Karnataka High Court
Shobha W/O Shivaraj Nimbai vs The Karnataka State Election ... on 22 December, 2021
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 22ND DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE M.I.ARUN
WRIT PETITION NO.202414/2021 (LB-ELE)
C/W
WRIT PETITION NO.202373/2021 (LB-ELE)
IN W.P. NO.202414/2021:
Between:
1. Smt. Shakuntala W/o Balaji Goudgave
Aged about 49 years
Occ: Household & President
Gram Panchayat, Hulsoor
R/o Hulsoor, Tq. Hulsoor, Dist. Bidar
2. Vidyasagar S/o Nivarti
Aged about 34 years
Occ: Member, Gram Panchayat, Hulsoor
R/o Hulsoor, Tq. Hulsoor, Dist. Bidar
3. Vivekanand S/o Baburao
Aged about 32 years
Occ: Member, Gram Panchayat, Hulsoor
R/o Hulsoor, Tq. Hulsoor, Dist. Bidar
4. Smt. Basamma W/o Basawaraj Choure
Aged about 47 years, Occ: Household & Member
Gram Panchayat, Hulsoor, R/o Hulsoor
Tq. Hulsoor, Dist. Bidar
2
5. Smt. Surekha W/o Namdev
Aged about 41 years, Occ: Household & Member
Gram Panchayat, Hulsoor, R/o Hulsoor
Tq. Hulsoor, Dist. Bidar
6. Smt. Meerabai W/o Ranjit
Aged about 32 years, Occ: Household & Member
Gram Panchayat, Hulsoor, R/o Hulsoor
Tq. Hulsoor, Dist. Bidar
7. Smt. Shalubai W/o Dhanaji
Aged about 32 years
Occ: Member, Gram Panchayat, Hulsoor
R/o S. Dabka, Tq. Hulsoor, Dist. Bidar
8. Smt. Shaeeda Begum W/o Madgum
Aged about 32 years
Occ: Household & Member
Gram Panchayat, Hulsoor
R/o Hulsoor, Tq. Hulsoor, Dist. Bidar
9. Sri Arvind S/o Sanganna
Aged about 32 years
Occ: Household & Member
Gram Panchayat, Hulsoor
R/o Hulsoor, Tq. Hulsoor, Dist. Bidar
... Petitioners
(By Sri Santosh Hanmantharao, Advocate)
And:
1. The State of Karnataka
Represented by its Secretary
Department of Rural Development
and Panchayat Raj
M.S. Building, Bengaluru - 560 001
2. The Karnataka State Election Commission
No.8, First Floor, Cunningham Road
3
Bengaluru - 560 052
Represented by its Commissioner
3. The Director of Municipal Administration
9th Floor, Vishweshwaraiah towers
Dr. Ambedkar Road, Bangalore - 560 001
4. The Deputy Commissioner
And the Election Officer
Bidar District, Bidar - 585 401
5. Gram Panchayat, Hulsoor
Taluk Hulsoor, Dist. Bidar
Represented by its
Panchayat Development Officer - 585 416
... Respondents
(Sri Amresh S. Roja, Advocate for R2;
Sri Mallikarjun C. Basareddy, HCGP for R1, R3 to R5)
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ of
certiorari to quash the impugned order in No.SEC: 57:
EGP: 2021 dated 29.11.2021 passed by respondent No.2
in respect of elections pertaining to 5th respondent Gram
Panchayat, Husloor which is found at Sl.No.12 and its
Gram Panchayat Sl.No.43 as shown in Appendix-1 of
Annexure-E and issue a writ of mandamus directing
respondent No.4 to consider the representation submitted
by the petitioners and to take an appropriate action on the
same, copy of which is produced at Annexure-F.
4
IN W.P. NO.202373/2021:
Between:
Smt.Shobha W/o Shivaraj Nimbal,
Age : 51 years, Occ : Agriculture,
President, Gorta-B Gram Panchayat,
Taluka Hulsoor, dist : Bidar,
R/o Village Gorta-B, Tq : Husloor,
Dist : Bidar - 585 327.
... Petitioner
(By Sri Sachin M.Mahajan, Advocate)
And:
1. The Karnataka State Election Commission,
No.8, First Floor, Cunningham Road,
Bengaluru - 560 052,
Represented by its Commissioner.
2. The State of Karnataka,
Represented by its Secretary,
Department of Panchayt Raj,
Vidhana Soudha, Dr.Ambedkar Veedi,
3. The Deputy Commissioner cum
Election Officer,
D.C.Office, Bidar - 585 401.
4. Gram Panchayat Gorta-B,
Tq : Hulsoor, Dist. Bidar - 585 327,
Represented by its
Panchayat Development Officer.
... Respondents
(Sri Amresh S. Roja, Advocate for R1;
Sri Mallikarjun C. Basareddy, HCGP for R2 to R4)
5
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to issue a writ or order
or direction in the nature of certiorari and quash the
impugned notification dated 29.11.2021 issued by the
respondent No.1 bearing No.RaChuAa/57/EGP/2021, vide
Annexure-D, insofar as it relates to election of Gorta-B
Gram Panchayat, Taluka Hulsoor, District Bidar is
concerned.
