Karnataka High Court
K. Puttaswamy vs State Of Karnataka on 22 July, 1994
Equivalent citations: ILR1994KAR3065, 1995(1)KARLJ395, 1995 A I H C 3313, (1995) 1 KANT LJ 395
ORDER Hari Nath Tilhari, J.
1. By this petition the petitioner has sought for relief of issuance of Writ of Certiorari for quashing the notice dated 8-6-1994 - Annexure-A to the Writ Petition issued by the Prescribed Authority, calling the meeting of Gram Panchayat on 17-6-1994 for electing the Adyaksha and Upadyaksha of Mayaganahalli Gram Panchayat, Ramanagaram Taluk, Bangalore Rural District. The petitioner has further prayed for issuance of Writ of Mandamus, directing the 2nd respondent to follow the newly promulgated Government Order as per Notification -Annexure-D dated 20-4-1994 and to accept the proposal of the petitioner to contest as Backward Community member by declaring that new Government Order will be applicable to the proposed election. He has further prayed for a direction to respondent No. 2 to issue a fresh calendar of events and to hold the elections in accordance with law afresh and to grant such other relief as the Court deems fit, including the cost of the Petition.
2. The case of the petitioner as mentioned in the Writ Petition is that petitioner belongs to Vokkaliga Caste which is one of the castes coming under Backward Classes community. According to the petitioner he is one of the elected Members of the Panchayat referred to above, i.e., Mayaganahalli Village Panchayat and that he has been elected in the election held on 29-12-1993, but the date has been wrongly mentioned as 29-3-1993, as pointed out by learned Counsel for the respondents and admitted by the learned Counsel for the petitioner and they corrected the date of election subsequently to read as 29-12-1993, That after the election of the Members of Panchayat, on March 2nd, 1994, a notice was issued fixing the date of Meeting of the Panchayat as 15-3-1994, for the purpose of holding the election of Adhyaksha and Upadyaksha of the aforesaid Panchayat. The petitioner has annexed a copy of the notice which is in Kannada. The contents of the notice and the matter thereof in substance as explained by learned Counsel for both the parties admittedly are that, by that notice a Meeting was called upon to be held on 15-3-1994 at 3 p.m. at the Panchayat office. That is the date and time of holding election of the President and Vice President that was fixed. In paragraph two of the notice it has been mentioned that the proposal of the names of the candidates should be sent over to the Prescribed Authority by or before the noon of March 11, 1994. It has further been provided therein that the nomination i.e., proposal of name can be presented either by the candidate himself or by proposer or seconder and only one person should be nominated. It may be mentioned here that the post of Adhyaksha of this Panchayat is reserved for the backward classes candidates and the post of Vice-president or Upadyaksha has been reserved for Scheduled Caste lady candidates. According to the petitioner, the petitioner could not get his nomination or proposal of his name presented on or before 11-3-1994. That as according to his understanding he was not eligible to contest the election for that post on account of the fact that though the petitioner's family has less than six acres of land, but his annual income has been Rs. 10,000/- per annum and so the petitioner considered that his nomination may be rejected so his nomination could not be presented before or by 11-3-1994 before noon. That according to the petitioner's case due to some insurmountable events and conditions in which the Meeting could not be held on 15-3-1994 and no election of the Adhyaksha and Upadyaksha could take place and the Meeting was postponed indefinitely without recording whether the Calender of Events published already would be applicable to the candidates to the election in future, as well as without fixing any date for next Meeting. The petitioner has further asserted that on June 8, 1994 the opposite party issued a notice for fixing the Meeting to be held on 17-6-1994 at 11 a.m. for the purpose of holding the elections to the post of Adhyaksha and Upadhyaksha of the said Panchayat. It has been specifically mentioned as per Annexure-A that for holding the election of Adhyaksha or Upadhyaksha a notice was issued calling and fixing the Meeting on 15-3-1994 and due to unavoidable reasons and circumstances, the election of Adhyaksha and Upadhyaksha meeting could not take place, therefore, the same had to be postponed and so under the Chairmanship of the Prescribed Authority, the Meeting was being convened on 17-6-1994 at 11 a.m. in the Panchayat Office requesting all the Members to attend the Meeting. During the period between 15-3-1994 and 8-6-1994 i.e., the date of issuance of Annexure-A, a Government Order bearing No. SWD/75/BCA, Bangalore dated 20-4-1994 was issued and came into operation. In that order the petitioner's caste is mentioned in category III (Backward) at S.No. 1(a) Vokkaliga. The petitioner has further submitted that in accordance with this Government order as the petitioner owns less than eight hectares of land the petitioner is entitled to contest the election for the office of Adhyaksha. There is no bar or restriction with reference to the annual income of Rs. 10,000/-or more. During the course of the hearing, an affidavit has been filed on behalf of respondent No. 15 only, stating that the proceedings of the Meeting dated 15-3-1994 had started at 3 p.m. at the place mentioned in the notice. But as there was lot of disturbance in the Meeting and the proceedings of the first Meeting was adjourned at 4-50 a.m. due to unavoidable circumstances. It has been further stated that all 18 Members of the Panchayat were present and the deponent had signed the attendance register. The petitioner has annexed a copy of the proceedings of the Meeting dated 15-3-1994 as Annexure-R-1. The learned Government Pleader has placed before me the attendance register and says that it was signed by all the Members. The Presiding officer Prescribed Authority is alleged to have presided the Meeting. No other counter affidavit has been filed.
