SYED SHERIFF Vs. THE DEPUTY COMMISSIONER AND ORS.

JUDGEMENT

(1.) PETITIONER is one of the Councillors of H.D. Kote Town Panchayat. Nine members of the panchayat including the petitioner have given a notice requesting to convene a special meeting of the members of the Town Panchayat to consider the No Confidence motion against the respondent No. 3 as per the provisions contained under Section 42(9) of the Karnataka Municipalities Act, 1964 (for short, 'the Act'). Pursuant to this notice, a special meeting was convened on 30.12.2011 to consider the motion of No Confidence. It is urged by the petitioner that as reliably learnt by him, respondent Nos. 4 & 5 who are the Members of Legislative Assembly and of Parliament representing the constituency in which H.D. Kote falls have also been notified of the meeting requesting them to attend the same. Being aggrieved by the action of the respondents in allowing the Members of Legislative Assembly and of Parliament to participate in the meeting and to vote in the No Confidence motion, petitioner has filed this writ petition seeking a direction that the Members of the Legislative Assembly, Member of Parliament and the nominated members cannot participate in the meeting to be held to consider the No Confidence motion against the President or the Vice -President of the Town Panchayat.

(2.) IT is contended by the petitioner that Members of the Legislative Assembly or Members of Parliament representing the jurisdictional area cannot participate in the voting in a No Confidence motion as they are not elected Councillors entitled to vote in the No Confidence motion. In the light of the facts as narrated above, the question that falls for consideration in this writ petition is,

(3.) THE contention of Mr. D.S. Hosmath, Counsel appearing for the petitioner is that, on examination of the provisions contained under Sections 2(6), 42(2), 42(9) and Section 52 of the Act in the light of the law laid down by the two Division Benches of this Court in the case of (i) Smt. Chandubi & Others Vs. The Deputy Commissioner & Others in W.P. No. 12320/1997 disposed of on 10.12.1997, and (ii) Smt. Savitri Vs. The State of Karnataka, by its Secretary to Government & Others - : ILR 2003 KAR 4653, it is clear and unambiguous that only elected Councillors can participate in the voting in a No Confidence Motion brought against the President or Vice -President. It is his further contention that the amendment brought to Section 42(9) of the Act with effect from 20.08.2003 vide Act No. 31 of 2003 incorporating the expression 'majority of the total number of Councillors having voting right' by substituting the words 'total number of Councillors', has not in any manner diluted the power conferred on the elected Councillors to participate in the voting in the No Confidence Motion to the exclusion of the nominated and other members such as Members of Legislative Assembly and Members of Parliament. He also refers to the judgment of the Apex Court in the case of Ramesh Mehta Vs. Sanwal Chand Singhvi & Others - : (2004) 5 SCC 409, to contend that even in the said judgment, the Apex Court in some what similar circumstances has found in paragraph 11 that total number of members would only refer to total number of elected members.