Karnataka High Court
B. Javarayagouda S/O Beregouda vs The State Of Karnataka on 7 February, 1997
Equivalent citations: ILR1997KAR1153
Author: R.P. Sethi
Bench: R.P. Sethi
JUDGMENT R.P. Sethi, C.J.
1. Constitutional validity of Sub-section 3 of Section 3 and subsection 3 of Section 5 of the Karnataka Panchayat Raj (Second Amendment) act, 1996, (hereinafter called the 'Amendment Act') is the subject matter of controversy between the parties in these petitions. It is submitted that the State Legislature had no competence to amend the Principal Act being at No. 14 of 1993. By way of amendment, the State Legislature has not only exceeded its jurisdiction but has also been guilty of passing the laws which were contrary to Part IX of the Constitution of India. The amendments are alleged to be resulting in uncertainty in the institution of Panchayat Raj and instead of strengthening such institution, would result in its weakening. It is further contended that the amendment Act was contrary to the mandate of Articles 243-C, 243-D and 243-E of the Constitution. It is further submitted that the amendment Act was politically motivated which was intended to curtail the offices held by the writ petitioners resulting in loss of benefits, powers and the emoluments conferred upon by the Principal Act.
2. Facts in the petitions are almost admitted. The petitioners are all office bearers of Panchayats, holding such offices as Adhyaksha and Upadhyaksha of Taluka and Zilla Panchayats. All the petitioners are also admittedly, elected members of the panchayats. By way of amendment Act, the term of office has been restricted to twenty months from the date of their election to the offices of Adhyaksha and Upadhyaksha. The office of Adhyaksha and Upadhyaksha is stated to be co-terminous with the term of the panchayats which is admittedly five years. The amendment Act is stated to be contrary to Chapter IX of the Constitution as noted hereinabove.
3. The Amendment Act has been termed to be arbitrary affecting the basic structure of the Constitution. It is contended that security of tenure to the offices held by the petitioners is one of the basic structures of the Panchayat Raj Act which is embodiment of the Constitutional amendment and cannot be taken by introducing the amendment restricting continuity of office of the writ petitioners. The amendment is stated to be having no rational nexus or relation with any policy or object sought to be achieved by the respondents.
4. In the reply affidavits filed in some of the petitions and adopted in other Writ Petitions, the respondents have submitted that the present Writ Petitions were not maintainable as no fundamental right or legal right of any petitioner has been taken away. It is submitted that under Sections 138, 148, 177 and 186 of the Principal Act, amended by the Amendment Act, a provision has been made by curtailing the term of offices of Adhyaksha and Upadhyaksha of Taluk Panchayat and Zilla Panchayat to twenty months from the date of election or till such term he ceases to be a Member of Taluk or Zilla Panchayat whichever is earlier. The offices of Chair Persons and of Panchayat Raj institutions are reserved for Scheduled Caste and Scheduled Tribes in proportion to their population in the State that is 18.17 per cent and 5.25 per cent respectively and in the case of backward classes A and B categories, reservation is 33.33 per cent and remaining 43.25 per cent unreserved. While rotating the reservation from Panchayat to Panchayat, it is ensured that the total number reserved for each category remains the same of that they are allotted to other Panchayats. It is claimed that this rotation fulfils the Constitutional mandate in the matter of reservation as required under Article 243-D of the Constitution of India. It is stated that in the workshop held on 21.11.96 to consider the P.R. Naik Committee's report, the participants expressed their different views with respect to the term of office to the chair persons. Some of the participants wanted the term to continue for 5 years and others wanted the same to be restricted for two and half years on par with Chair persons of Municipalities. Some of the participants desired to limit the term to one year only as in the case of Corporation's Mayor and Upamayor. The intention of the Legislature to bring an Amendment to Karnataka Panchayat Raj Act by limiting the term of Office of Chairpersons of Zilla Panchayat and Taluk Panchayat by reducing the term is to provide an opportunity for three types of different reserved categories to hold offices within the term of panchayat i.e., duration of Panchayat which is five years. It is submitted that the policy of the State is to provide opportunities to the other reserved categories of persons to function as Chairpersons. It is claimed1 that the Legislature in its wisdom thought fit to reduce the term of office of Chairpersons to twenty months which cannot be disturbed by substituting any opinion. The amendment would provide an opportunity/training ground to all members of Panchayat in the governance of tocai bodies which is claimed to be the intention of 73rd Amendment to the Constitution of India. The term of office of Chairperson is stated to be not uniform in all the local bodies. The reason for limiting/reducing the term of office is to provide fair and adequate opportunity for the persons belonging to all categories to avoid long duration which if permitted, would take at least 20 years to complete the cyde. The object of amendment is claimed to be laudable intended to facilitate the number of three different categories of offices of Chairperson during one term as required under Article 243-U of the Constitution. As no fundamental or Constitutional right of the writ petitioner is stated to have been violated, their petitions are liable to be dismissed.
