K.P. Bhagyamma W/O S. Linganna Vs. State of Karnataka Rep. by Its Secretary Department of Rural Development and Panchayat Raj, - Court Judgment

Ram Mohan Reddy, J.

1. The petitioner elected from Palahalli constituency of Srirangapatna Taluk Panchayat, aggrieved by the order dt. 5.8.2006 Annexure-A of the State Election Commission, for short 'Commission', declaring as vacant the seat held by her, has presented this petition in addition to a challenge to the vires of Section 128(2) and 129(2) of The Karnataka Panchayat Raj Act, 1993, for short the 'Act'.

2. Facts briefly stated are:

The petitioner, an elected member of the Palahaili Gram Panchayat contested the election from the Palahalli constituency of the Srirangapatna Taluk Panchayat, reserved for General (Woman) held on 19.12.2005 and was declared duly elected. In compliance with Section 133 of the Act, the Deputy Commissioner by notification dt. 2.1.2006 published in the Karnataka Gazette dt. 5.1.2006, Annexure-B, declared the results of the candidates. The petitioner tendered on 23.1.2006, her resignation from the membership of the gram panchayat, by a letter in her handwriting, duly signed, to the President of the Palahalli Gram Panchayat, the Asst. Commissioner and the Deputy Commissioner, vide Annexures-D, D1 and D2 respectively.

3. The 3rd respondent, a resident of Srirangapatna Taluk and a member of Kirangur Taluk Panchayat, and the 4th respondent an elected member of a Palahalli Grain Panchayat, it is alleged, with an intention to damage the petitioner's political career, jointly filed the petition, Annexure-F, before the 2nd respondent-Commission' to declare as vacant, the seat of the petitioner, in the Srirangapatna taluk panchayat having failured to submit the resignation to the membership of the Palahalli Gram Panchayat within 15 days from the date of declaration of the results of the election, to the membership of the Srirangapatna Taluk Panchayat, as required by Sub-section (2) of Section 128 of the Act The Commission issued a notice dt. 25.2.2006 Annexune-G calling upon the petitioner to show cause as to why she should not be disqualified under Section 13 of the Act which was responded to by statement of objections dt. 22.4.2006 Annexure-H. By another notice dt 3.3.2006 Annexure-J the commissioner informed the petitioner that the proceeding was not initiated under Section 13 but under Section 129(2) of the Act.

4. The Commissioner, in the premise of pleadings of the parties, framed the following five points for consideration:

1. Whether the State Election Commissioner has jurisdiction to entertain this petition?

2. Whether the petition is maintainable ?

3. Whether the petitioners have locus standi to file this petition ?

4. Whether the respondent has failed to resign her seat in the Palahalli Gram Pachayat within the stipulated time and accordingly her seat in Srirangapatna Taluk Panchayat has become vacant?

5. What order?

5. Before the Commission the complainants-respondents 3 and 4 in this petition, were examined, 7 documents marked as Exs.P1 to P7, while the petitioner and her witness, Secretary of the Grama Panchayat when examined, 22 documents were marked as Exs.R1 to R12. The Commission having considered the material on record and evidence both oral and documentary, by the order impugned declared the seat held by the petitioner in the Srirangapatna Taluka Panchayat as having become vacant, for failure to submit her resignation to the membership of the Palahalli Grama Panchayat on or before 20.1.2006.

6. The petition is opposed by filing statement of objections dt.23.7.2007 of the 1st respondent inter alia contending that under the Act, a person is prohibited from simultaneously holding membership of the Taluk and Gram Panchayat and as the petitioner did not tender her resignation to the membership of the Palahalli Grama Panchayat within the time prescribed by law in accordance with Sub-section (2) of Section 128 of the Act, suffered a disqualification. It is contended that the vires of the Sections in the statute are questioned only after the petitioner suffered the order impugned. The order impugned is sought to be supported as being well merited, fully justified and not calling for interference.

7. It is contended that the intention and object of Section 128(2) of the Act is that a person shall not simultaneously be a member of the Taluka Panchayat and that of the Grama Panchayat and therefore,

(a) the members of the Taluka Panchayat elected from constituencies having a population of 30-40 times that of the Grama Panchayat, the section ought to be interpreted as to put an end. to the membership of the smaller constituency being the Grama Panchayat, failure to resign the membership of the Grama Panchayat within 15 days from the date of notification of the declaration of the election to the membership to the Taluka Panchayat under Section 133, the seat in the Grama Panchayat will become vacant

(b) That the disqualification is unauthorised and impermissible as Article 243F does not authorise such a sweeping provision of law against a will of huge constituency.

