Karnataka High Court
Shri Udaya S/O Narayan Naik vs The State Of Karnataka on 27 May, 2024
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 27TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE RAVI V.HOSMANI
WRIT PETITION NO. 104835 OF 2023 (LB-ELE)
BETWEEN:
1. SHRI UDAYA
S/O NARAYAN NAIK,
AGE: 39 YEARS,
OCCN: MEMBER OF
GRAMA PANCHAYAT,
R/O: HADEEL,
BHATKAL,
UTTARKANNADA.
2. SHRI GOVIND
S/O. NARAYAN NAIK,
AGE: 39 YEARS,
OCCN: MEMBER OF
GRAMA PANCHAYAT,
R/O: KONAR,
BHATKAL,
UTTARKANNADA.
3. SHRI MANJUNATH NAGAPAYYA HEBBAR,
AGE: 75 YEARS,
OCCN: MEMBER OF
GRAMA PANCHAYAT,
R/O: KONAR,
BHATKAL,
UTTARKANNADA.
...PETITIONERS
(BY SRI VENKATESH M. KHARVI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
R/BY THE PRINCIPAL SECRETARY,
KARNATAKA PANCHAYAT RAJ AND
RURAL DEVELOPMENT GOVERNMENT
OF KARNATAKA VIDHAN SOUDHA,
BANGALORE-560001.
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2. THE DEPUTY COMMISSIONER AND
DISTRICT ELECTION OFFICER,
UTTARKANNADA.
3. THE TAHASILDAR,
BHATKAL TALUKA,
BHATKAL,
DIST: UTTAR KANNADA-403702.
4. PANCHAYAT DEVELOPMENT OFFICER,
KONAR PANCHAYAT,
KONAR,
BHATKAL, U.K.,
UTTAR KANNADA, U.K.
5. THE SPECIFIC OFFICER/ RETURNING OFFICER
OF KONAR GRAM PANCHAYATH
OFFICE OF
CHILD DEVELOPMENT OFFICER,
BHATKAL,
UTTARKANNADA-403702.
....RESPONDENTS
(BY SRI KESHAV REDDY, AAG FOR
SRI MADANMOHAN M. KHANNUR, AGA FOR R1 TO R3;
NOTICE TO R4 & R5 DEFERRED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI OR ANY OTHER WRIT OR ORDER IN FAVOUR OF
PETITIONER BY QUASHING THE NOTICE ISSUED BY RESPONDENT
NO.5 DATED 31.07.2023 UNDE "Gram PANC/(2 AVADHI) a u
Chunavane VIV- /2023-24 VIDE ANNEXURE-G AND ETC.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDER ON 25.04.2024, COMING ON FOR PRONOUNCEMENT OF
ORDERS, THIS DAY, THROUGH VIDEO CONFERENCE AT PRINCIPAL
BENCH, BENGALURU, MADE FOLLOWING :
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ORDER
This writ petition is filed seeking for following reliefs:
a) Issue a writ of certiorari or any other writ or any other order in favour of petitioner by quashing the notice issued by respondent no.5 dated 31.07.2023 under "GRAM PANC/ (2 AVADHI) a u Chunavane viv-/ 2023-24 vide Annexure-G.
b) The Issue a Writ of Certiorari or any other writ or order in favour of petitioner by quashing the Notice Issued by Respondent No.2 dated 10.07.2023 under "GRTAZIPANC/SACHU/ MIASALATI - 2AVADHI) VIVA-84/2023-24 VIDE ANNEXURE-C.
c) Issue fresh notification according to law to conduct election in the Konar Gram Panchayath for selection of Adhyaksa And Upadhyaksa.
2. Sri Venkatesh M. Kharvi, learned counsel for petitioners submitted that petitioners were elected as members of Konar Gram Panchayat, Bhatkal, on 30.12.2020. Petitioner no.2 was elected as Adhyaksha on 20.02.2021 for a period of 30 months. It was submitted, upon completion of 25 months, as required, respondent no.2 - Deputy Commissioner initiated election process for election of President for next 30 months period by issuing list of prescribed Officers as per Annexure-C on 10/11.07.2023. Insofar as Konar Gram Panchayat, Child Development Officer, Bhatkal was appointed as Prescribed Officer - respondent no.5.
