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1. : IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH Dated this the 23rd day of September 2015 Before THE HON’BLE MR.JUSTICE ASHOK B.HINCHIGERI Writ Petition Nos.19664-19665/2015 (LB-ELE) C/w Writ Petition Nos.105271-105272/2015 (LB-RES) In WP Nos.19664-19665/2015 Between:
1. Veerappa, S/o Mallappa Madahalli, Aged about 55 Years, R/o Bharadwad, Taluk: Kundagol, Dist: Dharwad-581117.
2. K Parushuram, S/o Yellappa, Aged about 40 Years, R/o Bharadwad, Taluk: Kundagol, Dist: Dharwad-581117. ...Petitioners (By Sri Satish Girji and Sri Chandrashekar P.Patil, Advocates) And 1. The State of Karnataka, Rep. by its Secretary to the Rural Development and Panchayath Raj, M.S.Building, Bangalore-560001.
2. The Director (Panchayath Raj) Ex-Officio, Rural Development and Panchayath Raj, M.S.Building, Bangalore-560001. :
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3. The Regional Commissioner, Tq. & Dist. Belguam-590002.
4. The Deputy Commissioner, Dharwad-580001.
5. The Election Commissioner, Cunningham Road, Bangalore-560001.
6. Sri Udachappa, S/o Kuberappa Pujar, Age:
64. years, Agriculturist, R/o Chakalabbi, Tq: Kundgol, Dist: Dharwad. ...Respondents (R6 impleaded vide court order dated 23.09.2015) (By Sri Ravi V.Hosamani, Addl. Government Advocate for R1-R4 Sri Shivaraj C.Bellakki, Advocate for R5 Sri R.K.Hatti, Advocate for R6) These petitions are filed under Articles 226 & 227 of the Constitution of India praying to direct the R-1 to 4 to constitute a Bharawad as a Gram Panchayath in view of the direction of the Regional Commissioner vide Annex-C and direct the R-5 not to hold the election as per the reservation declared as per Annex-D vide its preliminary notification dated 20.4.2015.-. - - - - - - - - - - In WP Nos.105271-105272/2015 Between:
1. Gangappa, S/o Basavennappa Bhadrapur, Aged about 43 Years, R/o Bharadwad, Taluk: Kundagol, Dist: Dharwad-581117. :
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2. Ningayya, S/o Prabayya Kovibhavimath, Aged about 38 Years, R/o Bharadwad, Taluk: Kundagol, Dist: Dharwad-581117. (By Sri Chandrashekar P.Patil, Advocate ) And 1. The State of Karnataka, Rep. by its Secretary to the Rural Development and Panchayath Raj, M.S.Building, Bengaluru-560001.
2. The Director (Panchayath Raj) Ex-Officio, Rural Development and Panchayath Raj, M.S.Building, Bengaluru-560001.
3. The Regional Commissioner, Tq. & Dist. Belagavi-590002.
4. The Deputy Commissioner, Dharwad-580001.
5. The Election Commissioner, Cunningham Road, Bengaluru-560001. ...Petitioners ...Respondents (By Sri Ravi V.Hosamani, Addl. Government Advocate for R1-R4 Sri Shivaraj C.Bellakki, Advocate for R5) These petitions are filed under Articles 226 & 227 of the Constitution of India praying to quash the notification issued by respondent No.4 vide its copy of final notification dated 04.02.2015 as per Annexure-C insofar it relates to Chakalabbi :
4. : Grama Panchayat; direct the respondents NO.1 to 4 to constitute Bharadwad as a Gram Panchayath in view of the direction of the Regional Commissioner vide its order dated 10.03.2015 as per Annexure-B and etc. These petitions coming on for Preliminary Hearing in ‘B’ Group this day, the Court, made the following: ORDER
The petitioners in W.P. Nos.19664-19665/2015 have made the following prayers: (a) Issue a writ of mandamus, directing the respondents No.1 to 4 to constitute a Bharadwad as a Gram Panchayat in view of the direction of the Regional Commissioner vide its Order No.¥ÁæD¨É:UÁæ¥ÀA:¥ÀÄC: (zsÁgÀªÁqÀ f¯Éè):01:2014-15 dt. 10.3.15 as per Annexure-C. (b) Issue a writ in the nature of mandamus directing the Respondent No.5 not to hold the election as per the reservation declared as per Annexure-D vide its Preliminary Notification dated 20.04.2015 in UÁæ¥ÀAZÀÄ:ªÀ»:05/2014-15. (c) Pass any appropriate writ, order or direction as deemed fit under the facts and circumstances of the case, in the interest of justice and equity.” :
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2. The petitioners in W.P. Nos.105271-105272/2015 have made the following prayers: (a) Issue a writ in the nature of certiorari quashing the notification issued by Respondent No.4 vide its copy of Final Notification vide its No.UÁæ¥ÀAZÀÄ:ªÀ»:51/2014-15, dtd:
04. 02.2015 as per Annexure-C, in so far it relates to Chakalabbi Grama Panchyat. (b) Issue a writ of mandamus, directing the respondents No.1 to 4 to constitute a Bharadwad as a Gram Panchayat in view of the direction of the Regional Commissioner vide its Order No.¥ÁæD¨É:UÁæ¥ÀA:¥ÀÄC: (zsÁgÀªÁqÀ f¯Éè):01:2014-15 dated 10.03.2015 as per Annexure-B. (c) Issue a writ in the nature of mandamus directing the Respondent No.5 not to hold the election as per the reservation declared in its Preliminary Notification dated 19.01.2015 in UÁæ¥ÀAZÀÄ:ªÀ»:51/2014-15, as per Annexure-A. (d) Pass any appropriate writ, or direction as deemed fit under the facts and circumstances of the case, in the interest of justice and equity. :
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3. Sri Satish R.Girji, the learned counsel appearing for the petitioners in W.P. Nos.19664-19665/2015 submits that despite the Regional Commissioner’s order, dated 10.03.2015 (Annexure-C), the Bharadwad Gram Panchayat, which has to include Bharadwad and Kodliwad Villages, is not being constituted. He submits that no final notification is issued pursuant to the Regional Commissioner’s said order. He also complains of discrimination inasmuch as in many taluks the notification, issued by the Deputy Commissioner, is revised on the orders of the Regional Commissioner or directions of the Government.