5. We have heard the Learned Counsel appearing for the parties at length and perused the records, relevant provisions of the Act and the Constitution.
6. Part XI of the Constitution deals with relations between the Union and the State and Chapter I of the said Part deals with distribution of legislative powers. Under the Constitutional scheme, the distribution is three fold as evident from three legislative lists. The State Legislature has the competence to enact laws only for the State or for any part thereof with respect to matters specified in the State List or in the Concurrent List subject to restrictions imposed under the Constitutional Scheme. The State Legislature is a sovereign authority for legislation with respect to matters covered by the State List and has no powers to legislate with respect to matters covered by the Union List. It has also powers to legislate with respect to matters covered by the Concurrent List subject to restrictions imposed under Chapter I of the Part XI of Constitution and if there is a conflict between a law enacted by a State Legislature and the Parliament with respect to matter covered by the Concurrent List, the laws made by the State Legislature to the extent of repugnancy would be held to be void being unconstitutional. It may also be emphasised that the laws made by the State Legislature and open to examination in Constitutional Court in spite of their validity.
7. It is almost settled that there is a presumption in favour of validity of an enactment passed by the Legislature with plenary powers and burden to prove otherwise is upon such person who alleges unconstitutionally. The Apex Court in BANK OF BARODA v. REDNAM NAGACHAYA DEVI, , held that the burden of showing that the classification was arbitrary was basically upon the person who impeaches the law. While determining the Constitutional validity of an enactment, the Courts are required to keep in mind that the impugned enactment is given such interpretation which makes it operative and not inoperative. In appreciating the submissions made for and against the Constitutionality of the enactments, resort may be had to the doctrines of Pith and Substance, Occupied Field and of Severability.
8. It has been contended on behalf of petitioners that even though the State Legislature had the plenary jurisdiction to enact laws with respect to matters covered by Entry 5 of List II of VII Schedule, yet, it could not have enacted the Amendment Act in view of the restrictions imposed by Article 245 of the Constitution. Article 245 of the Constitution provides:
Extent of laws made by Parliament and by the Legislatures of States:
Subject to the provisions of this Constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or part of the State.
No faw made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
9. Elaborating his arguments, Sri R.N. Narasimha Murthy, Senior Advocate has submitted that the words 'subject to the provisions of this Constitution' appearing in Article 245 of the Constitution imposed restriction upon the State Legislature not to make a law with respect to a matter upon which the Union Parliament had alone jurisdiction to make laws or the matters covered by the Constitution itself. It is submitted that under Article 243-E, the duration of the Panchayat is five years from the date appointed for its first meeting and no longer. The office of the Chairperson Adhyaksha and Upadhyaksha is coterminous with the term of the Panchyat. With respect to matters covered under Article 243-E, the State Legislature had no competence to make laws. The Amendment Act being the result of excessive legislative competence, was liable to be quashed. The argument of the Learned Counsel, though on the fact of it looking very attractive, yet has no legs to stand in view of the purposes and object sought to be achieved by the Amendment Act having reference to Entry 5 of List II of the VII Schedule. The aforesaid Entry 5 authorises the State Legislature to enact laws with respect to:
'Local Government, that is to say, the constitution and powers of municipal. Corporations, improvement trusts, district boards, mining settlement authorities and other local authorities for the purpose of local self-government or village administration.'
