Allowed

Smt Priyanka M v. State of Karnataka

Karnataka HC15 Nov 2024WP/19962/2024

Case brief

AI extract

What is this about?

Elected members of Maddur Town Municipal Council challenged a resolution diverting Rs.9,49,000 Untied Fund from road asphalting to drain desilting, adopted on an unlisted agenda item. The Court held Section 59(2) permits urgent routine subjects only if no councillor objects, quashed the resolution in part.

What did the court decide?

Petition allowed in part; Annexure-A dated 20.07.2024 (Agenda No.3/1 decision to apply Rs.9,49,000 Untied Fund to desilting near Koppa Circle) quashed, subject to observations permitting fresh proceed

Smt Priyanka M Vs State of Karnataka — Municipal and Town Planning | Karnataka HC (2024)

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NC: 2024:KHC:46893 WP No. 19962 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 19962 OF 2024 (LB-RES)

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BETWEEN:

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SMT PRIYANKA M

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W/O SRI APPU P.GOWDA, AGED 33 YEARS, R/AT K.H. NAGARA, 4TH CROSS, MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-571 428.

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Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA

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SMT. RATNA W/O THIMMAIAH, AGED 51 YEARS, R/AT. GANGAMMATSRA BEEDHI, MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-571 428

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SMT.SHOBHA W/O LATE SRI MARI S, AGED 38 YEARS, R/AT. BEHIND MILL, CHANNEGOWDANNADODDI, H.K.V.NAGARA MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-571 428

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NC: 2024:KHC:46893 WP No. 19962 of 2024

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SMT.PRAMILA W/O SRI VENKATESH, AGED 49 YEARS, R/AT. LEELAVATHI LAYOUT, 5TH CROSS, MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-571 428.

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SRI.C. NANDISH, S/O SRI CHIKKAKEMPAIAH, AGED 38 YEARS, R/AT. SHIVAPURA MADDUR TOWN, MADDUR TALUK, MANDYA DISTRICT-571 428.

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…PETITIONERS

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(BY SMT. VAISHALI HEGDE., ADVOCATE)

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AND:

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STATE OF KARNATAKA REPRESENTED BY CHIEF SECRETARY, DEPARTMENT OF URBAN DEVELOPMENT, VIKASA SOUDHA, DR.AMBEDKAR VEEDI, BENGALURU-560 001

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DEPUTY COMMISSIONER, MANDYA DISTRICT, MANDYA.-571401.

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ASSISTANT COMMISSIONER, MANDYA SUB-DIVISON AND ADMINISTRATIVE OFFICER, TOWN MUNICIPAL COUNCIL, MADDUR.-571428.

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PROJECT DIRECTOR,

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DISTRICT DEVELOPMENT WING, OFFICE OF DEPUTY COMMISSIONER, MANDYA DISTRICT, MANDYA-571401.

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CHIEF OFFICER, TOWN MUNICIPAL COUNCIL, MADDUR,-5714-28.

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…RESPONDENTS

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(BY SMT. PRATHIMA HONNAPURA, AAG A/W SRI. SHIVAJU H MANE, SPL GA AND SMT. SPOORTHI V., HCGP FOR R1 TO R4; SRI. G.M.ANANDA, ADVOCATE FOR R5)

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THIS W.P. IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED RESOLUTION DTD. 20.07.2024 BEARING NO.PU.SA.MA/VISHESHA SABHE/NO0/2024-2025 VIDE ANNX-A PASSED BY THE TOWN MUNICIPAL COUNCIL, MADDUR IN ITS SPECIAL MEETING IN THE INTEREST OF JUSTICE AND EQUITY.DIRECT THE R-2 AND 3 TO CONSIDER THE REPRESENTATIONS DTD. 24.07.2024 VIDE ANNX-L AND M AND PASS APPROPRIATE ORDERS TO TAKE DECISION WITH REGARD TO THE ISSUES ON HAND, AFRESH BY FOLLOWING PROCEDURES ESTABLISHED BY LAW IN GENERAL MEETING.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD

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NC: 2024:KHC:46893 WP No. 19962 of 2024