4. Sri Chandrashekar P.Patil, the learned counsel for the petitioners in W.P. Nos.105271-105272/2015 submits that the notification dated 04.02.2015 issued by the Deputy Commissioner itself is not legal in view of its revision by the Regional Commissioner.
5. Sri Ravi V.Hosamani, the learned Additional Government Advocate appearing for the respondent Nos.1 and 4 in both the batches of petitions submits that these petitions are liable to be :
7. : rejected on the short ground of the locus standi. The residents of a particular village cannot claim, as a matter of right, that their village be made a panchayat or a particular panchayat headquarters be in a particular village. He submits that the petitioners have not challenged the Regional Commissioner’s order, which is only in the nature of recommendations. The recommendations of the Regional Commissioner are not implementable or enforceable.
6. Sri Ravi V.Hosamani submits that the order, dated 10.03.2015 (Annexure-C) may be treated as the one passed under Section 4(3) of the Karnataka Panchayat Raj Act, 1993 (hereinafter referred to as ‘the said Act’). Pursuant to the passing of the said order, the Government has to accord its permission to the proposed and revised reorganisation under the third proviso to Section 4(1) of the said Act. He also brings to my notice that the Government vide its letter, dated 29.04.2015 (Annexure-G in W.P.Nos.19664-19665/2015) has called upon the Regional Commissioner to resolve the issue at his level as per the rules. The Regional Commissioner vide his letter, dated 09.06.2015 :
8. : (Annexure-H in W.P.Nos.19664-19665/2015) has informed the Government that nothing more is required to be done at his level and that a decision has to be taken at the Government level.
7. Sri R.K.Hatti, the learned counsel for the impleading applicant submits that the impleading applicant is a resident of Chakalabbi village. The impleading applicant proposes to seek the election to the Gram Panchayat. As the interim order of stay is coming in the way of holding elections, the impleading applicant is before this Court. He submits that the petitioners have obtained the stay by misrepresenting to the Court that no final notification is issued. He submits that, as a matter of fact, the final notification is issued on 04.02.2015 (Annexure-C in W.P.Nos.105271- 105272/2015).
8. The impleading applicant is a resident of Chakalabbi village. He proposes to seek election to the Chakalabbi Gram Panchayat. If these petitions are allowed, it may affect the prospective rights of the impleading applicant. Although the impleading applicant is not a necessary party, as no rights have :
9. : crystallised in his favour, he may be treated as a proper party for the purpose of considering the objection to the proposed reorganisation of the local bodies. I therefore allow I.A.No.3/2015 in W.P.Nos.19664-19665/2015.
9. I.A.No.5/2015 for the production of additional documents, filed by the petitioner in W.P.Nos.19664-19665/2015, is allowed. Because the additional document – letter, dated 9.6.2015 (Annexure-H) is relevant for adjudicating this matter. How the contents of this letter are relevant is discussed in the succeeding paragraphs of this order.
10. The prayer in both the petitions for issuance of mandamus to constitute Bharadwad as a Gram Panchayat is not grantable. The decisions regarding the reorganisation of the local bodies are to be taken by the concerned authorities and not by the courts.
11. The only question falling for my consideration in this case is whether the Government is justified in washing its hands off :
10. : and in calling upon the Regional Commissioner to take a decision at his level. The answer is emphatic ‘no’.