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3. Thereafter respondent no.5 sought to convene meeting for election of Adhyaksha and Upadhyaksha of Gram Panchayat by issuing meeting notice dated 31.07.2023 fixing date of meeting on 10.08.2023, as per Annexure-G. Assailing, Annexure-C insofar as Konar Gram Panchayat and notice at Annexure-G, writ petition is filed.
4. It was submitted, Rule 3 of Karnataka Panchayat Raj (Election of Adhyaksha and Upadhyaksha) Rules, 1995 (hereinafter referred to as 'Rules'), mandated appointment of Officer not below rank of Tahsildar as Prescribed Officer. Therefore, appointment of Smt.Sushila, Anganwadi Supervisor and in-charge Child Development and Protection Officer, Bhatkal ('CDPO' for short), as Prescribed Officer in respect of Konar Gram Panchayat, would be violative as per ratio in B.N. Dhotrad v. Board of Directors, reported in 2006 SCC OnLine Kar 4350. It was submitted Government servant in-charge of a post cannot exercise substantive powers attached to said post. It was also contended respondent no.3 failed to follow procedure under Rule 3 (2) of Karnataka Gram Swaraj and Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Gram Panchayat) Rules, 1994 (referred to as 'NCM Rules' for brevity), while issuing notice and call meeting for consideration of no-confidence motion against petitioner. Neither copy of -5- representation of members was provided nor issued notice in Form no.1, which was mandatory. It was submitted, on 09.08.2023, this Court ordered that Elections scheduled on 10.08.2023 would remain subject to result of writ petition. Therefore, as notice was invalid, it was prayed for allowing writ petition and setting aside result of said Election.
5. On other hand, Sri Keshav Reddy learned Additional Advocate General appearing for Madanmohan M. Khannur, learned Additional Government Advocate for respondents no.1 to 3 sought dismissal of petition. It was submitted, exercising power under Section 44 and 45 of Karnataka Gram Swaraj and Panchayat Raj Act, 1993 ('Act' for short), respondent no.2 issued list of Prescribed Officers for election of Adhyakshya and Upadhyaksha of Gram Panchayats under his jurisdiction as per Annexure-C.
6. It was submitted, on 29.08.2022, Sri Virupakshagowda P. Patil, then working as CDPO was transferred and Smt.Susheela working as Supervisor in office of CDPO was placed In-charge of vacant post of CDPO by order dated 29.08.2022 passed by Deputy Direction of Women and Child Development Department, Karwar. Consequently, as on date of Annexure-C, she was In-charge CDPO, as no other alternative arrangements to CDPO post was made. Therefore, -6- there was no irregularity in her acting as Prescribed Officer. Further, as prescribed officer, she had issued calendar of events for election of Adyaksha and Upadhyaksha in meeting scheduled on 10.08.2023. Copy of notice of said meeting is produced by petitioner as Annexure-G. Therefore, there was no merit in contention about violation insofar as notice.
7. In support of his submissions learned AAG relied on decisions of Hon'ble Supreme Court in V.A. Shabeer v. P.A. Niamathulla, reported in (2008) 10 SCC 295; Gopalji Khanna v. Allahabad Bank, reported in (1996) 3 SCC 538 for proposition that when an officer is in-charge and capable of exercising as Assistant Returning Officer, requirement of seeking permission is not necessary. Reliance was placed on Full Bench decision of High Court of Madras in A. Savariar v. Secretary, T.N. Public Service Commission, reported in 2008 SCC OnLine Mad 164, wherein it was held Officer in-charge had power to discharge powers and statutory functions of said post, to justify submission that election of Adyaksha and Upadhyaksha in pursuance of meeting notice at Annexure-G did not suffer from invalidity.
8. Heard learned counsel and perused writ petition.
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9. From above, it is seen though writ petition is filed challenging issuance of list of 'Prescribed Officers' for Election of Adhyaksha and Upadhyaksha of Gram Panchayats, by respondent no.2 and calendar of events/meeting notice at Annexure-G issued by respondent no.5, since Election proposed in meeting notice is already concluded, by referring to order dated 09.08.2023 passed herein, petitioner is in effect challenging Election of Adhyaksha and Upadhyaksha in meeting held on 10.08.2023.