3. I have heard Sri Havanur who has been assisted by Sri Ravivarma Kumar and Sri Hanumantharayappa on behalf of the petitioner as well as Sri B.J. Somayaji, learned Government Pleader representing Respondents 1 and 2. I have heard Sri M.E. Prabhu, learned Counsel appearing on behalf of Respondent No. 7 and Sri K. Shantharaj on behalf of Respondent No. 15. I have gone through the record.
4. On behalf of the petitioner it has been contended by learned Counsel for the petitioner that notice of the Meeting which has been issued on 8-6-1994 is illegal and bad, as it does not indicate the Calendar of Events. Learned Counsel submitted that the Calender of proposed meeting dated 17-6-1994 not having been issued so the said notice was bad. He further submitted that the petitioner not having been provided with the Calendar of notice, the petitioner has been deprived of the opportunity of filing the nomination papers, though the petitioner has been eligible to file his nomination, for proposal of his name and has been interested as well, under the Government Order dated 20-4-1994. The notice dated 8-6-1994, in which the Calendar of Meeting was not provided fixing the date for filing the nomination, the notice is bad. If it is an irregularity then in the Meeting, the Mandamus may be issued to the opposite party to allow the petitioner to file his nomination to get his name proposed for the purpose of contesting the election and therefore, he submits that the Mandamus may be issued to the opposite party to accept the petitioner's nomination paper and to allow him to participate in the election for the post of Adhyaksha. The learned Counsel further submitted that as election could not be held at the earlier Meeting of 15-3-1994 as well, the notice of that Meeting was illegal and bad. So election could not be said to have taken place at all. The petitioner's Counsel also pointed out that through Annexure-C dated 2-3-1994, a Meeting was called for holding election on 15th March, 1994, it provided that the nomination papers or proposals of the names should be given to the Prescribed Authority on or before the noon of March, 11, 1994. Learned Counsel further submitted that this direction itself shows that the said notice was bad as it runs contrary to the provisions of law as contained in Section 43 of the Karnataka Zilla Parishads, Taluk Panchayats Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (Karnataka Act No. 20/85) which has received assent of the President on 10th July, 1985, hereinafter described as Act No. 20 of 1985, as well as to the letters and spirit of Section 45(1) of Act No. 14 of 1993. The learned Counsel submitted that the very essential part in Clause-1 being illegal, the Meeting even if in pursuance of that notice was held, was no Meeting at all and so he is entitled to participate in the election to be held in the Meeting on 17-6-1994. The Writ Petition has very hotly been contested on behalf of respondents- 6, 7 and 15 as well as on behalf of Respondents 1 and 2. A preliminary objection was raised on behalf of the opposite party as well as by the learned Government Pleader to the effect that the present Writ Petition is not maintainable in view of the provisions of Section 45(2) read with Rule 8 of the Rules as framed under the Act as well as under Article 243-O of the Constitution of India as introduced by way of amendment. Learned Counsel submitted that the election process having commenced, the remedy of the Writ Petition Article 226 is not available to the petition and his only remedy is by way of an Election Petition. Learned Government Pleader as well as Counsel for the Contesting opposite party further submitted that there was no illegality in that notice dated 2-3-1994 for the simple reason that in that notice it was provided that nomination or proposals of names can be presented or filed by 11 -3-1994 before noon and the same is in consonance with Rule 4(2) of the Rules framed under Act 20 of 1985 which have been adopted and allowed to continue under the new Act i.e., Karnataka Act No. 14 of 1993. Learned Counsel for the opposite party in particular Sri Prabhu, learned Counsel appearing for Respondent No. 7, opposing the Writ petitioner submitted that the petitioner was not entitled to approach this Court because he himself did not take part in the proposed election by filing, or getting his nomination papers filed before the date prescribed. Learned Counsel for the respondent further invited my attention to Government Order dated 13-10-1986 and contended that under the provisions contained therein, the petitioner was fully qualified and eligible to participate in the election, as according to that provision any citizen belonging to the Backward Classes whose family income is up to Rs. 10,000/- and not below has been treated as Backward Class, for the purpose of conferring the benefit of Article 16 of the Constitution. Even otherwise, if the petitioner did not participate in the said election, the fault lies with the petitioner. When he himself did not participate and when he himself did not have intention to participate, this Court need not allow the petitioner to file his nomination paper. Learned Counsel for the petitioner submitted that Rule 4(2) does not appear to be in consonance with the spirit of Section 45(1) of Karnataka Act No. 14 of 1993. In fact, it appears the conflict with it and as such the notice dated 15-3-1994 was not a proper and legal notice.
5. I have applied my mind to the contentions urged by learned Counsel for the parties as well as to the record, of the case. On behalf of opposite parties it has been contended by learned Government Pleader as well as by Sri Prabhu that the petition is not maintainable in view of Article 243-O of the Constitution as well as in view of the provisions of Section-45(2) of the Act and that the only remedy available to the petitioner is by way of Election Petition. Before dealing with this contention it would be just and proper to have a over-all picture of relevant provisions of the Constitution and the Act. Article 243-O has been introduced in the Constitution of India by the Constitution 73rd Amendment Act, 1992. It reads as under :-
"Article 243-0 - Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution.-
(a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 243K, shall not be called in question in any court;
(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."
6. Under Karnataka Panchayat Raj Act, 1993, hereinafter described as Karnataka Act No. 14 of 1993, vide Section 45, the procedure for election of Adhyaksha and Upadhyaksha on the establishment of Grama Panchayat has been provided. Section 45 of the Act No. 14 of 1993 reads :-
"Procedure for election of Adhyaksha and Upadhyaksha on the establishment of Grama Panchayat, etc.,- (1) On the establishment of Grama Panchayat for the first time under this Act, or on its reconstitution or establishment under Section 302 or on its reconstitution on the expiry of the term of the members of Grama Panchayat a meeting of the Grama Panchayat shall be called immediately by the prescribed officer who shall himself preside over the meeting, but shall have no right to vote, and in such meeting Adhyaksha and Upadhyaksha shall be elected.
