ORDER
K.A. Swami, J.
1. Though this petition is posted for orders, having regard to the fact that it relates to a no confidence motion moved and passed against the petitioner and also that it can be disposed of on a short point, it is taken up for final disposal by consent of learned Counsel appearing for the parties.
2.1 The petitioner was elected as the President of the Town Municipal Council, Sadalga, Belgaum District. The case of the petitioner as pleaded in the petition is that she received the communication dated 14-10-1985, produced as Annexure – A from the Deputy Commissioner, Belgaum, requesting her to take necessary action as per the Karnataka Municipalites Act, 1964 (hereinafter referred to as the ‘Act’) regarding the notice dated 25-9 1985 given by the Councillors to move motion of no confidence against the petitioner; that she came to know of the intention of the Councillors to move motion of no confidence only through the communication dated 14-10-1985 (Annexure-A) ; that she gave a reply to the Deputy Commissioner on 28-10-1985 as per Annexure-B ; that thereafter the Chief Officer also intimated her about the notice received by him ; and she sent a reply to the Chief Officer acknowledging his letter and further informing him that she had written to the Deputy Commissioner and on receipt of the reply from the Deputy Commissioner necessary action would be taken. This communication is produced as Annexure-C ; that the petitioner was not served with the notice as per the first proviso to Sub-section (9) of Section 42 of the Act. In the objections filed by her to I.A. No. I filed by the contesting respondents, she has further pleaded that she was not at Sadalga
from 2-10-1985 to 13-10-1985 as she Was admitted in the clinic at Ichalakaranji for treatment; that she had not refused to receive the notice ; that the postman had never brought the registered cover to her arid on 11-10-1985 she was an in-patient at Smita Hospital at Ichalakaranji ; that the notice of 10 days ought to have been given of a special general meeting ; that the petitioner had not refused to call for a special general meeting.
2.2 Sri. A.B. patil, learned Counsel appearing for the petitioner has made the following submissions in support of the relief sought for in the petition:
(1) That no notice as required by Sub-section (9) of Section 42 of the Act has been served upon the petitioner;
(2) That the petitioner has never refused to receive the notice purported to have been sent by the II Councillors by a registered post with acknowledgement;
(3) That she has not refused to call for a Special General Meeting of the Council for the purpose of moving the resolution expressing want of confidence in her.
(4) That the notice of 10 days is required to be given for calling a Special General Meeting of the Council for moving the motion of no confidence as per the first proviso to Sub-section (9) of Section 42 of the Act.
3.1 The case of the contesting respondents is that the Council consists of 15 members; that the notice dated 25-9 1985 signed by 11 Councillors was sent on 4-10-1985 by registered post with acknowledgement due to the petitioner stating that they have lost confidence’ in her; therefore, they intend to move a motion of no confidence against her, therefore a Special General Meeting be called for that purpose. This notice according to the case of the contesting respondents was refused to be received by the petitioner on 11-10-1985. Therefore the postman returned it with the shara that “the addressee refused to receive hence returned to the sender”; that under these circumstances there is a presumption of due service. They have produced the closed cover with acknowledgment containing the postal shara of the postman. On the direction of the Court, the Court Officer has opened the cover, which contains the notice and the same is marked as Document No. 1. It is the further case of the contesting respondents that thereafter the petitioner did not call for Special General Meeting of the Council to consider the no confidence motion; therefore the Vice-President instructed the Chief Officer of the Municipal Council to call for the special general meeting of the Council to consider the no confidence motion. Accordingly, the Chief Officer issued notices to the Councillors including the petitioner calling for the Special General Meeting of the Council on 3-11-1985. This notice was receded by the petitioner on 2-11-1985. The meeting was held on 3-11-1985 and the no confidence motion was moved against the petitioner. The petitioner did not attend the meeting. 13 Councillors out of 15 supported the motion. Accordingly, the motion of no confidence was passed on 3-11-1985 with the support of more than 2/3rd members of the Council.
