Karnataka High Court
Hanumanthappa Togari S/O.Yamanappa ... vs State Of Karnataka Rep:By Its ... on 5 February, 2010
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
I occ: 2.13. MEMBER 3: MEMBER OF
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT GULBARGA _ I Q
DATED THIS THE 05111 DAY OF FEBRU2'I.I.§Y:.
BEFORE...
THE HONBLE MRJUSTICE MOE'-.AN.' Sf:1ANTAi§Af§t§_fUI§}2R
WRIT PETITION NOS'.'8C--{)O4 OF 2010 I31 130007-
8001 1/20110 (LB-RES) A
WRIT PETITION'N_O.8'39_52 2,009 (LB~ELE)
W.P.No.8ooo4/2010;;-8EQ¢$(5*:?}»1111/Etrrm
BETWEEN:
1. HANUMAN'11IA151?A TOGARLI I'
s/0 '
AGE 54' OCC: ZPMEMBER
& MEMBER oF"AGR1cTUL_TURE'
& INDUSTRIAL cOMj;Iv.II*I*r__EE. 21.13. RAICHUR
R/O RosT..c1II'ITARUR, LINGASUGUR
DIST. RA1cHUR_
I' - RA<._}"A}:.SRIN'[AS NAIR -------- ~ "
" 'S,/.o"'RA;IA NARASHIMHA NAIK
A,GE--.40*vYEARs,' occ: 2.13. MEMBER
~& MEMBER? OE-FINANCE, AUDIT
&'PLAI\1N1NG';'C-SMMITTEE 2.13. RAICHUR
V R/O---..GUF{GUNTA, TQ. LINGASUGUR
; DIST. RAICHUR.
-- T '9fO..1\1AGAMMA
-- .f.-AGE: 40 YEARS,
T " HEALTH & EDUCATION CO.MMI'I'TEE
BASHEERUDDIN S/O BABU MIYA
AGE: ABOUT 44- YEARS.
OCC: MEMBER OF ZILLA PANCHAYAT
RAICHUR, R/O H.NO.1--2-22,
GOODSHED ROAD, RAECHUR.
PRAKASI-I s/o. RACHAPPA. - ., E
AGE: ABOUT 54 YEARS, ' 1. "
occ: MEMBER OF ZILLA PANCHAYA1'; 1' ' ..
RAICHUR, R/O SIRWAR, TQ.
DISTRICT: RAICHUR' ._ .. V
BASAVARAJ s/o pAMPATHI__sA;1U, "
AGE: ABOUT 42'"YEARs", " 1'
occ: MEMBER GE"zIL£.A2VjPAN'cE1+;AYAT,
RAICHUR, DIST: RA-1cH1;;R.< _ ._
° E " PETITIONERS
{BY SR1
AND:
1.
srnm (SF
BY i"I'S vsEcjE.ETAR'&?.,' " _
RURAL DEVEI,01?IVi_EI€'T AND
PANCI-IAYAT RAJ DEPARTMENT,
_ -- Ms. BUILDING,'-BANGALORE.
THE "CHIEF OFFICER.
- .. ZILIJAVPANCHAYAT. RAICI-EUR.
TH FT]'PR§§S%DENT,
' ZILJ.A}~'ANCHAYAT, RAICHUR.
.. RESPONDENTS
{BY SR1 S.S.KUMi'vIAN, GA. FOR R1 ' SR} AMEET KUMAR DESHPANDE. ADV. FOR R2 SR1 RVILAS KUMAR, ADV. FOR R3} This Writ Petition is filed under Articles 226g.& 22'? of the Constitution of India, praying to qLiasi*i«.._lthe impugned notification dated 30.11.2009 211" respondent as at Ar1nexure-G and to ._1~'-it 8: ., 21*' respondents to elect the StandingECornrnit_teVe's7 following due process of law.
These two writ petitio'n,s""icoming_ onf.for',hearing. being heard and reser-'Vzed for"or"ders»,'.thisé"day the Court made the following:
The 11i5tifie_a.tio1;:.j_ .A:;.nemf:§e-o. "dated 30.1 1. 1999 issued,~by. Zilla Panchayat, Raichiir, " formation of the Standing Committeleisahhto Zillafanchayat, Raichur, is called in
- qu.g's;«tiQ:1f VV.l5;'Noc.88952/2009. ' _'i"}r_1e~ p"eti"ti..oners in the said writ petition have also }:51'aj2'ed foi'3ja..5Writ in the nature of mandamus to direct 'x__the firstfand second respondent to eiect the members of \f> The totai term of an elected member of th-e___Zi11a Panchayat is five years i.e. 60 months. The Committees are formed under the provisions 186 of the Karnataka Panehayatraj' Acit. .; of 9 office of every member of the Sta:n.(_;ii:n§ Comr_nitte'es'=is months from the date of his"'veeV:l'eCtion orti1slf'.he7g:eases to be the member of .the_ Ziltai 'F.a411ve}i1ayat. Thus, the Standing Committees willybgé..¥t(3Vrn.1eV(i.nffQ»fgthree terms of 20 months eacizyiyvithin years.
