for R8 to R20
Notice to R7 served)

      This writ petition is filed under Articles 226 and 227
of the Constitution of India praying to issue a writ of
certiorari and to quash the impugned notice under £ÀªÀÄÆ£É-02

passed   by   the   respondent   No.4   vide   Serial   ¸ÀASÉå   :

ZÀÄ£Á/UÁæªÀÄAC/¹Dgï-40/2020-23 dated 08.11.2022 which is at

Annexure-E.This petition coming on for further dictation,
this day, the court made the following:-
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                                  ORDER

Heard the learned counsel Sri Jairaj K.Bukka

appearing on behalf of petitioner¸ the learned Additional

Government Advocate appearing for respondents No.1 to 4

and learned counsel Sri K.M.Ghate, appearing on behalf of

respondents No.8 to 20.

2. This petition is filed questioning the no

confidence motion issued against Chandrashekar Buya who

is holding the office of Adhyaksha of Markal

Grampanchayat. The said Grampanchayat has 18

members. Among them, 13 members have requested the

Assistant Commissioner to convene the meeting to discuss

the no confidence motion against Adhyaksha. The

respondent No.4-Assistant Commissioner has issued a

notice on 08.11.2022 convening a meeting on the issue

of 'no confidence motion' and the meeting was scheduled

on 24.11.2022. This notice is under challenge on the

following two grounds;

a) 15 days clear notice is not provided before convening

the meeting and the same contravenes Rule 3(2) of

the Karnataka Panchayat Raj (Motion of No-

Confidence against Adhyaksha an Upadhyaksha of

Gram Panchayat) Rules, 1994 (for short the 'Rules'.)

b) The notice is not sent by the officials of

Grampanchayat which is in contravention of mandate

of Rule 3(2) of the Rules. The Village Accountant

who claims to have issued the notice to the Members

of the Grampanchayat is not the employee of the

Grampanchayat or the employee of the office of the

Assistant Commissioner, as such the notice is

vitiated.

3. Respondents No.8 to 20 in this petition are the

persons who have expressed no confidence.

4. This court has granted an interim order on

18.11.2022 and in terms of the said interim order, the

court directed meeting to be held as scheduled and

directed the votes to be cast through ballot papers and

further directed the results to be kept in a sealed cover

and to be placed before the Court. Pursuant to the court

direction, the meeting was held as scheduled, the

Members have expressed their opinion through the ballot

and the result is not announced. The ballot papers are

submitted to this Court in a sealed cover.

5. The interim order granted by this Court was

called in question by the respondents No.8 to 20 who have

expressed no confidence in Adhyaksha. That writ appeal is

pending in W.A.No.200217/2022.

6. Learned counsel for the petitioners raised a

preliminary objection stating that this writ petition cannot

be considered on merit in view of pendency of writ appeal

in W.A.No.200217/2022. It is the submission that the

Division Bench of this Court has passed an interim order

restraining this court not to proceed further in this matter.

7. Learned counsel Sri K.M.Ghate appearing on

behalf of respondents No.8 to 20 would submit that there

is no interim order staying further proceedings in this

matter as contended by the learned counsel for the

petitioners and accordingly would submit that the matter

has to be heard on merits.

8. This court has considered the said order dated

14.12.2022 passed in Writ Appeal No.200217/2022. The

order reads as under :-

"Learned Government Advocate accepts notice for respondent Nos.1 to 4. Learned counsel for the appellants submits memo for dispensation of notice to respondent Nos.5 and 6. Since notice to them was not ordered before the learned Single Judge, notice to them is dispensed with as prayed for. Issue notice to respondent Nos.7 to 10. Simultaneously, learned counsel for the appellant is permitted to serve notice on Sri P.S. Kumman, learned counsel for respondent No.7 and Sri Jayaraj K. Bukka, learned counsel for respondent Nos. 8 to 10 as they represented them before the learned Single Judge. List on 02.01.2023."

On reading of this order, it is crystal clear that the Division

Bench of this Court has not passed any order prohibiting

this Court from considering the petition on merit.

9. Under these circumstances, the contention of

the learned counsel for the petitioners that the hearing has

to be deferred till the disposal of the case in Writ Appeal

No.200217/2022 cannot be accepted. Thereafter, this

Court has considered the case on merit and proceeded

further to pass this order.

10. Learned counsel Sri Jairaj K.Bukka appearing

on behalf of the petitioners raised the following

contentions-

(a) This court has directed the Assistant Commissioner

to produce the original inward and outward registers

to substantiate the contention of the State that the

clear 15 days' notice is served on the petitioners.

