ORDER
Shivaraj Patil, J.
1. The petitioners in W.P.No.38636/92 have sought for quashing the meeting notice dated 7th December, 1992-Annexure-A issued by the first respondent and to direct respondent No.1 not to hold the Meeting pursuant to the said notice.
2. Briefly stated, the facts leading to W.P.No.38636/92 are:
The petitioners are the President and Vice-President of the Vijayapura Town Municipal Council respectively and respondent No.1 is the Chief Officer of the said Municipal Council. The petitioners were elected as the President and Vice-President on 25th May, 1990.
The petitioners have-challenged the Special Meeting convened by the first respondent on 19.12.1992 as per Annexure-A to move vote of no confidence against them, contending that notice-Annexure-A issued by the first respondent is without authority of law. It is stated that no notice as required under law for the purpose of convening a Special Meeting for the purpose of moving a no confidence was given by the members to the first petitioner the President. A notice dated 27th November, 1992 allegedly signed by ten members of the Municipal Council was given to the Deputy Commissioner, Bangalore Rural District, requesting him to convene a Meeting for the purpose of moving a motion of no confidence against the petitioners. On the basis of that notice, the first respondent has convened the Meeting by the notice-Annexure-A. The petitioners further contend that the procedure for convening the Special General Meeting or the Special Meeting as provided under Section 47(2)(2) and (3) of the Karnataka Municipalities Act, 1964 (for short the Act) has to be followed. The Calling of the Meeting by the first respondent in contravention of the said provisions is wholly without authority of raw and injurious to the rights and interest of the petitioners. Hence, the Writ Petition.
3. I.A.I, was filed for impleading by ten Municipal Councillors, who had given notice to the Deputy Commissioner and I.A.II was filed, for vacating the interim order granted by this Court on 17.12.1992, by the same applicants. On 11.1.1993, I.A.I, was allowed and the ten applicants in the said I.A. were allowed to come on record as additional respondents. Since the Writ Petition was taken up for hearing itself order on I.A.II was not passed.
4. Respondent No. 1 the Chief Officer has filed the Statement of Objections stating that on 27.11.1992 ten Council members submitted a Memorandum stating that they had no confidence in the Town Municipal Council and asked him to call for the Meeting to move vote of no confidence against the petitioners. Thereafter, the petitioners orally informed him to call for such a Special Meeting. Accordingly, Special Meeting was fixed on 19.12.1992 at 10.35 a.m. by issuing a Meeting notice-Annexure-A. The communication staying operation of the notice-Annexure-A calling the Meeting on 19.12.1992 was received by the first respondent at 9.55 a.m. and immediately thereafter at 10.30 a.m. when all the Councillors were present he displayed the telegram on the Notice Board about the stay order granted by the High Court. It is further stated that the first respondent intimated all the concerned higher authorities about the stay order and the Meeting dated 19.12.1992 did not take place.
The further case of respondent No.1 is that immediately after the communication of the stay order the Councillors time and again were sending several representations and Lawyer notices to him. However, he is proceeding in accordance with the provisions of the Act and the Bye-laws.
5. The additional respondents 2 to 11 have not filed the Statement of Objections. Their stand as can be gathered from the averments made in LAs I and II is that the petitioners have suppressed the material facts and obtained interim order without impleading them. At the Meeting held on 19.12.1992 at 10.35 a.m. a Resolution was passed unanimously removing the petitioners from the offices of President and Vice-President respectively. In Annexure-RI the Resolution it is recorded that one R. Chikkarudrappa presided over the Meeting on 19.12.1992; when the Chief Officer did not give Resolution Book and other papers his behavior was condemned and the minutes of the Meeting were recorded in a new book; the ten Municipal Councillors present in the Meeting unanimously passed Resolution moving the vote of no confidence against the petitioners and all the ten Municipal Councillors (respondents 2 to 11) gave written representation expressing no confidence in the petitioners to the Chief Officer, who was present for taking further action. Further, it was resolved to request the Deputy Commissioner, Bangalore Rural District to take steps to elect President and Vice-President of the Town Municipal Council.
