M. C. BASAPPA SETTY v. MARIE MANDAL PANCHAYAT — 1987 DIGILAW 207 (KAR)

DESAI, J. ( 1 ) THESE four writ petitions were heard finally by consent of all concerned. ( 2 ) THE main point that arises for determination hi these petitions is : If there is only one motion for the election of pradhan and Upa-Pradhan, whether it should be put to vote and when put to vote if it is supported by minority votes whethe it can be said to have been carried. They arise in this way: the petitioner is an elected member of the Marie Mandal Panchayat. After the constitution of the said Mandal Panchayat, the second respondent, who was the prescribed authority, issued notice dated 8-4-1987 under Rule 4 of the Karnataka Zilla parishads, Taluk Panchayat Samithis, mandal Panchayats and Nyaya Panchayats (Election of Pradhan and Upa-Pradhan) rules, 1987 (for short the 'rules') for the election of Pradhan and Upa- Pradhan of the said Mandal Panchayat as per Annexure-C. A motion was filed proposing the name of the petitioner on 18-4-1987. The meeting scheduled to be held on 19-4-1987 as per annexure-C was adjourned as per annexure-E. On 20-4-1987 the second respondent issued another notice fixing the election of Pradhan and Upa- Pradhan of the said Mandal Panchayat on 24-4-1987 as per annexure-E. On 24-4-1987 the motion proposing the name of the petitioner as pradhan of the said Mandal was put to vote after it was proposed and seconded and 7 persons voted in favour of the motion and 8 persons against it. The prescribed authority (Respondent No. 2) held that the said motion was defeated as noted in annexure-A. Thereafter on 27-4-1987 respondent No. 2 issued another notice fixing the date of meeting for the election of pradhan and Upa-Pradhan on 5-5-1987 as per Annexure-B. Hence this writ petition for quashing Annexure-B and for declaring the petitioner as elected for the post of Pradhan as his was the only motion. ( 3 ) THE petitioner is the elected member of the Rangenahalli Mandal Panchayat in hiriyur Taluk. The total number of elected members of the said Mandal Panchayat is 22. The first respondent was appointed as the prescribed Officer by the third respondent to hold the first meeting for the election of pradhan and Upa-Pradhan of the said mandal Panchayat. The first respondent issued notice dated 3-4-1987 fixing the date of the first meeting on 11-4-1987 at 11-30 a. m. for the said purpose. The first respondent was appointed as the prescribed Officer by the third respondent to hold the first meeting for the election of pradhan and Upa-Pradhan of the said mandal Panchayat. The first respondent issued notice dated 3-4-1987 fixing the date of the first meeting on 11-4-1987 at 11-30 a. m. for the said purpose. A motion proposing the name of the petitioner was filed. It was duly proposed and seconded. There was another motion proposing the name of respondent No. 5 for the post of pradhan. At the first meeting, the proposer of the motion of respondent No. 5 withdrew that motion. Next, the motion in respect of the petitioner was taken up and the same was proposed and seconded. The motion was put to vote and it secured 9 votes out of 22 members present. The first respondent thereafter declared the petitioner as elected to the post of Pradhan of the said Mandal panchayat. When the motion for the election of Upa-Pradhan was taken up, number of persons who were outside the meeting hall entered the meeting hall, snatched away the proceedings book and other papers which were with the first respondent and therefore, the first respondent could not hold the meeting further. A complaint was given by the proposer of respondent No. 5. The first respondent also gave a complaint to the police. A case appears to have been registered and it is being investigated. Out of 22 members elected to the said Mandal panchayat, 9 persons are belonging to congress (I) and 13 members are belonging to Janata Party and the petitioner belongs to congress (I) Party. On 28-4-1987 the petitioner received a notice issued by the second respondent fixing the first meeting of the said Mandal Panchayat for election of pradhan and Upa- Pradhan on 7-5-1987 at 11-30 a. m. as per Annexure-H in so far as it relates to the election of Prahdan. ( 4 ) THIS petition also relates to the election of Pradhan of Rangenahalli Mandal panchayat which is the subject matter of w. P. No. 6709/87. ( 4 ) THIS petition also relates to the election of Pradhan of Rangenahalli Mandal panchayat which is the subject matter of w. P. No. 6709/87. In this writ petition the petition has sought for the following reliefs : (A) for declaring the report filed by the 3rd respondent - Deputy commissioner in W. P. No. 6709/87 as illegal; (b) for issuing a writ in the nature of prohibition prohibiting the 4th respondent from assuming the office of the Pradhan of rangenahalli Mandal Panchayat; (c) for issuing a writ in the nature of mandamus directing the 3rd respondent Deputy commissioner to hold fresh elections to the post of Pradhan of the Rangenahalli Mandal panchayat; (d) for striking down Rule 4 (4) of the Rules as unconstitutional since it violates Article 14 of the constitution; and (e) for issuing a writ in the nature of quo-warranto directing the 4th respondent who has been declared as Pradhan to show cause as to the authority under which he is claiming