10. As noted above, challenge is on two main grounds. Firstly, that appointment of Anganwadi Supervisor was lower than post of Tahsildar, as 'Prescribed Officer' was in violation of Rule 3 of Rules; Secondly, violation of Rule 3 of NCM Rules is alleged.
11. At outset, it is nobody's case that petitioner no.2, who was elected as Adyaksha of Konar Gram Panchayat, was sought to be removed by passing No-Confidence Motion. Therefore, challenge of Annexure-G or contentions urged by reference to NCM Rules would be misconceived and liable to be rejected.
12. Insofar as challenge of Annexure-C, it is seen that respondent no.2 has issued list of Prescribed Officers in exercise of powers and functions under Section 44 and 45 of Act which is -8- for purposes of Election of Adyaksha and Upadhyaksha. Therefore, petitioner is ultimately intending to challenge Election of Adyaksha and Upadhyaksha of Konar Gram Panchayat held on 10.08.2023 in pursuance of notice at Annexure-G.
13. Since ground urged is about procedural violation, it would be necessary to refer to Section 45 of Act, which reads as follows:
"45. Procedure for election of Adhyaksha and Upadhyaksha on the establishment of 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, 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 the designated Court having jurisdiction over the panchayat area or the major portion of the panchayat area, whose decision thereon shall be final."
(emphasis supplied)
14. Section 45 (2) of Act thus prescribed for resolution of any dispute with regard to validity of Election of Adhyaksha and Upadhyaksha of Gram Panchayat by designated Court. Insofar as scope and purport of Section 45 (2) of Act, this Court in Dasappa v. State of Karnataka, reported in ILR 1994 Kar 2863 : (1994) 4 Kant LJ 617, held as follows: -9-
"11. Thus there is a Constitutional mandate that an election to Panchayath shall be called in question only by an Election Petition. The wording of Article 243(o) is negative in form so that there is an absolute prohibition in challenging or invalidating an election otherwise than in any manner provided for by the State Legislature. The provisions in Section 45(2) is all comprehensive, in that any dispute relating to the validity of an election has to be decided by the prescribed Judicial Authority. The grounds on which an election can be challenged is not limited in Section 45(2) unlike Section 15 which mentions the grounds on which an election of a member can be challenged. On a combined reading of Article 243(o) read with Section 45(2) it is absolutely clear that when an election of Adyaksha or Upadyaksha is held as a matter of fact the validity of the same can be questioned only before the prescribed Judicial Officer and no other person has any jurisdiction or authority to set aside or ignore such an election. It is now well recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. ... ..."
(emphasis supplied)
15. In similar circumstances, where result of invalidating election of Adhyaksha and Upadhyaksha of Gram Panchayat was sought to be achieved by challenging notice of meeting scheduled for such Election, after considering scope of Section 45 (2) of Act, this Court in S.N. Manjunath v. State of Karnataka, reported in 2002 SCC OnLine Kar 367:(2002) 4 Kant LJ 520, held as follows:
"11. Perhaps comprehending the futility of pressing this point any further, the learned Counsel for the petitioner tried to wriggle out of the situation by contending that what is mainly under challenge in the present Writ Petition is the proceedings of the meeting which, according to him, is perforce illegal because it lacked the required quorum. Countering the argument of the learned Government Pleader that the election petition alone is the remedy to challenge the election of the returned candidate, he submitted that he could still challenge the proceedings of the meeting held on the date of election, in Writ Petition and if the proceedings of the meeting is held to be illegal,
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then as a natural corollary the election of the respondent No. 6 has to be declared void. The said submission overlooks the vital aspect that the meeting now under challenge was one convened under Section 44 of the Act essentially for electing the Adhyaksha of the Grama Panchayat. The meeting was held and the sixth respondent was elected as Adhyaksha. Even assuming that the meeting held to elect the Adhyaksha contravened any of the provisions of the Act and the Rules framed thereunder and the meeting resulted in the declaration of the sixth respondent as having been elected as Adhyaksha, any dispute relating to such a meeting would be a dispute relating to the validity of the election itself as the meeting was essentially one conducted for electing the Adhyaksha. The meeting if it contravened any of the provision of the Act and the Rules framed thereunder would have the effect of nullifying the election itself and therefore a dispute relating to the validity of such a meeting is in law a dispute relating to the validity of the election itself. Therefore, any argument which attempts at segregating the meeting and the election of