6. Sri. Narayanaswamy, learned Counsel for the petitioners in W.P.No.38636/92 urged that the notice-Annexure-B dated 27.11.1992 alleged to have been signed by the Municipal Councillors and addressed to the Deputy Commissioner, Bangalore Rural District was not given to petitioner No.1, as such it is not a notice given in accordance with law. Further, the Meeting notice- Annexure-A issued by respondent No.1 the Chief Officer convening a Meeting on 19.12.1992 is patently illegal when the said Meeting was not called by the petitioners and the Chief Officer did not get jurisdiction to call such a Meeting in contravention of the provisions contained in Section 47(2) and (3) of the Act. Under the circumstances, he contended that the impugned notice – Annexure-A is bad in law and as such it is to be quashed. He added that when this Court had granted interim stay and the same was communicated as stated by respondent No.1 himself, the contention of respondents 2 to 11 that Meeting was held on 19.12.1992 moving the vote of no confidence against the petitioners is untenable.
7. Sri. H.S. Jois, learned Counsel for respondents 2 to 11 in W.P.No.38636/92 contended that although the notice-Annexure-B was addressed to the Deputy Commissioner, Bangalore Rural District, a copy of the same was given to respondent No. 1 also the Meeting notice was given to the petitioners as well. The respondent No. 1 called the Meeting as per the oral instructions of the petitioners. Further, even if the notice-Annexure-B was not addressed to petitioner No. 1, it does not vitiate the Meeting notice-Annexure-A and that the vote of no confidence was passed against the petitioners in the Meeting held on 19.12.1992 not being aware of the interim order granted by this Court. When the petitioners do not enjoy the confidence of two third of the members of the Municipal Council, they have no right to assail the impugned notice-Annexure-A.
8. Sri. Satish G.Raikar, learned Counsel for respondent No.1 in W.P.No. 38636/92, submitted that a copy of the notice was given to respondent No. 1; he called the Meeting by issuing the notice-Annexure-A as per the oral instructions of the petitioners; he informed all the Councillors present on 19.12.1992 at 10.30 a.m. itself about the stay order granted by this Court and notified the same and that no Meeting took place on 19.12.1992.
9. Smt. K. Sheela, learned Counsel for the petitioners in W.P.No.2463/93 urged that nowhere in the Act or Rules it is prescribed that a notice to move vote of no confidence should be addressee! to the President; in the absence of communication as to the stay of the Meeting, the Meeting took place on 19.12.1992; the motion of no confidence was carried against the petitioners; they are deemed to have vacated their offices and in view of Sections 50, 51 and 56 of the Act the proceedings that have taken place in the said Meeting are valid.
She placed reliance on the following Decisions:
1. T. Kallappa and Ors. v. Deputy Commissioner, Chitradurga and Ors., (1) I.L.R. 1979 Karnataka 1280
2. Shivanna Bashettappa Bhuma v. A.S. Mirji and Ors., (2) 1986(1) Current Civil Cases
10. Having regard to the submissions made by the learned Counsel for the parties, the Point that arises for Consideration is:
Whether the impugned notice-Annexure-A dated 7.12.1992 issued by the first respondent convening the meeting on 19.12.1992 for consideration of moving the vote of no confidence against the petitioners in pursuance of the notice-Annexure-B dated 27.11.1992 addressed to the Deputy Commissioner, Bangalore Rural District, is valid and sustainable?
11. In order to appreciate the rival contentions of the parties, Section 47 of the Act so far it is relevant is extracted below:
(1) xxxxx
(2) The president may, whenever he thinks fit, and shall, upon the written request of not less than one-third of the whole number of councillors and for a date not more than fifteen days after the presentation of such request, call a special general meeting.
(3) If the president fails to call fails to call a special general meeting as provided in Sub-section (2), the vice-president or one-third of the whole number of councillors may call such meeting for a day not more than thirty days after the presentation of such request and require the Chief Officer or the Municipal Commissioner to give notice to the councillors and take such action as may be necessary to convene the meeting.
(4) xxxxx
(underlining is mine)
12. As can be seen from Section 47(2) it is the President who may call for the Meeting whenever he thinks fit and shall call a Special General Meeting upon the written request of not less than one-third of the whole number of Councillors for a day not more than 15 days after such request is presented. Under Sub-section (3) of Section 47 it is stated that only when the President fails to call Special General Meeting as provided under Sub-section (2), the other authorities mentioned therein get jurisdiction to call such a Meeting for a day not more than 30 days after the presentation of such request and require the Chief Officer or the Municipal Commissioner to give notice to the Councillors and take such action as may be necessary to convene the Meeting.
