Case BriefsHigh Courts

Jammu and Kashmir High Court: Sindhu Sharma J., while dismissing the present petition, held,

“In a democratic process, the members of the Panchayat, who were elected members, have been provided with the provisions of issuing a no-confidence motion against the Chairman on the ground of neglect on duty and gross misconduct and otherwise, if the action of the petitioner falls in either of two grounds, they have a right to consider the same.”

The petitioner has challenged the notice dated 10-07-2020 issued by the Secretary of Block Development Council, Larnoo for convening a special meeting for Impeachment and No-Confidence Motion. The petitioner was elected as a Sarpanch from the Constituency of Panchayat Halqa Kharpora, Block Larnoo, District Anantnag and subsequently, was elected as the Chairman of the Block Development Council on 24-10-2019.

With respect to the impugned communication, Court observed,

“It is submitted that the Chairman of the Block Development Council shall be deemed to have vacated his office if a motion of no confidence is moved against him by any of the members on any of the following grounds i.e., gross misconduct; neglect of duty & disqualification prescribed under Section 6. This has been clearly conveyed in the motion/notice about the intention of the members of BDC, Larnoo. As such, the Secretary had rightly issued the impugned communication for conducting the special session.”

With respect to adherence of procedural regularities, it was said,

“The procedure for removal of Chairman is provided under Rule 107 of the Panchayati Raj Rules, 1996. It provides that the procedure for removal of the Chairman shall be same as that of Sarpanches. However, District Panchayat Officer shall preside over the meeting to be convened for such removal and Block Development Officer shall function as Secretary under the provisions of this Rule… out of 15 Sarpanches holding the posts, 12 had signed the motion/notice of non-confidence.” Court further cited Rule 81 which prescribes that the intention to move a motion for removal under section 7 shall be necessary, which thereby, should be signed by at least 1/3rd of the total members of the Panchayat and delivered in person by at least two Sarpanches, signing the notice to the Secretary of the Panchayat. The Secretary shall thereafter take steps to convene a special meeting not earlier than ten days and not later than twenty days from the date of receipt of the motion. Conclusively the Court said, “… the Block Development Officer in his position as a Secretary had rightly issued impugned communication calling for a special meeting of impeachment and No Confidence Motion, the same was to be presided by the District Panchayat Officer, therefore, the same was neither required to be placed before the petitioner as his capacity as Chairman nor he was to preside over the same.”[Mumtaz Ali v. UT of J&K, 2020 SCC OnLine J&K 728, decided on 02-12-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: A. Muhamed Mustaque J., upholding the decision of the Election Commission, dismissed the present Writ Petitions and clarified the applicability of Kerala Local Authorities (Prohibition of Defection) Act, 1999.

 Brief Facts

Three writ petitions were filed by the members of Ranny-Pazhavangadi Grama Panchayat aggrieved by the decision of the Kerala State Election Commission (for short, the ‘Election Commission’) declaring that the petitioners are disqualified for being members of Ranny-Pazhavangadi Grama Panchayat as provided under Section 3(1)(a) of the Kerala Local Authorities (Prohibition of Defection) Act, 1999 (for short, the ‘Act’) and further disqualified to contest as candidates in any election of the local body for a period of six years.

The cause of action for disqualification arose on 23-5-2017. Abraham from LDF (the party to which the petitioners allegedly belong) was the President of the Grama Panchayat at that time. A No-Confidence Motion was moved against him. Subsequently, a whip was issued by the parties of LDF coalition to all its members. Defying the whip all these petitioners voted in favour of the motion. In defence before the Election Commission, the petitioners alleged that they did not receive the aforementioned whips, hence, no provision of the Act was attracted. With respect to candidature, it was originally admitted by the petitioners that they contested the election as nominees of political parties forming part of the LDF coalition but after closing of the evidence, they filed an application for deleting those admissions by way of amendment.

 Issue

  1. Whether petitioners were independent candidates or supported by political party in question?
  2. Whether the whip issued was conveyed to the petitioners as per Kerala Local Authorities (Prohibition of Defection) Act, 1999?
  3. Whether supporting the no-confidence motion, amount to voluntary giving up of membership under the said Act?

Observation

Placing reliance over the findings of Election Commission, the Court agreed with the submission made by the counsel for respondents that the petitioners contested election with the support of political party and the whip issued, therefore, assumes significance. The Court also accepted the applicability of Rule 3(2)(a) of the Kerala Local Authorities (Disqualification of Defected Members) Rules, 2000 wherein, any person who contested election as a candidate in support of a political party shall be treated as a member of that political party. Further, Court made the following observation with respect to service of whip to the rightful person, as per Kerala Local Authorities (Prohibition of Defection) Act, 1999

“There are two limbs under Section 3(1)(a) of the Act, second limb would be attracted only when there was a valid whip and servicing the whip in a manner referred under Section 3(2) r/w 4(2) of the Rules. The service referred as above is mandatory. There is no dispute in regard to the fact that the whip was not served on the Secretary of the Local Self Government Institutions. Therefore, the second limb cannot be attracted to this matter. The finding of the Election Commission would also show that no copy of the whip was served on the Secretary.”

In reference with issue 3, the Court said,

“The petitioners support to the No Confidence Motion was against the interest of the political parties which supported them as candidates. This amounts to voluntarily giving up of the membership. It is to be noted that there was no dispute on CPI(M), CPI and JD(S) were part of the coalition. Thus acting against the interest of coalition by party members of the constituents of the coalition amount to acting against their own party. The Election Commission entered into a finding based on the materials before it, there was valid whip and the petitioners were aware of such whip. Though such whip cannot be relied to attract second limb of Section 3(1)(a) of the Act, nothing bars the Election Commission for placing reliance on it for disqualifying a member based on the ground referred in the first limb of Section 3(1)(a).