uéonsists of forty elected mernbers: "i'Tt1e _theWRa1'ehur Zilla Panchayat was caiiedto ele:C:t':.C:thCe' "S}iar1'ding Committee members for the third 15.2009. On that day, resolution . Ifiassed the majority of the members of the [24 in number) authorising the At:ii'1yakfs};a«:"oAf Zilla Panchayat to nominate the members J'fore_ the-'sStanding Committees. Remaining sixteen rneiiibers of the Zilla Panehayat, however, opposed such "'ai1thorisation to be given to the Adhyaksha of Zilla Mg'! \???'".;m R Panchayat. Sixteen members including the pe~tit-ioners contended in the meeting that the Standing Committees should __b.e_elec_ted"
process of election as per Panchayat Raj Act, 1993 the" V o'fiCt"). Pursuant togthe V_sai§:ig':._fesolutior1.,i\Id.4 dated 24.10.2009, the Committees were selected Panchayat and are formed as is clear to"""'v'v".'Vl3.No.83952 / 2009. The formatiori of is called in question in the Writ §et.:tionl_:V 'A l Based on the provisions of sub--section (2) of eeeee the Act, it is contended on behalf of me pe--titio'ners in W.P.No. 83952/2009 that the «gircseolution by majority of members authorising the
-l of the Zilla Panchayat to select the hmrnembers of the Standing Committees is bad \~/7 E2 the members of the Zilla Partchayat from amongst the elected members. The election of members of Standing Committee shall held as soon as may be after every genera~l"f.Vg:"'._ election of member ofZilla Panchayat qr 'V' reconstitution or establishment unde~r----t:h'ts_ . or immediately before the egftpirglof the: A oflice of the members the Standing'' Committee:
Provided uatfiat Justice Committee. vshaillr 'eoinststg 'O_L[;..V '_ least one member from' castes or the . 'tr§ibes~ " more number ofelected';r'rieArnbers]'.. ' - V.[(2~A)i4""r'lfl1e term. ofoffwe of every member of _ tvstanding...«committee shall, save as provided in this Act, be twenty the date of his election or till he A ceases: to be a member of the Zilla Panchayat, whichever is earlier. ] "
1 J"-.,"188.Procedure of Committees: {1} The "iZilla Panchagat may frame regulations sf' ~' 3% I 'at 14 provision with which the proposal or____ resolution or order is inconsistent and if proposal or resolution or order has fbeerf. considered and passed by it Panchayat or the commirttee orlftl Adhyaksha before such is the Chief Executive Qfjitter rrilaylresultfiraiet proposal or resolution or"i'order with his after such exarnVinat¢io'n * considers necessary] if if h if it it [(3) 5 the" .Zilia,"AVV'Pan;chay:at_ eflfeiny of its committe,.es¥:i't ., the passes the resolu_tioinl;»'y_or. ioithoutl resolving the V' subsection {2} it shat: be Vtheiiildutgrfqli ' the Chief Executive Q1-f'LC'3l","IflOl;'!,ll.lC%Itil2dlI'lg any other provisions in this to forward forthwith to the "lv..C'G*O?,2€l'.'7.l'TTl€I'lilH lllll "under intimation to the a copy of the said resolution or with his written note and he shall not ifnplement such resolution or order otuerwise than as decided by the V x _ Government.
vs I5 Provided that _if the Government does not communicate its decision within fifteen day's"»t. from the date of receipt of such iet't<?F:.'fl§§4't:"'¢;\.. Chief Executive O_;j"Lcer shall take action. is implement such resolutiort of Panchayat or the committee or: order' of the A it Andhyaksha". it it it A it it lfimphaeilée' ~iSueP1i¢dl*%is it V From the :«p'rio'Visions,AA is clear that the Standing the period of 20 months: shall consist of the amongst the elected memt;»:ers__V The election process of Stancling be held as soon as may be afte;_-gflevery geiaefel election of Zilla Panchayat or on its or immediately before the expiry of the o1°:'«V"_"theV~i,.'office of the members of the Standing Section 188 requires the Rilla fie"?