These petitions coming on for Further Hearing this
day, the Court made the following:
ORDER
The petitioners in the above writ petitions are Adhyaksha and Members of Gram Panchayats. Their term comes to an end on 09.03.2022. However, elections have been declared prematurely and calendar of events have been announced and the election process has to be concluded by 30.12.2021.
2. The contention of the petitioners is that because of the said process, their term is curtailed and shortened by three months and the same is not permissible.
3. Per contra, learned counsel for respondents contend that as per Article 243E(3) of the Constitution of 6 India, an election to constitute a Panchayat shall be completed, before the expiry of its duration. Further, the affidavit of respondent No.4 is filed where he has undertaken that the first meeting of newly elected Gram Panchayat members will be held only after the expiry of tenure of present members.
4. Further, letter issued by respondent No.2 is enclosed to his affidavit wherein respondent No.2 also has stated that the term of the office of the petitioners will not be curtailed. It is submitted by the respondents that due to practical exigencies elections are being conducted a month ahead of schedule and it is not unreasonable or in violation of any law. Admittedly, the tenure of the petitioners comes to an end in the month of March, 2022. As per Article 243E of the Constitution of India, an election requires to be held to a Gram Panchayat prior to the expiry of the term. 7
5. Article 243E of the Constitution of India reads as under :-
"243E. Duration of Panchayats, etc.-
(1) Every Panchayat, unless sooner dissolved under any law for the time being in force, shall continue for five years from the date appointed for its first meeting and no longer.
(2) No amendment of any law for the time being in force shall have the effect of causing dissolution of a Panchayat at any level, which is functioning immediately before such amendment, till the expiration of its duration specified in clause (1).
(3) An election to constitute a Panchayat shall be completed -
(a) before the expiry of its duration specified in clause (1);
(b) before the expiration of a period of six months from the date of its dissolution:
Provided that where the remainder of the period for which the dissolved Panchayat would have continued is less than six months, it shall not be necessary to hold any election under this clause for constituting the Panchayat for such period.8
(4) A Panchayat constituted upon the dissolution of a Panchayat before the expiration of its duration shall continue only for the remainder of the period for which the dissolved Panchayat would have continued under clause (1) had it not been so dissolved."
6. Sections 5(8), 41, 42 and 45 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 read as under:-
"5(8). The Deputy Commissioner shall publish, in the prescribed manner the names of members elected or deemed to have been duly elected.
41. Term of office.- The members of a Grama Panchayat shall save as otherwise provided in this Act, hold office for a term of five years.
42. Commencement of term of office.-
(1) The term of office of the members elected at a general election or at a second election held under sub-section (6) of section 5, shall commence on the date appointed for the first meeting of the Grama Panchayat.
(2) The term of office of a member elected under Section 5 to fill a casual vacancy shall commence on the date of publication of his name under sub-section (8) of section 5.9
45. Procedure for election of Adhyaksha and Upadhyaksha on the establishment of 1 Grama Panchayat etc,.- [(1) The prescribed officer shall after every general election of members of a Grama Panchayat or on its constitution, reconstitution or establishment under this Act and in any case within one month from the date of publication of names of the elected members under sub-section (8) of Section 5, 2[and immediately before the expiry of term of office of Adhyaksha and Upadhyaksha] and so often as there arises any casual vacancy in the office of the Adhyaksha or Upadhyaksha, call for a meeting of the Grama Panchayat and preside over it, without right to vote, and in such meeting the Adhyaksha or the Upadhyaksha or both, as the case may be, shall be elected.] (2) Any dispute relating to the validity of election of a Adhyaksha and Upadhyaksha of Grama Panchayat under this Act shall be decided by 3[the designated Court] having jurisdiction over the panchayat area or the major portion of the panchayat area, whose decision thereon shall be final."
7. Sections 5(8), 41, 42 and 45 of the Karnataka Gram Swaraj and Panchayat Raj Act mandates that the 10 term of office of a Gram Panchayat shall be for a period of five years meaning that the term of the petitioners has to be there till 09.03.2022 and that the election has to be conducted prior to the expiry of the term and the Deputy Commissioner i.e., respondent No.4 herein shall publish in the prescribed manner the names of the members elected or deemed to have been elected and that the term of the office of the members elected shall commence on the date appointed for the first meeting of Gram Panchayat and that the said meeting shall be held within a month after publication of the names of the elected members.
8. In the instant case, the elections are indeed being conducted prior to the expiry as contemplated under law. However, the same is being conducted prematurely by about 40 days. The reason assigned is practical contingencies.
9. The superintendence, direction and control of preparation of electoral rolls for, and the conduct of, all elections to the Municipalities is vested with the State 11 Election Commission. In their wisdom they have declared the elections and it is also decided that the term of office of the petitioners shall not be affected.
10. Under the said circumstances, as the interest of the petitioners to hold the term of the office till the completion of their tenure is being agreed upon by the respondents, no orders are required to be passed in the instant writ petitions and hence recording the undertaking of the respondents the writ petitions are disposed of.
SD/-
JUDGE sn