GURAPPA KODLI v. STATE OF KARNATAKA — 1989 DIGILAW 177 (KAR)

M. P. CHANDRAKANTHARAJ, J. ( 1 ) THESE Writ Petitions are disposed of by this following common order at the stage of preliminary hearing and after hearing the learned Counsel in detail. W. P. No. 9288/1989 was heard yesterday partly and for want of time hearing was continued today. W. P. No. 9408/1989 taken up today for preliminary hearing. On account of the similarity of the relief prayed for it is clubbed with the earlier writ petition and disposed of. ( 2 ) THE facts which may be stated in general which are common to both the petitions are as follows: The Karnataka Legislative Assembly came to be dissolved by a Presidential order of 21-4-1989. One of the consequences of such dissolution was, the chairman of the Taluk Panchayat Samithi constituted under Sec. 135 of the Karnataka zilla Parishads, Taluk Panchayat Samithis, mandal Panchayats and Nyaya Panchayats act, 1983 (hereinafter referred to as the Act) was denuded of a Chairman and Ex-Officio member in terms of sub-sec. (3) of Section 135 of the Act. The samithi constituted under Section 135 (1) of the Act has designated functions to perform which are enumerated in Section 136 of the Act. Sub-section (2) of Section 136 of the Act provides for the manner in which the Samithi may transact its business i. e. , it shall transact its business in the manner prescribed by Rules framed under the Act. Sub-section (3) of section 135 of the Act provides that a Member of the legislative Assembly representing the major part of the taluk shall be the Chairman and if no Member of the legislative Assembly is available, or if the member becomes a Minister, the Taluk Panchayat samithi shall elect the Chairman from among its members. Though the section lacks any clarity the meaning and purport cannot be missed. Where there is a legislative Assembly member available, as one of the members of the Samithi in terms of sub-section (2) (a) of Section 135 of the Act and he represents in the Assembly major portion of the Taluk in respect of which the Samithi is constituted, then he is designated by legislative intent to be the Chairman. Where there is a legislative Assembly member available, as one of the members of the Samithi in terms of sub-section (2) (a) of Section 135 of the Act and he represents in the Assembly major portion of the Taluk in respect of which the Samithi is constituted, then he is designated by legislative intent to be the Chairman. In otherwords, no election of a Chairman of such Samithi constituted under sub-section (1) of Section 135 of the act is contemplated unless the events mentioned in sub-section (3) occur i. e. , the samithi Member-Legislative Assembly member becomes unavailable which could be for more than one reason such as by his resignation to the Assembly, by his election being set aside by due process of law or by his death during his tenure as Member of the legislative Assembly or by his removal under the provisions of law which prohibits defection from one party to another or by the dissolution of the Assembly by a Presidential order or when such Member of Samithi-Member of the Legislative Assembly becomes minister in the Cabinet in the State assembly. It is only on the occurrence of one of these events that an election is contemplated for the post of a Chairman of the samithi. The above become obvious by the text of sub-section (2) of Section 136 of the act which is as follows:" (2) The working of and the transaction of business by the Taluk Panchayat Samithis shall be in accordance with such rules as may be prescribed. " ( 3 ) IN this context it is now relevant to refer to the Rules prescribed in terms of sub-section (2) of Section 136 of the Act. The Rules are called the Karnataka Taluk Panchayat samithis (Transaction of Business) Rules, 1986 (hereinafter referred to as the Rules ). By Rule 2 (2) of the Rules, the term 'act' and 'secretary' and section are defined. The Act means the Karnataka Zilla Parishads, Taluk panchayat Samithis, Mandal Panchayats and nyaya Panchayats Act, 1983. Secretary means the Block Development Officer of a taluk who is appointed by the Government to exercise the powers and functions of a secretary of a Taluk Panchayat Samithi. Section means a section of the Act. Rules 3 of the Rules is the last Rules and comprises of sub-rules 1,2 and 3. Secretary means the Block Development Officer of a taluk who is appointed by the Government to exercise the powers and functions of a secretary of a Taluk Panchayat Samithi. Section means a section of the Act. Rules 3 of the Rules is the last Rules and comprises of sub-rules 1,2 and 3. Sub-rule (1) of Rule 3 of the Rules provides that the Taluk Panchayat samithi shall meet for the transaction of its business at the office of the Taluk Panchayat samithi during office hours. It further provides that the Chairman of the Taluk panchayat Samithi shall