1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF AUGUST, 2018 BEFORE THE HON' BLE MR. JUSTICE B. VEERAPPA WRIT PETITION No.26075/2018(LB-ELE) ... PETITIONER BETWEEN: SMT. L. PADMAVATHI, W/O G. GOPALAKRISHNASHETTY, AGE, 40 YEARS, MEMBER TOWN PANCHAYAT SARAGUR, DO NO422 CHOUDESWARI NILAYA, WARD NO.10, SARGUR, H. D. KOTE TALUK, MYSORE57112. (BY SRI SYED AKBAR PASHA, ADVOCATE FOR SRI MAHANTESH S. HOSMATH, ADVOCATE) AND:
1. THE STATE OF KARNATAKA BY ITS SECRETARY PANCHAYATRAJ AND URBAN DEVELOPMENT DEPT. BANGALORE56000. UNDER SECRETARY TO GOVERNMENT URBAN DEVELOPMENT DEPT. VIDHANASOUDHA, BANGALORE56000. DEPUTY COMMISSIONER, MYSORE DISTRICT, MYSORE57000.
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8. 2 RETURNING OFFICER AND TAHASILDAR TOWN PANCHAYAT SARGUR H. D. KOTE TALUK, MYSORE DIST. 571121. THE TAHASILDAR AND RETURNING OFFICER SARGUR TOWN PANCHAYAT H. D. KOTE TALUK, MYSORE DIST57111. CHIEF OFFICER, SARGUR TOWN PANCHAYATH, SARGUR, MYSORE DIST57112. SMT. JYOTHI, W/O YOGISH KUMAR, AGED ABOUT38YEARS, COUNCILOR, WARD NO.12, SARGUR TOWN PANCHAYATH, SARGUR, MYSORE DIST-571121. SMT. MANJULA, W/O RAVIKUMAR M, AGED ABOUT24YEARS, COUNCILOR, WARD NO.07, SARGUR TOWN PANCHAYATH, SARGUR, MYSORE DIST-571121. ... RESPONDENTS (BY SRI A.G. SHIVANNA, ADDITIONAL ADVOCATE GENERAL A/W SMT. PRATHIMA HONNAPURA AGA FOR R1 TO R5; SRI A. NAGARAJAPPA, ADVOCATE FOR R7 AND R8; R6 IS SERVED, BUT UNREPRESENTED) … THIS WRIT PETITION IS FILED UNDER ARTICLES226& 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED NOTICE ISSUED BY RESPONDENT-4 DATED136.2018 VIDE ANNEXURE-K TO WRIT PETITION. 3 THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR
ORDERIS COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDERThe petitioner filed the present writ petition for a writ of certiorari to quash to impugned notice issued by the 4th respondent bearing No.ELN(PAPUMSA)CR052018-19 dated 13.06.2018, as per Annexure-K and to quash Section 42(11) of the Karnataka Municipalities Act, 1964, as it is unconstitutional, ultra vires and opposed to Section 18(1)(a) of the Karnataka Municipalities Act, 1964. I2 FACTS OF THE CASE: It is the case of the petitioner that the petitioner was elected as a member of Town Panchayath, Sargur, from ward No.11 of Sargur Town, H.D.Kote Taluk, Mysuru District and has been serving the public since 2015. The petitioner is known in public as most sincere and honest member of the Panchayath serving with devotion and she is deserved for the post of President. 4 The petitioner belongs to BCM(A) category as she belongs to Thogata community, which was not given any chance to represent the post of President in Sargur Town Panchayat for the last 13 years. Though it was brought to the notice of all the respondent authorities, deliberately with political forces they were going on with repetition, depriving petitioner’s right to contest to the post of President and represent her catergory. It is further contended that though the category GW (General Women) was allotted in the last election during the year 2016 for the post of President of Sargur Town Panchayat, now once again the same GW category is repeated for the present year i.e., 2018 which is illegal and contrary to the law laid down by this Court and the Apex Court.
3. It is further contended that the third respondent, all of a sudden, ignoring the mandate of law and without there being any notification fixing the category, 5 repeating the old fixation of category given in the 2016 notification once again issued the notice calling upon the Tahsildar to hold the election for the post of the President of Sargur Town Panchayath, as per Annexure- J.
The 3rd respondent/ Deputy Commissioner issued notice to hold elections to the post of President of Sargur Town Panchayath on 13.06.2018. The impugned notice of meeting of Town Panchayat shows to hold the election on 21.06.2018 on the basis of reservation of category notified in the notification dated 24.02.2016.
4. It is further contended that, for the election to the post of President to Sargur Town Panchayat for the year 2018, the Deputy Commissioner, without making separate list of reservation category, adopted the earlier reservation made during the year 2016, which clearly depicts the arbitrary act of the respondents. Though this fact was brought to the notice of the Deputy 6 Commissioner, he has not taken any action. On 15.09.2015, general election for Sargur Town Panchayath was held and the petitioner was elected as a member of Sargur Town Panchayath from BCAW (backward class women) category. On 07.10.2015, one Smt.Ratna was elected as President. On 03.02.2017, said Smt.Rathna resigned to the post of President. On 08.03.2017, election was held to the vacant post of President and the petitioner was elected as President. On 13.06.2018, the third respondent issued notice to hold election to the post of President on 21.06.2018. Hence, the present writ petition is filed for the relief sought for. II STATEMENT OF OBJECTIONS:
5. respondents/State The filed objections and specifically contended that the very writ petition filed by the petitioner is not maintainable and contended that the Sargur Town Panchayath election was conducted in 7 the year 2015 and one Smt. Ratna was elected as President on 07.10.2015 for a term of 30 months as per the provisions of Section 42(11) of the Karnataka Municipalities Act, 1964 (‘Act’ for short). In the interregnum of the 30 months, Smt. Ratna tendered her resignation to the post of President of Sargur Town Panchayath on 03.02.2017 and the same was accepted by the Government on 13.02.2017 as the said Smt.Ratna did not withdraw her resignation within ten days. The post of President became vacant due to the resignation of Smt.Ratna. Under Section 42(12) of the Act bye-election was conducted on 08.03.2017 and the petitioner was elected as President. It is further contended that the Government, vide notification dated 23.08.2013, had declared the reservation for Sargur Town Panchayath as backward class A-women for President and Scheduled Caste (Women) for Vice President post. Based on the said notification of the year 2013, elections were conducted in the year 2015 by 8 which the Smt. Ratna was elected on 07.10.2015. The tenure of the President is 30 months and it ends on 06.04.2018. Due to resignation of Smt.Ratna within the tenure of 30 months, the post became vacant and the petitioner was taken in the said post for the remaining term.
