Karnataka High Court

Smt Sumitra vs The State Of Karnataka on 18 February, 2025

Author: S.Sunil Dutt Yadav

Bench: S.Sunil Dutt Yadav

                                                -1-
                                                          NC: 2025:KHC-K:1125-DB
                                                          WA No.200026 of 2025
                                                      C/W WA No.200029 of 2025



                                IN THE HIGH COURT OF KARNATAKA,
                                        KALABURAGI BENCH
                           DATED THIS THE 18TH DAY OF FEBRUARY, 2025
                                             PRESENT
                           THE HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
                                               AND
                              THE HON'BLE MR. JUSTICE RAJESH RAI K
                             WRIT APPEAL NO.200026 OF 2025 (LB-ELE)
                                               C/W.
                             WRIT APPEAL NO.200029 OF 2025 (LB-ELE)
                      IN W.A.NO.200026 OF 2025

                      BETWEEN:

                           SMT. SAVITRI
                           W/O DAYANAND KATTIMANI
                           AGED ABOUT 39 YEARS,
                           OCC: PRESIDENT, GRAM PANCHAYATH
                           V.K.SALAGAR, R/O: V.K.SALAGAR,
                           TQ: KAMALAPUR, DIST: KALABURAGI.

                                                                    ...APPELLANT
Digitally signed by
BASALINGAPPA          (BY SRI GOURISH S. KHASHAMPUR, ADVOCATE)
SHIVARAJ
DHUTTARGAON
Location: HIGH
                      AND:
COURT OF
KARNATAKA
                      1.   THE STATE OF KARNATAKA
                           BY ITS SECRETARY DEPARTMENT OF PANCHAYAT RAJ
                           & RURAL DEVELOPMENT,
                           M.S. BUILDING, BENGALURU - 560 001.

                      2.   THE DEPUTY COMMISSIONER,
                           KALABURAGI - 585 101.

                      3.   THE ASSISTANT COMMISSIONER,
                           KALABURAGI - 585 101.
                              -2-
                                       NC: 2025:KHC-K:1125-DB
                                       WA No.200026 of 2025
                                   C/W WA No.200029 of 2025



4.   THE EXECUTIVE OFFICER
     TALUKA PANCHAYAT,
     KALABURAGI - 585 101.

5.   GRAM PANCHAYATH, V.K.SALAGAR,
     REPRESENTED BY ITS
     PANCHAYAT DEVELOPMENT OFFICER,
     TQ: KAMALAPUR &
     DIST: KALABURAGI - 585 313.

6.   SRI SUKSHATA
     S/O RAVI
     AGED ABOUT 30 YEARS,
     OCC: MEMBER GRAM PANCHAYAT,
     V.K.SALAGAR.

7.   SMT. KUSTURBAI
     W/O SHANTVEER
     AGED ABOUT 57 YEARS,
     OCC: MEMBER GRAM PANCHAYAT,
     V.K.SALAGAR VILLAGE.

8.   SRI MAINABAI
     W/O VASANT
     AGED ABOUT 52 YEARS,
     OCC: MEMBER GRAM PANCHAYAT,
     V.K.SALAGAR VILLAGE.

9.   SRI NEELKANT
     S/O SHIVANNA
     AGED ABOUT 38 YEARS,
     OCC: MEMBER GRAM PANCHAYAT,
     V.K.SALAGAR VILLAGE.

10. SRI SHIVANAND
    S/O MURAGEPPA
    AGED ABOUT 59 YEARS,
    OCC: MEMBER GRAM PANCHAYAT,
    V.K.SALAGAR VILLAGE.

11. SMT SHIVAMMA
    W/O SURYAKANTH
    AGED ABOUT 49 YEARS,
                          -3-
                                    NC: 2025:KHC-K:1125-DB
                                   WA No.200026 of 2025
                               C/W WA No.200029 of 2025



    OCC: MEMBER GRAM PANCHAYAT,
    V.K.SALAGAR VILLAGE.