Pursuant to the direction issued by this Court, the

original registers have been secured. From the

original inward and outwards registers, it is apparent

that there is entry in the outward register for having

dispatched the notices on 08.11.2022. However,

there is no reference/entry in the inward register on

08.11.2022, to show that the notices have been

returned to the office of the Assistant Commissioner

on the same day after due service. Since there is no

poof relating to the service of notice on 08.11.2022,

the meeting is vitiated.

(b) Under sub-rule (2) of Rule 3 the said Rules, the

notice relating to no confidence motion has to be

sent and served by the officials of the Assistant

Commissioner's office or the officials of

Grampanchayat concerned. The officials of

Grampanchayat concerned can identify the members

and can serve the notice and the officials of the

Tahasildar's office being no way concerned with the

Grampancayat members, cannot identify the members

and they cannot serve the notice and they are not

empowered to serve the notice under Rule 3(2) of the

said Rules. Since notice is alleged to have been served

by the village accountant working under the

Tahasildar, the service of notice is improper.

11. Learned counsel Sri K.M.Ghate appearing for

respondents No.8 to 20 would raised the following

contentions :-

a) That two of the respondents among respondents

No.8 to 20 have filed caveat on 10.11.2022

anticipating that the petitioners would challenge the

notice and this fact would indicate that the notice is

served on all the persons on 08.11.2022.

b) The acknowledgment submitted by the village

accountant which is submitted by the along with the

memo dated 30.11.2022, would reveal that the

notice is sent on 08.11.2022 and served on

08.11.2022, thereby a clear 15 days notice is given

to the members before convening the meeting for

deciding no confidence motion.

c) The burden is on the petitioner to establish that 15

days' clear notice is not served when notice dated

08.11.2022 contains the signature of all the

members of Grampanchayat and when the

petitioners have not mentioned the date of receipt

of the notice.

12. Learned Additional Government Advocate

Sri Virangouda M.Biradar appearing on behalf of

respondents No.1 to 4 would raised the following

contentions :

a) The notice dated 08.11.2022 is served on the same

day, however it was served late in the evening on

the same day, as such the necessary entries could

not be made in the inward register maintained by

the office.

b) The Assistant Commissioner has sworn to an

affidavit on 02.12.2022, wherein it is stated the

notices were served on the members on 08.11.2022.

13. This court has considered the rival contentions

raised at the Bar and also perused the records.

14. There is no difficulty in understanding the

position of law that while convening a meeting to discuss

no confidence motion, 15 days clear notice has to be given

to the members.

15. The two questions that are to be decided in

this case is whether the notice dated 08.11.2022 is served

on all the members giving 15 days clear notice before the

scheduled meeting on 24.11.2022.

16. Second thing is whether the notice said to

have been served by the village accountant attached to the

office Tahasildar is a valid service under Rule 3(2) of the

said Rules.

17. As far as the second question is concerned

there is no difficulty in holding that the rule does not

contemplate service of notice only through the employees

the Grampanchayat. In fact, under the said rule there is no

reference to service of notice through employees of the

Grampanchayat office at all. What is mandated under

Rule 3(2) of the Rules is, that notice has to issued by the

Assistant Commissioner. The village accountant who has

served the notice is the employee in the revenue

department and is under the control of Assistant

Commissioner. Under the circumstances, if the notice is

served by the Village Accountant on the concerned

Grampanchayat members, said service of notice cannot be

said to be in contravention of Rule 3(2) of the said Rules.

Who has served the notice is not of much importance.

What is important is whether the 15 days clear notice is

given to the concerned Members or not. Under these

circumstances the contention that the notice is served

through the village accountant on the members of the

Grampanchayat is not in accordance with Rule 3(2) of the

said Rules cannot be accepted and same has to be

rejected.

18. As far as the first contention that clear 15

days' notice is not given before the scheduled meeting is

concerned, this court has consider the memo dated

30.11.2022. Along with the memo, the copy of the

acknowledgment which containing the signature of all the

Grampanchayat Members is enclosed. The said

acknowledgment reveals that the acknowledgment is dated

08.11.2022. However, in the said acknowledgement dated

08.11.2022, the date on which the signature is affixed by

the respective members is not forthcoming.

19. Learned counsel for the petitioner would

submit that when the notice was served to the petitioners,

the column pertaining to the date in the said notice was

kept blank and the date is inserted subsequently.

20. As far as contention of the petitioners that in

the notice containing the signatures of the petitioners, the

date of issuance of notice was kept blank is concerned, it is

to be noticed that no such plea is found in the petition.

