Karnataka High Court
M.G. Achappa vs The Prescribed Officer, Gonikoppal ... on 6 August, 1996
Equivalent citations: ILR1996KAR2546, 1996(5)KARLJ555
Author: R.P. Sethi
Bench: R.P. Sethi
ORDER R.P. Sethi, C.J.
1. The Writ Petition was taken-up for final hearing with the consent of the learned Counsel for the parties and is being disposed on the merits at this stage.
2. The Notitication No. Election:42:94-95, dated 11.12.1995, relating to three Village Panchayats viz., Kushalnagar, Ponnampet and Gonikoppal, issued for the purposes of electing President and Vice-President was cancelled except in relation to Kushalnagar Village Panchayat vide order of the 2nd respondent dated 10.1.1996. The petitioner who was the only candidate for the election of the President earlier reserved for backward classes has challenged the action of the respondents in this petition with prayer to quash the impugned order and for issuance of direction to the respondent-1 to hold Elections of Adhyaksha and Upadakshya of the 3rd respondent Gram panchayat on the basis of the earlier notification dated 28th December 1995 (Annexure-B). It is contended that after the issuance of the notification by the Returning Officer, the Deputy Commissioner, had no power or jurisdiction to cancel the holding of the election and thereafter directing the fresh elections as per new schedule vide Annexure-E. It is submitted that the impugned orders were passed with malafide object of depriving the petitioner his right to be elected as President of Village Panchayat.
3. The claim of the petitioner has been resisted mainly on twin grounds viz;
(i) That in view of the provisions of the Karnataka Panchayat Raj Act (hereinafter called that Act) and Article 243O of the Constitution, the remedy of Writ Petition could not be availed as the petitioner had the alternative remedy of filing the election petition, and
(ii) As no fundamental or statutory right of the petitioner has been violated, he is not entitled for the issuance of directions as prayed for by him.
4. After hearing the lengthy arguments we have decided to adjudicate the later plea first. The facts are almost admitted and position of law settled. It is not disputed that the Act was amended vide Act No. 10/95 which came into force on 13.1.95. Clause 2 of Section 2 of the Act was amended and the definition of "Backward Classes" substituted as under:
"(2) 'Backward Classes' means such class or classes of citizens as may be classified as category "A" and "B" and notified by the Government from time to time for the purpose of reservation of seats and offices of Chairperson in Zilla Panchayat, Taluk Panchayat and Grama Panchayat."
5. Notification dated 28.12.95, Annexure-B, relied upon by the petitioner provided that the office of the President was reserved for backward class. The said notification did not further classify the backward class for which the office of the President was reserved. Obviously the said notification appears to have been issued in ignorance of the amendment made in the definition of backward-class vide Act No. 10/95. The Deputy Commissioner being made aware of the illegality which was likely to be committed, issued the notification dated 10.1.96 cancelling the earlier notification purported to have been issued in violation of the provisions of the Act as amended vide Act No. 10/95. On 12.1.96 the new notification was issued wherein it was specifically prescribed that:
"The Office of the President is reserved to the Backward Class 'A' and the Vice-President is reserved to the General Ladies."
The action of the respondents is therefore referable to a statutory power and cannot be termed to be without jurisdiction. In their reply the respondents have submitted that after prolonged correspondence with the Government clarifications were received as per Circular of the Government which persuaded the Deputy Commissioner to issue the notification cancelling the reservation in respect of the post of the President. It is further submitted:
"that after obtaining clear clarification from the Government on 10.1.96 telephonically, the Deputy Commissioner, published a fresh notification dated 10.1.96 and in turn R-1 notified fixing the election for Adhyaksha & Upadhyaksha on 25.1.96 to be reserved in favour of BCM 'A' category and General women category, which is in accordance with Act No. 10/95 and as per the Circular dated 8.8.95."