3.2 It is contended by Shri Shivaraj Patil, Learned Counsel appearing for respondents 3 to 15 that a notice dated 25-9-1985 was sent by registered post with acknowledgment to the petitioner; that the petitioner refused to receive ft on 11-10-1985 ; therefore it must be deemed to have been served; therefore the requirement of Sub-section (9) of Section 42 of the Act has been complied with ; that for the purpose of calling for the Special General Meeting to move the resolution expressing want of confidence a notice of 3 days is more than sufficient; therefore, the notice of 3 days given fey the Chief Officer calling for the Special General Meeting of the Council is valid in law and as such the Meeting held on 3-11-1985 is also valid ; hence, the resolution expressing want of confidence in the petitioner is passed in accordance with law.
4. Having regard to the aforesaid contentions, the points that arise for consideration are as follows:
(1) Whether the notice of the intention to move the resolution expressing want of confidence in the petitioner as required by Sub-section (9) of Section 42 of the Act can be held to have been given to the petitioner?
(2) Whether the petitioner has refused to call for the Special General Meeting of the Council for the purpose of moving the resolution expressing want of confidence in her?
(3) Whether the notice of no confidence has been validly passed?
Point No. 1:
5.1 In support of the plea that the petitioner has not refused to receive the notice along with her objections to I.A. No. 1 filed to-day the petitioner has produced a certificate dated 31-12-1985, issued by Dr. S.A. Patil of Smita Hospital, Maternity & Surgical Home, Maharashtra Housing Board, Ichalkaranji, The said certificate reads thus ;
“This is to certify that Smt. Maruti Hanbar was under my treatment since 2-10-1985 to 13-10-1985 and was suffering from P.V. Bleeding”.
On the basis of the aforesaid certificate, it is stated in the objection statement as follows :
“The petitioner submits that she has not refused to take the notice as submitted in para 3 of the I.A. Annexure-R-1 is a false and got up document. Petitioner submits that she was suffering from serious P.V. Bleeding on or about 1-10-1985 and therefore she was admitted in a Nursing Home called “Smita Hospital” which is a leading maternity home at Ichalakaranji in Kholapur District. Said Ichalakaranji Town is situated at a distance’ of about 20 Kms. from Sadalga. It is the nearest town to Sadalga having good hospital. Petitioner was treated from 2-10-1985 to 13-10-1985 for the said ailment in the said Hospital. Two sisters of the petitioner reside permanently in Ichalakaranji as it is their husband’s place. Petitioner has produced true copy of the Certificate issued by Dr. S A. Patil, in evidence of above averments at Annexure-E. Therefore petitioner submits that Annexure-R-1 is a false and got up document. She has never refused to receive any notice as contended by the Respondent in para 3 of the I.A.
It is submitted that the Shara dated 11-10-1985 to the effect that the petitioner refused to receive the notice is wholly untrue, in fact the postman has never brought to the petitioner on 11-10-85, on which day she was an inpatient at the Smita Hospital at Ichalakaranji. Respondents have Prevailed upon the Postman successfully and have managed to get such a Shara purposely to suit their convenience. Under these circumstances the notice cannot be deemed to have been served on the petitioner.”
