M. Muniyappa and Another vs State of Karnataka and Others

L. Sreenivasa Reddy, J.—Heard the counsel for the parties. Issue Rule. Petitioners 1 and 2 were the Adhyaksha and Upadhyaksha respectively of the Neralur Grama Panchayat. On 7th September, 1996 more than one-third of the total number of members of the said panchayat gave a written notice to the third respondent under Rule 3(1) of the Karnataka Panchayat Raj (Motion of no-confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 (for short ''the flutes'') to move a motion of no-confidence against the petitioners. In pursuance thereof, notices were issued under Sub-rule(2) of Rule-3 of the Rules to the elected members of the said Grama Panchayat convening a meeting for consideration of the said motion at the office of the Grama Panchayat on 10th October, 1996. The said meeting was presided over by the third respondent. Out of the nineteen elected members of the Grama Panchayat, fifteen members participated in the meeting; fourteen members voted for the motion and one member voted against the motion, the no-confidence motion was carried through by a majority of more than two-thirds of the total number of members of the grama Panchayat. Annexure-B is the true extract of the meeting proceedings book relating to the said no-confidence motion.

In this joint-Writ Petition, the petitioner have challenged the validity of the motion of no-confidence passed against them on 10th October, 1996 vide Annexure-B and the consequential orders at Annexure-C and D passed by the third respondent u/s 49 of the Karnataka Panchayat Raj Act, 1993 (for short ''the Act'') read with Sub-rules 9 and 1.0 of Rules 3 of the Rules.

Sri G. Manivannan, Learned Counsel for the petitioners submitted that the meeting for consideration of the no-confidence motion against the petitioners ought to have been convened not later then thirty days from the date on which the notice under Sub-rule (1) of Rule 3 of the Rules was delivered to the third respondent as required under Sub-rule(2) of Rule 3 of the Rules and, as such, the no-confidence motion carried against the petitioners is invalid, contrary to Section 49 of the Act and the procedure prescribed thereunder.

On the other hand, Sri A. Nagarajappa, learned Addl. Government Advocate appearing for respondents 1 to 4 submitted that though the no-confidence motion was not considered within the prescribed period of 30 days as required under Sub-rule(2) of Rule-3 of the Rules, that by itself is no ground to quash the no-confidence motion successfully carried by more than two-thirds of the total number of members of the Grama Panchayat since the Rules are only directory and not mandatory. In support of his contention reliance was place on the decision of this Court in KENDA GANNAIAH v. STATE OF KARNATAKA 1. 1990 (3) KARLJ 229.

I have given thoughtful consideration to the rival submissions made by the Learned Counsel for the parties and have perused the records. In order to appreciate these submissions it is necessary to set out the provisions of Section 49 of the Act and Rule-3 of the Rules which are relevant for this case.

"49. MOTION OF NO-CONFIDENCE AGAINST ADHYAKSHA AND UPADHYAKSHA OF GRAMA PANCHAYAT Every Adhyaksha or Upadhyaksha of Grama Panchyat 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-third of the total number of members and at least ten days notice has been given of the intention to move the resolution.

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-1 signed by not less than one-third of the total number of members together with a copy of the proposed motion shall be delivered in person by any 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 of appointed him which shall not be later then 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 there 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 then thirty days from the date on which he received 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".

It is manifestly clear from Section 49 of the Act that a resolution expressing want of confidence in Adhyaksha or Upadhyaksha of the Grama Panchayat will have to be 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 (underlining is mine). The Rules prescribe the procedure for making the motion of no-confidence u/s 49 of the Act. It is clear from Sub-Rule (2) of Rule-3 of the Rules that after receipt of notice in Form No. 1 under Rule-3(1) of the Rules, the Assistant Commissioner has to convene a meeting for consideration of the motion of no-confidence at the office of the Grama Panchayat on the date appointed by him which shall not be later then thirty days from the date on which the notice under Sub-rule (1) of Rule-3 was delivered to him by giving not less than 15 days clear notice to the members of such meeting in Form No. II.

On 7th September, 1996 a written notice under Sub-rule (1) of Rule 3 of the Rules was given in Form No. 1 to the third respondent by more than one-third of the total number of members. The third respondent issued the meeting notice to the members of the Grama Panchayat in Form No. ll for consideration of the no-confidence motion on 10th October, 1996. Therefore it is dear that the meeting for consideration of the no-confidence motion was later than thirty days. In fact the motion of no-confidence ought to have been considered on or before 6th October, 1996.

The only question which arises for consideration in this Writ Petition is whether the Rules are mandatory or directory. The Rules prescribe the procedure relating to a no-confidence motion against the Adhyaksha or Upadhyaksha of Grama Panchayat. The difference between a mandatory rule and a directory rule is that the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted.

In C. PUTTASWAMY v. SMT. PREMA 2. AIR 1993 KAR 356 a question arose was whether the provision u/s 47(3) of Karnataka Act 20 of 1985 requiring the Assistant Commissioner to give to members of a Mandal Panchayat notice of a meeting for consideration of a motion of no-confidence against the Pradhan of not less than fifteen clear days of such meeting is mandatory or directory. In view of the conflicting decisions on the point, the above question was referred to the Full Bench of this Court for consideration. The Full Bench of this Court following the judgment of the Supreme Court in Karnal Leather Karamchari Sanghatan (Regd.) Vs. Liberty Footwear Company (Redg.) and others, , answered the question thus:

"The provision u/s 47(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayat Act, 1983 requiring the Assistant Commissioner to give to members of a Mandal Panchayat notice of a meeting for consideration of a motion of no-confidence against the Pradhan or Upa-pradhan of not less than 15 clear days of such meeting'' is mandatory"

Section 47 of Karnataka Act 20 of 1985 (since repealed) is not very much different from Section 49 of the Act. In my considered view, Section 49 of the Act read with the Rules are a complete code in themselves deliberately provided by the Legislature having regard to the elective office of Adhyaksha and Upadhyaksha. Therefore, by any stretch of imagination it cannot be said that Sub-rules(2) of Rule-3 of the Rules merely directory. In view of the aforesaid judgment of Full Bench, the decision rendered in KENDA GANNAIAH''s case is no longer a good law. Therefore, the submission of the learned Addl. Government Advocate that the Rules are merely directory cannot be accepted.

In the result, I make the following order: Rule is made absolute. The Writ Petition is allowed. The no-confidence motion carried against the petitioners on 10th October, 1996 is quashed. Consequently, Annexures-C, D and E are also quashed. No costs.