The power to cancel the notification and the issuance of subsequent schedule for election is referred to the power vested in the authorities under the Act with the aid of the provisions of the Karnataka General Clauses Act. Section 21 of the General Clauses Act provides:
"Section 21: Power to make to include power to add, to amend, vary or rescind notifications orders rules or by laws:-Where, by any enactment, a power to issue notifications orders, rules or bye-laws is conferred, then that power, includes a power, exercisable in the like manner and subject to like sanction and conditions if any, to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
6. Section 21 of the General Clauses Act embodies a rule of construction which is required to have a reference to the context and subject matter of the statute which is sought to be applied keeping in view the purpose and scope of the action in relation to which an action taken is sought to be modified or amended with the aid of this Section. Mistakes if any can be rectified by issuance of appropriate orders in exercise of the powers vesting in the Authority under this Section. The Supreme Court in MOHD. YUNUS v. SHIVKUMAR, , held that the Section 21 of the General Clauses Act was undoubtedly applicable in interpretation of the provisions of the law relating to holding of the elections. In that case the Apex Court further held:
"Where the Election Commission issues notification fixing certain date under Clause(d) of Section 30 for taking poll, under Section 21 of the General Clauses Act this power includes the power to alter the date of poll to a future date. For this purpose a fresh notification of the date in form No. 1 under Rule 3 of the conduct of Election Rules read with Section 31 of the Act is not necessary because the alteration of the date of poll gets engrafted in the original form in pursuance of the subsequent notification made in valid exercise of the power under Section 30 read with Section 21 General Clauses Act."
7. The action of the respondent cancelling the earlier election and refixing the new schedule vide Annexures-D & E cannot be held to be either illegal or against provisions of the statute.
8. Before invoking the jurisdiction of this Court under Article 226 of Constitution of India for the issuance of a writ of mandamus the petitioner is under an obligation to show the existence of right in his favour and a corresponding obligation on the part of the respondents. The learned Counsel for the petitioner vainly tried to urge that a right vested in his client had been taken away by the impugned order. It is settled law that a right to elect or to be elected is neither a fundamental right nor a common law right. It is a pure and simple statutory right. We are fortified in our views by various judgment of the Supreme Court including in N.P. PONNUSWAMI v. THE RETURNING OFFICER, and JAGANNATH v. STATE OF PUNJAB, , and JYOTHI BASU AND ORS. v. DEBI GHOSAL AND ORS.,
9. In Jyothi Basu and Ors. v. Debi Ghosal and Ors. the Supreme Court held:-
"A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So, is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitations. An election petition is not an action at Common Law, nor in equity."
While approving the law laid down in Jyothi Basu's case(supral. the Supreme Court in RAMA KANT PANDEY v. UNION OF INDIA, has again held that right to vote or right to elect is neither a fundamental nor civil right but was a pure and simple statutory right.
Similarly, the Supreme Court in MOHAN LAL TRIPATI v. THE DISTRICT MAGISTRATE, RAI BAREILLY AND ORS., , again held:
"Democracy is a concept, a political philosophy an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a 'fundamental right' nor a 'common law right' but a special right created by the statutes, or a 'political right' or 'privilege' and not a 'natural' 'absolute' or 'vested right'. 'Concepts familiar to common law and equity must remain stranger to Election Law unless statutory recognised."
10. The petitioner could not refer to any statutory provision which could be held to have been violated by the issuance of the impugned orders. Non-existence of a right in his favour is demonstrative of the fact that no statutory right stood violated on account of issuance of the impugned orders. In the absence of the violation of statutory right the present Writ Petition is not maintainable.
11. It may not be out of place to mention that the prayer made by the petitioner if accepted would amount to issuance of directions which would be in contravention of the provisions of the Act as amended vide Act No. 10/95. The discretionary relief cannot be availed for issuance of a direction which in effect and essence would amount to violation of the statutory provision. The petitioner has admittedly not challenged the vires of amending Act No. 10/95. The prayer made by the petitioner if allowed would lead to disastrous results which are neither contemplated nor conceived of by the Constitution makers.
12. In view of the position of law noted herein above we are satisfied that no statutory right of the petitioner has been violated. The petitioner has not succeeded in making out any case for the issuance of relief in his favour and the petition filed by him is therefore liable to be dismissed.
13. As the petitioner has been held to be having no right to invoke jurisdiction of this Court under Article 226 of the Constitution of India, we have opted not to comment on the rival contentions of the learned Counsel for the parties regarding the availability of the alternative remedy of filing the election petition against the impugned action.
14. The petition is accordingly dismissed but without any order as to costs.