Sri. Rabbani S/O. Gaffer Sab Khadim Vs. the Secretary, Gram Panchayat, - Court Judgment

Excerpt:
election - casual vacancy - election to post of the adhyaksha of the gram panchayat - section 44 of the karnataka panchayat raj act, 1993 - elected adhyaksha was removed from the post due to misconduct - petitioner appointed as in-charge arrangement - calendar event fixed for election of adhyaksha - petitioner contended that if the date of the election is taken into consideration the period that remains for the incumbent president to discharge his duties as such would be hardly 30 days - further, regular election cannot be held to fill up the post for a short duration as in taluka panchayat - held, no embargo in the provision for holding election for the post of adhyaksha of gram panchayat even if the vacancy of said the post is to last only for a period of 30 days or less - legislature even though prohibited holding of election to the post of adhyaksha and upadhyaksha of a taluka panchayat if the vacancy was for a period less than one month, same analogy was not applied in case of election to the post of adhyaksha and upadhyaksha of the gram panchayat - hence, petitioner not to be allowed to continue to discharge his duties as an incharge adhyaksha when there is no bar for conducting fresh election to post of adhyaksha -- petition dismissed interpretation of statutes -- literal interpretation - prohibition of election if post of adhyaksha is vacant in taluka panchayat and not in gram panchayat -- section 44 of the karnataka panchayat raj act 1993 - held, language of the statutes should be read as it is - intention of the legislature is clear and explicit in defining section 44 -legislature has chosen to treat two sets of cases differently - in present case, intention of legislature can be gathered form restriction imposed for holding election in case of the post of adhyaksha and upadhayaksha of the taluka panchayat where the vacancy lasts only for less than 30 days and a non restriction in holding election in case of the post of adhyaksha and upadhayaksha of gram panchayat under the same circumstances - hence, by a judicial interpretation restriction cannot be imported in case of gram panchayat election treating it as a case of omission by legislature - petition dismissed - karnataka panchayat raj act, 1993 [k.a. no. 14/1993]. section 44; [b.s. patil, j] election of adhyaksha & upadhyaksha vacancy for a period of less than one month procedure held, there is no embargo enacted in the provision for holding election for the post of adhyaksha if the vacancy of the post of adhyaksha is to last only for a period of 30 days or less. further, it is seen that the legislature, in its wisdom while choosing to prohibit holding of election to the post of adhyaksha and upadhyaksha of a taluka panchayat, if the vacancy is for a period of less than one month, has not thought it fit to impose such a restrict or prohibition in the matter of election to the post of adhyaksha and upadhyaksha of the gram panchayat - after the removal of the adhyaksha, the petitioner is directed to function as adhyaksha as an incharge arrangement with effect from 22.05.2007. petitioner claims that he has been functioning very effectively as adhyaksha to the satisfaction of all the members and in accordance with law. therefore, he submits that same analogy should be made applicable in respect of the election to the post of adhyaksha and upadhyaksha of the gram panchayat as well. it is well established that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. it is well established that where the legislature has chosen to treat two sets of cases differently as in the present case i.orderb.s. patil, j.1. the petitioner is calling in question the meeting notice dated 22.06.2007 issued by the tahsildar, basavakalyan - the 2nd respondent herein. as per the impugned notice all the members of the gram panchayat, rajeswar village, basavakalyan taluk, bidar district are notified of the calendar of events and the date of election of the adhyaksha of the gram panchayat fixed on 07.07.2007 at 2 p.m.2. the petitioner is an elected member of the gram panchayat. he is also elected as vice president of the gram panchayat. one sri. shankar mallappa metri was elected as president of the gram panchayat in the election held on 02.04.2005. the term of the said sri. shankar mallappa metri was 30 months from the date of election. according to the petitioner the period would come to an end by the end of august, 2007. however, as sri. shankar mallappa metri was alleged of certain misconduct in discharge of his duties, by order dated 18.05.2007, he was removed from the post of adhyaksha of the gram panchayat and also as member of the gram panchayat. after the removal of the adhyaksha, the petitioner is directed to function as adhyaksha as an incharge arrangement with effect from 22.05.2007. petitioner claims that he has been functioning very effectively as adhyaksha to the satisfaction of all the members and in accordance with law.3. in the meanwhile, by the impugned notice/calendar of events the date of election is fixed for the post of adhyaksha on 07.07.2007. the grievance of the petitioner is that if the date of the election is taken into consideration the period that remains for the incumbent president to discharge his duties as such would be hardly 30 days. therefore, petitioner contends that there cannot be a regular election held to fill up the post of adhyaksha for such a short duration. it is also contended that the post of adhyaksha for the remaining term cannot be reserved in favour of scheduled tribe candidate and that the same should be dereserved.4. learned counsel for the petitioner sri. m.b. nargund contends that the democratic process should not be reduced to a mockery by holding elections for such a short duration of about 30 days as public money is spent for such election. he submits that the attendant difficulties and problems to which the people of the locality will be subjected to shall