(c) That it does not prescribe the format of the resignation letter, the person to whom it must be tendered, more so, in the light of Section 43 where the resignation is operative only on the will of the person who resigns giving room for the person who receives the letter, the chance to do away, manipulate or suppress the letter so as to entail in disqualification; (d) The result of unseating an ejected candidate for failure to submit resignation from the membership of the Grama Panchayat is a penalty on the electorate.

(e) The membership of House of People, Council of State and legislative assembly, Legislative council. Municipal council, Corporation, Taluka Panchayat, Zilla Panchayat brought under one class in order to disqualify membership of the Taluka Panchayat amounts to treating unequals as equals and such classification is unreasonable.

(f) The time of 15 days prescribed is watertight leaving no scope to condone the delay, if any and hence arbitrary.

8. In order to appreciate the contentions advanced by the learned Counsel for the parties, it is useful to attract Article 243F and 243(O) which read thus:

243F. Disqualification for membership:

(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat:

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned:

PROVIDED that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in Clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

243(O) Bar to interference by court* in election 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 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 law made by the Legislature of a State.

9. The legislative competence of the State to enact the legislation is not in dispute. The legislation is within the permitted field of State subjects and Article 243C makes provision for the legislature of the State to enact laws with respect to constitution of panchayats. Article 243F in Part IX of the Constitution itself contemplates disqualification for being chosen as a member of the panchayat.

10. It is elsewhere said that the right to contest election is neither a fundamental right nor a common law right. It is a right conferred by statute. At the most to view of part IX of the Constitution, a right to context an election for the office in panchayat may be said to be a constitutional right and given shape by a statute. But even then, it cannot be concluded that it is a fundamental right. There is nothing wrong in the same statute which confers the right to contest an election also to provide for the necessary qualifications without which a person cannot offer his candidature for an elective office and also to provide for disqualifications which would disable a person from contesting for, or holding, an elective statutory office.

11. Subsection (2) of Section 128 of the Act reads thus:

128. Disqualification for members

(1) xxxxxxxx

(2) If a person who is chosen as a member of a Taluk Panchayath is or becomes a member of the House of the People, the Council of States, the State Legislative Assembly, the State Legislative Council, or is or becomes a Municipal Councilor or a Councilor of a Municipal Corporation or a Councilor of a Town Panchayat or a member of a Zilla Panchayat or Grama Panchayat then at the expiration of a period of fifteen days from the date of notification of the names of the members under Section 133 or, as the case may be, within fifteen days from the date of commencement of term of office of a member of the House of the people, the Council of States, the State Legislative Assembly or the State Legislative Council or a Municipal Councilor or a Councilor of a Municipal Corporation or a Councilor of a Town Panchayat or a member of a Zilla Panchayat or Grama Panchayat his seat in the Taluk Panchayat shall become vacant unless he has previously resigned his seat in the House of the people, the Council of States, the State Legislative Assembly, the state Legislative Council, the Municipal Council, the Municipal Corporation, Town Panchayat, Zilla Panchayat or Grama Panchayat, as the case may be.

12. Sub-section (2) of Section 128 deals with the circumstances in which the seat of a person who is chosen to the Taluka Panchayat becomes vacant. A bare reading of the statutory provision discloses that being a member of the Grama Panchayat is not by itself a disqualification for being chosen as a member of the Taluka Panchayat, but if the person who holds such a membership fails to resign his other seat held by him as member of the Grama Panchayat, within 15 days from the date of notification of his election as a member of the Taluka Panchayat under Section 133, his seat will become vacant. So also if a person is member of the Taluka Panchayat and subsequently becomes a member of the Parliament, member of legislative assembly, member of legislative council or member of any of the specified local authorities, then the seat held by him in the Taluka Panchayat shall become vacant if he does not resign from such new seat within the 15 days from date of commencement of the term of office as a M.P., MLA, MLC, or member of the local authority. Thus the intention of the legislature in enacting Sub-section (2) of Section 128, interalia was for the purpose of bringing grass-root democracy, disentitling a person from holding two posts created in terms of the Constitution (73 Amendment) Act.