(2) Any dispute relating to the validity of the election of a Adhyaksha or Upadhyaksha of Grama Panchayat under this Act shall be decided by the prescribed judicial officer having jurisdiction over the Panchayat area or the major portion of the Panchayat area, whose decision thereon shall be final.
7. As per reading of Sub-section (2) it provides that any dispute relating to the validity of election of Adhyaksha and Upadhyaksha or Grama Panchayat under this Act shall be decided by the prescribed Judicial Officer within whose territorial jurisdiction lies the Panchayat area or the major portion of the Panchayat area. Relying on these two provisions, it has been submitted by the learned Counsel for the opposite parties including the Government Pleader, that the Petition is not maintainable and should be dismissed. The question is what is the meaning of expression "election", in this provision as well as in Section 45(2) of the Act. But before we proceed to consider the meaning of the expression, it is also necessary to consider the meaning of this expression, as used under Section 45(2) of the Act Under Sub-section (1) of Section 45 of the Act, it has been provided that on the establishment of Grama Panchayat or on its re constitution a meeting of Grama Panchayat shall be called immediately by the prescribed officer. It is further provided that meeting shall be presided over by the prescribed officer. Sub-section (1) further provides that in such meeting Adhyaksha or Upadhyaksha shall be elected. Provisions of Sub-section (1) indicates the implications and it is provided therein that while calling of the meeting of the Grama Panchayat, the Prescribed Authority has to fix a specific date time and place and then to call the members for the meeting and on that day, time and place to be presided over by him, when the meeting takes place under his presidentship the election of Adhyaksha or Upadhyaksha has got to be done'. That from the expression "in such meeting Adhyaksha and Upadhyaksha shall be elected" as per the language used in the Section which is neither vague nor ambiguous, it prima facie appears that the framers of law directed that the election of Adhyaksha and Upadhyaksha shall be done in that meeting. The expression "shall be elected" means that they shall be elected in that meeting. Sub-section (2) further provides that the validity of election can be agitated before and be decided by Prescribed Judicial Officer, having jurisdiction over Panchayat area or a major portion of Panchayat area, whose decision thereon shall be final.
8. So the question in this context is as to what is the meaning of expression "shall be elected", does it include entire election process? Whether in two sub-sections of Section 45 of the Act, expressions "shall be elected" and "election" have been used in same sense as in Article 243-O of the Constitution and the same idea or meaning these expressions connote. Before proceeding further, it will also be just and appropriate on my part to refer to an analogous provision in Act 20 of 1983.
Section 43 of Karnataka Act No. 20 of 1985 reads as under :-
"43. Election of Pradhana on establishment of Mandal Panchayat etc., (1) On the establishment of Mandal Panchayat for the first time under this Act, or on its reconstitution or establishment under section 132 or on its reconstitution on the expiry of the terms of the members of Mandal Panchayat, a meeting of the Mandal Panchayat shall be called within four weeks from the date of commencement of the term of office of the members of the Mandal Panchayat under Section 40 by the prescribed officer who shall himself preside over the meeting, but shall have no right to vote, and the meeting shall then proceed to elect the Pradhana.
2. Any dispute relating to the validity of the election of a Pradhana or Upapradhana under Sub-section (1) or under Section-42 shall be decided by the prescribed judicial officer having jurisdiction over the Mandal Panchayat area or the major portion of the Mandal Panchayat area whose decision thereon shall be final."
9. In this Section the expression "election" or "shall proceed to elect" has been used. It is on proper understanding and interpretation of the expression "Election", or "shall be elected" or "proceed to elect", in the light of the facts of the case, preliminary objection can be decided, by arriving at a conclusion, if election process had commenced at any time before the filing of the Writ Petition. This expression has got to be interpreted in the proper context. The expression is "proceed to elect". In this expression, expression "proceed" is not a term of art. It has got its ordinary meaning to go on to continue, to act according to a method. Thus proceed to elect means will start and go on in accordance with the method prescribed to elect. The expression "election" has got a wider as well as narrower meaning, it may be the action of choosing, choosing of one among several. The expression 'Election' has been defined in Black's Law Dictionary, Fifth Edition at page 465 as under:-
"Election ... The act of choosing or selecting one or more from a greater number of persons, things, courses, or rights. The choice of an alternative..... with respect to the choice of persons to fill public office or the decision of a particular public question or public policy, the term means in ordinary usage "the expression by vote of the will of the people or some what numerous electors. Election ordinarily as refers to a choice or selection by electors while appointment refers to a choose or selection by individual."
10. Dealing with the question of expression "Election" and its meaning in the context of Article 329 of the Constitution of India, Their Lordships of the Supreme Court have been pleased to lay down, in the Decision of N.P. PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY , as follows:-
"As we have seen the most important question for determination is the meaning to be given to the word "Election" in Article 329(b). That word has by long usage in connection with the process of selection of proper representatives in the democratic institutions, acquired both a wide and narrow meaning. In the narrow sense, it is used to mean the final selection of a candidate which may embrace the result of the poll, when there is polling or a particular candidate being returned unopposed when there is no polling. In the wide sense the word is used to connote the entire process culminating in any candidate being elected."