12. SMT SAVITA
    W/O GANAPATHI
    AGED ABOUT 58 YEARS,
    OCC: MEMBER GRAM PANCHAYAT,
    V.K.SALAGAR VILLAGE.

13. SRI SUSHALIBAI
    W/O HONNANAIK
    AGED ABOUT 67 YEARS,
    OCC: MEMBER GRAM PANCHAYAT,
    V.K.SALAGAR VILLAGE.

14. SMT AKSHARBAI
    W/O AEMAJI
    AGED ABOUT 58 YEARS,
    OCC: MEMBER GRAM PANCHAYAT
    AND VICE PRESIDENT OF
    V.K.SALAGAR VILLAGE.
    RESPONDENT NO.6 TO 14
    ALL R/O: V.K.SALAGAR VILLAGE,
    TQ: KAMALAPUR,
    DIST: KALABURAGI - 585 316.
                                          ...RESPONDENTS

(BY SRI MALLIKARJUN C. BASAREDDY, G.A. FOR R1 TO R3;
    SRI KRUPASAGAR PATIL, ADVOCATE FOR R4 AND R5;
    SRI PREETAM DEULGAONKAR, ADVOCATE FOR R6 TO R14)

    THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
ABOVE WRIT APPEAL AND SET ASIDE THE FINAL ORDER IN
WRIT PETITION NO.200360 OF 2025 DATED 06.02.2025
PASSED BY THE LEARNED SINGLE JUDGE, FOR THE REASONS
AND GROUNDS MENTIONED HEREIN ABOVE IN THE INTEREST
OF JUSTICE AND EQUITY AND ETC.
                              -4-
                                       NC: 2025:KHC-K:1125-DB
                                       WA No.200026 of 2025
                                   C/W WA No.200029 of 2025



IN W.A.NO.200029 OF 2025

BETWEEN:

SMT. SUMITRA
W/O PRAKASH CHAWAN KATTIMANI
AGED ABOUT 29 YEARS,
OCC: PRESIDENT, GRAM PANCHAYATH
TENGLI R/O: TENGLI, TQ: KALAGI,
DIST: KALABURAGI - 585 317.
                                                 ...APPELLANT
(BY SRI GOURISH S. KHASHAMPUR, ADVOCATE)

AND:

1.   THE STATE OF KARNATAKA
     BY ITS SECRETARY DEPARTMENT OF PANCHAYAT RAJ
     & RURAL DEVELOPMENT,
     M.S. BUILDING, BENGALURU - 560 001.

2.   THE DEPUTY COMMISSIONER,
     KALABURAGI - 585 101.

3.   THE ASSISTANT COMMISSIONER,
     KALABURAGI - 585 101.

4.   THE EXECUTIVE OFFICER
     TALUKA PANCHAYAT,
     KALABURAGI - 585 101.

5.   GRAM PANCHAYATH, TENGLI,
     REPRESENTED BY ITS
     PANCHAYAT DEVELOPMENT OFFICER,
     TQ: KALAGI &
     DIST: KALABURAGI - 585 317.

6.   SRI VIJAYAKUMAR
     S/O REVANSIDDAPPA
     AGED ABOUT 56 YEARS,
     OCC: MEMBER GRAM PANCHAYAT,
     TENGLI, & UPADYAKSHA TENGLI.
                           -5-
                                    NC: 2025:KHC-K:1125-DB
                                    WA No.200026 of 2025
                                C/W WA No.200029 of 2025



