High Court of Karnataka · 2012

5. Sri. Suresh Maddi Age: 40 years, 0cc: councilor CMC Ward No.29, Yadgir town, District Yadgir

6. Sri Samson Melkeri Age: 40 years, 0cc: councilor CMC Ward No.17, Yadgir town District Yadgir

7. Asha Raju Saidapur Age: 34 years, 0cc: councilor CMC Ward No.07, Yadgir tow District Yadgir

8. Sumithra Rajshekar Age: 35 years, 0cc: councilor CMC Ward No.10, Yadgir town District Yadgir

9. Kum. Lalitha Moulali anpur Age: 32 years. 0cc: councilor CMC Wad No.09. Yadgir town District Yadgir 1O.Sri Balappa Giriappanavar Age: 48 years, 0cc: councilor CMC Ward No.11, Yadgir town District Yadgir 11 .Smt. Kavitha Vinayak Malipatil Age: 30 years, 0cc: councilor CMC Ward No.08, Yadgir town District Yadgir

12.Smt. Saraswathi Mallikarjun Gosi Age: 35 ucars. Pcc” cpimco;pr CMC Ward No.06, Yadgir town, District Yadgir L 3

13.Laxmi Yenkappa Age: 38 years, 0cc: councilor CMC Ward No.23, Yadgir town District Yadgir 14,Sri, Narsingh Lingeri Age: 47 years, Oc: councilor CMC Ward No.05, Yadgir town District Yadgir RESPONDENTS This writ petition is filed under Article 226 and 227 of the Constitution of India, praying to allow this petition and to issue a writ in the nature of certiorari or any other appropriate writ, direction or order, quashing the notice at Annexure-A

30.12.2011 No. 1/2011-12 This petition coming on for further orders this day, the court made the following: ORDER The petitioner has preferred this writ petition seeking for a writ of certiorari to quash Annexure-A notice

30.12.2011 issued by Municipal Commissioner of Yadgir City Municipal Council, fixing the date 10.0 1.2012 for consideration of no confidence motion against the president of the City Municipality. 4

2. The petitioner was elected as president of the City Municipal Council, Yadgir on 25.08.20 10. The first respondent — Municipal Commissioner has issued an impugned notice, calling for a meeting on 10.01.2012 to consider a motion of no confidence against petitioner. The grievance is as provided under sub Section 2 of Section 47 of the Karnataka Municipalities Act, 1964 (for short the Act’) - a request for convene the meeting is to be done to the president. Only when the president fails to convene the meeting, the request could be made to the Municipal Commissioner. In the instant notice, no such request is made to the petitioner and therefore the meeting called for by the first respondent on 10.01.2012 is illegal and therefore, the meeting notice is to be quashed.

3. In support of the said contention, reliance is placed on the judgment of this Court in the case of Smt. Shivamma vs. Duputy Commissioner Tumkur District and Others, reported in ILR 2003 KAR 598. 5 Where, it has been held — a request to the president under sub Section (3)is necessary before the councilors can request the chief executive officer of the town municipal council to convene a special meeting.

4. As in that case, at no point of time majority of the members of Town Municipal Council had made any request to the president to call for a special meeting, on a request made by the majority of the member, the Chief Executive Officer of the municipal council could not have issued the special meeting notice which is impugned in that petition. Therefore, special meeting notice issued by the Chief Executive Officer in that case was quashed and therefore, relying on the said judgment, the petitioner contends that the impugned notice is to be quashed.

5. The learned counsel the Municipal Commissioner has made available records. According to him a request was made to the president. 6 which request was duly acknowledged by her on

30.12.2011. It is only when she declined to call for a meeting, the request was made to the Municipal Commissioner who was under an obligation to convene special meeting and therefore, it is submitted that there is no merit in the case.

6. Per contra, the learned counsel petitioner submits that when sought a information from the respondents, they have not given the said information. Hence, the petitioner has filed petition before the court. It contends, the request made to the president, which appears to have been duly acknowledged by her. If that is so, the procedure followed cannot be found fault with. Even otherwise, in a some what identical situation arising out of Karnataka Panchayat Raj Act, 1993 dealing with the power of this court to entertain a writ petition under Article 226 in this court, in the case of Abdul Razak v The Assistant Commissioner, Davangere Sub-Division, 7 Davangere and Others, reported in 2005 (1) Kar.L.J. 230 it is held as under: “In. a petition filed by a person who is an ‘Adhyaksha’ of a Panchayat, it need not be entertained by this Court in exercise of writjurisdiction on the premise of violation or non-compliance of the requirements of Rule 3 of the Karnatcika Panchayat Raj (Motion of no-co qJidence against Adhyaksha Upadhyaksha of Grama Panchayat) Rules,

1994. Rule is a provision made for effectuating the substantive right given to members under Section 49 of the Karnataka Panchayat Raj Act, 1993.”

7. In view of the afore said judgment. the writ petition is not maintainable.

8. Having heard learned counsel for the parties and in the light of the facts of this case, I am of the view that the petitioner is enjoying her post because of the confidence reposed by the elected members of the City Municipality She can continue to hold the said post for 8 the duration for which she is elected, as long as she enjoys the confidence of the members. Once the confidence is lost, her right to continue in the office is ceases. Though these rules are made for proper conduct of the proceedings of the City Municipal council, the said rules cannot be so interpreted as to protect the person who was elected to the office and who have lost the confidence of the persons who elected them and in favour of persons, who are facing a no confidence motion. The irregularly in convening the meeting, breach of some statutory obligation should not enable them to continue to held the office, which they are holding, the only qualification being the confidence which is reposed in them by the members of the Council. Under these circumstances, the proper place to fight is the meeting, which is convened. If the petitioner is able to establish sufficient support from the members the council, the no confidence motion will be defeated. The petitioner who can survive to hold the 44 - 9 post. But if she fails to gather the support of majority, she cannot continue in the said post.

9. In these circumstances, I am of the view that, this is not a fit case for exercising discretionary power, which is vested in this court under Article 226 of the Constitution of India. I do not find any merits. Accordingly, it is dismissed. LG V j