11. Their Lordships further observed at page-68 as under :-
"It seems to me that the word "Election" has been used in Part XI of the Constitution in the wider sense, that is to say, to connote the entire procedure to be gone through to return a candidate to the legislature. The use of the expression "conduct of elections" in Article-324 specifically points to the wide meaning and that meaning can also be read consistently into the other provisions which occur in Part XV including Article-329(b). That the word "Election" bears this wide meaning whenever we talk of election in a democratic country, is borne out by the fact that in most of the books on the subject and in several cases dealing with the matter, one of the questions mooted is, when the election begins?.
After having made reference to a passage from. Halsbury's Laws of England, Their Lordships of the Supreme Court further observed:-
"The discussion in this passage makes it clear that the word "election" can be and has been appropriately used with reference to the entire process which consists of several stages and embraces many steps, some of which may have an important bearing on the result of the process."
12. Thus it emerges out from the reading of the Judgment that expression "election" gives out a wider meaning when we take up the election in democratic Country and the expression 'election' or 'shall be elected' or 'shall proceed to elect' has also got to be interpreted, taking this wider meaning of the expression "election".
13. The same view has also been expressed in the case of MOHINDER SINGH GILL AND ORS. v. THE CHIEF ELECTION COMMISSIONER, NEW DELHI AND ORS. AIR 1978 SC 85. Hon'ble Krishna Iyer J., delivered the majority Judgment in paragraph-22 has been pleased to observe as under :-
"What then is the election ?
Every step from start to finish of total process constitutes election, not merely the conclusion or culmination."
In paragraph-121 it has been observed by Hon'ble Goswami J., that:
"As already pointed out, it is well settled that election covers the entire process from the issue of the notification under Section-14, to the declaration of the result under Section-66 of the Act."
Here Sections 14 and 66 which have been referred in the Judgment of Mohinder Singh's case makes a reference to the provisions of Representation of Peoples Act. Having thus considered, it appears from the avocation that the 'election' or 'proceed to elect' that the expression used in the Act or 'shall be elected' that is act of electing a person shall be performed, has got to be interpreted in the wider sense. When these expressions are used in the Act, it refers to the entire process and steps that are required to be taken in the matter of electing a person to a office or includes within the frame work of expression proceed to elect that is proceed to perform an act of electing or election of a person shall be done and every step in relation to the progress thereof will be taken till the declaration of result i.e., of returned candidate substantially in accordance with the manner as indicated in the Act such as in the matter of electing a person to the office of Pradan or Upapradan or Adhyaksha or Upadhyaksha in accordance with the requirement of the provisions of the Act. It may well be said that once the process of election has started in accordance with the requirements of law, then any breach of law is committed during the course and process of holding of election - from its start to its conclusion by declaration of result of the elected candidate no challenge thereto can be made by any process of law except by way of Election Petition, particularly in view of Article 243-O of the Constitution and the only remedy available to an aggrieved person is by way of filing Election Petition or Petition as provided under law relating to the election to that office. In the case of Panchayat elections or elections to Panchayat under Panchayat Raj Act, 1993, no remedy will be open and available under Article 226 of the Constitution of India. Let us examine the question in the context of the facts of the case in hand.
14. A reading of Section 45(1) of the Act, in my opinion, provides that as soon as the Grama Panchayat is established for the first time or on its reconstitution, the meeting of Grama Panchayat is required to be called by the Prescribed Authority who shall preside it and it is in that meeting the Chairman and Vice-Chairman (Adhyaksha and Upadhyaksha) are to be elected i.e., process of election from beginning or start to conclusion is to take place in the meeting and is to be concluded substantially in the meeting. In my opinion there is no substance in the contention of the Government Counsel that the expression "shall be elected" is used in Section 45(1) of the Act in the limited, restricted sense as of only choosing as relating to polling of the vote.
All the three terms have been used in one and the same sense as of being elected or the process of election being completed. I mean to say that under Section 45(1) of the Act what is provided is that Adhyaksha and Upadhyaksha shall be elected by the members in the meeting i.e., in the meeting called by the Prescribed Authority. It means that entire process of election beginning from filing of nominations or proposal, their scrutiny, their withdrawal if any and thereafter polling of the vote has to take place at the time and place of meeting and during the course of meeting and thereafter result is to be declared. If the framers of law would have intended to provide otherwise like that nomination could be received or notice of nomination or proposal could be received outside the meeting, then the Legislature would have specifically provided as it has been done by the Legislature when the Legislature thought it to do so, provided that notice has to be given prior to the meeting. For illustration, it has been so provided in the provisions of Section 49 of the Act of 14 of 1993 which deals with the motion of no-confidence against Adhyaksha or Upadhyaksha. There the Legislature intended and as such provided that before moving of that resolution or motion the notice thereof should be given by atleast 1/3rd of the total number of members and that notice should be given atleast 10 days before the date. Provisions of Section 49 of the Act itself reads as under :-
"49. Motion of no-confidence against Adhyaksha or Upadhyaksha of Grama Panchayat.- Every Adhyaksha or Upadhyaksha of Grama Panchayat shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the total number of members of the Grama Panchayat at a meeting specially convened for the purpose in accordance with the procedure as may be prescribed:
Provided that no such resolution shall be moved unless notice of the resolution is signed by not less than one-third of the total number of members and at least ten days notice has been given of the intention to move the resolution."