5.2 In this regard, it is very pertinent to notice that it has never been the case of the petitioner that she was suffering from P. V. bleeding and she was not in the town and she was hospitalized in the Smita Hospital In the petition no such case is pleaded. Further in her reply to the Deputy Commissioner produced as Annexure-B there is no whisper about it. In addition to this, it is very pertinent to notice that the certificate (Annexure-E) itself does not state that the petitioner was hospitalized. Besides as stated by the petitioner in her objection statement the distance between Ichalakaranji and Sadalga is hardly 20 Kms. If that be so, even if it is accepted for the sake of this case that the petitioner was unwell and was under the treatment of Dr. S.A. Patil of Smita Hospital, Ichalakaranji, the possibility of the petitioner taking the treatment, remaining at Sadalga town itself cannot at all be excluded. Except producing the certificate no other document is produced such as an extract of the entry in the hospital register to the effect that the petitioner was admitted as in-patient on a particular date, time and discharged on a particular date as such a register is maintained by the hospital in the normal course; receipts for having paid the room rent and the hospital bill. Therefore, it is not possible to believe the version of the petitioner that she was out of Sadalga Town and was admitted in Smita Hospital from 2-10-1985 to 13-10-1985. Once the case of the petitioner that she was an in-patient in Smita Hospital at Ichalakaranji from 2-10-1985 to 13-10-1985 is rejected, nothing remains on the record to discard the postal shara contained on the cover produced as Annexure R-1. Annexure R-1 it is not disputed, contains correct address of the addressee. It is sent by registered post with acknowledgment on 4-10-1985. There are six sharas made on the cover by the postman on 5th, 7th, 8th, 9th, 30th and 11th of October 1985. On all the days except on 11-10-85 the shara is to the effect that “the addressee not found”. There is no shara on 6-10-1985 because that was Sunday. It is only on 11-10-1985 there is a shara made to the effect that ”the addressee refused to receive, hence returned to the sender”. The cover-Annexure R-1 contained the notice dated 25-9-1985 which is marked as Document No. I. A copy of this notice has also been sent to the Deputy Commissioner of the District, Vice-President and the Chief Officer of the Municipality who have received the same. In fact the Deputy Commissioner on receiving a copy of the notice has informed the petitioner about it by the communication dated 14-10-1985 which is produced by the petitioner as Annexure-A. If really the petitioner was not in her house at Sadalga during the relevant period and was admitted in the hospital for treatment as it is now pleaded by her, the same in the normal course would have been mentioned in the reply sent by her to the Deputy Commissioner on 28-10-1985 as per Annexure-B. In addition to this there is no reason for the postman to make a false shara on the cover. Therefore, I do not see any justification to reject the postal shara made on the cover Annexure R-1 that the addressee (the petitioner) refused to receive it, hence it is returned to the sender. The legal position as to when the presumption of “due service” under Illustration (e) of Section 114 of the Evidence Act can be raised, or is available, is well settled. This has been considered by this Court in Noorera Papu v. Machinadu Kushalappa, ILR 1985 KAR 901. The relevant portion of the decision is as follows :
“The legal position as to when the presumption of ‘due service’ under Illustration (e) of Section 114 of the Evidence Act can be raised, or is available, is well settled. It is a rebuttable presumption. If the evidence relating to refusal of notice sent by registered post by the addressee is acceptable, the presumption of ‘due service’ under Illustration (e) of Section 114 of the Evidence Act is available and in such cases it can be raised. On the contrary, if the evidence on the point is not acceptable, the question of raising the presumption does not arise, as in such, a case, there will not be a proof of an attempt made by the postman to serve the registered notice on the addressee and refusal of the same by the addressee. It is not always necessary to examine the postman who tried to effect service. The denial by the addressee that he has refused to receive the notice sent by registered post, may even be found to be unacceptable on the other evidence on record. Sometimes, it may even be possible to reject the evidence of the addressee that he had not refused to receive the notice from his admissions or conduct or other evidence on record. Therefore, as a rule, it cannot be laid down that the presumption available under Illustration (e) of Section 114 of the Evidence Act, is rebutted on the addressee entering the witness-box and stating on oath that he had never refused to receive the notice. It depends upon the total effect of the evidence on record”.
The aforesaid view as slated in the very decision itself, is in conformity with the decision of the Supreme Court in Puwada Venkateswara Rao v. Chidamana Venkata Ramana, . In the instant case it has already been held that the case of the petitioner that she was away from her house and was an inpatient in the hospital at Ichalakaranji is not worthy of acceptance and it is accordingly rejected. It has also been further held that there is no reason to disbelieve the postal sharas that the addressee refused to receive. That being so, in the instant case, the presumption of ‘due service’ is available and it can very safely be raised and the knowledge of the contents of the notice can very well be imputed to her. Thus, when the petitioner refused to receive the notice she had full knowledge of the contents of the notice. Accordingly, the first Point is answered in the affirmative and against the petitioner.