16 Panchayat to frame the regulations relating to election of members to the Committees.
6. Provisions of Sub--Secti'on*--{.2) make it amply clear that the the Standing Committee shall ber.'re}.ected.. atnéoriglljthe it elected members of Zi1'la,--.iioweyer,"the word "may" is used in to frarning of regulations members of the Committees "rnay" is not the word isenahling word and it only confers" ="or authority and implies discretion. in a statute to indicate that at"some.tl'iilng:VC'n}ay bemdone which prior to it could not be a capacity or power is given to a put31ic..__'a'u-tliority, there may be circumstances which it eoau_.p1eV""with the power a duty to exercise it or the "manner in which it may only be exercised. In other ""words, the legal and factual context in which the power °'\ W;
17 is to be exercised may combine the power with an obligation to exercise it even though it is conferred by use of the Word 'may'. Where a power is deposited-yvith a public officer/ authority for the purpose . for the benefit of persons, that...power"(jLi;;ghef'=.tQ_ bf; '* exercised and the Court will re(juire"iit'iV toibe The enabling words' are as'"'co1'r1pulsory whenever the object i'vploxiveru'is_'.::to'geffectuate the legal right. if the statute are prima readily infer a duty to invested in aid of enforceinen_t Voftpiiblic or private ~»~ of a citizen. When the con:teXt'v'*shoVys.. that the power is coupled with . 'may' should be construed to A wmea ri' a.T'coniri:a_nd.
A T he Word "may" is often read as "shall" or "must" V'-».when"thlere is something in the nature of the thing to be which makes it the duty of the person on whom the power is conferred to exercise the power. {See SARDAR GOVINDRAO AND OTHERS VS. THE STATE OF MADHYA PRADESH REPORTED IN AIR 1222).
In fact, it is not quite accuifate .the_ it"
word "may" by itself , acquires the n'ieianing_ of_""1nuu.s'tT'. "sha11" sometimes. always signifies a conferment ofV.powe:r; rri'ay,".haVing regard to the context the requirements conternplatedf:"tc:2j::' annexed to it an obligation. .. exercise in a certain way on facts circ'L1rnstan§:e4s from which the obligation to . exe.rt;ise"it in that__way arises. In other words, it is the »c;or:text_"whtch___can attach the obligation to the power C0n1pel1ir17gj---its exercise in a certain way. The context, both lekgalnvand factual, may impart to the power that it "v~?f'»oVb;1i'gatoriness {See AIR 1977 so 740 {THE OFFICIAL QQUIDATOR Vs. DHARTI DHAN (P) LTD. & AIR 1977 %N,/x SC 1516 (SHR1 RANGASWAMY, THE TEXTILE COMMISSIONER AND OTHERS VS. TH.E':V:'ShAj{,§AR TEXTILE MILLS (P) LTD. AND ANO'"i'HER]". ,;::
Thus. the question to be d'eterrni.ned_in. Svcchdfe__zg1SeS aiways is whether the powerconfer;".e'd by Word Way" has annexed to on the fulfillment of certair1*--...,.,iegai}.y conditions, a particular kindrof Such a case, it is always which has to be examifled.V_ir1:3.fii*T§i_er the Scope of the discretion. donee of the power. If the condition'S.__4i"ngwhich power is to be exercised in particnlfir VcaSe'S-are__Aa1So Specified by a Statute then, on of those conditions. the power conferred becon1eS"5,jnneXed with a duty to exercise it in that ',_rnan'ner.v:_ Under Section 186 (2) of the Karnataka it 'v~:df"i5an'c~hayat Raj Act, it is mandatory on the part of the Ziilla Panchayat to form Standing Committees by I at \\""»' 21 selection of any Standing Committee member by anybody including Adhyaksha. The mode of conducting elections has to be regulated regulations. Such regulations :Wi'll"hay'e to' under Section 188 of the Karnatal~:a:1§anchayatRaj Since the election of the Star1dTin,g is compulsory, fraihing by'regulationésl"reiating to election of members is also
7. Section 188 if not constniiedVas': purpose of the Act and would 'lead The context shows that {the p<$wem;5 the Standing Committees is with anvflmobligation to elect the Standing 'Confxmittees members. The use of permissive Word 'may-.' in_"See'.'188 (1) of the Act is the usual courtesy by the legislature in dealing with the Panchayat 'institutions. There cannot be any dispute that the three tier Panchayat Raj system in the Karnataka with the elected bodies of Grama, Taluka and District levels is created for greater participation of the people more effective implementation of the rural . programmes in the State.
Looking to the scheme of clear that the Panchairats %.:.(3VraIiio;g"Taluka and Zilla levels and thereunder are through» election. In View of the,SaIné',..f'it:V'1i;s the part of the Zilla Panch:l'aya--t" relating to election of the members of iéornrnéittees, etc. ,.«.i.'l'h11s it V"is~-..clearv that the word 'may' used in sub c:la11se..:(Vl«}t Section 188, shall have to be construed and Otherwise, sub--section (2) of Section l864"re1qiiiring the elected members from among the it elect.ed H Zilla Panchayat members to form standing ' committees v\n'll be of no meaning. 'ix mandates that the Standing Committees should be formed by the members who are elected from among the elected members of the Zilla Panchayat, WhichvV.1ine_a1qs the legislature wants the Standing Commit_tc:e.s" . be formed only by way of e1ectio'i1V_oif_lthe not by selection by the 'yétdhyalltsha Zilla it C Panchayat. In View ofthe _pnroced'urc"Vadopted by the Zilla Panchayat: Standing Committees C it 302-A (1) (c), it is of the Committees under Section be elected to the Zilla Pancha/Vfit lof..:Vthe.7'newlbistrict if the new District is . .l''coVnStiti;é'tedl' tundervllthe Karnatala Land Revenue Act by I iiirnits of such Districts.