to be the pradhan of Rangenahalli Mandal panchayat. Mr. Vasudeva Reddy, learned counsel for the petitioner, did not press for striking down Rule 4 (4) of the Rules in this writ petition. There is no report filed by respondent No. 3. So, the question of granting relief (a) of the petition does not arise. ( 5 ) THE petitioner is the elected member of yare Budhihal Mandal Panchayat in kundagol Taluk gf Dharwar District. It consists of 26 elected members and two nominated members. The first respondent issued notice fixing the first meeting of the said Mandal Panchayat for election of pradhan and Upa-Pradhan on 23-4- 1987 at 3 p. m. A motion proposing the name of the petitioner for the post of Upa-Pradhan of the said Mandal Panchayat was filed. It was duly proposed and seconded. There were two other motions for the said post. At the time of election the proposers of two other motions withdrew and only motion proposing the name of the petitioner remained. It was put to vote. 12 members voted in favour of that motion and 16 members voted against it. The Prescribed Officer declared the motion as defeated as per Annexure-A. Hence, this writ petition by the petitioner for quashing annexure-A in so far as it relates to the election of Upa-Pradhan of the said Mandal panchayat and for a direction to respondent no. 12 members voted in favour of that motion and 16 members voted against it. The Prescribed Officer declared the motion as defeated as per Annexure-A. Hence, this writ petition by the petitioner for quashing annexure-A in so far as it relates to the election of Upa-Pradhan of the said Mandal panchayat and for a direction to respondent no. 1 to declare him as elected unopposed for the post of Upa-Pradhan of the said mandal Panchayat. ( 6 ) IT is clear from section 43 of the karnataka Zilla Parishads, Taluk Panchayat samithis, Mandal Panchayats, and Nyaya panchayats Act, 1983 (for short the 'act') and Rule 4 of the Rules that the Pradhan and upa-Pradhan of the Mandal Panchayat have to be elected at a meeting of the members of the Mandal Panchayat and by motions proposing the names for the said posts. Therefore, the election of Pradhan and upa-Pradhan will be a proceeding of the meeting of the Mandal Panchayat. Proposing a person for election, voting on the proposing and declaration of result come within the expression "proceedings at the meeting" as observed in S. L. CHANCHA reddy v S. MUNIRAJU (1961 Mys. LJ 210 ). The provision of Section 51 of the Act applies to the procedure at the meeting of the Mandal Panchayat. Section 51 prescribes the quorum and procedure at the meeting of the Mandal Panchayat. Without quorum there cannot be any meeting of the mandal Panchayat. In KALAIAH v arasaiah (1969 (1) Mys. LJ. 383), the scope of Section 30 of the Mysore Village panchayats and Local Boards Act, 1959 was considered and it was observed thus :"section 30 of the Act provides for the election of Chairman and Vice-Chairman at a meeting called for the purpose and all the stages contemplated by the rules have to be gone through only at the meeting. Section 37 provides to every meeting of the Panchayat irrespective of the nature of business transaction for which it is called. Hence, quorum is necessary at a meeting for the election of Chairman and vice-Chairman at every stage of the election including scrutiny of nomination papers". When the election is to take place at a meeting, the provision regarding the quorum and procedure viz. , Section 51 of the Act is applicable to the said meeting. Hence, quorum is necessary at a meeting for the election of Chairman and vice-Chairman at every stage of the election including scrutiny of nomination papers". When the election is to take place at a meeting, the provision regarding the quorum and procedure viz. , Section 51 of the Act is applicable to the said meeting. ( 7 ) ACCORDING to Section 51 (3) of the Act, all questions shall, unless otherwise specifically provided, be decided by a majority of votes of the members present and voting. So, in view of sub- section (3 of section 51 of the Act, every motion has to be carried by majority to become the resolution of the panchayat. ( 8 ) MR. M. S. Gopal, learned counsel for petitioner in W. P. 6709/87, urged that in view of sub-rule (6) of Rule 4 of the Rules, even the motion which gets the minority votes can be carried. No doubt, according to the said rule, if no motion is carried by a majority of members present the prescribed officer shall declare that the member proposed in the motion which has received the highest number of votes has been chosen as the pradhan and Upa- Pradhan. The said Rule therefore applies to the case where there are more motions than one and not to a case where there is only one motion. Where there is only one motion no procedure is prescribed under the Rules. So, the provisions of sub-section (3) of Section 51 of the Act apply. Therefore, it is clear that even when there is only one motion, it has to be put to vote and it must be carried by majority. It is a fundamental principle of democracy that majority view must prevail. In KALAIAH's case also it was held that where a meeting for election of Chairman and Vice-Chairman is adjourned for want of quorum and where only one person had filed nomination for Chairman and only one for vice-Chairman, they cannot