The Court further cited Rama Bhaskaran v. Kerala State Election Commission, 2018(2) KLT 600, Manoj Madhavasseril v. Kerala State Election Commission, 2018(1) KLT 1047 and Chandran v. Kerala State Election Commission, 2019(1) KLT SN 18 and Lizy Valsan v. Suja Salim, 2015 (3) KLT SN 61 in furtherance of its said observation.

Decision

While dismissing the present Writ Petitions, the Court upheld the decision of Election Commission of debarring the petitioners from contesting future elections.[Boby Abraham v. Kerala State Election Commission, 2020 SCC OnLine Ker 4507, decided on 15-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Kerala High Court: Devan Ramachandran, J. contemplated a writ, where the question discussed was ‘can the office bearer of the Managing Committee of a Co-operative Society, governed by the Kerala Co-operative Societies Act, be removed through a no-confidence motion before the expiry of two years after such office bearer had assumed office?’

Petitioner contended that he was elected to the Board of Directors of the Society, which is a Primary Agricultural Credit Society registered under the provisions of the Kerala Cooperative Societies Act, 1969 and that he and the new Managing Committee took charge soon after. An election to the Managing Committee was conducted on the basis of directions from Court in another writ petition, and the Court held earlier that the term of the Managing Committee is for a period of five years. The petitioner’s specific allegation case was, just after he had completed six months in office as the President, notice for a no-confidence motion against him was brought in by certain members of the Board of Directors, he contended that these notices were illegal in law, since a motion of no-confidence could not have been brought against him for a period of two years after he had assumed office.

The learned counsel of the petitioner T.R. Harikumar, relied on the judgment in Vipulbhai M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Ltd., (2015) 8 SCC 1,where it was stated that no office bearer of a Society can be removed through a motion of no-confidence except after he/she had completed two years in office. The learned counsel submitted, the Supreme Court had declared it unequivocally that in the case of Co-operative Societies registered under any Central or State law, a motion of no-confidence against an office-bearer can be moved only after two years of his assumption of office.

Counsel for the respondent-Society, S. Sreekumar, submitted that petitioner had misread the exposition of law by the Supreme Court in Vipulbhai M. Chaudhary and asserted that, as was clear from the first paragraph of the said judgment, the declarations therein were only with respect to Co-operative Societies whose Bye-Laws and Regulations contain no provisions as regards a motion of no confidence. However, in Kerala, under the Kerala Cooperative Societies Act and Rules specific provisions were engrafted for this purpose, namely, Section 28 AB and Rule 43A(xii), which provided that no office bearer of the Managing Committee of a Society was to be removed, through a no-confidence motion, unless he had been in office for a minimum period of six months after the date of assumption of such office.

The Court relied on the contention of the respondent, as was admitted by the petitioner, he had chosen not to challenge either Section 28AB of the KCS Act or Rule 43A(xii) of the KCS Rules. Declaration in Vipulbhai M.Chaudhary to the effect that a motion of no-confidence cannot be brought against a member of the Managing Committee except after a period of two years after such person has assumed office, was intended to apply only to those Societies with respect to which the applicable Statutes, Rules or Bye-laws were not contained in specific provisions as regards a no-confidence motion.

The Court held, “In the case at hand, it is conceded before me even by the learned counsel for the petitioner, that the aforementioned Section and Rule of the KCS Act and Rules clearly provide the procedural frame-work of a no-confidence motion, expressly stipulating that such a motion can be brought against the office bearers of the Managing Committee of a Society on expiry of a period of six months after such person had assumed office. Obviously, therefore, unless the petitioner challenges these statutory prescripts, it would not be permissible or prudent for this Court to declare, merely on account of Vipulbhai M.Chaudhary, that these provisions are redundant or incapable of operation and that even in the case of Societies registered under the KCS Act and Rules, no motion of no-confidence can be brought against an office-bearer of its Managing Committee, except after he/she has completed two years in office”. Hence, the petition was dismissed on the said grounds.[Chandran Pillai v. Registrar of Coop. Societies, 2019 SCC OnLine Ker 1646, decided on 15-03-2019]

Case BriefsHigh Courts

Karnataka High Court: The Bench comprising of S. Sunil Dutt Yadav, J. hearing a petition challenging motion of no-confidence moved against President of Hallare Gram Panchayat, held the same to be invalid for not being in accordance with law.

Petitioner, the President of Hallare Gram Panchayat, was issued a notice issued by respondent whereby motion of no-confidence was sought to be initiated against him for his alleged misconduct. He challenged the said notice in the instant petition contending that as per Section 49(1) Proviso 2 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 a resolution expressing want of confidence cannot be moved within first thirty months from the date of the election. Since he was elected on 22-03-2018 and the motion was moved on 25-09-2018, therefore the respondent ought not to have entertained the no-confidence motion in view of prohibition given under proviso to Section 49(1).

The Court held that proceedings initiated by respondent infracted the prohibition contained in proviso to Section 49(1) of the Act and hence was liable to be set aside. It was observed that the only exception for moving a motion of no-confidence against a President of Gram Panchayat was if it is initiated with allegations under Section 49(2) of the Act. However, in view of the judgment of the Division Bench of this Court in Lakshmamma v. State of Karnataka, 2018 SCC OnLine Kar 1750 the said option also could not be exercised until fresh rules in that regard were framed. 

Accordingly, the petition was allowed and respondents were granted liberty to pursue an action for removal of petitioner for alleged acts of misconduct under Sections 43-A and 48(4) of the Act. [Preethi v. Assistant Commissioner, Mysore Sub-Division, 2018 SCC OnLine Kar 2788, Order dated 13-12-2018]