13. From the careful reading of sub-sections (2) and (3) of Section 47 of the Act it is clear that it is the President who is given power to call a Special General Meeting in the first place and on his failure to do so, the other authorities mentioned in Sub-section (3) of Section 47 of the Act can call such a Meeting and request the Chief Officer or the Municipal Commissioner to take steps to give notice of such Meeting to the Councillors. There are two aspects, one is calling the Meeting on a given date and the other is to take steps to give notice of such Meeting to the Councillors by the Chief Officer or the Municipal Commissioner, as the case may be. It is the President or the other authorities under Section 47(2) and (3) to call for the Meeting and once they decide to call for the Meeting, the Chief Officer/Municipal Commissioner thereafter has to take steps to issue notices to the Councillors and take such action as may be necessary to convene the Meeting.
14. In the case on hand, the respondent No. 1 has stated that Meeting as per Annexure-A was convened on the oral instructions of the petitioners, but I find it difficult to accept the same as valid for three reasons:
(1) The impugned notice-Annexure-A itself does not indicate that the Meeting was convened as per the oral instructions of the petitioners. On the other hand, it is clearly stated in the said notice itself that the Meeting is called on the basis of the request made by respondents 2 to 11 in the application given to the Special Deputy Commissioner, Bangalore Rural District.
(2) There is no endorsement or record to show that petitioner No. 1 or petitioner No. 2 gave instructions to call such Special General Meeting.
(3) No written request of not less than one-third of the whole number of Councillors was presented to petitioner No. 1 and he failed to call Meeting as required under Section 47(2) of the Act.
15. In C.G. Somashankar v. Town Municipal Council, , relied on by the learned Counsel for respondents 2 to 11 in W.P.No.38636/92, interpreting proviso to Section 42(9) of the Act this Court ruled that 10 days should be reckoned from the date of notice of intention to move the resolution and not from any other date. In that case two letters were addressed to the President by the 11 members of the Town Municipal Council intimating that they had no confidence in the President and Vice-president and therefore the President should call a Special General Meeting for the purpose. On failure of the President calling the special general meeting, the signatories to the letter moved the Chief Officer to issue notices. Under the circumstances, the challenge to the notices issued as per Annexures-C and D failed and the Writ Petitions were rejected. As is clear from the facts of that case, the letters were addressed to the President; he failed to call for Meeting and the Meeting was called by the required number of Councillors in terms of Section 47(3) by directing the Chief Officer to issue notices-Annexures-C and D.
In 1986(1) Current Civil Cases it is stated in para-8 thus:
“The question for consideration in the present case is: whether there had been a requisition in terms of Section 47(2) of the Act. It is not in dispute that the requisition requiring the calling of a special general meeting had been signed by as many as 16 Councillors out of 19. There is also no dispute that the notice was served both on the Chief Officer and the President. The contention of the petitioner, however, is that unless it was addressed to the President, it was not in accordance with law. Sub-section (2) of Section 47 requires that there should be a requisition for calling a special general meeting and it should be signed by not less than one third of the Councillors. It is silent as to whom the requisition should be addressed. Therefore, it cannot be said that a requisition addressed to the Chief Officer is not a requisition in terms of Section 47(2) as he is the Chief Executive Officer of the Municipality. He is in law bound to seek the orders of the President regarding the date of the meeting. Moreover, in the present case the notice was also delivered to the President on 15.7.1985, though it was addressed to the Chief Officer. It is true that the Councillors couid have also addressed the requisition to the President. But the fact that it was addressed to the Chief Officer is no ground to say that the notice was not in conformity with Section 47(2) of the Act. Further, the requisition addressed to the Chief. Officer was placed with his note before the President for his orders. On the note, though the President stated that it was not addressed to him, he added that the Chief Officer may proceed as per law. Therefore, the Chief Officer proceeded in accordance with law by fixing the meeting on 29.7.1985 which was the 15th day from the date on which the requisition was delivered.”