6. It is further contended by the respondents that as the term of President of Sargur Town Municipality came to an end on 06.04.2018, the impugned Annexures-J and K were issued by respondent Nos.3 and 4 for conducting election to the post of President and Vice President as per Government Notification dated 24.02.2016. As per the said notification, the reservation for Sargur Town Panchayath is from General Women Category for the post of President and Schedule Tribe Women category for the post of Vice President and therefore, the impugned Annexures-J and K are in accordance with the Government order dated 9 24.02.2016. It is contended that though the election is held for the Municipalities for a term of five years from the year 2015, but the term of the President and Vice President are restricted by the enactment under Section 42(11) of the Act for a period of thirty months. Hence, the tenure of the President and Vice President is for thirty months and the same cannot be continued beyond thirty months. As the post of the President became vacant due to resignation of Smt.Ratna, bye election was held and the petitioner came to be elected as President with effect from 08.03.2017 for the “remaining tenure only”. Therefore, the contention of the petitioner that the tenure of the petitioner will be thirty months from the date of taking over as President is incorrect and is not maintainable in law.
7. It is further contended that this Court, in the case of R.Prasanna Kumar and another vs. State of Karnataka reported in ILR1999KAR1378 has 10 clearly held that the President or Vice President who hold the Office in the interregnum within 30 months period are only entitled to hold office for the remaining period. It is further contended that a person elected as President of Municipal Council to casual vacancy caused by the resignation of the previous incumbent in the office has no right to remain in the office for full term from the date he/she became the President.
8. The respondents filed additional statement of objections in view of the allowing of the application for amendment of writ petition filed by the petitioner, whereby, the petitioner sought quashing of Section 42(11) of the Karnataka Municipalities Act, 1964, as unconstitutional, ultra vires and opposed to Section 18(1)(a) of the said Act. In the additional statement of objections, it is contended that Section 42(11) of the Act is not contrary to Section 18(1)(a) of the Act, as Section 18(1)(a) of the Act prescribes the terms of elected 11 members as five years, whereas, as per Section 42(11) of the Act, the term of President is thirty months and the same does not curtail the membership period of five years and is not contrary to Section 18(1)(a) of the Act. The object behind Section 42(11) of the Act is distribution of power among different sections of elected members within five years period. Therefore, the contention of the petitioner that Section 42(11) of the Act is contrary to Section 18(1)(a) of the Act does not stand and is liable to be dismissed. It is further contended that the Panchayath and Municipality are governed by different enactments which serve different purposes. The legislation in its prudence, has taken necessary steps to maintain reasonable restrictions and there is no discrimination as the Adhyaksha and Upadhyaksha in Panchayath Raj are governed by the Karnataka Grama Swaraj and Panchayat Raj Act and Adhyaksha and Upadhyaksha of Municipalities are governed by Karnataka Municipalities Act. Therefore 12 the contention of the petitioner that the impugned action of the State is in violation of Article 14 of the Constitution of India cannot be accepted. It is also contended that the amended prayer challenging the vires of the enactment is not maintainable and is filed only to drag the proceedings before the Court and this Court in the case of R.Prasanna Kumar and others vs. State of Karnataka reported in ILR1999KAR1378has held that Section 42(11) of the Act is valid. It is further contended that the petitioner has suppressed the said facts and has not come to the Court with clean hands and therefore, petitioner is not entitled to any relief before this Court under Articles 226 and 227 of the Constitution of India.
9. I have heard the learned counsel for the parties to the lis. 13 III ARGUMENTS ADVANCED BY THE LEARNED COUNSEL FOR THE PARTIES:
10. Sri Syed Akbar Pasha, for Sri Mahantesh Hosmath, learned counsel for the petitioner contended that the petitioner is the only candidate under BCA Women category who is eligible and should continue in the post of President for a term of thirty months from the date of election i.e.,, 08.03.2017. He further contended that under the provisions of Section 42(11) of the Act, thirty months is granted. Therefore, he sought to allow the writ petition. In support of his case, learned counsel relied upon the judgment of the Apex Court in the case of Saraswati Devi vs. Shanti Devi (Smt) and others reported in (1997)1 SCC122 11. Per contra, Sri A.G. Shivanna, learned Addl. Advocate General, contended that the petitioner is not entitled to any relief as sought for. He contended that Smt.Ratna was elected as President under BCAW category on 07.10.2015, as per Annexures-R7 and R8 14 produced along with application for impleading. Though Smt. Ratna was elected as President in terms of the notification dated 23.08.2013 vide Annexure-F, that was not challenged by the petitioner and suppressed the same while filing the present writ petition. Therefore, the impugned notification came to be issued on 24.02.2016 as per Annexure-G, wherein at Sl.No.71 the post of President is reserved to GW category and the post of Vice President is reserved to STW category for Sargur Town Panchayath and admittedly the said notification is not challenged and the present writ petition is filed on 18.06.2018. Therefore, petitioner is not entitled to any relief before this Court under Articles 226 and 227 of the Constitution of India.