have to be taken into account for undertaking such a futile exercise. drawing the attention of the court to section 138 of the karnataka panchayat raj act, 1993 (for short 'the act'), he submits that as regards the post of adhyaksha of the taluka panchayat as per the proviso to sub-section (1) of section 138 of the act, no election shall be held if the vacancy is for a period of less than one month. therefore, he submits that same analogy should be made applicable in respect of the election to the post of adhyaksha and upadhyaksha of the gram panchayat as well. he further invites the attention of the court to section 47 of the act to contend that when there is vacancy in the office of the adhyaksha of the gram panchayat, the upadhyaksha shall exercise the powers and perform the duties of the adhyaksha until the adhyaksha is duly elected. the petitioner is performing the duties of adhyaksha as per section 47 and hence there is absolutely no need for conducting an election for a short duration of about 30 days is his submission.5. i have heard the learned counsel for the petitioner and the learned government pleader who has taken notice for respondents-2 and 4 and perused the materials on record. the election of adhyaksha of the gram panchayat is governed by section 44 of the act. section 44(1) of the act can be usefully extracted in this regard:44. election of adhyaksha and upadhyaksha. (1) every grama panchayat shall, [within one month from the date of publication of names of elected members under sub-section (8) of section 51, [or immediately before the expiry of term of office of adhyaksha and upadhyaksha choose two members of the grama panchayat to be respectively adhyaksha and upadhyaksha. in the event of occurrence of any vacancy by reason of death, resignation, removal or otherwise in the office of adhyaksha or upadhyaksha, the grama panchayat shall choose another member to be the adhyaksha or the upadhyaksha, as the case may be.6. there is no embargo enacted in the provision for holding election for the post of adhyaksha if the vacancy of the post of adhyaksha is to last only for a period of 30 days or less. it is seen that the legislature, in its wisdom while choosing to prohibit holding of election to the post of adhyaksha and upadhyaksha of a taluka panchayat, if the vacancy is for a period less than one month, has not thought it fit to impose such a restriction or prohibition in the matter of election to the post of adhyaksha and upadhyaksha of the gram panchayat. the contention of the learned counsel for the petitioner that same restriction and prohibition needs to be imported and read into the provisions of section 44 of the act cannot be accepted. it is well established that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. as a consequence a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. the aforementioned principle emerges from the guiding principle in the matter of interpretation of statutes, which states that language of the statutes should be read as it is. though this principle has certain exception, in the present case by the plain language of section 44 of the act, the intention of the legislature is clear and explicit in stating that in case of occurrence of any vacancy due to removal of adhyaksha of gram panchayat, the gram panchayat shall choose another member to be the adhyaksha. there is no reference to the minimum period of duration of vacancy as is found under section 138 of the act dealing with the election to the post of adhyaksha of the taluka panchayat in similar circumstances. it is well established that where the legislature has chosen to treat two sets of cases differently as in the present case i.e. election to the post of adhyaksha and upadhayaksha of the gram panchayat and election to the post of adhyaksha and upadhyaksha of taluka panchayat, by imposing restrictions for holding election in respect of one where the vacancy lasts only for less than 30 days and not imposing any such restriction in respect of the other, the intention of the legislature to be gathered is that the restriction is not deliberately and advisedly imposed. in such circumstances, by a judicial interpretation the restriction cannot be imported treating it as a case of omission by the legislature. therefore, the contention of the learned counsel for the petitioner cannot be accepted.7. as regards the other contention urged by the counsel for the petitioner stating that the post of adhyaksha should be dereserved or reserved in favour of some other category other than the scheduled tribe, it has to be stated that the vacancy has occurred on account of the removal of the earlier adhyaksha. the present incumbent will discharge his duties as adhyaksha for the remaining period. it is only for the next period the principle of rotation by which the post will be reserved for another category has to be followed. in the matter of filling up of the casual vacancy section 51 of the act states that the same shall be filled by election of an adhyaksha who shall hold office so long as the adhyaksha in whose place he has been elected would have held office, if the vacancy had not occurred. there is therefore no justification or basis for the contention of the learned counsel for the petitioner that the reservation shall not be made in favour of the scheduled tribe. in view of the above, both the contentions urged by the learned counsel for the petitioner are untenable. the anxiety expressed by the petitioner contending that such election will lead to unnecessary burden on the exchequer and may not further the democratic process cannot be appreciated as it is only an election of the adhyaksha from among few elected members of the gram panchayat. the petitioner cannot claim that he shall be permitted to continue to discharge his duties as an incharge adhyaksha when there is no bar for conducting fresh election to the post of adhyaksha.8. for the aforementioned reasons, i find no merit in this writ petition. the same is therefore dismissed.

