(Prayer: These Writ Petitions are filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ, order or direction in nature of certiorari, quashing Annexure-D, viz., the notification dated 15.06.2015 bearing Ref.No.Kra:Chunavane:CR:38:2015-16, in so far as it pertains to the election of the President to the respondent No.4 Gram Panchayat which is found at Sl.No.9 in the said notification, etc.)
1. Petitioner on being elected as a member of the fourth respondent Gram Panchayat on 17.02.2013, successfully contested the election to the office of President of the said Gram Panchayat, on 07.06.2013. The State Government amended Section 46 of the Karnataka Panchayat Raj Act, 1993 (for short Act ) by Karnataka Panchayat Raj (Amendment) Act, 2015 which received assent of the Governor on 29.04.2015, brought into force at once by which the words thirty months was substituted by the words five years . Petitioner claiming to be entitled to the extended tenure of the office of President for five years, aggrieved by the notification dated 15.06.2015 calling forth elections to the post of President and Vice President of various Gram Panchayats of Muddebihal taluk of Bijapur District, including that of the fourth respondent Gram Panchayat, at Sl.No.9, and the notice dated 24.11.2015 of the third respondent - Returning Officer Annexure-E, has presented this petition to quash the said notification and notice.
2. On 28.01.2016 the following order was passed:
Taking on record the affidavit of the Deputy Commissioner, Vijayapura stating that non-filing of the statement of objections was on account of administrative and preparatory work for elections of the Zilla Panchayat and Taluk Panchayat and accepting the same the presence of the Deputy Commissioner is dispensed with.
The point for consideration is, Whether the use of the word substituted in the amendment of Section 46 by the Karnataka Panchayat Raj (Amendment) Act, 2015 (Act No.17 of 2015 with effect from 30.04.2015), is to be construed as having retrospective effect, so as to entitle the petitioner to continue to hold the post of President for a period of five years, instead of thirty months?
3. Section 46 of the Act prior to the amendment read thus:
46. Term of office and conditions of service of Adhyaksha and Upadhyaksha: (1) The term of office of every Adhyaksha and every Upadhyaksha of the Grama Panchayat shall, save as otherwise provided in this Act, be thirty months from the date of his election or till he ceases to be a member of Grama Panchayat, whichever is earlier:
Provided that the term of office of Adhyaksha and Upadhyaksha of the Grama Panchayat who are in office on the date of commencement of the Karnataka Panchayat Raj (Amendment) Ordinance, 2002 shall be thirty-three months from the date of their election and the term of office of Adhyaksha and Upadhyaksha of Grama Panchayat to be elected immediately before the expiry of the said period shall be remaining period of twenty-seven months, provided that in either case in the meantime they do not cease to be members of the Grama Panchayat.
(2) Salary and other conditions of service of Adhyakshan and Upadhyaksha shall be as prescribed.
4. By the amendment Act No.17 of 2015 the words thirty months in sub-section (1) was substituted by the words five years .
5. The Amendment Act, states that it shall come into force at once , meaning thereby as on 29.04.2015. The submission that substitution relates to the date of the statute hence petitioner is entitled to continue to hold the post of President for a period of five years, is countered by the submission of the learned counsel for the State that the Amendment Act operates prospectively and petitioner is not entitled to hold the office of President beyond 30 months as he was elected to the said post on 07.06.2013, much prior to the coming into force of the Amendment Act. It is further submitted that a person elected to the office of President after Amendment Act 17 of 2015 is entitled to a tenure of five years and none other. According to the learned Government Advocate petitioner when elected to the office of President on 07.06.2013 its term was 30 months as provided in Section 46(1) and if that is so, it is not possible to hold that Amendment by way of substitution incorporating the words five years instead of 30 months entitles persons elected to the office of President prior to Amendment Act, to hold the office for five years.
6. Learned counsel hastens to add that the expression shall come into force at once will have no meaning if the Amendment is effective from 07.06.2013 when petitioner was elected to the office of President.