15. A reading of Section 49 of the Act, as mentioned above reveals that it requires specifically that no such resolution could be moved unless notice of resolution has been given by either proposers or the seconders and that notice is atleast 10 days notice, thus in such cases the Legislature considered that giving of prior notice should be provided and it provided that unless prior notice is given the said resolution cannot be moved. Legislature has not so provided as regards the election of Adhyaksha and Upadhyaksha. There is no such specific requirements that notice of motion or of nomination shall be given prior to the date of the meeting. What the Prescribed Authority has been authorised under Section 45 is to call a meeting, send a notice to the members for election, fix a date and then it further provides that the Prescribed Authority is to preside over the meeting and none else. But the Prescribed Authority shall have no right to vote. It further provides that in such meeting Adhyaksha and Upadhyaksha shall be elected. The use of expression "in such meeting" specifically called by the Prescribed Authority for the purpose of electing Adhyaksha and Upadhyaksha. These two - the Adhyaksha and Upadhyaksha are to be elected in the meeting clearly expresses the intent of Legislature. The intention of the Legislature appears to be that entire process of electing begins from the presentation of the proposals to that of a declaration of result shall substantially be completed in such meeting. My attention has been invited to Section 50 of the Act.
16. Section 50 of the Act provides that the procedure to be followed at a meeting of Grama Panchayat shall be one as prescribed. In this Act, the expression 'prescribed' has not been defined. As per Section 3, Clause 29(a) of the Karnataka General Clauses Act, the expression 'Prescribed' has been defined as under :-
"Prescribed means prescribed by rules made under the Act in which the word occurs. It means prescribed by the Rules."
From a reading of Section 50 of the Act, coupled with the meaning of expression 'prescribed' given under Karnataka General Clauses Act, read along with Section 311, it appears to me that the procedure is to be prescribed under the Rules to be framed and the power to make the Rule with respect to the procedure at the meeting is exercisable by the State Government, by publication thereof in Notification and for the present no Rules has been framed under the new Act. That under Clause (a) of second Proviso to Section 318 of the Panchayat Raj Act, 1993, the Rules framed under the repealed Act, it has been provided, shall be deemed to have been framed under it and these Rules shall continue to remain in force unless and until they have been superseded by new rules under the Act. So the position is that the Rules framed under the corresponding provisions of the repealed Act i.e., under Karnataka Act No. 20 of 1985 are to be and shall be deemed to be in operation. That under the Rules, the procedure to be followed at the meeting can be prescribed. In Section 52 of the Act it has been provided, in an ordinary meeting what shall be the period of notice for different types of meeting and the notices for those meetings, how shall be published and by whom they shall be issued. Thus as regards the meeting and the procedure at meeting, it has been provided, may be prescribed under the Rules. My attention has been invited to Act of 1983, with respect to conduct of election of Panchayat and the Rules known as The Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats (Conduct of Gramasabha Meeting) Rules, 1985. But in respect of the election of members of Panchayat new Rules have been framed under the Act of 1993 and the old Rules stand repealed automatically. But so far as election of Adhyaksha and Upadhyaksha is concerned, no Rules have been framed. The Rules in operation are those that have been framed in 1987 under the Act 20 of 85. This Rules shall be deemed to have been known as Karnataka Mandal Panchayats (Election of Pradhana and Upapradhana) Rules, 1987 and it provides the procedure for election of Pradhana and Upapradhana. Rule 4 of the aforesaid Rules, reads as under:-
"4. Election of Pradhana and Upapradhana.-
(1) The election of Pradhana and Upapradhana shall be held in the first meeting after the constitution or re constitution of the Mandal Panchayat, on such date as the prescribed officer may fix and he shall thereupon send to every member notice of the date so fixed.
(2) At any time before noon on the day preceding the date so fixed, any member may give notice in writing addressed to the prescribed officer of a motion that another member be chosen as the Pradhana and Upapradhana, as the case may be, and the notice shall be seconded by a third member and shall be accompanied by a statement by the member whose name is proposed in the notice that he is willing to serve as Pradhana or Upapradhana if elected:
Provided that a member shall not propose his own name, or propose or second more than one motion.
(3) Such notice shall be delivered to the prescribed officer in person by the candidate, proposer or seconder and a notice not so delivered in person shall not be valid.
(4) A member in whose name a motion stands in the list of business may, when called, move the motion or withdraw the motion, in which case he shall confine himself to a mere statement to that effect.
Provided that if either the mover or seconder is absent the presiding officer may permit any other member to move the motion or, as the case may be, another member to second the motion.
(5) The motions, which have been moved and duly seconded shall be put to vote one by one in the order in which they have been moved and decided if necessary by division. If any motion is carried by a majority of members present the prescribed officer shall without putting to vote later motions declare that the member proposed in the motion which has been carried has been chosen as the Pradhana or Upapradhana.
(6) If no motion is carried by a majority of members present the prescribed officer shall declare that the member proposed in the motion which has received the highest number of votes has been chosen as the Pradhana or Upapradhana.
(7) If members proposed in two or more motions have received the same number of votes the prescribed officer declare that the member determined by lot among them has been chosen as the Pradhana or Upapradhana.
(8) The prescribed officer shall cause a record of the minutes of the meeting made which shall contain the names of all the members present and in the case of a division the manner of their voting including abstentions. The minutes shall be signed by the prescribed officer and shall be made available to any member for inspection.