Judgment:
ORDER

B.S. Patil, J.

1. The petitioner is calling in question the meeting notice dated 22.06.2007 issued by the Tahsildar, Basavakalyan - the 2nd respondent herein. As per the impugned notice all the Members of the Gram Panchayat, Rajeswar Village, Basavakalyan Taluk, Bidar District are notified of the calendar of events and the date of election of the Adhyaksha of the Gram Panchayat fixed on 07.07.2007 at 2 p.m.

2. The petitioner is an elected member of the Gram Panchayat. He is also elected as Vice President of the Gram Panchayat. One Sri. Shankar Mallappa Metri was elected as President of the Gram Panchayat in the election held on 02.04.2005. The term of the said Sri. Shankar Mallappa Metri was 30 months from the date of election. According to the petitioner the period would come to an end by the end of August, 2007. However, as Sri. Shankar Mallappa Metri was alleged of certain misconduct in discharge of his duties, by order dated 18.05.2007, he was removed from the post of Adhyaksha of the Gram Panchayat and also as Member of the Gram Panchayat. After the removal of the Adhyaksha, the petitioner is directed to function as Adhyaksha as an incharge arrangement with effect from 22.05.2007. Petitioner claims that he has been functioning very effectively as Adhyaksha to the satisfaction of all the Members and in accordance with law.

3. In the meanwhile, by the impugned notice/calendar of events the date of election is fixed for the post of Adhyaksha on 07.07.2007. The grievance of the petitioner is that if the date of the election is taken into consideration the period that remains for the incumbent President to discharge his duties as such would be hardly 30 days. Therefore, petitioner contends that there cannot be a regular election held to fill up the post of Adhyaksha for such a short duration. It is also contended that the post of Adhyaksha for the remaining term cannot be reserved in favour of Scheduled Tribe candidate and that the same should be dereserved.

4. Learned Counsel for the petitioner Sri. M.B. Nargund contends that the democratic process should not be reduced to a mockery by holding elections for such a short duration of about 30 days as public money is spent for such election. He submits that the attendant difficulties and problems to which the people of the locality will be subjected to shall have to be taken into account for undertaking such a futile exercise. Drawing the attention of the Court to Section 138 of the Karnataka Panchayat Raj Act, 1993 (for short 'the Act'), he submits that as regards the post of Adhyaksha of the Taluka Panchayat as per the proviso to Sub-section (1) of Section 138 of the Act, no election shall be held if the vacancy is for a period of less than one month. Therefore, he submits that same analogy should be made applicable in respect of the election to the post of Adhyaksha and Upadhyaksha of the Gram Panchayat as well. He further invites the attention of the Court to Section 47 of the Act to contend that when there is vacancy in the office of the Adhyaksha of the Gram Panchayat, the Upadhyaksha shall exercise the powers and perform the duties of the Adhyaksha until the Adhyaksha is duly elected. The petitioner is performing the duties of Adhyaksha as per Section 47 and hence there is absolutely no need for conducting an election for a short duration of about 30 days is his submission.