7.   MAIBOOB PATEL
     S/O MAQBOOL PATEL
     AGED ABOUT 37 YEARS,
     OCC: MEMBER,
     GRAM PANCHAYAT, TENGLI VILLAGE.
8.   SRI NAGARAL
     S/O REVANSIDDAPPA
     AGED ABOUT 29 YEARS,
     OCC: MEMBER,
     GRAM PANCHAYAT, TENGLI VILLAGE.
9.   SMT SAVITA
     W/O RAJSHEKAR
     AGED ABOUT 36 YEARS,
     OCC: MEMBER,
     GRAM PANCHAYAT, TENGLI VILLAGE.
10. SMT SHREEDEVI
    W/O RAVINDRA
    AGED ABOUT 36 YEARS,
    OCC: MEMBER,
    GRAM PANCHAYAT, TENGLI VILLAGE.
11. SRI HANMANTRAYA
    S/O NIMSASHETTY
    AGED ABOUT 36 YEARS,
    OCC: MEMBER,
    GRAM PANCHAYAT, TENGLI VILLAGE.
     RESPONDENT NO.6 TO 11
     ALL ARE R/O TENGLI VILLAGE,
     TQ: KALAGI, DIST: KALABURAGI - 585 316.
                                          ...RESPONDENTS
(BY SRI MALLIKARJUN C. BASAREDDY, G.A. FOR R1 TO R3;
    SRI KRUPASAGAR PATIL, ADVOCATE FOR R4 AND R5;
    SRI SANTOSH A, ADVOCATE FOR
    SRI HULEPPA HEROOR, ADVOCATES FOR R8)

    THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT, PRAYING TO ALLOW THE
ABOVE WRIT APPEAL AND SET ASIDE THE FINAL ORDER IN
WRIT PETITION NO.200358 OF 2025 DATED 06.02.2025
PASSED BY THE LEARNED SINGLE JUDGE, FOR THE REASONS
                             -6-
                                      NC: 2025:KHC-K:1125-DB
                                      WA No.200026 of 2025
                                  C/W WA No.200029 of 2025



AND GROUNDS MENTIONED HEREIN ABOVE IN THE INTEREST
OF JUSTICE AND EQUITY AND ETC.

     THESE WRIT APPEALS COMING ON FOR ADMISSION,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM:    HON'BLE MR. JUSTICE S.SUNIL DUTT YADAV
          AND
          HON'BLE MR. JUSTICE RAJESH RAI K

                    ORAL JUDGMENT

(PER: HON'BLE MR JUSTICE S.SUNIL DUTT YADAV)

In W.A. 200029/2025 the President of the Tengli

Grama Panchayat has called in question the correctness of

the order dated 06.02.2025 passed in

W.P.No.200358/2025, whereby the petition filed by the

President of the Grama Panchayat calling in question the

validity of the notice issued by the Assistant Commissioner

convening the meeting to consider the motion of no

confidence has been rejected. The learned Single Judge

had permitted the proceedings of motion of no confidence

to proceed.

In W.A.No. 200026/2025 the President of the V K

Salagar Grama Panchayat has called in question the

NC: 2025:KHC-K:1125-DB

correctness of the order passed on 06.02.2025 in W.P.No.

200360/2025 wherein the challenge to the notice of the

Assistant Commissioner convening the meeting to consider

the motion of no confidence has been rejected

2. It is noticed that both the orders of the learned

Single Judge are almost identical and have addressed

common legal questions relating to the scope of the first

proviso to Section 49(1) of the Karnataka Gram Swaraj

and Panchayat Raj Act, 1993 (for short 'the Act') and

accordingly, both the appeals are taken up together and

disposed off by this common order.

3. The parties are referred to by their ranks in the

writ petition.

4. Insofar as W.P.No. 200358/2025, the members of

the Grama Panchayat had made out a requisition dated

23.01.2025 to the Assistant Commissioner expressing

their intention to move the motion of no confidence. The

3rd respondent - Assistant Commissioner had issued notice

NC: 2025:KHC-K:1125-DB

dated 24.01.2025 convening the meeting to consider the

motion of no confidence on 13.02.2025 at 11.30 p.m. The

said notice issued by the Assistant Commissioner had been

challenged before the learned Single Judge.

5. In W.P.No. 200360/2025, the President of the

Grama Panchayat who was elected was subjected to a

requisition by the members of the Grama Panchat moving

the motion of no confidence by notice to the Assistant

Commissioner. The Assistant Commissioner on 22.01.2025

had issued notice convening meeting of the members of

Grama Panchayat on 11.02.2025 to consider the motion of

no confidence. The said notice was called in question

before the learned Single Judge.