13. Thus, Sub-section (2) of Section 128 of the Act is impermissible of interpretation in the manner canvassed by the learned Counsel for the petitioner. 3o also, it is too far fetched to contend that the disqualification is unauthorised as Article 243F of the Constitution does not provide for a sweeping provision of law. Merely because the section does not prescribe the format of the letter of resignation, or that the period of 15 days is insufficient, it cannot be said that there are latent or patent discrimination in Sub-section (2) of Section 128 of the Act so as to treat the provision as ultra vires Article 14 of the Constitution of India on the touchstone of any rational criteria, as rightly contended by the state counsel.

14. It is next submitted that Sub-section (2) of Section 129 of the act is ultravires the Constitution on the following contentions:

(i) does not specify as to whom the report is to be made, its nature and contents and absence of guidelines as to how the proceeding is to be concluded.

(ii) State Election Commission is constituted under Section 308 of the act, to hold and control elections though Article 243K does not authorize the State Election Commission to exercise judicial powers, while duly elected representatives of the panchayat can be removed only by way of an election dispute envisaged under Section 243O of the Constitution.

(iii) Dispute regarding cessation of membership involves disputed questions of law as well as facts, necessitating a comprehensive enquiry, evidence, and material so as to confer powers of Civil Court.

(iv) Disqualification of sitting members of the parliament or State legislature is conferred on the President or the governor under Article 103 & 192 of the constitution and therefore State Election Commission cannot arrogate to itself the power to disqualify a member of the panchayat.

15. Subsection (2) of Section 129 of the Act reads thus:

129. Vacancy of Seat:

(1) xxxxxxxx

(2) The State Election Commission on a report made to him and after giving a reasonable opportunity to the member concerned of being heard shall declare whether the seat of the member concerned is or has become vacant.

16. In the matter of interpretation of specific provisions, it is necessary to read the entire statute as a whole, the relevant provisions of the constitution, harmoniously. The Act has been enacted pursuant to and in furtherance of the Constitutional mandate contained in part DC of the Constitution and therefore there is a need to strictly construe the provisions of the statue in terms thereof.

17. Disqualification is provided for under Article 243F. Sub-section (2) of Section 128 of the Act, when read in the light of Article 243O(b) of the Constitution, mandates that no election shall be set aside save and except by an order passed by the authorised officer. Section 129(2) of the Act, expressly provides for the exclusive jurisdiction of the authorised officer to determine the existence or otherwise of any ground enumerated in Section 128(2) of the Act. Thus filing of a petition to invite a decision on the question of vacancy of a seat of a member under Sub-section (2) of Section 129 of the Act cannot be said to be unconstitutional. Though the State Election Commission is constituted under Section 308 of the Act, in terms of Article 243K of the Constitution, does not operate as a bar to be invested with the jurisdiction under Sub-section (2) of Section 129 of the Act to decide the question of declaring the seat vacant

18. The observations of the Apex Court in Mohinder Singh v. Chief Election Commissioner : [1978]2SCR272 , in the circumstances is apposite:

Indeed natural justice is a persuasive fact of secular law, where a spiritual touch enlivens legislation, administration and adjudication, to make fairness a creed of life.

at paragraph 65, it is further observed thus:

A civil right being adversly affected is a sin-quo-non for the invocation of the audi-alterum partem rule.And at paragraph 75 held thus:Fair hearing is thus a postulate of decision making, canceling a poll, although fair abridgement of that process is permissible. It can be fair without the rules of evidence or forms of trial. It cannot be fair if appraising the affected and appraising the representations is absent. The philosophy behind natural justice is, in once sense participatory justice in the process of democratic rule of law.

19. In State of Maharastra v. Jalagon Municipality : [2003]1SCR1112 , the Apex Court observed thus:

It is a fundamental principle of fair hearing incorporated in the doctrine of natural justice and as a rule of universal obligation that all administrative acts or decisions affecting rights of individuals must comply with the Principles of Natural Justice and the person or persons sought to be affected adversely must be afforded not only opportunity of hearing but a fair opportunity of hearing. The State must act fairly, just the same as anyone else legitimately expected to do and where the state action fails to satisfy that test it is liable to be struck down by counts in exercise of their judicial review jurisdiction.