10. Neither Article 243-E nor any other Article in Part IX of the Constitution refers to the term of the Adhyaksha or Upadhyaksha of the Panchayat constituted in accordance with law enacted in pursuance of Entry 5 List II of the VII Schedule of the Constitution.
11. The Entry 5 is wide in terms covering all subjects relating to Local Government unless specifically barred by any other Constitutional provision. The word 'Constitution' used in Entry 5 List II of the VII Schedule is wide enough to indude the term and tenure of the office of the local Government/authority constituted for the purposes of village administration. The dictionary meaning of the word 'Constitute' is 'authority to hold, establish, to give legal authority'. The 'Constitution' is the mechanism under which the body corporate i.e., panchayat is intended to be brought into existence.
12. In MOHAMAD MAQBOOL MOHAMAD KHAJA AND OTHERS v. STATE OF MAHARASHTRA AND ORS, , an argument was addressed that Entry 5 in List II Schedule VII of the Constitution did not authorise the State Legislature to make law enabling the State Government to dissolve the term of the existing Councillors and to appoint an administrator. Rejecting such a contention, a Division Bench of Bombay High Court held:
"The entry permits the State Legislature to provide for constitution and powers of municipal corporations. The setting up of local self-government is one of the requirements of the Constitution and the State Legislature is entitled to legislate with reference to the Constitution and powers of such local government. It is not disputed by the petitioners that it is permissible for the Legislature to determine the duration of the terms of the Councillors, but what is urged is that it is not permissible for the Legislature to provide for reduction of term already extended. The submission is that once the State Government extends the terms of the Municipal Councillors beyond the normal terms of five years, then it is not permissible for the State Legislature to authorise the State Government to reduce it or curtail it before the expiry of such period. We do not find any merit in this submission. It is well settled that the power to grant includes the power to withdraw. The State Government was conferred with the power to give extension for a period of one year in exceptional circumstances. As the power is conferred to grant extension, there is nothing illegal or illogical if the authority is further provided to withdraw such extension in changed circumstances. The grant of extension is left to the discretion of the State Government though undoubtedly such discretion is to be exercised in exceptional circumstances and for sound reasons. The State Legislature, by enactment of Section 48-A of the Act, merely conferred the power on State Government to withdraw such extension in changed circumstances, and, in our judgment, the State Legislature was perfectly within the compass of its Legislative competence while empowering the State Legislature to do so. Entry 5 enables the State Legislature to legislate in regard to the Constitution and powers of the Municipal Corporations. Fixation of a term of the Councilor or grant of extension in such term and withdrawal of such extension are matters which are so closely connected with the Constitution and powers of the local government that we have no hesitation whatsoever in concluding that the Sate Legislature was perfectly competent in enacting Section- 48-A of the Act."
13. We find ourselves in agreement with the view taken by the Bombay High Court. Any other interpretation would frustrate the purpose for which the amendment has been made and would amount to doing violence to the Constitutional scheme as embodied in Part XI Chapter I of the Constitution. To come to this conclusion, we have kept in mind, the doctrines of Pith and Substance Occupied Field and Severability. The insistence upon constitutional provision even with respect to fixing the term of office of the Chairpersons would have disastrous results. The Union Parliament never intended to fix the term of office of the Adyaksha and upadhyaksha and opted to restrict the term of the Panchayat as a body corporate only. None of the petitioners has been deprived of any right accruing to him under Article 243-E of the Constitution, as the term of office to which he was elected as Member of the Panchayat has not been restricted or taken away. It cannot be said that while incorporating Chapter IX in the Constitution, it was intended to make the office of the Adhyaksha and Upadhyaksha co-terminous with the office of the Panchayat. We are, therefore, of the opinion, that the State Legislature had the power and was competent to enact the Amendment Act which has been impugned in these petitions.