12. Learned Addl. Advocate General would further contend that as per Annexure-F dated 23.08.2013 at Sl.No.53, the post of President is reserved for BCAW category and the post of Vice President is reserved for 15 SCW category for the Sargur Town Panchayath. The election of Smt.Ratna from BCAW was not challenged by the petitioner and said Smt. Ratna enjoyed the post of President for seventeen months. Learned Addl. Advocate General while referring to Articles 243T and 243R of the Constitution of India, contended that the petitioner has not challenged the competency of the State and relied upon the following judgments: (i) State of Himachal Pradesh and others vs. Satpal Saini reported in AIR2017SC810para 9 (ii) Ram Krishna Dalmia and others vs. Shri Justice S.R.Tendolkar and others reported in AIR1958SC538para 11.
13. Sri A. Nagarajappa, learned counsel for respondent Nos.7 and 8, while supporting the arguments advanced by the learned Addl. Advocate General, relied upon the following judgments:
16. (i) An unreported judgment of this Court in W.P.No.13320/2006 dated 22.09.2006 paragraphs 2,4,5,9,10. (ii) B.Javarayagouda S/o Boregouda vs. The State of Karnataka, reported in ILR1997KAR1153 para 17. (iii) Full Bench decision of this Court in the case of R. Prasanna Kumar & another vs. The State of Karnataka reported in ILR1999KAR1378para 25. (iv) M.G.Achappa vs. The Prescrigbed Officer, Gonikoppal Grama Panchayath and others reported in ILR1996KAR2546 IV. THE POINT FOR DETERMINATION:
14. In view of the rival contentions urged by the learned counsel for the parties, the only point that arises for consideration is: “Whether the petitioner was elected as President in the casual vacancy is entitled to hold the office of the President for the remainder term of regular 17 vacancy or for full term of 30 months from the date of her election as President in the facts and circumstances of the case?. V. CONSIDERATION:
15. I have given my anxious consideration to the arguments advanced by learned counsel for both the parties and perused the entire material on record carefully.
16. Before adverting to the question raised in this petition, it is relevant to examine the constitutional scheme governing reservations. Articles 15(3), 15(4) and 16(4) of the Constitution envisage that the laws made by the legislature envisaging reservation for SCs, STs, OBCs and Women are not hit by doctrine of equality. The Constitution also provides reservations of the constituencies for the election of the members of the Parliament and State Legislatures for SCs and STs. Article 38 of the Constitution obligates the State to 18 promote the welfare of the people by securing protection as it may a social order in which justice, social, economic and political shall inform all the institutions of the national life and that the State shall strive to minimize the inequalities in income and endeavour to eliminate inequalities in status, facilities and opportunities not only amongst the individuals, but also amongst the groups of people residing in different areas or engaged in different vocations. The preamble to the Constitution envisages social, economic and political justice to all.
17. In view of the above Constitutional scheme, reservation is provided for SCs, STs, OBCs and Women in educational institutions and in service and reservation is also provided as stated supra in the election of the members of the parliament and legislature. Such reservation is not provided for the election of local bodies including panchayats and 19 Municipalities. Therefore, parliament has incorporated Part IX and IX-A in the Constitution of India, providing reservation for SCs, STs, Women and Other Banckward Classes. To fulfill constitutional obligations, the State legislature has enacted Karnataka Municipalities Act, 1964 and Rules framed therein providing reservations by rotation of SC, ST, Women and Backward Classes. The provisions of part IX-A of the Constitution inserted by Constitution (74th amendment) Act, 1992, which came into force on 01.06.1993 deals with Municipalities. Articles 243Q, 243R and 243S deals with the Constitution and composition of Municipalities and Wards of Municipalities. Article 243T envisages reservation of seats for the scheduled castes, scheduled tribes and women and further directs that such reserved seats may be allotted by rotation to constituencies of the Municipalities. Article 243U contemplates that the Municipality unless sooner dissolved under any law, shall continue for a period of 20 five years from the date appointed for its first meeting. An election to constitute a Municipality shall be completed before the expiry of its duration specified. INTERPRETATION OF SECTION42OF THE VI. KARNATAKA MUNICIPALITIES ACT, 1964:
18. Chapter II of the Karnataka Municipalities Act, 1964, deals with constitution of Municipalities, election of councilors, term of office of the councilors, President and Vice President and their functions. Section 42 of the Karnataka Municipalities Act, 1964, deals with President and Vice President, which reads as under: “42. President and Vice-president: (1) For every municipal council, there shall be a president and a vice-president. [(2) Subject to the provisions of sub-section (2A) the Councillors shall at the first meeting of the Municipal Council after the general election and at a subsequent meeting held immediately before the expiry of term of 21 office of the President and Vice-president chose two members from amongst the elected councillors to be respectively president and Vice-President and so often as there is a casual vacancy in the office of the President, or Vice President shall choose another member from amongst the elected councillors to be the President or Vice- president, as the case may be.]. [(2A) There shall be reserved by the Government in the prescribed manner, -- (a) such number of offices of President and Vice-President in the State for the persons belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State; 22 (b) such number of offices of President and Vice-president in the State which shall as nearly as may be one-third of the total number of offices of President and Vice- president in the State for the persons belonging to the Backward Classes; [Provided that out of the offices reserved under this clause eighty per cent of the total number of such offices shall be reserved for the persons falling under category "A" and the remaining twenty per cent of the offices shall be reserved for the persons falling under category "B": Provided further that if no person falling under category "A" is available, offices reserved for that category shall also be filled by the persons falling under category "B" and vice versa.]. 23 Provided also that the number of offices of President and Vice –President reserved for the backward classes under this clause shall be so determined that the total number of offices of President and Vice-President reserved for the Scheduled Castes and the Schedules Tribes and the Backward Classes under this clause shall not exceed fifty per cent of the total number of offices of President and Vice-President of the Municipal Councils in the State. (c) not more than fifty per cent of the total number of offices of the President and Vice-president in the State from each of the categories, reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women: Provided that the offices reserved under this sub-section shall be allotted by rotation in 24 the prescribed manner to different municipal councils. Explanation.