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ORAL ORDER

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The petitioners are elected representatives of the Maddur Town Municipal Council [‘ the Council’ ] and they are aggrieved by the Council’s decision on the subject in Agenda No.3/1 in the Special Meeting held on 20.07.2024 [ as per Annexure - A ]. This decision is to utilize additional fund of Rs.9,49,000/[ identified for the present purposes as Untied Fund ] for desilting. The Deputy Commissioner, Mandya vide the Official Memorandum dated 28.05.2024 has permitted utilization of the Untied Fund for asphalting a road leading to St. Anne's Convent, Maddur within the Council's Ward No.4, and the impugned Resolution in Agenda No.3/1 is to apply this fund for desilting drainage near " Koppa Circle ", Maddur.

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While this Court was considering the petitioners' request for interim order against implementation of this decision to apply the fund of Rs.9,49,000/- for desilting, the fifth respondent [ the

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NC: 2024:KHC:46893 WP No. 19962 of 2024

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Chief Officer, Town Municipal Council ], has stated that the Work Order will not be issued. This arrangement is continued, and this petition is taken up for final disposal with the respondents pleading urgency.

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Ms. Vaishali Hegde, the learned counsel for the petitioners, submits that the decision to apply the Untied Fund for desilting is without due participation of the elected members. The learned Counsel emphasizes that the decision to change the application of the fund from asphalting a road next to a school to desilting the drainage at " Koppa Circle " is only at the instance of an elected representative from the District, and that this is demonstrated by the Deputy Commissioner's Letter dated 18.07.2024 addressed to the Administrative Officer of the Council referring to the elected representative's Letter dated 27.06.2024.

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3.1 In these regards, Ms. Vaishali Hegde submits that the notice of the Special Meeting

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scheduled to be held on 20.07.2024 is issued on 18.07.2024 with three Agenda Items without referring to the proposal to change the application of the fund to desilting of the drainage, and that this item is taken after the meeting without opportunity to all the petitioners to participate in the discussion on the subject.

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3.2 Ms. Vaishali Hegde also canvasses that the Untied Fund must be available for development works within the Council’s limits such as, asphalting a road; that the work of desilting a drain will be within the jurisdiction of the National Highway Authorities who can provide funds for such work; that therefore, the Council could not have prioritized utilization of the Untied Fund for desilting.

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Ms. Prathima Honnapura, the learned Additional Advocate General, is supported by Mr. G. M. Ananda, the learned counsel for the fifth respondent – the jurisdictional Assistant

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NC: 2024:KHC:46893 WP No. 19962 of 2024

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Commissioner who is the Administrative Officer of the Council. On the petitioners' participation in the meeting and the discussion on the subject, the learned Additional Advocate General, relying upon the Attendance Register relevant to the meeting held on 20.07.2024 and Minutes of the Meeting, canvasses as follows.

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[a] The petitioners' grievance with the decision to change the utilization of the Untied Fund from asphalting to desilting is on the ground that the subject was not discussed in their presence, but they cannot dispute that they were present at the meeting or contend that they did not have due opportunity, and

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[b] The first petitioner was present but has not signed the Attendance Register. The second and third petitioners were absent and they have been accordingly marked, and the fourth and fifth petitioners were present at

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the meeting and signed the register. The first petitioner, when the subject of utilizing the Untied Fund for desilting was introduced for discussion, has objected.

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4.2 Ms. Prathima Honnapura emphasizes that

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these circumstances demonstrate that the petitioners are not justified in alleging that the subject was taken for discussion either in their absence or after the meeting. The learned Additional Advocate General even proposes to rely upon the photographs to show the petitioners' participation in the discussion.

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This Court has verified the Attendance Register dated 20.07.2024. Indeed, the second and third petitioners were absent, the fourth and fifth petitioners were present and have signed the Register and the first petitioner has not signed the Register. The absence and presence as aforesaid are seen not just from the Attendance Register but also in the Minutes of the Meeting. Therefore, this Court is of the

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view that the petitioners cannot succeed in their grievance against the impugned decision either on the ground that they were not present or that the subject was taken up in their absence.