"E-'lilough the Panchayat Raj Act has come into ,:i'elrce i191'the year l993, it is unfortunate that Raichur Zilla"l3anchayat has not framed the regulations relating Va Panchayats namely Hassan and Tumkur have opted for electing the Standing Committees by raising hands. From among the eight Zilla Panchayts which framed regulations for conducting the ' Standing Committees, six Zilla Panc.hayatslVh'a?;e Selelcted. the members of the Standing i.e. all the elected members~.of»the Zi.1la'v_:Pa.nlci1ayats it have unanimously of the Standing Corjnrnitteesizlof stfltih'-siitfZi1l_a:VfPanchayats. The remaining Bellary. Yadgir is the members of Standing not elected as on this day for the However, no information is thelvbourt, in respect of Bellary Zilla A t--Pan - . V the above. it is clear that 21 Zilla flu""'-__l:'Panchayats in the State, that is, majority of the Zilla ,lPVanchayats have already framed regulations in respect \~r* 31 the correct procedure to be followed, majority of the elected members of the Zilla Panchayat have opteddifor the illegal method of selecting the Standing.Cornrr:-iitte-e_"' _ members of their own choice "by au'th"orising 'gthe "
Adhyaksha of the Zilla Panchayat. ii>ter;m; nel:"faui.t:l can be found in the Worl:i_ngg_ of the diw.};3X.ec1_itiVe Officer as he has done his bes_tlte_safeguard:tihedrelevant provisions of the Raj Act and working of V
14. of the Court by the learned Zilla Panchayat that the term "i>anchayat members, Raichur would -'expire on 1. Since the constitution of Corntnittees of Zilla Panchayat, Raichur notification dated 30.11.2009 issued by Chief Executive Officer is illegal, the same l,iab1e"t:o be quashed. Thus standing committees will }/'> 32 have to be constituted once again by the due process of election, at least for the future period.
15. This Court hopes that the Zilla Raichur will frame regulations as early as . to avoid confusion and to have atlefinite"p'1*oce€iure in "' respect of electing the Standing3Co;§nmittees~ Since, regulations are frameti . 21115 = C' Panchayat, Raichur the matter of electing this Court proposes__.tot" fgiilla Panchayat during the majority of the Zilla Panchayatsahhizl State who have conducted the elections" to thC«...S__tanding Committees through the 'pro'cess.__of_'secret ballot. Koppal District is the newly formed carved out of erstwhile (united) Raichur 'x__Districts.'Koppal Zilla Panchayat has formed regulations A 'tforl conducting elections to the Standing Committees. In considered opinion, interest of justice will be met, if Q/J';
33 the Zilia Panchayat. Raichur is directed to conduct elections to the Standing Committees taking from the regulations framed by the 77f2:i11aW Panchayat as an interim measure?" By the _s.aidv 'proce.ss;.. no prejudice or injustice will be C-aused"t,o'~ a11y'i);odjf.~._ Accordingly, the following ord-e.r'ii_s made}
(i) The notifii3:atio'n::dated issued by the _Annexure--G in " formation of the Ziiia Panchayat, Raichur stands quastied.
[ii] go '}'h.e res'po_n:dents in W.P.No.83952/2009 are V. to iiii "elect the members of the Committees by the process of sec1.4et_V.bai1ots to be conducted from among "elected members of the Zilla Panehayat _ by" taking guidance of the regulations of Koppal Zilia Panchayat for the remaining term of office.
in 34
(iii) The Chief Executive Officer of the Zi1Ia...__ Panchayat, Raichur shall receive nominations of the intending Candidates""an:1.. 5 ;_. é thereafter conduct the eiections for i committees.
(m ummmflmmmmmm@m®p@mwm§T will frame regu1ati0'n--s__°'~s..i_r1 thhea Vrrizitteifof conducting eiections uthe 'S_t:§1n(ii§ng Committees as -iéts _ With the above di_reictidns,._:"writ petition Na83952/2Qo93j« is ;7'dS§o&@f of and W.P.Nos.8C}QOfi;{.iiC:i'-O, jj&3?Q{jiQ7Qs.i i',(20:0 are dismissed. Sd/-3 JUDGE