--For the removal of doubts it is hereby declared that the principal of rotation for the purpose of reservation of offices under this subsection shall commence from the first ordinary election to be held after the first day of June 1994. (3) The election of the president or the vice- president and the filling up of vacancies in the said offices and the determination of disputes relating to such election shall be in accordance with such rules as may be prescribed: Provided that the authority to determine such election disputes shall be such judicial officer as may be prescribed. (5) During a vacancy in the office of the president of a municipal council and when there is no vice-president to take his place or if a vice-president fails to assume charge of the office of president which has fallen 25 vacant as required by sub-section (2) of section 44, then without prejudice to any action under sub-section (10) the Deputy Commissioner or the person performing the duties of the Deputy Commissioner for the time being in the case of [city municipal councils and in the case of town municipal councils]. any officer nominated by him in this behalf not below the rank of an Assistant Commissioner in the case of [municipal councils]. at district headquarters or the Tahsildar or the person performing the duties of the Tahsildar for the time being [or any other person not disqualified for being a Councillor]. in the case of other [municipal councils]. shall, notwithstanding anything contained in this Act or in the rules or orders issued thereunder, perform the functions of the president. (6) Every president who, for a period exceeding two months and every vice- president who for a period exceeding one month, absents himself from the [municipal area]. in such manner as to be unable to 26 perform his duties as such president or vice- president, shall cease to be president or vice- president, unless leave so to absent himself has been granted by the municipal council. The question whether a vacancy has arisen under this sub-section shall be decided by the Deputy Commissioner. (7) Leave under sub-section (6) shall not be granted for a period exceeding six months. Whenever leave is granted to a president and the office of the vice-president is vacant, the vacancy in the office of the president shall be filled up by election by the municipal council from among the [elected councillors]. within such period and in such manner as may be prescribed. When leave is granted to a vice- president or when the vice-president is acting for the president, the vacancy in the office of the vice-president may be filled up by election of some other [elected councillor]. thereto. (8) If a vice-president of a municipal council is elected as president of the municipal 27 council, he shall be deemed to have vacated his office as vice-president. (9) Every president and every vice-president of a municipal council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of the total number of councilors having voting right and by a majority of not less than two-thirds of the councilors having voting right present and voting at a special general meeting convened for the purpose: 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 councillors having voting right and at least ten days' notice has been given of the intention to move the resolution: Provided further that where a resolution expressing want of confidence in any president or vice-president has been considered and negatived by a municipal 28 council, a similar resolution in respect of the same president or vice-president shall not be given notice of or moved within one year from the date of the decision of the municipal council. (10) Every president and vice-president shall, be removable from his office as such president or vice-president by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his duties or if he is unable to pay [dues he owes to the Municipal Council or has suffered an order for commitment to civil prison for nonpayment of any decretal debt]., and a president and vice-president so removed who does not cease to be a councillor under sub-section (2) of section 41, shall not be eligible for re-election as president or vice-president during the remainder of his term of office of councillor specified in section 18. [Provided that no such order shall be made except after the president or the Vice- 29 President has been given an opportunity for submitting explanations.]. [(11) Save as otherwise provided under this Act, the President and Vice President shall hold office for a period of thirty months from the date of their election, provided that in the meantime they do not cease to be councillors.]. (12) In the event of the non-acceptance of office, death, resignation or removal from office of a president or vice-president or of his election being void, or of his becoming incapable of acting in such office or having ceased to be a councillor, previous to the expiry of his term of office as president or vice-president, the vacancy shall be filled up [by election]., in accordance with the provisions of the foregoing sub-sections. [(13) The President and the Vice-President may receive out of the Municipal Fund such monthly allowances, not exceeding rupees two hundred, as the Government may, from 30 time to time, fix and different rates may be fixed for different municipal councils. (14) The Municipal Council shall place at the disposal of the President annually such sum not exceeding one thousand rupees as may be determined by it; by way of sumptuary allowance.].
19. A plain reading of the said provisions makes it clear that every municipal council shall have a president and a vice-president and the Councillors shall at the first meeting of the Municipal Council after the general election and at a subsequent meeting held immediately before the expiry of term of office of the President and Vice-president chose two members from amongst the elected councillors to be respectively president and Vice-President and so often as there is a casual vacancy in the office of the President, or Vice President shall choose another member from amongst the elected councillors to be the President or Vice- 31 president, as the case may be as contemplated under clause (2) of Section 42. There shall be a reservation of such number of offices of President and Vice-President in the State for the persons belonging to the Scheduled Castes and Scheduled Tribes and the number of such offices bearing as nearly as may be the same proportion to the total number of offices in the State as the population of the Scheduled Castes in the State or of the Scheduled Tribes in the State bears to the total population of the State. Such number of offices of President and Vice- president in the State which shall as nearly as may be one-third of the total number of offices of President and Vice-president in the State for the persons belonging to the Backward Classes as contemplated under clause (2- A) of Section 42. Provided that out of the offices reserved under clause (2-A), eighty per cent of the total number of such 32 offices shall be reserved for the persons falling under category "A" and the remaining twenty per cent of the offices shall be reserved for the persons falling under category "B". Provided that if no person falling under category "A" is available, offices reserved for that category shall also be filled by the persons falling under category "B" and vice versa. Provided also that the number of offices of President and Vice –President reserved for the backward classes under this clause shall be so determined that the total number of offices of President and Vice- President reserved for the Scheduled Castes and the Schedules Tribes and the Backward Classes under this clause shall not exceed fifty per cent of the total number of offices of President and Vice-President of the Municipal Councils in the State. Not more than fifty per cent of the total number of offices of the President and 33 Vice-president in the State from each of the categories, reserved for persons belonging to the Scheduled Castes, Scheduled Tribes and Backward Classes and those which are non-reserved, for women. Provided that the offices reserved under this sub- section shall be allotted by rotation in the prescribed manner to different municipal councils. Explanation to sub Section (2-A) of Section 42 prescribes that for the removal of doubts it is hereby declared that the principal of rotation for the purpose of reservation of offices under this subsection shall commence from the first ordinary election to be held after the first day of June 1994. Sub Section (3) of Section 42 prescribes that the election of the president or the vice-president and the filling up of vacancies in the said offices and the determination of disputes relating to such election shall be in accordance with such rules as may be prescribed. 