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Ms. Prathima Honnapura contends that

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given the provisions of Section 59 of the Karnataka Municipalities Act, 1964 [for short, ' the 1964 Act' ], it would be open to the President of a Council to propose any subject for discussion if it is of urgent or is routine in nature, and the third respondent [the Administrative Officer ] has accordingly introduced the subject for discussion; that the first petitioner has participated in the discussion opposing the proposal, while the fourth and fifth petitioners have not objected. The learned Advocate General canvasses that when the subject is introduced for discussion, as is permissible under the provisions, this Court cannot take exception with the impugned decision on

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the ground that the subject is not mentioned in the meeting notice.

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The merits of this contention, which is offered in rebuttal of the petitioners' case that the subject was not part of the Special Meeting notice and could not have been introduced for discussion, is examined in the light of the undisputed documents and Section 59 of the 1964 Act¹ . The Deputy

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1 Conduct of ordinary meetings. — (1) At an ordinary meeting business shall be conducted in the following order: —

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(a) the minutes of the previous ordinary meeting and of any special meeting held since shall be read and confirmed;

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(b) business postponed at the previous meeting shall be considered;

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(c) subjects noted on the agenda shall then be considered.

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(2) A councillor may propose any resolution connected with or incidental to the subjects included in the list of business:

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Provided that the president may propose any urgent subject of a routine nature not included in the list of business if no councillor objects to it.

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(3) All points of order shall be decided by the presiding authority with or without discussion as he may deem fit, and his decision shall be final.

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Commissioner on 18.07.2024, has directed the third respondent to call a meeting of the Council to obtain permission for the proposal to shift the utilization of the Untied Fund from asphalting to desilting because there is a request in that regard by an elected member of the assembly and because tender is not issued in terms of the earlier Official Memorandum dated 05.09.2022. On the same day, the third respondent, as the Administrative Officer of the Municipal Council, has issued the notice of Special Meeting but without mentioning this subject.

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This Court must observe that the Section 59(2) of the 1964 Act enables the President of a Council to propose a subject for discussion though not mentioned in the meeting notice, but this enabling is conditioned by two factors viz ., (a) the concerned subject is urgent and not routine in

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(4) Any question of procedure not herein provided for in this Act or the rules made thereunder shall be decided by a majority of the councillors present and voting."

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nature, and (b) if no councilor objects to it. As regards the second condition, this Court must refer to the impugned Resolution dated 20.07.2024. The Resolution records that the first petitioner has objected, but of course, on the ground of quorum. If an objection is raised by a councilor, the President cannot propose the subject.

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Further, the subject proposed for

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discussion outside the list of business notified, must be routine and urgent. The Resolution does not refer to the urgency for a decision and given that the decision is for application of fund, this Court is not persuaded to opine that it is routine in nature. Therefore, this Court must accept the petitioners' grievance as against the utilization of Untied Fund [Rs.9,49,000/-] for desilting of a drain, instead of utilizing such fund for asphalting of a road, must be accepted and quash this decision.

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The petitioners also propose to contend that the subject could not have been taken because it is at the instance of an elected member of the Legislative Assembly and that the fund would be better applied for asphalting of a road next to school as fund for desilting could be made available by the National Highway Authority. This Court is of the view that merely because a proposal is mooted by an elected member of the Legislative Assembly, it cannot be said that the decision would be a colorable decision.

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On the better utilization of the funds, this Court is of the view that it is for the Council to discuss and take decision, and this Court cannot, while entertaining a grievance under Article 226 of the Constitution of India, render an opinion on the expediency of a particular utilization of the fund as against another. As such, this Court's interference with the decision to apply Untied Fund for desilting

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as against asphalting, cannot foreclose the initiation of proceedings for due deliberation and consideration. In the light of the afore, the following:

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ORDER

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The petition is allowed in part, and Annexure-A dated 20.07.2024 insofar as it relates to Agenda No.3/1 [the decision to apply Rs.9,49,000/- of Untied Fund ] for the purpose of desilting the drainage near " Koppa Circle " instead of utilizing the same for the purpose of asphalting the road next to St. Anne's Convent [Valegare Shankare Gowda House Street], is quashed, but subject to the observation as aforesaid.

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Sd/(B M SHYAM PRASAD) JUDGE

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RB, NV

Smt Priyanka M v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Smt Priyanka M v. State of Karnataka

Case brief

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