6. The common contentions raised in both the writ

petitions were essentially that in terms of the first proviso

to Section 49(1) of the Act, the requisition submitted by

the members must be with clear 10 days notice and the

same could not have been taken note of by the Assistant

Commissioner prior to the expiry of 10 days. Accordingly,

NC: 2025:KHC-K:1125-DB

it is contended that the Assistant Commissioner issuing

notice before the expiry of the period of 10 days as

contemplated under the first proviso to Section 49(1) of

the Act would render the entirety of the proceedings

starting from the notice by the Assistant Commissioner to

be defective.

7. The second contention raised in both the matters

is that the requisition that is made to the Assistant

Commissioner under Section 49(1) of the Act is required

to be accompanied by a proposed resolution of no

confidence and that is the format as is recognized under

the Act and the Karnataka Panchayat Raj (Motion of No-

Confidence against Adhyaksha and Upadhyaksha of Grama

Panchayat) Rules, 1994 (for short 'the Rules'), and unless

such proposed resolution of no confidence accompanies

the notice / requisition given to the Assistant

Commissioner, the Assistant Commissioner has no

jurisdiction to issue notice convening the meeting to

consider the motion of no confidence. The contentions

- 10 -

NC: 2025:KHC-K:1125-DB

were considered by the learned Single Judge in the order

passed rejecting W.P.No. 200358/2025.

8. The learned Single Judge has considered the

contentions relating to the 10 days notice as envisaged

under the first proviso to Section 49(1) of the Act and

while referring to the contention, has laid down that 10

days notice given to the Assistant Commissioner is to

enable him to decide within 10 days as to how and when

the meeting was to be held while clarifying that there is no

duty on the Assistant Commissioner to commence the

process immediately.

9. The reasoning of the learned Single Judge found

at Paragraph No.7 of the order dated 06.02.2025 passed

in W.P.No.200358/2025 reads as hereunder:

"7. The Full Bench of this Court while considering the question whether the members of the Panchayat have to serve a ten days notice to the Adhyaksha or to the Panchayat or to the Assistant Commissioner and whether such notice is mandatory or not, held that ten days notice is to be given to the Assistant Commissioner and

- 11 -

NC: 2025:KHC-K:1125-DB

not to the Adhyaksha of the Panchayat. After the ten days notice is given, it is for the Assistant Commissioner to decide the date of the meeting and therefore, the word 'thereafter' cannot be interpreted to mean that the Assistant Commissioner has to wait for the expiry of ten days and thereafter fix the meeting. The ten days notice given to the Assistant Commissioner is to enable him to decide within that ten days as to how and when the meeting has to be held. That does not implied (sic) that he has to commence the process after expiry of ten days. If the above interpretation of the learned counsel of the petitioner is accepted, the meeting cannot be conducted within 30 days fixed under Rule 3(2) of the Rules, 1994."

10. Insofar as W.P.No. 200360/2025, identical legal

contentions have been raised and addressed in an identical

manner as in W.P.No. 200358/2025 and the reasoning at

Paragraph No. 7 is as follows:

"7. The Full Bench of this Court while considering the question whether the members of the Panchayat have to serve a ten days notice to the Adhyakshya or to the Panchayat or to the Assistant Commissioner and whether such notice

- 12 -

NC: 2025:KHC-K:1125-DB

is mandatory or not, held that ten days notice is to be given to the Assistant Commissioner and not to the Adhyaksha of the Panchayat. After the ten days notice is given, it is for the Assistant Commissioner to decide the date of the meeting and therefore, the word 'thereafter' cannot be interpreted to mean that the Assistant Commissioner has to wait for the expiry of ten days and thereafter fix the meeting. The ten days notice given to the Assistant Commissioner is to enable him to decide within that ten days as to how and when the meeting has to be held. That does not implied (sic) that he has to commence the process after expiry of ten days. If the above interpretation of the learned counsel of the petitioner is accepted, the meeting cannot be conducted within 30 days fixed under Rule 3(2) of the Rules, 1994."