34 Provided that the authority to determine such election disputes shall be such judicial officer as may be prescribed. Sub Section (5) of Section 42 prescribes that, during a vacancy in the office of the president of a municipal council and when there is no vice-president to take his place or if a vice-president fails to assume charge of the office of president which has fallen vacant as required by sub-section (2) of section 44, then without prejudice to any action under sub-section (10) the Deputy Commissioner or the person performing the duties of the Deputy Commissioner for the time being in the case of [city municipal councils and in the case of town municipal councils]. any officer nominated by him in this behalf not below the rank of an Assistant Commissioner in the case of [municipal councils]. at district headquarters or the Tahsildar or the person performing the duties of the Tahsildar for the time being [or any other person not disqualified for being a 35 Councillor]. in the case of other [municipal councils]. shall, notwithstanding anything contained in this Act or in the rules or orders issued thereunder, perform the functions of the president. Sub Section (6) of Section 42 prescribes that every president who, for a period exceeding two months and every vice-president who for a period exceeding one month, absents himself from the [municipal area]. in such manner as to be unable to perform his duties as such president or vice-president, shall cease to be president or vice-president, unless leave so to absent himself has been granted by the municipal council. The question whether a vacancy has arisen under this sub- section shall be decided by the Deputy Commissioner. Sub Section (7) of Section 42 prescribes that leave under sub-section (6) shall not be granted for a period exceeding six months. Whenever leave is granted to a president and the office of the vice-president is vacant, 36 the vacancy in the office of the president shall be filled up by election by the municipal council from among the [elected councillors]. within such period and in such manner as may be prescribed. When leave is granted to a vice-president or when the vice-president is acting for the president, the vacancy in the office of the vice- president may be filled up by election of some other [elected councillor]. thereto. Sub Section (8) of Section 42 prescribes that, if a vice-president of a municipal council is elected as president of the municipal council, he shall be deemed to have vacated his office as vice-president. Sub Section (9) of Section 42 prescribes that, every president and every vice-president of a municipal council shall forthwith be deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of the total number of councilors having voting right and by a majority of not less than two-thirds of the councilors having voting 37 right present and voting at a special general meeting convened for the purpose. 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 councillors having voting right and at least ten days' notice has been given of the intention to move the resolution. Provided further that where a resolution expressing want of confidence in any president or vice- president has been considered and negatived by a municipal council, a similar resolution in respect of the same president or vice-president shall not be given notice of or moved within one year from the date of the decision of the municipal council. Sub Section (10) of Section 42 prescribes that, every president and vice-president shall, be removable from his office as such president or vice-president by the Government for misconduct in the discharge of his duties or for neglect of or incapacity to perform his 38 duties or if he is unable to pay [dues he owes to the Municipal Council or has suffered an order for commitment to civil prison for nonpayment of any decretal debt]., and a president and vice-president so removed who does not cease to be a councillor under sub-section (2) of section 41, shall not be eligible for re- election as president or vice-president during the remainder of his term of office of councillor specified in section 18. Provided that no such order shall be made except after the president or the Vice-President has been given an opportunity for submitting explanations. Sub Section (11) of Section 42 prescribes that, save as otherwise provided under this Act, the President and Vice President shall hold office for a period of thirty months from the date of their election, provided that in the meantime they do not cease to be councillors. 39 Sub Section (12) of Section 42 prescribes that, in the event of the non-acceptance of office, death, resignation or removal from office of a president or vice- president or of his election being void, or of his becoming incapable of acting in such office or having ceased to be a councillor, previous to the expiry of his term of office as president or vice-president, the vacancy shall be filled up [by election]., in accordance with the provisions of the foregoing sub-sections. Sub Section (13) of Section 42 prescribes that, the President and the Vice-President may receive out of the Municipal Fund such monthly allowances, not exceeding rupees two hundred, as the Government may, from time to time, fix and different rates may be fixed for different municipal councils. Sub Section (14) of Section 42 prescribes that, the Municipal Council shall place at the disposal of the President annually such sum not exceeding one 40 thousand rupees as may be determined by it; by way of sumptuary allowance.
20. Sub Section (2) of Section 42 provides for filling up of regular vacancy of the president and vice president immediately after general elections to the municipal council and also provides for filling up of casual vacancy in the case of president and vide president. Sub Section (11) of Section 42 provides the term of office of the president and vice president. Sub Section (12) of Section 42 provides that, if the office of the president or vice president becomes vacant on the happening of events provided in the said Section, before expiry of the term of office of president or vide president who are elected in regular vacancy, the said vacancy shall be filled up by election.
21. The above provisions of the Act provides for election of president and vice president both to regular vacancy and casual vacancy. The term of office of 41 president and vice president is thirty months as provided under sub Section (11) of Section 42, even though the term of Municipal Council is five years. Thus during the term of the Municipal Council there will be two elections of the office of the President and Vice President, one immediately after the general election to the Municipal Council and the second on the expiry of thirty months from the date of the election of the president and vice president who are elected immediately after the general election. The election to the post of president and vice president is subject to the reservation to be made in respect of certain categories. The persons elected as president and vice president immediately after the general election hold office for a period of thirty months from the date of the election.
22. In the event, during the currency of the term of president and vice president, a vacancy is caused on the happening of certain events as provided under Section 42 42(12) of the Act, the said vacancy is filled by election. The legislature in its wisdom has distinguished between the post of regular vacancy and casual vacancy as is evident from Section 42(2) and 42(12) of the Act. The election to the post of president and vice president held immediately after the general election to the Municipal Council and the election to be held on the expiry of first thirty months is for regular vacancy, whereas an election to the office of the vacancy caused on account of the happening of the events as provided under Section 42(12) of the Act, is for the casual vacancy.