determine the date and time of the meetings. According to which determination, the Secretary shall intimate to the members of the Taluk panchayat Samithi the date and time of the meeting and the matters to be considered in such meeting. It further enjoins the secretary, in consultation with the Chairman to prepare an agenda for such meeting which shall be read over and explained to the members of the Taluk Panchayat Samithi present at such meeting. Sub-rule (2) of Rule 3 of the rules requires that the proceedings be recorded in writing i. e. , the views, suggestions and general consensus of opinion in regard to the subject matter discussed. Sub-rule (3) of Rule 3 of the Rules provides that every meeting shall be presided over by the chairman and if he is absent, the members present shall elect one from among themselves to preside. ( 4 ) FROM the above provisions made in the rules prescribed, it is clear that unless there is a Chairman a meeting cannot be called to discuss any subject because it is the chairman who is required to decide the time, the place and the date of the meeting as well as the subjects in consultation with the Secretary. It is also clear particularly from sub-rule (3) of rule 3 of the Rules that none else shall preside over the meeting so-called at the direction of the chairman unless he is absent in which case the meeting called to transact the business of the Samithi shall elect one of the members of the Samithi to chair the meeting and conduct the proceedings. No other Rules are made by the state Government to provide for the manner in which the election of the Chairman may take place on the occurrence of one of the events which I have adverted to in terms of sub-section (3) of Section 135 of the Act. In other words, if the Member of the Legislative Assembly is not available, particularly for the reason of the dissolution of the Assembly, the Taluk samithis shall cease to perform their functions till the Assembly is reconstituted. In sum and substance that is the argument advanced by the Counsel for the petitioners in the two petitions though indirectly. In the first of the petitions Mr. P. A. Kulkarni strenuously contended that the Assistant commissioner who conducted the meeting on 27-5-1989 had no authority under any of the provisions of the Act or the Rules made thereunder by any executive order issued by the Government to call such a meeting much less to hold an election. He, therefore, further contends that the entire process of election is vitiated and is opposed to law and therefore liable to be set aside by this Court under Art. 226 of the Constitution by issue of a writ of certiorari. He has also alleged that despite the protest of some of the members including the petitioners as evidenced by Annexure-D, the Assistant Commissioner proposed open ballot when some of the members demanded secret ballot and thereby had seriously affected the rights of the members to exercise their franchaise freely. ( 5 ) IT is also contended and in fact it has been alleged that the Assistant Commissioner presided over the meeting and it has prejudiced the interests of one political party which did not succeed in getting its nominee elected at such meeting. In the other writ petition, Shri. Ravindra kumar, learned Counsel for the petitioner, has contended that the Secretary of the Zilla parishads had no legal authority under the provisions of the Act or the Rules made thereunder to issue a direction calling upon the Secretaries of the various Taluk Samithis to get any vacancy caused by the dissolution of the Assembly in the office of the Samithi chairman filled and therefore the election to the Taluk Samithi declared as per Annexure-A to that writ petition should be quashed. It cannot be disputed that no provision is made for the conduct of the election to the office of the Chairman when it becomes necessary in terms of sub-section (3) of Section 135 of the Act. The question is, in that event, whether the court should lean in favour of a construction that in the absence of Rules an election cannot take place or construe it in such a way that there are enough guidelines in sub-section (3) of Section 135 of the Act to permit an election if held in a fair and regular manner without causing prejudice to any of the other members of the Samithi which would enable the taluk Samithi in such event to have a chairman and transact its legitimate business assigned to it under sub-section (1) of Section 136 of She Act. ( 6 ) A. DIVISION Bench of this Court in the case of Patel Shivarudrappa and Another v state of Mysore and Others [1969 (2) Mysore law Journal, 607] did lay down the principle that if the provisions of an Act may be given effect to without the framing of the Rules, non-framing of the Rules will not vitiate such giving effect io. Though the statute in the said decision and the provisions with which we are concerned are not exactly