Karnataka High Court
Subash H.N. And Ors vs The State Of Karnataka And Ors on 9 December, 2020
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 09TH DAY OF DECEMBER, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION No.226794 of 2020 (LB-ELE)
Between:
1. Subash H.N
S/o Narasingh
Age 33 years
Occ: Ex Gram Panchayat Member
and Agriculture
R/o Type-C 169, RTPS Colony
Shakti Nagar
District: Raichur
2. Suguresh
S/o Rangappa
Age 35 years
Occ: Taluk Panchayat Member
Devasugur and Agriculture
R/o Nagappa Katte Labour Colony
Devasugur
Taluk and District: Raichur 584 170
3. Venktesh
S/o Thimmappa
Age 40 years
Occ: Taluk Panchayat Member, Devasugur
R/o H. No.6-12-8, Janata Colony
Devasugur
Taluk & District: Raichur 584 170
4. Prakashayya
2
S/o Sugayya Nandi
Age 51 years
Occ: Agriculturist
R/o H. No.20, Devasugur
Taluk and District: Raichur 584 170
...Petitioners
(By Shri Shivakumar Kalloor, Advocate)
And:
1. The State of Karnataka
Department of Panchayat Raj
and Urban Development
Vidnana Soudha
Bangalore
By its Secretary
2. The State Election Commissioner
1st Floor, No.8 Cunningham Road
Bangalore - 560 052
By its Secretary
3. The Deputy Commissioner
Raichur 585 401
4. The Chief Executive Officer
Zilla Panchayat
Raichur 585 401
5. The Director of Municipal Administration
Mini Tower, Ambedkar Veedhi
Bangalore - 560 001
6. The Executive Officer
Taluk Panchayat
Raichur 585 401
7. Gram Panchayat
Devasugur by its
3
Panchayat Development Officer
Taluk and District: Raichur 585 401
...Respondents
(by Smt. Anuradha M. Desai, GA for R1, R3 and R5;
Shri P.S. Mali Patil, Advocate for R2;
Notice to R4, R6 and R7 dispensed with)
This Writ Petition is filed under Article 226 of the
Constitution of India praying to issue writ of certiorari quashing
the impugned order/paper publication Annexure-K dated
30.11.2020 in No.RaChuAa:134:EeGiPi:2020, Bengaluru by
respondent No.2 insofar as it relates to holding of election to
Gram Panchayat Devasugur, Taluk and District: Raichur; and
etc.
This petition coming on for preliminary hearing, this day,
the Court made the following:
ORDER
Heard.
2. The petitioners have challenged the impugned order dated 30th November, 2020 produced at Annexure-K passed by the Respondent No.2 with regard to holding election for Grama Panchayat, Devasugur village, Raichur Taluk and District, along with consequential relief of direction to the Respondent-State to consider the case of the petitioners for upgrading Devasugur Grama Panchayat as Devasugur Town Panchayat as per letter Annexure-E dated 05.09.2020; and as per letter Annexure-F dated 23rd October, 2020.
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3. It is the case of the petitioners that they are the Ex- Members of Devasugur Grama Panchayat as well as Taluk Panchayat Members of Devasugur, consisting of 38 elected Members and total population of Devasugur Gram Panchayat is about 23,000 as per 2011 Census and now the population exceed 35,000. It is further stated in the writ petition that in order to constitute a Town Panchayat under Karnataka Municipalities Act, 1964 (for short, hereinafter referred to as 'Act'), minimum population would be 10,000 and above. It is further averred in the writ petition that Devasugur Gram Panchayat has passed resolution on 20th August, 2019 to upgrade the Gram Panchayat to be Town Panchayat as per Annexure-A and same was forwarded to the Taluk Panchayat, Raichur and in pursuance of the same, the Taluk Panchayat has addressed letter to the Zilla Pancyayat Raichur on 04th September, 2020 stating that the population of Devasugur Grama Panchayat is more than 23,000 and therefore, same has to be upgraded as Town Panchayat. In this connection, the Zilla Panchayat by its letter dated 05th September, 2020, addressed letter to the Deputy Commissioner, Raichur for upgradation of 5 the Devasugur Grama Panchayat as Town Panchayat as per Annexure-E. In response to the same, the third respondent has addressed letter dated 23rd October, 2020 to the Director of Municipal Administration-fifth respondent herein for necessary orders. However, same has not been considered. It is further stated in the writ petition that, in an identical circumstance, the Government has issued Notification dated 23rd June, 2015 in respect of Balaganur Pattana Panchayat as per Annexure-J, declaring it as Town Panchayat area of Balaganur. It is further stated that as the second respondent herein has issued the calendar of events on 30th November, 2020, the petitioners as well as the villagers of Devasugur Gram Panchayat are being aggrieved for not having upgraded Devasugur Gram Panchayat as Devasugur Town Panchayat. Hence, this Writ petition.
4. Shri Shivakumar Kalloor, learned Counsel appearing for the petitioners submitted that though the proceedings with regard to conversion of Balaganur Gram Panchayat as Balaganur Town Panchayat is under process as per the letters dated 05th September, 2020 (Annexure-E) and 23rd October, 2010 6 (Annexure-F), the impugned notification produced at Annexure-K insofar as holding election to Devasugur Gram Panchayat is unjust and improper. He further submitted that since the population of the Devasugur Gram Panchayat also exceeds 10,000, as per section 349 of the Act, Devasugur Gram Panchayat shall be declared as Town Panchayat and therefore, sought for recalling of the impugned notification in respect of Devasugur Gram Panchayat.