And it is also to be noted that as against the signatures

found in the acknowledgment dated 08.11.2022, the

petitioners have not mentioned the date on which they

have put the signature on the said acknowledgment. Under

the circumstances, the court has to presume that the

signatures have been put on the date mentioned in the

acknowledgment. If at all the notice is sought to be served

on a subsequent date other than the date mentioned in the

acknowledgement, nothing prevented the petitioners from

mentioning the date of service of notice. Moreover, it is to

be noticed that the petitioners have not taken the

contention that the document dated 08.11.2022 produced

along with the memo dated 30.11.2022, did not contain

the date when they signed the said document. For the

aforementioned reasons and also considering the affidavit

filed by the Assistant Commissioner and also considering

the entry made in the outward register which reveals that

the notice was dispatched on 08.11.2022, this Court is of

the view that the notice was served on the petitioner on

08.11.2022. In other words, there is no material to hold

that the notices have not been served on the petitioners

on 08.11.2022 or it is served on some other date after

08.11.2022. Once it is held that the notice is served on

08.01.2022, there is no difficulty in holding that the

petitioners had clear 15 days' time before scheduled

meeting.

21. Learned counsel Sri K.M.Ghate would raise a

contention that the present petition is not filed by the

Adhyaksha against whom the no confidence motion is

sought to be moved. He would further contend that the

petition is filed by the members of the Grampanchayat and

since no confidence motion is not aimed against them, the

petitioners have no locus standi to file the writ petition.

22. As against this, learned counsel Sri Jairaj

K.Bukka appearing for the petitioners would contend that

in terms of the judgment of this Court in the case of

Fakheerappa Durgappa Harija v. Assistant Commissioner,

Gadag (ILR 2005 KAR 2592) the petition cannot be filed

by the Adhyaksha of the Grampanchayat and it has to be

filed by the members of the Grampanchayat.

23. Learned Additional Government Advocate

appearing for respondents no. 1 to 7 would submit that

the question as to the locus standi of the members to file a

writ petition challenging the notice issued by the Assistant

Commissioner scheduling no confidence motion is referred

to a larger Bench in terms of order dated 11.10.2022

passed in W.P.No.20241/2022. This court in this case is

not deciding the question as to whether the petitioners

have the locus standi to question the impugned notice

Assuming that the writ petition by the present petitioners,

is maintainable, then also the petitioners have not made

out a case that notice is not served on them on

08.11.2022. From the materials on record discussed above

and for the reasons assigned above, this court is of the

view that the clear 15 days' notice is given to the

petitioners and other members in respect of scheduled

meeting relating to the no confidence motion.

24. It is the contention of the learned counsel for

the petitioners that in the inward register the entry is not

made on 08.11.2022 relating to return of notice. This

contention does not come to the rescue of the petitioners

for the simple reason that the explanation submitted

learned Additional Government Advocate for respondents

No.1 to 4 that it was late in the evening by the time the

notice notices were served on all the Members of the

Grampanchayat and as such, there was no entry in the

inward register is satisfactory in the facts and

circumstances of the case discussed above. Moreover,

since the Assistant Commissioner has filed an affidavit

stating that notices have been served on 08.11.2022 and

the fact that there was no entry in the inward register on

08.11.2022 does not assume importance to hold that

notice is not served on 8.11.2022.

25. Under the circumstances, this Court is of the

view that the petitioners have not made out a case for

grant of any order in this petition.

26. As already noticed, this court has permitted

the Assistant Commissioner to proceed with the 'no

confidence motion' and the direction was issued to cast the

votes through ballot papers and directed the production of

ballots to this court in a sealed cover. Since this court has

taken a view that clear 15 days' notice was given to the

Members before scheduling the meeting to discuss the 'no

confidence motion', this court deems it appropriate that

the direction is to be issued to the Assistant Commissioner

to open the sealed cover in the presence of petitioners and

respondents No.8 to 20 and other members. The Assistant

Commissioner shall announce the result of Markhal

Grampanchayat, Bidar Taluk on 20.01.2023.

27. The Registry of this Court shall hand over the

sealed cover to the learned Additional Government

Advocate Sri Viranagouda M.Biradar appearing for

respondents No.1 to 4. The petitioners shall appear before

the office of the Assistant Commissioner at 11 O'clock on

20.01.2023. The Assistant Commissioner shall also

endeavour to issue the notice in this regard to the other

members of the said Grampanchayat who are not parties

to this proceeding. However, despite issuing such notice if

the notice is not served on them there is no need to

postpone the announcement of the results. The Assistant

Commissioner is also permitted to issue the notice the

Members who are not parties to this writ petition through

Whatsapp or other social media platform.

28. The Assistant Commissioner shall announce

the result on 20.01.2023, after opening the ballots at

11 O'clock. It is made clear that the petitioners and

respondents no. 8 to 20 shall appear before the Assistant

Commissioner, Bidar on 20.01.2023 at 11 O'clock without

awaiting any further notice.

29. It is further made clear that till the Assistant

Commissioner announces the result, there shall not be any

financial transaction concerning to the Markhal

Grampanchayat and no decision involving any financial

implication shall be taken.

Accordingly, the writ petition is dismissed.

Sd/-

JUDGE

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