14. Mr. Jayakumar S. Patil has submitted that the Amendment Act was intended to defeat the "Object and Reasons" which were the basis of inserting Chapter IX in the Constitution. According to him, the Amendment is likely to weaken the institution of Panchayat and create uncertainty in its functioning. He has referred to the Statement of objects and reasons which necessitated the insertion of Chapter IX in the Constitution. Once it is held that the State Legislature had the competence to enact the Amendment Act, it is not for us to substitute our opinion regarding the merits of the Amendment. If the State Legislature, having legislative competence in their wisdom have decided to enact the Amendment Act, notwithstanding the statement of objects and reasons, this Court cannot interfere with the legislative powers of the State Assembly by substituting its own opinion. The State Legislature is presumed to be aware of the Constitutional provisions and the circumstances necessitating the incorporation of Chapter IX in the Constitution. It cannot be denied that Chapter IX was inserted in the Constitution for the purposes of imparting certainty, continuity and strength in the Panchayat Raj institution. It is also true that the Amendment Act is claimed to have been incorporated in furtherance of the Constitutional obligations imposed upon the State vide 73rd amendment by which Part IX was inserted in the Constitution. Otherwise also, we have not been persuaded even to come to a tentative condusion that the Amendment Act would in any way create uncertainty or would lead to weaken or in any way adversely affect the continuity of the Panchayat Raj institutions. The mere fact that some of the Members of the Panchayat would not be permitted to hold the office beyond a particular period cannot lead to the conclusion that the certainty, continuity and strength of such institution would be endangered, particularly, when the Amendment is intended to be in furtherance of Constitutional obligations imposed under the aforesaid Part. Reservations contemplated under Article 243-D could not be achieved by any other method except by having a resort to restrict the term of office of the Chair persons and providing opportunity to all, for the purposes of establishment of the Panchayat Raj with an object to give it certainty, continuity and strength.
15. Smt. Pramila Nesaragi, learned advocate has tried to make a distinction between Clauses (a) and (b) of Sub-Article 5 of Article 243-C of the Constitution to show that the State Legislature was never intended to be conferred upon with the power of providing the term of office of the Chairpersons of a Panchayat at either the intermediate level or at district level. According to her, under Clause (a), the State Legislature had the power to enact but under Clause (b) it had no such power. The argument is illusory and self-contradictory. If this argument of the Learned Counsel is accepted, it has to be held that the State Legislature had no power to fix the term of office of the Chair-persons under any state enactment. The contradictory argument is evident from the fact that all the petitioners have claimed their right to remain in office for the term of the members of the Taluk Panchayats in terms of unamended Subsection 3 of Section 138, Sub-section 3 of Section 177. If the State Legislature had no power to provide term of office under the principal Act, the petitioners cannot have any grievance being entitled to challenge the Amendment Act. If the State Legislature had the power to provide term of office in terms of Sub-sections 3 of Sections 138 and 177, the State Legislature definitely had the power to restrict such term.
16. We have not been persuaded to come to the condusion that the Amendment Act was in any way contrary to the Constitutional provisions as incorporated in Article 243-C, 243-D and 243-E Similarly, no material has been placed before us to urge that the Amendment Act was politically motivated. In the absence of pleadings and other material, it cannot be said in these cases, that the amendment Act was enacted for extraneous considerations or was with oblique motives.
17. We also do not find force in the submission of the Learnec Counsel for the petitioner that the Amendment Act has in any way taken away any of the rights conferred upon them, or was otherwise contrary to the Constitution scheme. There is no force in the submissions made on behalf of the petitioners that as the Amendmen Act has resulted in civil consequences, the same should be quashec being unconstitutional. This Court in M.G. ACHAPPA v. THE PRESCRIBED OFFICER, GONIKOPPAL GRAMA PANCHAYAT AND ORS, has already held:
"Before invoking the jurisdiction of this Court under Artide 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. Ponnuswamy v. The Returning Officer and Jagannath v. State of Punjab AIR 1954 SC 210 and Jyothi Basu AND Ors. v. Debi Ghosal and Ors. .
In Jyothi Basu AND Ors. case (supra), 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 (supra), 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 Lai Tripati v. The District Magistrate, Rai Bareilly and Ors.' (JT 1992(4) SCC 80), again held:
'Democracy is a concept, a political philosophy an idela 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 statutorily recognised.'
18. No other point was urged or argued before us. There is no merit in these Writ Petitions and accordingly they are dismissed. But no order as to costs.
19. After the judgment was pronounced the Learned Counsel appearing for the writ petitioners prayed for grant for continuation of interim direction already issued in the case. We are not inclined to grant the prayer made in view of the detailed judgment pronounced today.