similar, the broad principle underlying the said decision should not be lost sight of by me. It is well recognised rule of construction that a Statute when construed must lean in favour of its validity. A document has to been construed to lean in favour of the terms of the document being effective. One should not construe an Act or a Statute or a document in order to take away the legitimacy of the act contemplated if it can otherwise be saved. ( 7 ) IN the instant cases on hand neither of the Counsel appearing for the parties was in a position to point out the specific injustice done or the irregularity committed by the conduct of the elections by the Assistant commissioner or the Secretary of the Taluk samithi as in the case of the second of the petitions. No doubt Mr. Kulkarni in the first of the petitions pointed out that procedure to ensure secrecy of ballot was not adopted though demanded by some of the members and therefore it has prejudiced the election results. No doubt Mr. Kulkarni in the first of the petitions pointed out that procedure to ensure secrecy of ballot was not adopted though demanded by some of the members and therefore it has prejudiced the election results. I do not think having regard to the scheme of the Act secrecy of ballot for elections is a must particularly in view of the provisions made under Section 3 (l) (b) of the karnataka Local Authorities (Prohibition of defection) Act, 1987 which are made specifically applicable to the voting at the meeting of the Zilla Parishads and Mandal panchayats. (not the taluk Samithis ). ( 8 ) UNDER the scheme of the Act, at all levels i. e. , at the level of Mandal Panchayat, or at the level of Zilla Parishads, the structure is such as to be politically influenced by the parties that are in power at any given point of time after the elections. Therefore, in the matter of election of a Chairman which is only a contingent event for the Taluk samithi, the open ballot system adopted by one who conducts the election cannot be said to be vitiated or unfair. ( 9 ) I have earlier pointed out that the section itself affords enough guidelines inasmuch as the office of the Chairman can be contested only by the members of the taluk Samithi and none other. When the need for contest arises, only the members are the voters also. The word "the Chairman shall be elected" shows that the process is elective process and not selective or by nomination. Therefore, as along as the election is held to the office of the Chairman in the event of non-availability of an MLA who is the designated chairman of the Taluk panchayat Samithi then this Court should not in its discretionary jurisdiction, interfere with the process which has not caused any real grievance or given an unfair advantage at the election held, to fill up that vacancy to any one. ( 10 ) 10 I must also not fail to notice that the office of the Chairman of the Taluk panchayat Samithi does not carry any honorarium or Perouisites. The functions of the Taluk Panchayat Samithi are advisory in character and do not involve any executive functions unless they are specified by the zilla Parishad. ( 10 ) 10 I must also not fail to notice that the office of the Chairman of the Taluk panchayat Samithi does not carry any honorarium or Perouisites. The functions of the Taluk Panchayat Samithi are advisory in character and do not involve any executive functions unless they are specified by the zilla Parishad. Therefore, notwithstanding the fact that rules have not been framed for holding the election, this Court must decline to interfere when the view taken by me permits the Taluk Samithi to be functional instead of being rendered redundant on account of the dissolution of the State Legislative assembly. ( 11 ) 11. Even otherwise, in the first of the cases, petitioners were willing for an election held by the Assistant Commissioner provided it was by secret ballot. It is only because secret ballot was not permitted, they have approached this Court. ( 12 ) 12. Mr. Kulkarni was unable to point out as to how the open ballot has affected or how if has prejudiced their case or cause. If that is not demonstrated, they are not entitled to be given the relief by this Court in its discretion on account of any illegality which is not on account of the fault of any member of the Taluk Panchayat Samithi, but of the state Government. Similarly the petitioners in the second of the petitions actually contested and participated in the election that took place. It is only after they were defeated, they have approached this Court. By their own conduct, they are disentitled to the relief if the discretion by this Court was to be exercised in their favour. This court has learned in favour of Samithi being functional and in its discretion declines to interfere in the larger interest. ( 13 ) 13. Therefore, these petitions are dismissed. Writ Petition dismissed. --- *** --- .