JUDGMENT
V. Gopala Gonda, J.
1. This appeal is filed by the appellants aggrieved by the operative portion of the order dated 29.6.2006 passed in W.P.7768/2006 wherein liberty is given to the 4th respondent-APMC to conduct the meeting to discuss the No-Confidence Motion moved against the appellants, on any future date after notifying its members. The Appellants have prayed for setting aside that portion of the order by allowing this appeal, urging various grounds.
2. The learned Senior Counsel appearing on behalf of the appellants Sri. Jayakumar S. Patil, placing strong reliance upon Section 44(2) of the Karnataka Agricultural Produce Marketing (Regulation) Act, 1966 (hereinafter called as “Act”) submits that Sub-section (1) of the aforesaid provision provides that if a No-Confidence Motion is moved and fails, a fresh motion of No-confidence cannot be moved for a period of six months; that the purpose of providing such provision in the statute is to avoid un-healthy situation created by moving No-Confidence Motion frequently and to see that the elected office bearers discharge their duties and functions without being disturbed by such repeated No-Confidence Motions. Further, it is submitted that the first respondent has illegally nominated the 5th respondent in exercise of its power under Section 18(2) of the Act. It is stated that 5th respondent is not a member of Agricultural Produce Society carrying on business in the agricultural produce within the market area notified by the 4th respondent and therefore he could not have been nominated as a representative of the said Society; that his nomination is tainted with legal malafides; that, his participation in the No-confidence Motion meeting held on 8.6.2006 convened by the 4th respondent at the instance of respondents 8 to 16 has vitiated the resolution passed by the 4th respondent; that there was only simple majority and not 3/4th majority as required under Sub-section (2) of Section 44 of the Act. Therefore, the appellants have challenged the legality of the nomination of 5th respondent made by the first respondent and the resolution passed by the 4th respondent. Accepting the case of the appellants, the learned Single Judge quashed both nomination and resolution. Having done so, it is contended that the operative portion of the order could not have been passed giving liberty to the 4th respondent-Secretary to move No-Confidence Motion once again against the appellants on the basis of the requisition notice submitted by respondents 8 to 16. The liberty so given is in blatant violation of the statutory provisions which bars passing of No-Confidence Motion for a period of six months from the date of its failure. Further, it is contended that in the instant case, having regard to the procedure contemplated to move No-Confidence Motion i.e., raising of hands there was no difficulty for the learned Single Judge to ascertain as to in whose favour the illegally nominated member has exercised his franchise at the time of No-Confidence Motion in the meeting held on 8.6.2006. The case pleaded by the appellants has been accepted by the learned Single Judge and as such the votes polled in favour of the motion and against the motion became 8:8. Therefore, in the eye of law there is no No-Confidence Motion resolution in terms of Sub-section (2) of Section 44. Right is conferred under Section 44(1) in favour of the appellants and that right has been taken away by exercising extraordinary jurisdiction by the learned Single Judge. Hence, they have prayed to set aside that portion of the order by allowing this appeal.
3. Sri. Udaya Holla, learned Advocate General sought to justify the operative portion of the impugned order giving liberty to the 4th respondent. It is contended that having regard to the procedure prescribed under Section 44(1), the case pleaded by the appellants that the nomination of the 5th respondent is illegal; that his participation in the proceedings must have tilted supporting the motion or opposing the motion against the appellants in the meeting held on 8.6.2006 has been accepted by the learned Single Judge and accordingly the nomination of the 5th respondent and his participation in the proceedings have been quashed. The learned Advocate General further submits that though the learned Single Judge has not assigned reasons for the liberty given to the 4th respondent, he must have thought that it would be appropriate to permit to move the No-Confidence Motion in a fresh meeting as the participation and exercise of franchise by the illegally nominated member has resulted in successful no confidence motion against the appellants and therefore liberty was given to the 4th respondent to convene the no-confidence motion against the appellants from the stage at which the proceedings are vitiated. Therefore the appellants cannot have any grievance with the same.