5. I have heard the learned Counsel for the petitioner and the learned Government Pleader who has taken notice for respondents-2 and 4 and perused the materials on record. The election of Adhyaksha of the Gram Panchayat is governed by Section 44 of the Act. Section 44(1) of the Act can be usefully extracted in this regard:

44. Election of Adhyaksha and Upadhyaksha. (1) Every Grama Panchayat shall, [within one month from the date of publication of names of elected members under Sub-section (8) of Section 51, [or immediately before the expiry of term of office of Adhyaksha and Upadhyaksha choose two members of the Grama Panchayat to be respectively Adhyaksha and Upadhyaksha. In the event of occurrence of any vacancy by reason of death, resignation, removal or otherwise in the office of Adhyaksha or Upadhyaksha, the Grama Panchayat shall choose another member to be the Adhyaksha or the Upadhyaksha, as the case may be.

6. There is no embargo enacted in the provision for holding election for the post of Adhyaksha if the vacancy of the Post of Adhyaksha is to last only for a period of 30 days or less. It is seen that the Legislature, in its wisdom while choosing to prohibit holding of election to the post of Adhyaksha and Upadhyaksha of a Taluka Panchayat, if the vacancy is for a period less than one month, has not thought it fit to impose such a restriction or prohibition in the matter of election to the post of Adhyaksha and Upadhyaksha of the Gram Panchayat. The contention of the learned Counsel for the petitioner that same restriction and prohibition needs to be imported and read into the provisions of Section 44 of the Act cannot be accepted. It is well established that the intention of the legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. As a consequence a construction which requires for its support, addition or substitution of words or which results in rejection of words as meaningless has to be avoided. The aforementioned principle emerges from the guiding principle in the matter of interpretation of statutes, which states that language of the statutes should be read as it is. Though this principle has certain exception, in the present case by the plain language of Section 44 of the Act, the intention of the legislature is clear and explicit in stating that in case of occurrence of any vacancy due to removal of Adhyaksha of Gram Panchayat, the Gram Panchayat shall choose another Member to be the Adhyaksha. There is no reference to the minimum period of duration of vacancy as is found under Section 138 of the Act dealing with the election to the post of Adhyaksha of the Taluka Panchayat in similar circumstances. It is well established that where the legislature has chosen to treat two sets of cases differently as in the present case i.e. election to the post of Adhyaksha and Upadhayaksha of the Gram Panchayat and election to the post of Adhyaksha and Upadhyaksha of Taluka Panchayat, by imposing restrictions for holding election in respect of one where the vacancy lasts only for less than 30 days and not imposing any such restriction in respect of the other, the intention of the Legislature to be gathered is that the restriction is not deliberately and advisedly imposed. In such circumstances, by a judicial interpretation the restriction cannot be imported treating it as a case of omission by the Legislature. Therefore, the contention of the learned Counsel for the petitioner cannot be accepted.

7. As regards the other contention urged by the counsel for the petitioner stating that the post of Adhyaksha should be dereserved or reserved in favour of some other category other than the Scheduled Tribe, it has to be stated that the vacancy has occurred on account of the removal of the earlier Adhyaksha. The present incumbent will discharge his duties as Adhyaksha for the remaining period. It is only for the next period the principle of rotation by which the post will be reserved for another category has to be followed. In the matter of filling up of the casual vacancy Section 51 of the Act states that the same shall be filled by election of an Adhyaksha who shall hold office so long as the Adhyaksha in whose place he has been elected would have held office, if the vacancy had not occurred. There is therefore no justification or basis for the contention of the learned Counsel for the petitioner that the reservation shall not be made in favour of the Scheduled Tribe. In view of the above, both the contentions urged by the learned Counsel for the petitioner are untenable. The anxiety expressed by the petitioner contending that such election will lead to unnecessary burden on the exchequer and may not further the democratic process cannot be appreciated as it is only an election of the Adhyaksha from among few elected members of the Gram Panchayat. The petitioner cannot claim that he shall be permitted to continue to discharge his duties as an incharge Adhyaksha when there is no bar for conducting fresh election to the post of Adhyaksha.

8. For the aforementioned reasons, I find no merit in this writ petition. The same is therefore dismissed.