23. Admittedly, in the present case, one Smt.Ratna was elected as president under BCAW category on 07.10.2015, as per Annexures-R7 and R8, produced along with application for impleadment, and the said Smt.Ratna was elected in terms of the notification dated 23.08.2013, Annexure-F. The same was not challenged by the petitioner and the said fact has been suppressed 43 in this petition. The notification dated 24.02.2016, at Sl.No.71 depicts that the post of president was reserved for GW and the post of vice president is reserved for STW, in respect of Sargur Town Panchayat and the same is not challenged in the present writ petition filed on 18.06.2018. VII
JUDGMENTS RELIED UPON:
24. At this stage, it is also relevant to state that as per Annexure-F, notification dated 23.08.2013, at Sl.No.53, the post of president was reserved for BCAW and the post of vice president was reserved for SCW for Sargur Town Panchayat. The said notification is also not challenged by the petitioner and the said Smt.Ratna enjoyed the post of president for seventeen months. The petitioner came to be elected as president which post became vacant due to resignation of earlier president. Therefore, the term of the petitioner was only for the remaining period. Therefore, petitioner cannot be 44 considered as a person elected on regular vacancy and therefore, she is not entitled to any relief before this Court. My view is fortified by the judgment of the Apex Court in the case of Tejkumar Balakrishna Ruia vs. A.K.Menon and another reported in AIR1997SC442 The Hon’ble Supreme Court, while considering the scope of Section 3 of the Special Court (Trial of Offences Relating to Transactions in Securities) Act, 1992, considered the principles of interpretation of a statute and held that the Courts must interpret the law as it reads, while the purpose of interpretation is permissible where two interpretations are possible. Therefore, to interpret it as with the term of office of the president and vice president elected in casual vacancy is thirty months will defeat the purpose of the constitutional scheme and the Act and makes the provision unconstitutional. Therefore, to preserve the constitutionality of the provision, the best interpretation is that the person elected in the casual vacancy as 45 president and vice president will hold office for the remainder of the period.
25. Section 42(11) of the Act starts with the words, “save as otherwise provided under this Act” and envisages that, the president and vice president shall hold office for a period of thirty months from the date of their election. Thus, the legislators, consciously used the words “save as otherwise provided under the Act”. Therefore, while interpreting the term of office of the president or vice president elected to a casual vacancy, reservation by rotation provided under the provisions of the Act has to be taken into consideration, as the same is provided otherwise in the Act. Therefore, by conjoining reading of the provisions of Sections 42(2), 42(2-A) and 42(11) of the Act, it is manifest that the president or vice president elected to a casual vacancy will hold the office only for the remainder period and the 46 same will be in accordance with the principles of harmonious construction.
26. The petitioner at the inception only sought to quash the impugned notice dated 13.06.2018, Annexure-K, issued by the Returning Officer, Sargur Town Panchayath, and subsequently, on the objections filed by the State Government, filed an application for amendment and sought prayer to quash the provisions of Section 42(11) of the Karnataka Municipalities Act, 1964, as unconstitutional, ultravires and opposed to Section 18(1)(a) of the Act.
27. It is relevant to state that the provisions of Section 18(1)(a) of the Act prescribes the term of elected members as five years. Section 42(11) of the Act prescribes that the term of the office of the President as thirty months and the same does not curtail the membership period for five years and is not contrary to the provisions of Section 18(1)(a) of the Act, as alleged 47 by the petitioner. Therefore, the petitioner has not made out any ground to declare the provisions of Section 42(11) of the Act as unconstitutional. It is well 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 unconstitutionality. The burden of showing that the classification was arbitrary is 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. My view is fortified by the decision of the Apex Court in the case of Bank of Baroda vs. 48 Rednam Nagachaya Devi reported in AIR1989SC2105 28. In view of the above, the petitioner is unable to persuade this Court to come to the conclusion that the provisions of Section 42(11) of the Act was in any way contrary to the constitutional provisions as incorporated in Articles 243C, 243D and 243E of the Constitution of India. Similarly, no material has been placed before this Court to urge that the provisions of Section 42(11) of the Act was politically motivated. In the absence of pleadings and other material, it cannot be said that the introduction of provisions of Section 42(11) was enacted for extraneous considerations or was with oblique motives.
29. It is also not in dispute that though the petitioner was elected as a member of Sarguru Town Panchayath, she did not challenge when Smt. Ratna became President of Sarguru Town Panchayath. Only after Smt. 49 Ratna resigned to the post of President, petitioner came to be elected as President on 08.03.2017 for the remaining period. The provisions of Section 42(11) of the Act was existing from 1994 and it has in no way taken away any of the rights conferred upon the petitioner or otherwise contrary to the constitutional scheme. Therefore, there is no force in the submission made by the learned counsel for the petitioner that the amendment of Section 42(11) has resulted in civil consequences and same should be quashed as being unconstitutional. Admittedly, Smt.Ratna was elected as President under BCAW category on 07.10.2015 as can be seen from Annexures-R7 and R8 produced by the impleading applicants in the application for impleadment. Admittedly, after resignation of earlier President, petitioner came to be elected as President on 08.03.2017, for remaining period of thirty months as contemplated under Section 42(11) of the Act. Therefore, in the absence of any ambiguity in 50 understanding the legislative intent, it is not open for the court to read down the provision or attribute reasonableness to the provision. When the post of President becomes vacant upon resignation of the incumbent, election shall be held to fill up the same. If there are frequent elections to the post of President by the councilors by way of some understanding between them resulting in one person vacating the post paving the way for the other at regular intervals, the said process cannot be termed as unconstitutional. On this account also, petitioner is not entitled to any relief before this Court.