4. This contention is seriously countered by the learned Senior Counsel Sri. Jayakumar S. Patil contending that the first respondent was a party to nominate the 5th respondent who is not entitled in law to do so and his participation in the special meeting proceedings on 08/06/06 has resulted in passing the No-Confidence Motion against the appellants. The appellants rightly challenged the said resolution of no-confidence motion before this Court and the same was quashed by the learned Single Judge and therefore, it is not open for the first respondent to contend that the liberty given by the learned Single Judge is justified in the instant case. Therefore, he requested this Court to reject the said contention of the learned Advocate General. The counsel further submits that respondent No. 1 is responsible for illegally nominating the fifth respondent as a member of the 5th respondent.
5. Sri. Shivaraj P. Mudhol, learned Counsel for the 4th respondent also sought to justify the liberty given by the learned Single Judge to the fourth respondent as stated supra in the operative portion of the order impugned in this Appeal contending that it is legal and valid in law.
6. Even Sri. T.N. Raghupathy, learned Counsel appearing for respondents 8 to 16 also sought to justify the liberty given to the fourth respondent in the operative portion of the impugned order strongly placing reliance upon Rule 49 of the Karnataka Agricultural produce Marketing (Regulation) Rules, 1969 (for short “Rules”) and contending that though the liberty given to the 4th respondent is not supported with reasons in the impugned order, nonetheless the procedure followed by the 5th respondent, who is the authorised representative of the Director of the APMC and who has presided over in the special meeting convened to move the no-confidence motion against the appellants, is perfectly justified. He further submits that notice of requisitions were submitted separately by respondents 8 to 16 which is opposed to the intent and object of Rule 49(1) of the Rules and the statutory rights conferred upon the appellants. According to the learned Counsel, the notice of no-confidence requisitions should have been moved jointly and the resolution to this effect should have been passed. He further submitted that the above mandatory procedure is not followed. The said submission is fortified by the original Resolution Book, which is produced by the 4th respondent as per the direction of this Court, which clearly discloses the fact that the motion of No-confidence is jointly moved by respondent No. 3, which is contrary to the mandatory procedure laid down under Rule 49 of the Rules. The 3rd respondent was required to follow that procedure. In support of the above contention he has placed reliance upon the decision of the Supreme Court reported in Babu Verghese and Ors. v. Bar Council of Kerla and Ors. Paragraphs 31 and 32 wherein the decisions of the Privy Council and the Chancellor’s court and the earlier decisions of the Supreme Court are referred to and law is laid down holding that “it is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all”. Learned Counsel submits that respondent No. 3 has put to vote the no-confidence motion requisition notice jointly against the appellants and passed the resolution against them and as such the said resolution is null and void. No doubt, they have not challenged the resolution on the above ground. Despite that, at the instance of the appellants the resolution has been quashed by this Court in the writ petition filed by them and liberty is given to the 4th respondent to move fresh no-confidence motion in the meeting that would be convened by the Secretary of the 4th respondent. Further, the learned Counsel for respondents No. 8-16 placing reliance upon Order 41 Rule 33 Code of Civil Procedure, submitted that though finding is not recorded by the learned Single Judge in this regard, to justify the order in these proceedings.
7. This contention is seriously contested by the learned Senior Counsel appearing on behalf of the appellants contending that there is no finding recorded in this regard. The ground on which the nomination and the no-confidence resolution were quashed is not on the ground which is sought to be passed into service in these proceedings in justifying the operative portion of the order of the learned single Judge. Therefore, the learned Sr.Counsel had requested this Court to reject the above contention urged on behalf of the respondent Nos. 8-16. He has also placed strong reliance upon the Division Bench decision of this Court in the case of Ashok v. Tawanappa Siddappa Jakkannavara ILR 1989 KAR 123 in support of the first contention. In this decision it is held that after the election of the Pradhan and Upa-pradhan under the repealed Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983, illegally nominated members participated in the election proceedings of Pradhan and Upa-Pradhan of Mandal Panchayath and that has resulted in the election of persons who were not entitled to be elected as such in the meeting and continued the full term. In view of this decision, he submits that the liberty given in the operative portion of the impugned order is liable to be set aside by this Court by allowing this Appeal.