17. It has been submitted by the learned Counsel for the opposite parties that in pursuance of the Rules referred to above, the notice Annexure-C dated 2-3-1994 was issued for the purpose of the electing Adhyaksha and Upadhyaksha for the Meeting of Panchayat to be called upon for 15-3-1994 and the members were informed that the Meeting will be held for election of the Adhyaksha and Upadhyaksha. In that notice it was also mentioned that any Member may give a notice of the motion or proposal of the name of another Member for being chosen as Pradhana or Upapradhana, seconded by a third Member and accompanied by a statement by Member whose name is proposed that he is willing to serve as Pradhana or Upapradhana and that notice of motion should be given to the Prescribed Authority before noon of 11-3-1994 and that in pursuance of that notice of motion or proposal had been given as per requirement and it was contended on behalf of the opposite parties that since that notice had been given to the Prescribed Authority, in pursuance of the requirements of the notice of motion by 11th March, 1994, as per the mention made in the notice dated 2-3-1994 the process of election had begun and as particularly the process of election after having started was continuing when the Meeting had been held on 15-3-1994 though the motion could not be presented. In other words the motion cannot be moved in the Meeting, the Petition under Article 226 of the Constitution is not maintainable. The question before this Court firstly is whether the election process had started in accordance with the requirement of the provisions of the Act. The old Rules shall be deemed to have been continued in operation as is provided by second Proviso to Section 318 of the Act. Reading of Section 45(1) of the Act provides that entire process of election had to take place at the meeting. In view of the language used in Section 45(1) as well as Section 45(2) of the new Act and Section 43(1) of the Act No. 20 of 85, when the Act so provided by using the expression in the Act that Adhyaksha and Upadhyaksha shall be elected in the meeting that is election of these two officers shall be done in the meeting and that entire action beginning from nomination to the declaration of result has ordinarily to be done or taken in the meeting. Whether the requirement or taking of the nomination prior to that date by the Prescribed Authority has been in consonance with the letter and spirit of Section 45(1) of the Act, particularly when it takes place under the new Act. Nomination the acceptance of the receipt of the motion by the Prescribed Authority prior to the holding of the meeting and the date of meeting could in the eye of law be deemed to be the commencement of the process of election. It has been submitted by learned Government Pleader as welt as by the opposite parties that Rule (2) Sub-rule (12) of 1987 Rules so provides, that notice of the motion has to be given by the Prescribed Authority at any time before the date or earlier to the date fixed for the Meeting. My attention has been drawn to Sub-rule (4) of Rule 2, which has already been quoted above. In my opinion Sub-rule (2) of Rule 4 is not applicable to the holding of election of Adhyaksha or Upadhyaksha, so far as it is covered by Section 45(1) of the Act and specially when it is held in the circumstances specified in Section 45(1) of the Act i.e., when Panchayat is established for the first time or it is reconstituted on the expiry of terms of its members or on its establishment under Section 302. Thus entire steps in the process of election of Adhyaksha or Upadhyaksha is to take place in the meeting beginning from filing of nomination or proposal of names of candidates. There is no doubt that Rule can prescribe procedure to be followed at the meeting called for electing a President. The Rules may provide for how the proposals can be put and how they shall be scrutinised and withdrawn, considered and put to vote and for that there are provisions as contained in Sub-rules 4 to 8. But so far as taking of nomination is concerned proposals of the names of the candidates for the post of Adhyaksha and Upadhyaksha or Pradhana or Upapradhana they have got to be made or presented being a part of the process of election of the members, at the meeting. When it directs itself that meeting shall be held to elect or proceed to elect, it means steps necessary in the matter of election of Adhyaksha or Upadhyaksha shall be taken at the meeting, it includes the filing of nomination or for production of proposals giving of proposals to the Prescribed Authority. Therefore, the process of election of Adhyaksha or Upadhyaksha cannot be said to have begun in the eye of law, until the proposals had been presented in the Meeting itself. The learned Counsel for the opposite parties tried to argue on analogy of election of Members of Parliament and State Legislature under Representation of Peoples Act, that process of election starts with the publication of notice calling the Meeting for 15-3-1994. I am of the opinion, that analogy is not applicable as under Section 30 of the Representation of Peoples Act, which provides that as soon as notification for General Election has been issued either under Section 14 or under Section 15 calling the constituency to elect a member, Election Commissioner shall specify and notify in the Official Gazette the dates i.e., the last date for nominations shall be 7th. Date of publication of notification under Sections 14 or 15 which also provide or fix the date for scrutiny of nomination then the last date for withdrawal of the candidature which shall be the second day after the scrutiny of the nomination, then the date or dates on which a poll shall, if necessary, be taken on the date before which the election is completed. Therefore, the complete, program of election is to be published and when program has been published, it has to be taken that election process has started by calling general public to elect Members of Legislature or Parliament in accordance - with the program. The Act i.e., Act XIV of 1993 with respect to Adhyaksha and Upadhyaksha specifically provides that immediately after the constitution or re-constitution of the Grama Panchayat the Prescribed Authority shall call the meeting, means fix the date for meeting and then meeting shall be called to elect or proceed to elect Adhyaksha or Upadhyaksha and that the Adhyaksha or Upadhyaksha or Pradhana and Upapradhana shall be elected in the meeting. So the nomination or proposals of name had to be also taken in the meeting and if it is taken earlier and by act of accepting or receiving of nomination prior to the date of meeting, the same will not in the eye of law mean to be the commencement of election process. The minutes of the meeting also do not disclose that nomination or proposals of the names of candidates were at all accepted or received in the Meeting by Prescribed Authority. It only shows that then the meeting was adjourned because some disputes relating to Pradhana and Upapradhana and the motion even if received earlier, though against the letters and spirit of Section 45(1) of the Act, the motion could not be read over to the Meeting. So when in the facts as appear from the proceedings that no nomination or proposal of the names had come in the Meeting nor was accepted in the Meeting, the process of election did not in the eye of law, start and therefore the bar of Section 243-0 did not come in the way and as such the present Petition is not barred by Section 243-0 of the Constitution. As the process of election has not started in the present case as no nomination was received nor any nomination was presented in the Meeting nor any proposals were presented in the Meeting, the process did not start. Taking the proposals earlier prior to the Meeting, as I have stated earlier, will not constitute the commencement of the process of election.