30. The principles to be borne in mind by the Court in determining the validity of a statute on the ground of violation of Article 14 is dealt with at paragraph 11 in the case of Shri Ram Krishna Dalmia and others vs. Shri Justice S.R.Tendolkar reported in AIR1958SC538 which reads as under:
51. 11. The principal ground urged in support of the contention as to the invalidity of the Act and/or the notification is founded on Art. 14 of the Constitution. In Budhan Choudhry v. The State of Bihar 1955-1SCR104 (S) AIR1955S C191A) a Constitution Bench of seven Judges of this Court at pages 1048-49 (of SCR): (at p. 193 of AIR) explained the true meaning and scope of Art. 14 as follows:
" The provisions of Article 14 of the Constitution have come up for discussion before this court in a number of cases, namely, Chiranjit Lal v. The Union of India 1950 SCR869 (AIR1951SC41 (B), State of Bombay v. F. N. Balsara [1951]. S.C.R. 682 (AIR1951SC318 (C) The state of west Bengal v. Anwar Ali Sarkar ) [1952]. S.C.R.
284. (AIR1952(SC75 (D), Kathi Raning -Rawat v. The State of Saurashtra [1952]. S.C.R. 435.( AIR1952SC123 (E), Lachmandas Kewalram v. The State Of Bombay [1952]. S.C.R. 710: (AIR521952 SC235 (F), Qasim Razvi v. The State of Hyderabad [1953]. S.C.R. 589 : (AIR1953SC156 (G), and Habeeb Mohamad v. The State of Hyderabad [1953]. S.C.R. 661: (AIR1953SC287 (H). It is, therefore, not necessary to enter upon any lengthy discussion as to the meaning, scope and effect of the article in question. It is now well established that while article 14 forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however, to pass the test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and, (ii) that that differentia must have a rational relation to the object sought 53 to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical, or according to objects or occupations or the like. What is necessary is that there 'Must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of this Court that article 14 condemns discrimination not only by a substantive law but also by a law of procedure."
The principle enunciated above has been consistently adopted and applied in subsequent cases. The decisions of this Court further establish- (a) that a law may be constitutional even though it relates to a single individual if, on account of some special circumstances or reasons applicable to him and not applicable to others, that single individual may be treated as a class by himself; 54 (b) that there is always a presumption in favour of the constitutionality of an enactment and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles; (c) that it must be presumed that the legislature understands and correctly appreciates the need of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds; (d) that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest ; (e) that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation; and 55 (f) that while good faith and knowledge of the existing conditions on the part of a legislature are to be presumed, if there is nothing on the face of the law or the surrounding circumstances brought to the notice of the court on which the classification may reasonably be regarded as based, the presumption of constitutionality cannot be carried to the extent of always holding that there must be some undisclosed and unknown reasons for subjecting certain individuals or corporations to hostile or discriminating legislation. The above principles will have to be constantly borne in mind by the court when it is called upon to adjudge the constitutionality of any particular law attacked as discriminatory and - violative of the equal protection of the laws.
31. The Full Bench of this Court in the case of R. Prasanna Kumar and another vs. The State of 56 Karnataka reported in ILR1999KAR1378 while considering the provisions of Section 42(11), 42(12) and 42(2-A) of the Act, at paragraphs 24 and 25 has held as under:
24. Section 42(11) of the Act provides that the President and Vice-President shall hold office for a period of 30 months from the date of their election save as otherwise provided under the Act. To determine the period of holding of office of President and Vice- President elected in a casual vacancy, we have to read Section 42(2), 42(2-A) and 42(12) together and to find out the intention of the legislature, whether different periods are envisaged for the President and Vice- President elected in a regular vacancy and in casual vacancy. There is no dispute of the term of office for regular vacancy. The point that has to be considered is whether the President and Vice-President elected in a casual vacancy will hold office for 30 months or for the remaining period. The legislature specifically used the word 'save as otherwise 57 provided under the Act', that means, if not otherwise provided under the Act, they can hold office for 30 months, if it is provided otherwise under the Act, they cannot hold office for 30 months. The word 'under the Act' is different than the words 'by the Act'. The words 'by the Act' denotes as provided in the Act, whereas the word 'under the Act' denotes as provided under the Act as well as under the rules or bye-laws. Thus, there is a distinction. This distinction has been considered by the Supreme Court in Dr. Indramani Pyarelal Gupta and Others v W.R. Natu and Others. Considering the provisions of the Forward Contracts Regulation Act, 1952 his Lordship Subba Rao, J., as he then was, giving the contrary opinion of the majority, has pointed out the difference between the words 'by the Act' and 'under the Act', as follows:
"'By an Act' would mean by a provision directly enacted in the statute in question and which is gatherable from its express language 58 or by necessary implication therefrom. The words "under the Act" would, in that context, signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done, in other words, bye- laws made by a subordinate law- making authority which is empowered to do so by the parent Act. The distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by the Act. A power conferred 'by a bye-law is not one conferred "by the Act", for in the context the expression "conferred by the Act" would mean "conferred expressly or by necessary implication by the Act itself". A bye-law framed under Section 11 or Section 12 could not fall within the phraseology "as may be prescribed" for the expression 59 "prescribed" has been defined to mean "by rules under the Act", i.e., those framed under Section 28 and a bye-law is certainly not within that description. But, having regard to the provisions of Sections 11(1), (4) and 12(2) notwithstanding that the bye- laws are rules made by an Association under Section 11 or compulsorily made by the Central Government for the Association as its bye-laws under Section 12, they are not in either case subordinate legislation under Section 11 or Section 12 as the case may be, of the Act. They would therefore squarely fall within the words "under the Act" in Section 4(f)". Therefore, by applying the principle while interpreting Section 42(11) of the Act, apart from the other relevant provisions of the Act, the rules framed under the Act has to be taken into consideration. Thus, from Section 42(11) read with Section 42(2-A) and 42(12) 60 along with Rule 13 of the Rules it is manifest that reservation has to be provided by rotation. If the President or Vice-President elected in the casual vacancy has to hold office for a period of 30 months as a President elected under regular vacancy, there is no possibility of implementing the reservation by rotation and the same defeats the intention of the legislature. Therefore, all the relevant provisions along with the rules have to be read together to find out the intention. If that method is adopted, the only conclusion that is possible is the President or Vice-President elected in casual vacancy will hold office for the remainder period. Section 42(11) of the Act reads:
"Save as otherwise provided under this Act, the President and Vice- President shall hold office for a period of thirty months from the date of their election, provided that in the meantime they do not cease to be Councillors". 61 The holding of office by the President and Vice-President elected for a period of 30 months is subject to other provisions of the Act. Therefore, the sub-section has to be read with Section 42(2) and 42(2-A) along with Article 243T of the Constitution and Rule 13 of the Rules. The said provisions provide the reservation by rotation. So, if a person elected as President or Vice-President is to hold office for a period of 30 months from the date of election, the reservation by rotation will be defeated and there will be no possibility to provide reservation by rotation, as the term of the Municipal Council itself is 60 months. For example, if a person is elected as a President or Vice-President after 25th month and he has to continue for further more 30 months, then out of 60 months, that is 5 years, he will continue for 55 months. The same category of person continues in office for 55 months, which will be in contravention of the constitutional scheme and the Act. The Supreme Court in State of Rajasthan and Others v sri Noor Mohammad, (AIR1973SC622729) in the context has considered the meaning of the expression 'save as otherwise provided by or under the Act, held that the provisions must be construed in a harmonious manner, so as not to reduce to nullity. Thus, there is no bar under the Act to provide reservation by rotation. On the other hand, the Act provides reservation by rotation. Therefore, by adopting the harmonious construction, as found by the Supreme Court, it is proper to hold that the person elected as a President or Vice-President in a casual vacancy to hold office for a remainder period. The learned Counsel for the appellant contended that the words in sub-section (11) of Section 42 of the Act are very unambiguous and clear and it is capable of one construction only that the President and Vice-President elected will hold office for a period of 30 months and no other view is possible. Therefore, when the language of the provision itself is clear, the material provision of the statute has to be interpreted in their plain grammatical meaning and it is only when 63 such words are capable of two constructions, then the question of giving effect to the policy or object of the Act can legitimately arise. The learned Counsel for the appellants relied on the judgment reported in Kanai Lal Sur v Paramnidhi Sadhukhan,(AIR1957SC907 for that proposition, which reads:
"The first and primary rule of construction is that the intention of the legislature must be found in the words used by the legislature itself. If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent with the alleged object and policy of the Act. The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is only when such words are capable of two constructions that the question of 64 giving effect to the policy or object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the said policy, then the Courts would prefer to adopt the latter construction. It is only in such cases that it becomes relevant to consider the mischief and defect which the Act purports to remedy and correct". For the same proposition, the learned Counsel relied on the decision in Arul Nadar v Authorised Officer, Land Reforms (1998 (7) SCC157 The Supreme Court has laid down that when the language of the statute is unambiguous and plain, it is not necessary to examine the intent and object of the Act while interpreting the provisions of the Act. There is no dispute about the proposition laid down by the Supreme Court. In the present case, as stated supra, the words in sub-section (11) of 65 Section 42 of the Act have to be interpreted keeping in view the other provisions of the Act, that is Section 42(2), 42(2-A) and 42(12) of the Act to give effect to the scheme of the Act of providing reservation of the constituencies to SCs, STs, Backward Classes and women with a direction to provide reservation by rotation. If the contention of the appellants is accepted, the policy of reservation by rotation will be defeated, and the same will be against the intent and object of providing reservation. Therefore, we are not able to accede to the contentions of the learned Counsel for the appellants.
25. In view of the above stated facts and circumstances of the case, we hold that a Councillor elected as a President or Vice- President in a casual vacancy under the Karnataka Municipalities Act and Rules framed thereunder will hold office for a remainder period. The judgments of the learned Single Judge are confirmed and writ 66 appeals are dismissed with no order as to costs.
32. The judgment relied upon by the learned counsel for the petitioner in the case of Saraswati Devi vs. Shanti Devi (Smt.) and others reported in (1997)1 SCC122 wherein it is held that according to statutory requirement, office of the President shall be filled up amongst the members belonging to the general category, scheduled castes (SCs), backward classes and women by rotation. When by virtue of rotation, President was to be elected from amongst the members belonging to SC category, persons elected as members of the Committee from any other category (general, backward, women), even if they belong to SCs, would be excluded from the contest for election of President. The appellant in the said case belonged to SC elected as a member from the ward reserved for SC women while respondent elected as a member from general women category in terms of Government notification declaring that office of 67 President shall by virtue of rotation be filled up from amongst members belonging to SC women category. The appellant therein being solitary candidate belonging to SC women, elected unopposed as President. The election challenged by respondent on ground that she also being an SC woman though elected as Committee member from seat reserved for general women, would be entitled to contest the election of President. The Hon’ble Supreme Court held that the claim of respondent unsustainable. The facts of the said case has no application to the facts and circumstances of the present case. VIII. CONCLUSION:
33. For the reasons stated above, the point raised for consideration in this writ petition has to be held accordingly holding that the petitioner was elected to a casual vacancy is entitled to hold the office of the President for the remainder term of regular vacancy and not for full term of thirty months. 68 34. For the reasons stated above, the petitioner has not made out any ground to quash the provisions of Section 42(11) of the Act and to interfere with the impugned order Annexure-K proposing for the election of President and Vice President of Sargur Town Panchayath, in exercise of powers under Articles 226 and 227 of the Constitution of India. Accordingly, writ petition is dismissed with cost of `25,000/-(Rupees Twenty Five Thousand only), payable by the petitioner to the Chief Minister’s Relief Fund Natural Calamity, 2018, State Bank of India, A/c No.37887098605, IFS Code:SBIN0040277, MICR:
56000. 419, Vidhanasoudha Branch, Bengaluru, within a period of two months from the date of receipt of certified copy of this order, failing which, the Registrar General of this Court is directed to recover the same, in accordance with law. Ordered accordingly. Sd/- JUDGE kcm