11. Both these orders have been challenged in the

present appeals and common contentions as have been

raised in the writ petitions have been reiterated.

12. Sri. Gourish S. Khashampur, learned counsel

appearing for the petitioner in both the writ petitions

submits that the statutory requirement under the first

- 13 -

NC: 2025:KHC-K:1125-DB

proviso to Section 49(1) of the Act is clear and there could

be no getting over of the requirement of giving a

requisition to the Assistant Commissioner as envisaged

under Section 49(1) signed by one-half of the members to

be presented to the Assistant Commissioner by 2 of the

members who have signed and such requisition is to be

accompanied by a copy of the proposed resolution of no

confidence. It is submitted that by virtue of the reference

answered by the Larger Bench in the case of Hanamavva

vs. The Assistant Commissioner and others (W.P.No.

102077/2022 disposed off on 08.08.2022), it is clear

that the notice of 10 days is mandatory and accordingly, it

is submitted that if that were to be so which would be in

consonance with the plain wordings under the first proviso

to Section 49(1) of the Act, the Assistant Commissioner's

notice within 10 days of the requisition is to be held to be

bad in law. It is submitted that the learned Single Judge

has not appreciated the discussion and the conclusion

arrived at by the Full Bench in the case of Hanamavva

(supra).

- 14 -

NC: 2025:KHC-K:1125-DB

13. The contentions of the members as well as the

Government are in tandem and to the effect that legal

question that is sought to be canvassed has already been

covered by the reference to the Larger Bench in the case

of Shankargouda and others vs. The State of

Karnataka and others (W.A.No.200087/2022) as well

as reference in the case of Hanamavva (supra). It is

submitted that the reference in the Full Bench in the case

of Shankargouda (supra) upheld the judgment of the

Division Bench in the case of M. Puttegowda and

another vs. The Assistant Commissioner

(W.A.No.4366-67/2001) and refused to reconsider the

position in the case of M. Puttegowda (Supra). It is

submitted that the Division Bench in the case of M.

Puttegowda (Supra), after a detailed consideration had

reiterated the law laid down in the case of Smt. Parvathi

vs. Assistant Commissioner, Haveri (1998) 1 KLJ

399 and held that no doubt, there is a requirement for the

members who move the requisition to give atleast 10 days

notice to the Assistant Commissioner, but however, 10

- 15 -

NC: 2025:KHC-K:1125-DB

days notice would not come in the way of the Assistant

Commissioner to call a meeting to consider the motion of

no confidence before the expiry of 10 days. Accordingly, it

is submitted that no further question remains to be

adjudicated and the Larger Bench reference referred to

above clarifies that no doubt it is mandatory for the

members giving requisition to give 10 days notice,

however, the Assistant Commissioner can act even within

the said 10 days. Accordingly, it is submitted that the

learned Single Judge has come to a correct conclusion and

in fact referred to the reference in the case of

Shankargouda (supra) and there is no case made out

for interference.

14. Heard Sri. Gourish S. Khashampur, learned

counsel for petitioner in both the cases; Sri. Preetam

Deulgaonkar, learned counsel for respondents 6 to 14 in

W.A.No.200026/2025; Sri. Santosh A, learned counsel for

respondent No.8 in W.A.No.200029/2025; Sri. Krupasagar

Patil, learned counsel for respondents 4 and 5 and Sri.

- 16 -

NC: 2025:KHC-K:1125-DB

Mallikarjun C. Basareddy, learned Government Advocate

appearing for respondent - State in both the cases.

15. Section 49(1) of the Act reads as follows:

"49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.

- 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 moved within the first fifteen months from the date of his election

- 17 -

NC: 2025:KHC-K:1125-DB

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, six months from the date of the decision of the Grama Panchayat."

16. Rule 3(2) of the Rules reads as hereunder:

"3. Motion of No-confidence :-

(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.

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 receives the intimation about the

- 18 -

NC: 2025:KHC-K:1125-DB

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

17. The first contention raised by the learned

counsel for petitioner is that, under Section 49 of the Act,

the members who give the requisition are required to give

atleast 10 days notice of intention to move the resolution.