6. POINT NO. 2 : Admittedly, within the statutory period, even after the Chief Officer intimated the petitioner, she has not called for the Special General Meeting of the Council. Failure to call for the Special General Meeting within the time allowed by Sub-section (2) of Section 47 of the Act, is sufficient to hold that there is a refusal on the part of the petitioner to call for the Special General Meeting because the law Section 47(2) of the Act imposes an obligation upon the President or the Vice-President as the case may be, to call for the Special General Meeting of the Council within 15 days after the presentation of the written request by not less than 1/3rd of the whole number of Councillors to call for a Special General Meeting of the Council. There need not be express, refusal in writing refusing to call for Special General Meeting of the Council. This can very well be inferred from the conduct of the petitioner evidenced by her failure to call for the meeting within the period allowed by law, and it is sufficient to draw an inference that she has refused to call for the meeting. The petitioner refused to receive on 11-10-1985 a written request sent by registered post with acknowledgment due. Within 15 days after 31-10-1985, the petitioner ought to have called for the Special General Meeting of the Council. She has not called for such meeting. Therefore, there is refusal to call for such Meeting. Accordingly, the 2nd Point is also answered in the affirmative and against the petitioner.
7. POINT NO. 3 : The contention of Sri A. B. Patil, Learned Counsel for the petitioner is that notice of ten days calling for the Special General Meeting of the Council ought to have been given as per Sub-section (9) of Section 42 of the Act, and Section 48 of the Act, does not apply to the meeting to be called for the purpose of moving the resolution expressing want of confidence. This contention also cannot be accepted. Sub-section (9) of Section 42 of the Act, relates to the notice to be given by not less than l/3rd of the total number of Councillors to the President or Vice-President, as the case may be, of their intention to move the resolution expressing want of confidence in the President or the Vice President, as the case may be. This provision has nothing to do with the calling of the Special General Meeting for the purpose of moving the resolution expressing want of confidence. Section 48 of the Act, governs the notices to be given for calling ordinary or special general meeting. The Section specifically states that seven clear days notice of of an ordinary general meeting, and three clear days notice, or in case of great urgency, notice of such shorter period as is reasonable, of a Special General Meeting, specifying the time and place at which, such meeting is to be held and the business to be transacted, thereat shall be given by the Chief Officer or the Municipal Commissioner, as the case may be, to the Councillors and posted up at the Municipal Office. It is not the case of the petitioner that the requirements of Section 48 are not complied with. The specific case of the petitioner is that she has received the notice issued under Section 48 of the Act, on 2-11-1985, of the Special General Meeting proposed to be held on 3-11-1985. Once the contention based upon Sub-section (9) of Section 42 of the Act, that 10 days notice must be given for calling the special general meeting for moving the resolution expressing want of confidence is rejected, nothing remains in the contention, because Section 48 of the Act, provides that notice of even shorter period of less than 3 days also, in case of urgency can be given. Here is a case in which the notice dated 28-10-1985 as stated by Learned Counsel for the petitioner, calling for the Special General Meeting of the Council for moving the resolution expressing want of confidence is served upon the petitioner on 2-11-1985. Thus, the notice of more than three days is given as the notice is sent on 28-10-1985. Even otherwise, there can be no doubt that it is a case of great urgency because 13 out of 15 Councillors have lost confidence in the petitioner. Therefore, motion of no confidence was required to be considered without much loss of time except that was necessary under law. The meeting was attended by 13 Councillors except the petitioner and another Councillor. All the 33 Councillors have supported the resolution expressing want of confidence in the petitioner. Thus, the resolution is passed by a majority of not less than 2/3rd of the total number of Councillors at a Special General Meeting convened for the purpose. Therefore, it is not possible to hold that such a resolution is vitiated in any manner. However, it is submitted by Learned Counsel for the petitioner that the petitioner is prepared to call for the Special General Meeting of the council to consider the ‘no confidence’ motion. In view of the conclusions reached by me, this question does not arise at all. Accordingly, Point No. 3 is also answered in the affirmative and against the petitioner.
8. For the reasons stated above, this Writ Petition fails and the same is dismissed.