20. It is elsewhere said 'If there is a power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a person is made, the order is a nullity. Natural justice is alternate name for common sense justice. Natural Justice are not codified cannons but are principles ingrained into the conscience of a man.

21. The Supreme Court in Sri. Bhagawan v. Ram Chand : [1965]3SCR218 , observed thus:

Authorities or bodies which are given jurisdiction by statutory provisions to deal with the rights of citizens, may be required by the relevant statute to act judicially in dealing with matters entrusted to them. An obligation to act judicially may, in some cases, be inferred from the scheme of the relevant statute and its material provisions. In such a case it is easy to hold that the authority or body must act in accordance with the Principles of Natural justice before exercising its jurisdiction and its powers; but it is not necessary that the obligation to follow the Principles of Natural Justice must be expressly imposed on such an authority or body, If it appears that the authority or body has been given the power to determine questions affecting the rights of citizens, the very nature of the power would inevitably impose the limitation that the power should be exercised in conformity with the principles of natural justice.

22. Indisputably Section 129(2) of the Act does not set out the procedure to be adopted in any enquiry over whether or not the seat has become vacant Principles of Natural justice is required to be read into the statute. The power conferred by Sub-section (2) of Section 129 is not administrative; it is quasi-judicial. In exercise of the power the Commission must, bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party, and decide the dispute according to procedure consistent with the Principles of Natural Justice. The application of the Principles of Natural Justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no materials can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used.

23. Having regard to the provisions of chapter IX of the Constitution and the scheme of the Act, Section 129(2) of the Act when tested on the anvil of Rule of law and fairness or justice, particularly in the interest, cannot person against whom the proceeding is initiated, cannot be characterised as bereft of rationality or lacks objective and purposive approach, since the decision of the commission, ought to be not only reached reasonably and intelligibly but must be related to the purpose for which power is exercised. Accepting the contentions of the petitioner tantamount to a strained or distorted interpretation, to render the statutory provision ultra vires.

24. The last of the contentions that the order impugned is opposed to Principles of Natural Justice and suffers from an error apparent from the face of the record is but a specious plea. At, the outset a distinction must be made between 'no opportunity' and 'no adequate opportunity' i.e. between 'no notice/no hearing' and 'no fair hearing'. While in the case of the former the order undoubtedly is invalid, while in the case of the latter, the effect of violation has to be examined from the stand point of prejudice, i.e., whether in the totality of circumstances, the petitioner did or did not have a fair hearing and the order made depends upon the answer to the said query.

25. In the facts of this case, the petitioner was informed of the proceeding initiated, at the instance of the respondents 3 & 4, and was called upon by notice to show cause, to which the petitioner responded by a statement of objections, followed by the framing of points for consideration, recording the oral testimony of the parties including the petitioner's witness, and the marking of the documents, introduced in the oral testimony, and on closure of the 'evidence', followed by the filing of written arguments dtd. 15.7.2006, culminating in the order impugned.

26. The procedure adopted by the Commission, cannot but animate, adequate opportunity as well as a fair opportunity to the petitioner to put forth her case. Thus, undoubtedly it is not a case of 'no notice/no hearing', so as to declare the order as null and void, nor is it a case of failure to extend a fair opportunity of hearing, or an error apparent from the face of the record calling forth interference, in exercise of extraordinary writ jurisdiction. This Court in exercise of writ jurisdiction does not sit as a court of appeal to reappreciate the material on record to arrive at a different conclusion than that arrived at by the commission.

27. The election to the membership of the Srirangapatna Taluk Panchayat was held on 19.12.2005, and the result declared by notification dtd. 2.1.06, duly published in the Karnataka Gazette on 5.1.06, Annexure-B, in accordance with Section 133 of the Act, declaring the petitioner duly elected, while the petitioner submitted her resignation to the membership of the gram panchayat on 23.1.06, Annexure-D, D1 & D2, admittedly beyond 15 days from the date of notification. Hence by operation of the Sub-section (2) of Section 128, the seat of the petitioner in the Taluka panchayat became vacant, leading to the proceeding by the Commissioner under Sub-section (2) of Section 129 of the Act, culminating in the order impugned, declaring the said seat of the petitioner as having become vacant. No exception can be taken to the reasons, findings and conclusions arrived at by the Commission.

Accordingly, the writ petition is dismissed.