18. My attention has been invited to the matters of Election of the Speaker and the Deputy Speaker of the Lokasabha, but those provisions are different from that of the present Act Learned Government Pleader has invited my attention to the provisions of Articles 89(2) and 93 of the Constitution.
Article 89(2) of the Constitution reads as under-
"89. (2) The Council of States shall, as soon as may be, choose a member of the Council to be Deputy Chairman thereof and, so often as the office of Deputy Chairman becomes vacant, the Council shall choose another member to be Deputy Chairman thereof."
Article 93 of the Constitution reads as under :-
"93. The Speaker and Deputy Speaker of the House of the People.- The House of the People shall, as soon as may be, choose two members of the House to be respectively Speaker and Deputy Speaker thereof and, so often as the office of Speaker or Deputy Speaker becomes vacant, the House shall choose another member to Speaker or Deputy Speaker, as the case may be."
19. Reading of these Articles shows that the Council of the State shall choose a Member to be Deputy Chairman. When it shall choose, how it shall choose, is not so provided in the Constitution and the same is the position in respect of the Deputy Speaker and Speaker of the House of the two Members of the Speaker and Deputy Speaker and so Rules of Procedure prescribed are ordinarily to govern these Election of Deputy Chairman, Speaker and Deputy Speaker.
20. Here in Section 45(1) of the Act, it has been so stated that Panchayat should elect Adhyaksha and Upadhyaksha in the meeting as per provisions of the Act, that is the Act No. 14 of 93 and Act No. 20 of 85. It has been provided that firstly the Prescribed Authority shall call meeting of the Panchayat, then in that meeting shall elect. It indicates that meeting of the Panchayat shall be called and in that meeting he shall be elected and therefore specific mode or manner with reference to the time and place has been provided and it has been provided that election of Adhyaksha and Upadhyaksha shall take place in the meeting called for by the Prescribed Authority. My attention has been drawn to Article 118 of the Constitution with reference to the election of Chairman of the Council of States and Speaker and Sub-clause (2) of Article 118 of the Constitution reads as under :-
"118(2). Until rules are made under Clause (1), the rules of procedure and standing orders in force immediately before the commencement of this Constitution with respect to the Legislature of the Dominion of India shall have the effect in relation to Parliament subject to such modifications and adaptations as may be made therein by the Chairman of the Council of States or the Speaker of the House of the People, as the case may be."
The Rules had prescribed, how the election of a Chairman shall take place or Speaker shall take place. The Act could also provide and therefore the analogy of the election of Speaker of the Loka Sabha or that of the Chairman of the Council cannot be made applicable to the present case, in view of a specific provision in Act. Thus having considered in my opinion, the process of election cannot be said to have been commenced. The Meeting that was called for had been adjourned on 15-3-94, no nomination had been received in the Meeting nor proposals of the names of the candidates have been presented nor were received in the Meeting. In view of Annexure-C dated 2-3-1994, whereby the Prescribed Authority gave notice of the date of Meeting and requesting the persons to give the notice of proposals of names outside the meeting, for the matter of electing the Chairman, filing of nomination and receiving notice of proposal outside and earlier to the holding of meeting is something that cannot be said to be an act within the Meeting, Thus until proposals of names have been given in the Meeting the stage of taking nomination can be said to have not been commenced under the Act and that Meeting had been adjourned as the minutes do show. So bar of Article 243-O of the Constitution does not apply apart from the fact that bar appears to apply to election to Panchayat only and not to election in and amongst the members of Panchayat.
20. The next question therefore now comes for consideration is whether the next Meeting that was fixed for 17-6-1994 had been validly called and whether the notice that has been issued fixing 17-6-1994 is valid or invalid. Meeting did take place, persons attended the meeting, signed the attendance register as has been established by the learned Government Pleader, by producing the register of the Panchayat but until nominations and proposals of names were filed, or presented to Prescribed Authority in the meeting, irrespective of the fact that they might have been received earlier and earlier receiving cannot be deemed to be a receiving of nomination in the meeting, therefore, in my opinion the meeting was adjourned without any nominations or proposals of names having been presented validly. When no nominations or proposals had been presented in the Meeting, the Meeting and no date of next Meeting had been fixed on 15-3-94, it is beyond doubt that the date of next Meeting had to be fixed and so the notice of the Meeting had to be given by the Prescribed Authority. The next meeting had been fixed for 17-6-1994 and thereafter may be said to have been adjourned and even if so the Prescribed Authority had to give a notice and even if it is not mentioned in the notice that it will proceed from the stage where the meeting dated 15-3-94 had to be adjourned. In my opinion there was no illegality in the notice. The Meeting that was fixed for 17-6-1994 would have been adjourned in view of interim order of this Court dated 16-6-94 and so it is hereby clarified that on the next date of Meeting which may be fixed by the Prescribed Authority and the Meeting shall start from the stage of the earlier Meeting. Proposals of the names of the persons have got to be taken in the meeting and thereafter the further proceedings for election of Adhyaksha and Upadhyaksha had to be done in accordance with law. It is clarified there is no question of taking the proposals outside the Meeting. In the circumstances of the case it is just and proper that even after having found the notice of Meeting 17-6-94 was valid, it is to be clarified that the Meeting that had to be held on 17-6-94 should be fixed at some future date at the earliest possible for the election of Adhyaksha and Upadhyaksha.