The point that is canvassed is that in light of the

requirement of 10 days notice to be given to the Assistant

Commissioner and as the Full Bench in the case of

Hanamavva (supra) had clearly observed that 10 days

notice was mandatory, action of the Assistant

Commissioner in issuing notice convening the meeting

immediately after the requisition i.e., within the period of

10 days without waiting for the 10 days period to lapse

cannot stand legal scrutiny. It must be seen that the very

question that is raised had been the subject matter of

reference in the case of Shankargouda (supra) which is

the first order of reference. The question of reference

raised in Shankargouda (supra) is as follows:

- 19 -

NC: 2025:KHC-K:1125-DB

"But in our opinion, in the first proviso what is contemplated is a notice of at least ten days has to be given for moving resolution to express no-confidence in the Adhyaksha or Upadhyaksha. The terminology "at least ten days"has the effect of mandatory requirement and therefore we find that the ratio laid down in M.Puttegowda requires re-consideration. In this view, the Registry is directed to place the file before the Hon'ble Chief Justice for constituting a larger bench."

18. The conclusion by the Full Bench is at

Paragraph No. 19 which reads as follows:

"Accordingly, we answer the reference and hold that the law declared by a Division Bench of this Court in M.Puttegowda, supra, lays down the correct law and hence does not require reconsideration."

19. It must be noticed that what was doubted

leading to the reference was the ratio laid down in the

case of M. Puttegowda (supra). The relevant

- 20 -

NC: 2025:KHC-K:1125-DB

observations made from Paragraph Nos. 15 to 17 are as

follows:

"15. This Court cannot lose sight of the fact that an Assistant Commissioner of a sub-division is vested with enormous revenue, magisterial, quasi-judicial and administrative responsibilities under various statutes. He also dons the role of an election officer and at times is either a delegate of the District Magistrate or the State Government or an ex-officio member of various Committees. In the matter of conduct of a meeting to consider a no-confidence motion, he is bound to preside over the meeting and record the proceedings. We also cannot lose sight of the fact that in a Sub-Division, there may be several Panchayats, which have to be overseen by him. Therefore, the moment the members of a Panchayat submit their intention to move a resolution, they cannot compel the Assistant commissioner to forthwith issue a notice convening a meeting. They are obliged to provide enough breathing time, which in the present case is "at least ten days notice" to act on their intention. In this ten days, the Assistant Commissioner, may ascertain the names and signatures of those members who would have signed Form-I and prepare the ground for convening a meeting on a date convenient to him, so that it does not clash

- 21 -

NC: 2025:KHC-K:1125-DB

with any of his other commitments. In that context, the first proviso to Section 49 of the Act of 1993 can be termed to be mandatory and the members are bound to give a notice of at least ten days to the Assistant Commissioner. This ten days is the breathing time for the Assistant Commissioner to act on the representation of the members and none of the members can compel the Assistant Commissioner to compulsorily act before the expiry of that ten days. The words "The Assistant Commissioner shall thereafter convene a meeting for the consideration of the said motion" appearing in Sub-rule (2) of Rule 3 of the Rules of 1994 are indicative of the fact that he may after receipt of the notice in Form-I take steps as provided under sub-rule (2) of Rule 3 of the Rules of 1994. Therefore, if the Assistant Commissioner fails to Act within that ten days, then the members can as a matter of right compel him to convene a meeting as provided under Rule 3(2) of the Rules of 1994.