5. Per contra, Shri P.S. Mali Patil, learned counsel appearing for respondent No.2 submitted that the writ petition is not maintainable as the election process is commenced by issuance of calendar of events as per Annexure-K and therefore, writ petition deserves to be dismissed. He further contended that Section 355-B of the Act provides for effect of conversion of Panchayat area into a transitional area and therefore, there is no impediment for the second respondent herein to conduct elections to Devasugur Gram Panchayat.
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6. Smt. Anuradha M. Desai, learned Government Advocate appearing for respondent-State, supported the contentions of learned counsel appearing for respondent No.2.
7. Having heard the learned counsel appearing for the parties and on consideration of the grounds urged in this writ petition, it is relevant to deduce Section 349 of the Act. The same is as follows:
"349. Specifying transitional area.- (i) the Governor may, having regard to the factors mentioned in clauses (a), (b), (c), (d), (e) and (f) of sub-section (1) of Section 3, and subject to the provisions of Section 9 specify, by notification, any area to be a transitional area:
Provided that no such area shall be so specified as transitional area unless,-
(a) such area contains a population of not less than ten thousand but less than twenty thousand;
(b) the density of population in such area is not less than four hundred inhabitants to one square kilometer of area;8
(c) the percentage of employment in non-
agricultural activities is not less than fifty percent of the total employment:
Provided further that if a Taluka Head Quarters is situated in such area, the Governor may, specify such area to be a transitional area even though it contains populations of less than ten thousand."
8. Perusal of the aforesaid provision makes it clear that the Government may issue notification in respect of an area to be a transitional area if such area contains a population of more than 10,000 but less than 20,000. It is also relevant to consider Section 350 of the Act, which reads as under:
"350. Municipal Area.- Where any area is specified to be a transitional area under Section 349, such area shall be deemed to be a municipal area."
9. It is also useful to consider Sub-Section 3(b) of Section 355-B of the Act. The same reads as follows:
"355-B. Effect of conversion of Panchayat area into a transitional area.-
(1) and (2) xxx xxx xxx 9 (3) With effect from the date of declaration of any area as a transitional area under sub-section (1) the following consequences shall, ensue, namely.-
(a) xxx xxx xxx
(b) the members of the Grama Panchayat holding office as such immediately before the said date shall become concillors of the Town Panchayat."
10. Perusal of the aforesaid provision would make it clear that as soon as the Government issues notification under Section 349 of the Act notifying a Gram Panchayat as a Town Panchayat, consequently, the Members of notified Gram Panchayat, under Section 349 of the Act, become Councilors of the Town Panchayat. In that view of the matter, the arguments advanced by the learned counsel for the petitioners to stall the election process in respect of Devasugur Gram Panchayat cannot be accepted.
11. It is also pertinent to mention here that in view of the issuance of the calendar of events for election of Gram Panchayat and Taluk Panchayat as per Annexure-K dated 30th 10 November, 2020, including the Gram Panchayat of Devasugur, the writ petition deserves to be rejected on the ground of settled principle of law by the Full Bench of this Court in the case of NANJUNDASWAMY v. ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES reported in ILR 1992 KAR. 979, wherein, the Full Bench of this Court has held that remedy to election petition, is normally available to the aggrieved party once the election process has begun and the same cannot be interfered with under Article 226 of the Constitution of India and parties have to be relegated to approach the competent authority by way of election petition.
12. The Hon'ble Supreme Court, in the case of LAKSHMI BAI v. COLLECTOR, NANDED reported in AIR 2020 SC 3993, at paragraph 43 of the judgment has held thus:
"43. Section 10A of the 1959 Act and Section 9A of 1961 Act read with Articles 243-K and 243-O, are pari materia with Article 324 of the Constitution of India. In view of the judgments referred, we find that the remedy of an aggrieved person accepting or rejecting nomination of a candidate is by way of an election petition in view of the bar created under 11 Section 15A of the 1959 Act. The said Act is a complete Code providing machinery for redressal to the grievances pertaining to election as contained in Section 15 of the 1959 Act. The High Court though exercises extraordinary jurisdiction under Article of 226 the Constitution of India but such jurisdiction is discretionary in nature and may not be exercised in view of the fact that an efficacious alternative remedy is available and more so exercise restraint in terms of Article 243-O of the Constitution of India. Once alternate machinery is provided by the statute, the recourse to writ jurisdiction is not an appropriate remedy.
It is a prudent discretion to be exercised by the High Court not to interfere in the election matters, especially after declaration of the results of the elections but relegate the parties to the remedy contemplated by the statute. In view of the above, the writ petition should not have been entertained by the High Court. However, the order of the High Court that the appellant has not furnished the election expenses incurred on the date of election does not warrant any interference."
13. This Court, in the case of SMT. VINODHAMMA v. THE STATE OF KARNATAKA, DEPARTMENT OF PANCHAYAT RAJ AND 12 OTHERS reported in ILR 2017 KAR. 1303, following the law declared by the Hon'ble Supreme Court in the case of N.P. PONNUSWAMY v. RETURNING OFFICER, NAMAKKAL reported in AIR 1952 SC 64, has held that the Writ Petition is not maintainable for interference under Article 226 of the Constitution of India, when the calendar of events issued and election already set into motion by the respondent authorities.
14. In view of the law declared by the Full Bench of this Court as well as the Hon'ble Supreme Court in the aforementioned cases, remedy is available to the petitioners to approach the competent Authority by way of election petition.
15. In that view of the matter, I do not find any good ground to interfere with the relief sought for by the petitioners in this writ petition. However, dismissal of this writ petition would not come in the way of petitioners to urging the grounds urged in this writ petition before the competent authority, if an election petition is filed, so also, there is no impediment for the respondent-authorities to upgrade the Gram Panchayat Devasugur into Town Panchayat Devasugur under the provisions 13 of the Act referred to above. All contentions are kept open. Writ petition stands disposed of.
Sd/-
JUDGE lnn