21. On behalf of the opposite parties as well as by the learned Government Pleader a reference has been made to the Decision of this Court in the case of NAGARAJ C.V. v. TAHSILDAR, SHIMOGA AND ANR. 1989(1) KLJ 331. In the case of Nagaraj C.V., the grievance that was raised by the petitioner was that the notice dated 3-12-1988 issued in that case after the adjournment of Meeting dated 26-11-1988 there should have been a provision for receiving a fresh nomination on or before schedule time of election and the Meeting to be held on 3-12-1988 was not the continuation of the earlier Meeting. The Court took the view that the Meeting that was called by the notice dated 3-12-1988 was no continuation of the proceedings of original schedule for 26-11-1988 and it was further observed that the adjournment of meeting was not challenged in Writ Petition. So it was not open to the petitioner to question the correctness of the proceedings. The Court on that ground rejected the challenge and the claim that there should have been provision for fresh nominations. In that case a reference has been made by the Division Bench in VENKATARAMANAPPA AND ORS. v. THE TAHSILDAR W.As. Nos. 1418 to 1424 of 1987. As regards the adjourned meeting being continuation of the earlier meeting according to law there cannot be nor there is any dispute here in this case. In the present case notice that has been given for holding of the Meeting on 15th of May, I have already found that Meeting has commenced in the sense that in the minutes book signatures of the members were taken but process of election did not commence, as no nomination had been taken in the Meeting. I have summoned the unreported Judgment by the Division Bench in the above Writ Appeal. In paragraph-10, it has been observed as under:-
"Under Section 43 of the Act, it is provided that a meeting of the Mandal Panchayat shall be called within four weeks from the date of commencement of the term of office of the members of the Mandal Panchayat under Section 40 by the prescribed officer who shall himself preside over the meeting, but shall have no right to vote, and the meeting shall then proceed to elect the Pradhan."
22. The Division Bench has further observed that the prescribed officer does not have under the Act unfettered power to act in whatever manner he likes. In that case, the Division Bench has referred to a Decision in STATE OF KARNATAKA v. G. NAGAPPA . In that case the following observations have been made by the Supreme Court-
"We may point out that till the election process has commenced by the issue of notice fixing the calender of events, there is no reason why the designated officer should not be entitled to rectify such defect in the list of voters in conformity with the Electoral Roll. But once the calender of events is published and the election process has begun, it is extremely doubtful whether any changes can be made in the list of voters for the purpose of setting right any such defect. We, however, do not wish to express any final opinion on this point."
23. The Division Bench has expressed the opinion, if the election process had started by issuance of notice for holding of the meeting it is only the voters who would have been eligible to vote in that meeting would now be entitled to vote. The position is to be seen as it was at the time of first meeting. So keeping in view the observations of the Supreme Court and the Division Bench referred to above, whether the process of election had started or not, particularly when the law requires process of election is to start in the meeting then it has to be examined in each case as the present case, whether the process of election has been started. I have mentioned earlier that the question which has been involved in the present case is what is the meaning of the expression the meeting shall proceed to elect or that the Adhyaksha and Upadhyaksha shall be elected in the meeting. The Meeting shall elect the Adhyaksha and Upadhyaksha and what is the scope of this expression has not been the subject matter of consideration and the interpretation before Division Bench. When the point has not been raised and has not been covered by the Division Bench Decision, it has been open to this Court to consider that aspect of the matter in the light of the relevant provisions of law particularly Section 45(1) of New Act and Section 43(1) of Act No. 20 of 1985 and material on record. The Decision in the case of Nagaraj, is not on the point. There can be no doubt with respect to the proposition that statutory requirement of the election is not the common right and in this connection it has been observed that as a general view it is only stated to be proceedings under statutory law and the statutory requirements of Election Law has to be strictly followed, has been the view of the Supreme Court, in my opinion in this sense the letter of law has to strictly be followed and we have to take into view when the laws says the meeting shall elect the Adhyaksha and Upadhyaksha, it means every process commencing from the filing of nomination papers or proposals of names till the Alumuni there of the declaration thereof is carried on according to the requirement of statutory law under Section 43(1) of old Act or under new Act 45(1) it has got to be done only at the meeting held for the purpose of holding election including the adjourned meeting if it is not possible for the Prescribed Officer to continue the meeting. In the present case, in my opinion the stage of filing of the nomination papers proposals itself has not commenced in the Meeting or at the Meeting. So the case of Nagaraj supra is also not applicable to the present case.
24. That as regards the question if the petitioner was qualified or not qualified, Counsel for the opposite parties submitted that on 15-3-93 petitioner was well qualified as his total income was Rs. 10,000/-, even otherwise also in view of the Notification dated 20th of April, 1994, the petitioner is entitled to contest the election. I am of the view that in the eye of law, no proposals of the names or no nomination had been received at the earlier Meeting and when the nominations or proposals of name of candidates are filed at the Meeting, on the date to be fixed, i.e., when the Meeting is to take place at the subsequent stage under law, petitioner if not otherwise qualified he may also get filed the nominations for the post in question.
In view of the above consideration and observations in my view, as far as of the relief of quashing notice dated 8-6-1994 is to be and is hereby rejected. But as has been clarified above, the stage of election has not yet started and as no nomination had been taken or accepted in the Meeting. The nominations have got to be taken in the Meeting and the names or the proposals of names have got to be taken in the Meeting and as such petitioner should not be deprived of exercising his right to be a candidate for the aforesaid posts by filing or getting filed the proposals of his name if so desired, unless he is found otherwise disqualified.