16. Having said that, the question that concerns us is Whether the Assistant Commissioner should wait for ten days to expire before taking steps to issue a notice to the members to convene a meeting to consider the motion of no confidence ? The answer to this question is a firm "No" since, the moment the members of a Panchayat submit their intention

- 22 -

NC: 2025:KHC-K:1125-DB

to move a resolution, the process is set into motion and the Assistant Commissioner may ascertain the genuinity of the signatures of the members signing the intent to move a resolution, by corresponding with the Panchayat and thereafter issue a notice to all the members in Form-II fixing a date for the meeting by giving 15 days clear notice to all the members. He should ensure that the date of meeting shall be within 30 days from the date of the members submitting their intention to move a resolution in Form-I. Since the Assistant Commissioner is bound to preside over the meeting, he has to ensure that the date of such meeting does not clash with any of his other official commitments. Since we have held that the ten days mentioned in First proviso to Section 49 is the breathing time given to the Assistant Commissioner to set the ball in motion, he need not wait for the expiry of that ten days before initiating action. Since the Assistant Commissioner is under a mandate to conclude the process within 30 days, Rule 3(2) of the Rules of 1994 is designed to provide adequate discretion to the Assistant Commissioner to steer the process, so that it does not spill over the 30 day mandate. If the argument of the learned counsel for the appellants is accepted then, it may at times overspill the 30 day mandate, in which event, the no confidence motion would be

- 23 -

NC: 2025:KHC-K:1125-DB

rendered invalid. In that situation, by virtue of the third proviso to Section 49 of the Act of 1993, the consequences could be disastrous in as much as the members may or may not be exposed to the risk of being disabled to move another motion for no confidence within six months from the date of the meeting that is invalidated.

17. If we hypothetically consider a situation when the members submit Form-I on 01.08.2022 and if the Assistant Commissioner has to wait, "at least for clear ten days" to act, then he has to issue a notice to the members in Form-II on 12.08.2022 and if fifteen clear days notice to the members ends on 27.08.2022, then the meeting can be held on 28.08.2022, which would be within 30 days from the date of Form-I. This is however subject to the condition that the notice to all the members are served on 12.08.2022 itself, which may or may not happen. If there is a delay of even two days in service of the notice to the members in Form-II, the meeting cannot be held as that would overshoot the thirty days stipulated under sub-rule (2) of Rule 3 of the Rules of 1994. Therefore, in order to avert the notice being dubbed illegal, the Assistant Commissioner would within ten days ascertain the details of the members who would have signed Form-I and whether all the members are residing

- 24 -

NC: 2025:KHC-K:1125-DB

within the Grama Panchayat etc. He would have to fix the date of meeting on such date which does not clash with any of his other official commitments, as he has to preside over the meeting. In that circumstance, he need not wait for ten days to expire to take action to issue notice to convene a meeting. He may, if satisfied, initiate the process by issuing the notice in Form-II and fix a date of the meeting of the members at his convenience, even before the expiry of ten days. In this sense, the first proviso to Section 49 becomes directory and this understanding fairly grinds the uneven edges in the machination of the process."

20. It is thus clear that in the reference, the Court

has upheld that the notice no doubt as mandatory,

however, that would not hold the hands of the Assistant

Commissioner who could act even within the period of 10

days and there was no compulsion to the Assistant

Commissioner to wait for the expiry of 10 days. It is

necessary to notice the reasoning at Paragraph No. 15 as

extracted above and it is observed and pointed out that

the notice period of 10 days to be given to the Assistant

Commissioner viz-a-viz members giving requisition. It is

- 25 -

NC: 2025:KHC-K:1125-DB

observed that the members after giving the requisition,

must wait for the period of 10 days and if after the lapse

of 10 days no action is taken, they may be in a position to

challenge the inaction of the Assistant Commissioner and

cannot take action prior to the expiry of 10 days. Having

said so, it was further clarified that the waiting period of

10 days viz-a-viz members of the grama panchayat, would

however cast no obligation on the Assistant Commissioner

to wait for the expiry of the period of 10 days and the

Assistant Commissioner depending upon his administrative

convenience, could act even within 10 days.

21. The 2nd order of reference was in the case of

Hanamavva (supra). The question of reference is at

Page 11 and it is extracted below:

"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?"

- 26 -

NC: 2025:KHC-K:1125-DB

22. The two questions that were raised while

framing the question of reference are, (i) as to whether 10

days notice prescribed in the latter part of the first proviso

to Section 49(1) is to be given to the Adyaksha of Grama

Panchayat or Assistant Commissioner; (ii) whether such

notice is mandatory or directory.