12. It is trite that if the statute prescribes that a thing has to be done in a particular manner, it has to be done in that manner or not at all. In saying so, I am fortified by the decision of the Apex Court in the case of Babu Verghese and Others Vs. Bar Council of Kerala and Others reported in (1999)3 SCC422 When the statute has conferred power upon the Regional Commissioner to modify or revise the orders passed by the Deputy Commissioner in the matter of reorganisation of Gram Panchayats and has prescribed taking the previous permission of the Government to publish it in the Official Gazette, the Government has to either give or refuse to give the permission, but it cannot be content by writing that the decision be taken at the level of the Regional Commissioner, more so in the absence of any delegation of the power by the Government in favour of the Regional Commissioner. That is why the Regional Commissioner in response to the Government’s letter, dated 29.04.2015 has submitted the reply on 9.6.2015 (Annexure-H :
11. : in W.P.Nos.19664-19665/2015). The contents of the said reply are as follows: “ªÉÄïÁÌt zÀ «µÀAiÀÄPÉÌ ¸ÀA§A¢ü zÀAvÉ, G¯ÉèÃR (1) gÀ F PÁAiÀiÁð®AiÀÄzÀ ¥ÀvÀæzÀ ªÀÄÆ®PÀ FUÁUÀ¯É ¸ÀzÀj UÁæªÀÄ ¥ÀAZÁ¬ÄwAiÀÄ£ÁßV gÀZÀ£É ªÀiÁqÀĪÀÅzÀÄ ¸ÀÆPÀÛªÁVgÀĪÀ »£À߯ÉAiÀÄ°è £ÀÆvÀ£À UÁæªÀÄ ¥ÀAZÁ¬Äw gÀa¸À®Ä ¸ÀPÁðgÀ¢AzÀ DzÉñÀ ¤ÃqÀ®Ä PÉÆÃgÀ¯ÁVzÀÄÝ EgÀÄvÀÛzÉ. DzÀ PÁgÀt ¸ÀzÀj «µÀAiÀÄzÀ §UÉÎ G¯ÉèÃR (2) gÀ ¸ÀPÁðgÀzÀ ¥ÀvÀæzÀ°è PÉÆÃjgÀĪÀAvÉ, PÀ£ÁðlPÀ ¥ÀAZÁAiÀÄvÀ gÁdå C¢ü¤AiÀĪÀÄ 1993gÀ 4(4)gÀr vÉUÉzÀÄPÉƼÀî¨ÉÃPÁzÀ PÀæªÀÄ AiÀiÁªÀÅzÀÄ EgÀĪÀÅ¢®è. 4(1), 4(2) gÀr PÉÊPÉÆAqÀ ¤zsÁðgÀUÀ¼À£ÀÄß 4(3) gÀr ªÀiÁ¥Áðr¸À®Ä CªÀPÁ±À«zÀÄÝ, F ºÀAvÀzÀ°è ¸ÀzÀgÀ F PÁAiÀiÁð®AiÀÄ¢AzÀ PÉÊPÉƼÀî¨ÉÃPÁzÀ PÀæªÀÄ AiÀiÁªÀÅzÀÄ EgÀĪÀÅ¢®èªÉA§ §UÉÎ vÀªÀÄä CªÀUÁºÀ£ÉUÁV ¸À°è zÉ. ¸ÀzÀgÀ UÁæªÀÄ ¥ÀAZÁAiÀÄvÀ gÀZÀ£É PÀÄjvÀAvÉ, ¸ÀPÁðgÀzÀ ªÀÄlÖzÀ°èAiÉÄà PÉÊPÉƼÀî®Ä PÉÆÃjzÉ.” 13. Now the proceedings in the matter of reorganisation of the Gram Panchayat in question are to be resumed from the stage at which they were interupted. The Government is directed to take a decision on the order of revision passed by the Regional Commissioner in exercise of the power under Section 4(3) of the said Act. The power to give the permission contained in the third proviso to Section 4(1) has got to be exercised by the Government. :
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14. I therefore dispose of these petitions with a direction to the first respondent Government to take a decision following the procedure, which it has evolved in the matters of considering the Regional Commissioner’s order revising the Deputy Commissioner’s order. This exercise shall be completed as expeditiously as possible and in any case within an outer limit of two months from the date of issuance of a certified copy of today’s order. It is made clear that no opinion whatsoever is expressed on the merits of the claims of the petitioners.
15. As the Regional Commissioner has already passed the order six months ago and as the Government has not taken any final decision thereon, I deem it necessary and just to direct the respondents to maintain status quo until the Government takes a decision on the Regional Commissioner’s order of revision in the matter of reorganisation of the local bodies in question.
16. No order as to costs. :
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17. I.A. Nos.4/2015 for vacating the stay and I.A.No.6/2015 for additional prayer in W.P.Nos.19664-19965/2015 and I.A.No.1/2015 for additional prayer in W.P. No.105271- 105272/2015 are dismissed as having become unnecessary in view of the disposal of the main matter. Sd/- JUDGE Kms