In the aforesaid Decision the question that came up for consideration was whether there had been a requisition in terms of Section 47(2) of the Act. The undisputed facts were: requisition for calling of a Special General Meeting was signed by 16 Councillors out of 19; such notice was served both on the Chief Officer and the President; the requisition addressed to the Chief Officer was placed with his note before the President for his orders; on that note the President stated that it was not addressed to him and added that the Chief Officer may proceed as per law, thereafter the Chief Officer proceeded in accordance with the law by fixing the Meeting. Admittedly, copy of the requisition was also served on the President although it was addressed to the Chief Officer; the Chief Officer sought the orders of the President and the President though stated that it was not addressed to him, directed the Chief Officer to proceed in accordance with law. The learned Judge in the above extracted paragraph has stated:
“It is true that the Councillors could have also addressed the requisition to the President”.
Since the copy of the requisition was given to the President, thereafter the Chief Officer sought orders of the President in regard to the calling of the meeting and the President directed the Chief Officer to proceed in accordance with law, the learned Judge did not find substance in the contentions of the petitioner and dismissed the Writ Petition.
In T. Kallappa and Ors. v. Deputy Commissioner, Chitradurga and Ors., the facts are these:
On 17.7.1978, ten Councillors presented a written request to President and Vice-President (respondents 2 and 3) of the Municipal Council to call for a Special General Meeting to pass a no confidence resolution against them; respondents 2 and 3 did not call for a Special General Meeting within the stipulated time; on 3.8.1978 ten Councillors met at a Special General Meeting and requested the Chief Officer to call for Special Meeting to express their no confidence; the Chief Officer issued notices to all the Councillors including respondents 2 and 3 convening the Special General Meeting on 16.8.1978 to consider the no confidence motion tabled by the ten Councillors against respondents 2 and 3, but the Chief Officer notified that the Meeting scheduled on 16.8.1978 at 3,00 p.m. stood adjourned, as he was required to appear personally before the Deputy Commissioner with certain records; the ten Councillors met on that day at the appointed time and place under the Presidentship of petitioner No. 3 and passed no confidence resolutions against respondents 2 and 3; a telegram was sent by the ten Councillors to the Deputy Commissioner, Chitradurga informing that Special General Meeting was held, no confidence motion was passed by the ten members present unanimously, Chief Officer was absent, resolution register and roll attendance register were not available due to the Chief Officer’s misconduct and new books were opened; the Deputy Commissioner without examining the true scope of the relevant provisions of the Act held that the resolutions passed by the ten Councillors were not legal and directed the President and the Chief Officer of the Municipal Council to deal with the matter afresh in accordance with law.
This Court on the facts of the aforesaid case and in view of the contentions raised ruled that the President and Vice-President failed to call a Special General Meeting in terms of Section 47(2) and (3); 1/3rd of the number of Municipal Councillors called the Meeting and directed the Chief Officer to convene the Meeting on 16.8.1978 at 3.00 p.m., which was done by the Chief Officer, thereafter the Chief Officer had no authority or power to adjourn the Meeting. Since the Meeting was called in terms of Section 47(3) of the Act and resolutions moving the vote of no confidence were passed in a properly convened Meeting despite the Chief Officer notified the adjournment of the Meeting and Resolutions and attendance were written in the new books in the absence of the resolution register and roll attendance register, this Court held the resolutions passed as valid.
16. Smt. K.Sheela on the basis of the aforesaid Decision contended that in the case on hand also the Meeting was held on 19.12.1992 in the absence of President and Vice-President as scheduled and resolutions were passed and recorded in new books, as such the petitioners in W.P.No.38636/92 should be deemed to have vacated the Office of President and Vice-President. This argument overlooks the fact that the written request was not addressed to the President; it was not brought to his notice and the Chief Officer did not seek his orders in regard to the holding of the Meeting; there is nothing to show that the President failed to call the Meeting in spite of written request made; the Meeting to move the vote of no confidence was called by the Chief Officer on the basis of the letter addressed by the Councillors to the Deputy Commissioner, Bangalore Rural District and the Meeting was not called by the President or Vice-President or by the 1/3rd of the whole number of Councillors, but by the Chief Officer. Hence, it cannot be said that the Meeting held on 19.12.1992 was a Meeting properly called in terms of Section 47(2) and (3) of the Act. It is clear from the Decision in the case of T.Kallappa1 Chief Officer has no power to call a Meeting; he can only convene a Meeting by issuing a notice specifying the place and time of the Meeting and make all necessary arrangements for the Meeting at the appointed place and time and in the matter of convening a meeting he has to carry out the mandate or direction of one of the authorities specified in Sub-section (3) of Section 47 of the Act. A distinction also is drawn between calling a Meeting and convening a Meeting. Calling is referred to decision to hold a Meeting and convening is referred to taking steps to issue notices specifying the date, time and place of the Meeting and to make all necessary arrangements for such a Meeting. Thus, the said Decision does not advance the case of respondents in W.P.No.38636/92,
17. Rule 3 of the Karnataka Municipalities (Procedure and Conduct of Business) Rules, 1977 reads:
“Date, time and place of the meeting of the Municipal Council:- The date, time and place of a meeting of the Municipal Council shall be decided by the President. The Municipal Commissioner or the Chief Officer, as the case may be, shall indicate the date, time and place of the meeting in the notice to be sent to the councillors. The notice of meeting shall be sent to the registered addressed of each of the Councillors”.