23. Insofar as the first question is concerned, the

Full Bench has held that the notice is contemplated to be

given only to the Assistant Commissioner and not to the

Adhyaksha. The relevant observations as regards such

aspect is at Paragraph No. 17, which reads is extracted

below:

"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

- 27 -

NC: 2025:KHC-K:1125-DB

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."

24. Insofar as the 2nd point is concerned, as to

whether the Assistant Commissioner has to wait for the

expiry of 10 days, reference is answered by relying on the

- 28 -

NC: 2025:KHC-K:1125-DB

reference in the case of Shankargouda (supra). The

conclusion at Paragraph No. 18 reads as follows:

"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."

25. The answer to the reference is found at

Paragraph No. 19 which reads as follows:

"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.

- 29 -

NC: 2025:KHC-K:1125-DB

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."

26. The answer to the reference must be read in

conjunction with the observations made at Paragraph

No.18. If that were to be so, the reference in the case of

Hanamavva (supra) has reiterated the answer to the

question of 10 days notice being mandatory or directory

by relying on the reference in the case of Shankargouda

(supra). In fact, it is clear that the decision in the case of

M. Puttegowda (Supra) was held to be correct and

requires no reconsideration. The observations made by the

Division Bench in the case of M. Puttegowda (Supra) at

Paragraph No. 8 reads as follows:

"8. First proviso to Section 49 is in two parts, (1) that no resolution shall be moved unless the notice of resolution is signed by not less than

- 30 -

NC: 2025:KHC-K:1125-DB

1/3rd of the total number of members, and (ii) at least 10 days notice of the intention to move the resolution is given. Rule 3 (1) provides that a written notice of the intention to make the motion of no-confidence under proviso to Section 49 shall be in Form No.1 signed by not less than 1/3rd of the total number of members delivered to the Assistant Commissioner with a copy of the proposed motion by any of the two members signing the notice. The Assistant commissioner thereafter has to convene the meeting for considering the said motion at the office of Gram Panchayat on a date appointed by him which shall not be later than 30 days from the date on which the notice under sub-rule (1) was delivered to him by giving a notice of not less than 15 clear days of such meeting in Form No. II. From the combined reading of proviso to Section 49 and the Rules it is clear that the persons who intend to move the no-confidence motion shall give atleast 10 days notice to the Assistant Commission for convening the meeting. It would not come in the way of the Assistant commissioner to call for the meeting to consider the motion for no-confidence before the expiry of 10 days from the date he received the notice. The Assistant Commissioner can call the meeting within 10 days from the date he received the

- 31 -

NC: 2025:KHC-K:1125-DB

notice. He is not to wait for the expiry of 10 days before issuing the notice convening the meeting. Thus there is no substance in the first submission made by the counsel for the appellants. A Single Judge of this court in Smt. Parvathi Vs. Assistant Commissioner, Haverim 1998 (1) KLJ 399 has taken the same view. The Single Judge negatived the similar contention raised on behalf of the petitioners in the said case by observing thus:

"From the reading of the rules with the proviso to Section 49 the Act, it is clear that the persons who intend to move the no confidence, shall give at least ten days notice to the Assistant Commissioner. This ten days notice to the Assistant Commissioner will not come in the way of the Assistant Commissioner to call for the meeting to consider the motion of no confidence before the expiry of 10 days from the date he received the notice. Therefore, I find no substance in the contention of the learned counsel for the petitioner."

We subscribe to the above view."

27. Insofar as the other contention raised regarding

the proposed motion of no confidence accompanying the

- 32 -

NC: 2025:KHC-K:1125-DB

requisition submitted to the Assistant Commissioner, the

Division Bench in the case of Laxmavva vs. State of

Karnataka - (2007) 3 AIR Kant R 189 :: ILR 2007

KAR 1028, has observed that the "mere non-enclosing

proposal would be only an irregularity and in our view

does not cause any prejudice". The same position has

been followed by the Division Bench in the order passed in