8. After hearing the learned Counsel for the parties, we have carefully perused the original file containing the notice of requisitions submitted by respondents 8 to 16 to the 4th respondent against the appellants herein. We have also perused the Resolution Book and the Attendance Book, which are made available to us by the 4th respondent as per our directions in a sealed cover. Notice of no-confidence motion requisition dated 18.5.2006 against both the Chairman and Vice-Chairman of the 4th respondent are submitted by the 9 members of the 4th respondent APMC, which are available in the file. The same is in compliance with Rule 49(1) of the Rules. Pursuant to the said notice of requisition, the 4th respondent represented by its Secretary and the 3rd respondent, who is the Authorised Representative of the Director of APMC, convened the special meeting on 8.6.2006 to put the notice of No-Confidence against the appellants for consideration.
9. It is an undisputed fact that the 5th respondent has voted in favour of the No-Confidence Motion, against the appellants herein. The same is evident from his signature found in the Resolution Book. His nomination and participation in the proceedings on 8.6.2006 is the cause of action for the appellants to challenge the same in the Writ Petition as the resolution passed was by simple majority against them. This Court has rightly accepted the case pleaded by the appellants for quashing the nomination of 5th respondent as a member of the APMC and consequently quashed the resolution of no-confidence passed against the appellants. While doing so, the learned Single Judge has given liberty to the 4th respondent to re-convene the meeting to move the No-Confidence Motion against the appellant. For the direction issued and liberty given no reasons are assigned. We have to examine the correctness of this portion of the order on the basis of the grounds urged in this Appeal.
10. We have carefully examined the rival legal submissions made by the learned Advocate General and other counsel with reference to Order 41 Rule 33 CPC and Rule 49 of the Rules keeping in view the decision of the Supreme Court referred to supra upon which much reliance is placed by the learned Counsel Sri. T.N. Raghupathy on behalf of respondents No. 8-16. In order to appreciate the grounds and contentions urged it is necessary to extract Rule 49 of the Rules to appreciate the rival legal submissions and answer the same, which reads thus:
MOTION OR NO-CONFIDENCE AGAINST CHAIRMAN OR VICE- CHAIRMAN : – (1) Notice of a motion of no-confidence against the Chairman or Vice-Chairman of the Committee shall be in writing addressed to the Secretary in From 27 signed by the member of the committee who intends to move the motion and shall contain the signatures of not less than one-thirds of the total number of members of the Committee supporting the notice. In case the motion of no-confidence is against both the Chairman and Vice-Chairman, separate notices, one in respect of the Chairman and the other in respect of the Vice-Chairman shall be given in the manner aforesaid.
(2) On receipt of the notice under Sub-rule (1) the Secretary shall intimate the same to the Director of Agricultural Marketing.
(3) In the meeting of the Committee in which a motion of no-confidence is for consideration, while such motion is being considered.-
(i) The Vice-Chairman if the motion of no-confidence is against the Chairman’
(ii) The chairman if the motion of no-confidence is against the Vice-chairman; and
(iii) The Director of Agricultural Marketing or an officer authorised by him, if a motion of no-confidence is moved both against the Chairman and the Vice-Chairman; shall preside.
(4) Save as otherwise provided in the Act, a meeting converned for the purpose of considering a motion under this Rule shall not for any reason be adjourned.
(5) The Secretary shall communicate forthwith to the Director of Agricultural Marketing, the decision taken by the Committee on any motion of no-confidence together with the names of all the members of the committee present at the meeting and number of votes given in favour of or against such motion. He shall also forward at the same time to each member present at the meeting a copy of the motion and the result of the voting thereon.