7. Section 46 of the Act provides for term of office and conditions of service of President and Vice President of a Gram Panchayat. The tenure of the office as it stood was thirty months from the date of election or till he ceases to be a member of the Gram Panchayat whichever is earlier.
8. The Proviso to the sub-section (1) of the Section 46 was inserted by Karnataka Panchayat Raj (Amendment) Ordinance 2002 whence the tenure of office of President and Vice President was fixed as 33 months from the date of election for those in office as on the date of the ordinance, and for those to be elected immediately before the expiry of the said period shall be the remaining period of 27 months, provided in either case, they do not cease to be members of the Gram Panchayat.
9. By the Karnataka Panchayat Raj (Amendment) Act 2015, which received the assent of the Governor on 29.04.2015, the words thirty months in sub-section (1) of Section 46 was substituted to five years . The amendment it is set out shall come into force at once, in other words from 29.04.2015 the date on which it received the assent of the Governor. The Proviso to sub-section (1) remained unaltered.
10. To apply the Amendment Act from the date of its coming into force, requires a reading of the unamended provision along with the amended provision as if they are part of it and the amended part of the provision having got incorporated into the Act . The words shall come into force at once , in the Amendment Act which is from 29.04.2015, therefore from that day onwards the tenure of the office of President and Vice President is five years.
11. Although the proviso to sub-section (1) of Section 46, as amended by ordinance of 2002 permitted the holder of the office of President and Vice President as on the date of ordinance to continue for 33 months though the tenure was thirty months, while those to be elected before the amendment were entitled to the balance of 23 months, since the term of the Gram Panchayat was five years, nevertheless was not amended by Amendment Act of 2015.
12. In the circumstances a reading of both Section 46 in its entirety as it stood prior to the Amendment Act 17 of 2015 and also the changes incorporated by substitution of the words 30 months to five years , it cannot but be said that the words five years was always there in the enactment, because the language of Section 46(1) does not permit any other construction.
13. In the aforesaid light, the irresistible conclusion is that the tenure of office of President and Vice President of the Gram Panchayat is five years though with effect from 29.04.2015 and does not operate retrospectively to entitle holders of the said office elected prior to the Amendment Act 17 of 2015 for an extension of the tenure from 30 months to five years.
14. Learned counsel for the petitioner places reliance upon the reported opinion of a Division Bench in Vijayakumar Shankarayya Sardar vs. State of Karnataka (ILR 1993 KAR 2586).
15. In Vijay Kumar s case Section 79A as amended by Act No.1 and 31 of 1991 to the Karnataka Land Reforms Act, 1961 (Karnataka Act No. 10 of 1962) fell for interpretation, whence the Division Bench observed:-
(i) whenever an Amendment Act is to be applied subsequent to the date of amendment, the various unamended provisions of the Act have to be read along with the amended provision as though they are part of it and the amended part of the provision having got incorporated into the Act;
(ii) Section 79A of the Act has the opening words on and from the commencement of the Amended Act which came into effect from 01.03.1974 and therefore from that day no one can acquire agricultural land if his income from sources other than agricultural lands is in excess of Rs.50,000/- and;
(iii) the interpretation to be placed on Section 79A of the Act is only by reference to the entire provisions of the Section as amended by Act 1 of 1991 and it must be held that the said words Rs.50,000/- was always there in the enactment because the language of the Section permits no other construction.
16. The Division Bench followed the decision of the Apex Court in Shamrao vs. Parulekar vs. The District Magistrate, Thana, Bombay (AIR 1952 SC 324) wherein it was observed thus:
.. The rule is that when a subsequent act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, then the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.
17. The dictum of the Supreme Court in Shri Ram Narain Vs. the Simla Banking and Industrial Co. Ltd. (AIR 1956 SC 614) when considered, the relevant portion was extracted thus:
Now there is no question about the correctness of this dictum. But it appears to us that it has no application to this case. It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part.
18. The aforesaid decision advances the case of the respondent State and not the case of the petitioner.
19. In the result, these petitions must fail and are rejected.
I.A.No.2/2015 for vacating stay is not necessary and is accordingly rejected.