be declared as un-contested. So, the contention of the petitioners in W. P. Nos. 6470/87 and 6879/87 that they ought to have been declared elected unopposed has to fail. 6. Mr. So, the contention of the petitioners in W. P. Nos. 6470/87 and 6879/87 that they ought to have been declared elected unopposed has to fail. 6. Mr. M. S. Gopal, urged that according to Rule 8 of the Rules, the petitioner in w. P. No. 9367/87 ought to have filed election petition within seven days of the declaration and as he has not done so, his writ petition has to fail. In support of his contention he relied upon a decision in A. V. VENKATESWARAN, COLLECTOR OF customs, BOMBAY v RAMACHAND sobraj WADHWANI AND ANOTHER ( AIR 1961 SC 1506 ). In the said case, the supreme Court was pleased to observe thus :"the wide proposition that the existence of an alternative remedy is a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or honest and that in all other cases, Court should not entertain petitions under Art. 226 or in any event not grant any relief to such petitioners cannot be accepted. The two exceptions to the normal rule as to the effect of the existence of an adequate alternative remedy are by no means exhaustive, and even beyond them a discretion vests in the high Court to entertain the petition and grant the petitioner relief notwithstanding the existence of an alternative remedy. The broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the court, and in a matter which is thus preeminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the court". ( 9 ) MR. Gopal also contended that is no extraordinary circumstance to warrant the exercise of the powers of this Court under article 226 of the Constitution of India. In siddappa YELLAPPA v ELECTION officer 1980 (1) Kar. ( 9 ) MR. Gopal also contended that is no extraordinary circumstance to warrant the exercise of the powers of this Court under article 226 of the Constitution of India. In siddappa YELLAPPA v ELECTION officer 1980 (1) Kar. L. J. 149 it was held thus:"the pronouncement of the Supreme court in NANHOO MAL's case ( AIR 1975 SC 2140 ) as to the jurisdiction under art. 226 of the Constitution to decide the validity of an election after it is over, is not an unqualified pronouncement. In extraordinary circumstances the High court may, in exercise of its jurisdiction under Article 226 of the Constitution decide the validity of the election especially after the election is over and exercise of jurisdiction would not delay the completion of the election". ( 10 ) IN that case, the appellant and the second respondent had filed their nominations to the election of Panchayat and the appellant's nomination was rejected and the decision was unquestionably erroneous. Under the circumstances it was held that it was not necessary to drive the appellant to an election Tribunal under Section 13 of the karnataka Village Panchayat and Local boards Act and that it would be the most appropriate case for the High Court to exercise its jurisdiction under Article 226 to correct such obvious error and to prevent failure of justice. In NARAYANAPPA v tahsildar AND RETURNING officer (ILR 1986 Karnataka, 2683), after considering the said decisions, it was observed thus :. "in the instant case, if the acceptance of respondcnt-2's nomination paper is held as invalid, then no election need be held because the petitioner is the only candidate who has to be declared as elected. Therefore, exercise of writ jurisdiction under Article 226 of the constitution against the order of acceptance of the nomination paper of respondent No. 2 is warranted and it is fully justified". ( 11 ) IN this case, the motion in respect of the petitioners in W. P. Nos. 6879/87 and 6470/87 is not carried by majority. Hence, the declaration in respect of the petitioner in w. P. 6709/87 is bad and illegal. Under the circumstances, he cannot be allowed to function as Pradhan and it is a fit case to exercise the jurisdiction of this Court under article 226 of the Constitution. 6879/87 and 6470/87 is not carried by majority. Hence, the declaration in respect of the petitioner in w. P. 6709/87 is bad and illegal. Under the circumstances, he cannot be allowed to function as Pradhan and it is a fit case to exercise the jurisdiction of this Court under article 226 of the Constitution. ( 12 ) AS the declaration of the petitioner in w. P. 6709/87 is illegal and regard being had to the circumstances that the records of the proceedings were destroyed after the meeting and the issue of fresh Notification for the election of Pradhan and upa-Pradhan by the Prescribed Authority I do not think it proper to dismiss w. P. No. 9367/87 on the ground of laches and acquiescence as urged by Mr. M. S. Gopal. ( 13 ) IN the result, W. P. Nos. 6709/87, 6879/87 and 6470/87 are dismissed and the rule is discharged. W. P. NO. 9367/87 is allowed and the Rule shall be issued and be made absolute. A writ of prohibition shall be issued to respondent No. 4 prohibiting him from assuming the office of and acting as pradhan of Rangenhalli Mandal Panchayat. Respondent No. 2 is directed to proceed with the election of Pradhan from the stage at which it was interrupted by the stay order of this Court. The Prescribed Officer in other petitions shall take steps to hold the election afresh. No costs. --- *** --- .