18. The above Rule also indicates that the Municipal Commissioner or the Chief Officer, as the case may be, shall send the Meeting notice to the Councillors indicating the date, time and place of the Meeting as decided by the President. Similarly, in terms of Section 47(3) of the Act the Municipal Commissioner or the Chief Officer has to issue Meeting notices in accordance with the decision of either of the Vice-President or one-third of the whole number of the Municipal Councillors regarding date, time and place of a Meeting of the Municipal Council, but the Chief Officer cannot on his own take a decision to call a Meeting, which he is not authorised to do in law, as the contents of Section 47(1) (2) and (3) of the Act are very clear as to which authorities who could call for the Meeting of a Municipal Council.
19. In the case on hand, written request to call for the Meeting was neither addressed to the President nor a copy of it was sent/delivered to him. The Chief Officer did not seek the orders of President in regard to calling of a Meeting, The Meeting was not called by the President or Vice-president or one-third of the whole number of Councillors in terms of Section 47(2) and (3) of the Act. The Chief Officer in law had no authority to call a Meeting. He could only convene a Meeting as per the decision of one of the authorities mentioned in Section 47 of the Act on a given date, time and place and make necessary arrangements for the Meeting. The question of failure on the part of the President or Vice-president calling a Meeting in terms of Section 47(2) and (3) arises when a written request is made to the President. Section 47(2) clearly states that the President may whenever he thinks fit and shall upon the written request of not less than one-third of the whole number of Councillors, for a day not more than 15 days after the presentation of such request, call a Special General Meeting. Upon the presentation of written request by the required number of Councillors, the President is bound to call a Special. General Meeting. This has clear indication that such a written request has to be presented to the President so as to bind him to call such a Meeting. Section 47(3) becomes operative only on the failure of the President calling a Special General Meeting in terms of Section 47(2).
20. The Full Bench of this Court (to which I am also a party) in C. PUTTASWAMY ETC v. SMT. PREMA ETC., 4. dealing with Section 47 of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandai Panchayats and Nyaya Panchayats Act, 1983 has observed that the Legislature deliberately provided for mandatory compliance of Section 47 having regard to the importance of the elective office of the Pradhan and Upapradhan, the need to ensure their stability in office and to promote the objectives of Mandai Panchayats. Thus, I have no hesitation to hold that the Meeting called and convened by the first respondent as per Annexure-A dated 7.12.1992 in W.P.No.38636/92 was without the authority of law and is unsustainable.
21. The Chief Officer has clearly stated that the Councillors were informed about the grant of Interim Order by this Court staying the holding of Meeting pursuant to the impugned notice – Annexure-A dated 7.12.1992 in W.P.No.38636/92. Be that as it may, in the view I have taken that the impugned notice-Annexure-A dated 7.12.1992 issued by respondent No.1 in W.P.No.38636/92 was without the authority of law and as such the Meeting said to have been held on 19.12.1992 at 10.35 a.m. is bad in law, the proceedings of the said Meeting, if any, stand vitiated and W.P. No. 2463/93 has to be dismissed.
22. In the result, for the reasons stated and discussion made above, I pass the following order:
(1) Writ Petition No.38636/92 is allowed.
(2) The impugned notice-Annexure-A dated 7.12.1992 in W.P.No.38636/92 is quashed.
(3) Writ Petition No.2463/93 is dismissed.