The above Rule contemplates the procedure for submitting notice of No-confidence motion against the Chairman and Vice-Chairman of the APMC Committee. As could be seen from the file, two notice of requisitions have been submitted by respondents No. 8-16 against the chairman and Vice-Chairman, who are the appellants herein. To consider the No-confidence Motion requisitions, the special meeting was convened by the 4th respondent to be presided over by the respondent No. 3, who is the authorized representative of the Director of APMC. A bare reading of Rule 49 of the Rules abundantly makes it clear that there must be separate and distinct notice of requisitions to be submitted by 1/3rd members of the Committee against the Chairman and Vice-Chairman, if the members intended to move such motion of no-confidence against them. For the purpose of moving such No-Confidence Motion, the procedure to be followed is prescribed under the Rules. The said procedure has to be held mandatory because the resolution that would be passed expressing no-confidence against the Chairman and Vice-Chairman would entail serious civil consequences. Their statutory, right to continue as office bearers of the APMC will be deprived of and therefore the procedure laid down for this purpose has to be held as mandatory. This would clearly indicate that such notice of requisition against the Chairman and Vice-Chairman must be separately taken up, moved by the authorized representative of the Director in the meeting that would be convened for the purpose of considering such notices.
11. From the original Resolution from the original Resolution Book produced by the 4th respondent, it is evident that the aforesaid mandatory procedure is not followed. Therefore there is violation of mandatory provisions of Rule 49 of the Rules. That by itself vitiates the Resolution passed against the appellants. Though this ground was very much available for them to urge in the writ petition, it was not urged. But the ground on which the Resolution is set aside is that the 5th respondent was illegally nominated by the 5th respondent and his participation and support to the No-Confidence Motion resolution passed against the appellants has vitiated the resolution. Because of his participation and exercising his franchise against the appellants, the result has changed from 8:8 to 9:8. Therefore, the reliance placed upon the decision of Babu Verghes’s case referred to supra with all fours applicable to the fact situation of the present case. It is worthwhile to extract Paragraphs 31 and 32 of the said decision which reads thus:
31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in the manner or not at all. The origin of this rule is traceable to the decision in Taylor V. Taylor which was followed by Lord Roohe in Nazir Ahmad v. King Emperor who stated as under:
Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.
32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of U.P. and again in Deep Chand v. State of Rajasthan. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh and the rule laid down in Nazir Ahmed case was again upheld. This rule has since been applied to the exercise of jurisdiction by Courts and has also been recognised as a salutary principle of administrative law.
12. No doubt, the requisitionists (R9-16) have not challenged that resolution before this Court. None-the-less the proceedings in which the no-confidence resolution was passed against the appellants are null and void as the mandatory procedure required to be fallowed by the 3rd respondent has not been followed. This aspect was not brought to the notice of the learned single Judge by either of the parties in the writ petition.
13. The learned Senior counsel Sri. Jayakumar S. Patil, vehemently contended that the benefit of aforementioned contention is not available for respondents 8 to 16 as they have not challenged the Resolution, as the Resolution is in their favour and that is not the ground urged before the learned Single Judge for quashing the impugned resolution.
14. No finding is recorded by the learned Single Judge in support of the liberty granted to the 4th respondent to place reliance upon Order 41 Rule 33 code of Civil Procedure by the respondents No. 8-16 in these proceedings either to support the finding or to set aside the finding on this ground. Therefore, the contention that the statutory provisions of Order 41 Rule 33 CPC do not support respondents 8 to 16 is very difficult to be accepted, in view of the law laid down in the case referred to supra and also for the reason that there is violation of mandatory procedure prescribed under the Rules by respondent No. 3 in conducting the proceedings and passing the no-confidence motion jointly against the appellants. The resultant position is in the eye of law, no resolution is passed in the meeting. In that view of the matter the notices of No-Confidence motion remains intact. In other words, there is no resolution of no-confidence motion passed on said notices against the appellants. In view of this position, the learned Single must have felt that liberty has to be given to the 4th respondent to consider the No-Confidence Motion requisition moved against the appellants by convening a meeting by following the mandatory procedure. Though, no reason is assigned by the learned Single Judge in support of his direction to the 4th respondent and liberty given, we are supplementing our reasons to that portion of the direction and liberty given to the 4th respondent.
15. For the reasons stated supra, we do not accept the grounds urged by the learned Senior Counsel Sri. Jayakumar S. Patil as also the contention of learned Advocate General justifying the participation and franchise of vote by the illegally nominated member.
16. For the reasons stated supra, the appeal must fail and accordingly, it is dismissed.