the Adhyaksha at the meeting cannot be countenanced at all because the meeting as well as the election of the Adhyaksha in the meeting go hand in hand and for purposes of determining the forum for deciding a dispute arising in relation to an election or the meeting in which an election takes place it would be the end result that serves as the deciding factor and hence in this case it would be the forum prescribed under Section 45(2) of the Act. Where the non-compliance of a statutory provision which is complained of leads to a greater mischief, the greater mischief alone would determine the form for challenge and not the cause which led to the greater mischief. Even conceding that the petitioner would be entitled to challenge the non compliance with the provisions of the Act under the Writ Jurisdiction, where such non-compliance leads further to a greater mischief which could be challenged only in an election petition, then, in such a situation, the forum which has the jurisdiction to deal with the greater mischief alone will have jurisdiction to decide the issue of non- compliance with the statutory provisions also. To hold otherwise would bring about disastrous results. If an aggrieved party is allowed to challenge the non- compliance with the provisions of the Act in a Writ proceedings while simultaneously permitting him to challenge the resultant election of the returned candidate in an election petition on the same set of facts and on similar grounds, then there is every possibility that it would bring about conflicting results. That would be a sheer abuse of process of law which cannot be countenanced at all. There is no need to elaborate much on this point as any dispute relating to the validity of the election of a Adhyaksha or Upadhayaksha of Grama
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Panchayat should be called in question exclusively in an election petition filed under Section 45 (2) of the Act. The challenge now made to the election of Adhyaksha contrary to Section 45(2) of the Act is, therefore, not maintainable.
12. Be that as it may, there is a constitutional bar to interference by Courts in electoral matters under Article 243-0 of the Constitution. Articles 243-O (2) reads:
"243-O Bar to interference by Courts in electoral matters.-
Notwithstanding anything in this Constitution.-
(a)...........
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of a state."
Thus, an election to a Panchayat does not brook interference except by an election petition presented to such authority and in such manner as provided under the Act. A challenge to it could not be sustained in any other forum even on the ground that the meeting in which the resolution was passed was held in contravention of the Act and the Rules. Any dispute regarding the validity of the meeting held under Section 44 in which the Adhyaksha or Upadhyaksha has been elected also should exclusively be decided by the prescribed authority under Section 45(2) of the Act as it would invariably amount to a dispute relating to the election of Adhyaksha or Upadhayaksha. All disputes relating thereto including the validity of the meeting itself would be subject to the jurisdiction of the Prescribed Officer under the Act, once the process of election is complete and a member is returned as Adhyaksha or Upadhyaksha.
13. Learned Counsel for the petitioner also placed reliance on the decision in Shambugowda v. The State of Karnataka [2000 (3) KCCR SN 103.] which lays down the principle, that since this fraction of difference being less than 50% of a full one number it is desirable to construe and conclude this difference as negligible and will have to be ignored. This decision would not be of any assistance to the petitioner as I do not propose to go into the aspect of sufficiency or otherwise of the quorum of the meeting held to elect respondent no.6. The other decision cited at the Bar viz., Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman [(1985) 4 SCC 689] and Indrajit Barua v. Election Commission of India [(1985) 4 SCC 722.] and Govindaswami v. State of T.N. [(1998) 4 SCC 531.] have no bearing to the issue involved in this Writ Petition and there is no need to advert to them in this order.
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14. In the view that I have taken, I find it is not necessary for me to decide the question whether the meeting constituted to elect the Adhyaksha and the Upadhyaksha was properly constituted or whether it had the required quorum. All these questions are left open for the petitioners to urged in a properly presented election petition before the appropriate forum.
15. In the result, for the reasons stated above, the Writ Petition is rejected as not maintainable."
(emphasis supplied) Unfortunately for petitioner, his technical plea must end with technical answer.
16. Following ratio laid down in above decisions, writ petition is disposed of reserving liberty to petitioners to question election of Adhyaksha and Upadhyaksha in a duly instituted election petition before designated Court, if so advised by claiming benefit of Section 14 of Limitation Act insofar as time spent before this Court.
Sd/-
JUDGE Grd/-