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1989 DIGILAW 99 (KAR)

DAMODARAN G. v. STATE OF KARNATAKA

1989-03-14

P.P.BOPANNA

body1989
BOPANNA, J. ,, J. ( 1 ) THIS petition is treated as having been posted for hearing and I have heard the learned Counsel for the parties. ( 2 ) THE 1st petitioner is a Corporation Councillor who was elected in the general elections held to the Corporation of the City of Bangalore on 7-8-1983. The other petitioners claim to be the responsible citizens, one is a Journalist, one is a businessman and the rest are rate payers. They are aggrieved by the order of the State Government which is produced as ANNEXURE-A in the writ petition. By that order dated 31-12-1988, the State Government in exercise of the powers conferred by clause (c) of subsection (1) of Section 100 of the Karnataka municipal Corporation Act, 1976 (in short 'the Act') appointed Administrators to the following City Corporations for a period of six months with effect from 1st January 1989 : 1. Corporation of the City of Bangalore. 2. Corporation of the City of Mangalore. 3. Corporation of the City of Mysore. 4. Corporation of the City of Belgaum. 5. Corporation of the City of Gulbarga. 6. Hubli-Dharwad Municipal Corporation. This notification was preceded by a notification dated 5-8-1988 which is produced as Annexure B in the writ petition. By that notification, the terms of the offices of the Councillors of the corporation of City of Bangalore, Hublidharwad Municipal Corporation and the corporation of the City of Mysore were extended in exercise of the powers conferred by sub-section (1) of Section 8 of the Act on the ground that elections to the said City Corporations could not be held immediately after the expiry of the term of the office of the Municipal Councillors for the reason that the work relating to the revision of additional voters was expected to be completed by the end of October 1988 and thereafter sufficient time was required for holding the elections. Accordingly, the term of office of the Councillors was extended till 31-12 1988 in respect of the said corporations. ( 3 ) WE are now concerned in this case with the 2nd respondent-Corporation viz. . Corporation of the City of bangalore. ( 4 ) MR. Accordingly, the term of office of the Councillors was extended till 31-12 1988 in respect of the said corporations. ( 3 ) WE are now concerned in this case with the 2nd respondent-Corporation viz. . Corporation of the City of bangalore. ( 4 ) MR. Subba Rao, learned Counsel for the petitioners submitted that regard being had to the scheme of Chapters-Ill and IV of the Act and regard being had to the earlier order (Annexure-B) dated 5-8-1988, a duty was cast on the State government to give reasons for appointing the Administrator, who is the 3rd respondent herein for a period of six months with effect from 1-1-1989 and the State Government having not given any valid reasons muchless any reasons at all in the notification which is impugned therein, the same is bad in law and consequently, the appointment of the administrators under the provisions of section 100 (1) (c) of the Act is also bad in law. According to him, there was no good ground for the State Government to put an end to the term of the duly elected councillors by its order dated 31-12-1988 when the very same State Government under Annexure-B thought it fit to extend the term of the Councillors upto 31-12-1988; that the only reason for the appointment of the Administrator under section 100 (1) (c) of the Act could be that the revisionaf work of the electoral roll which was expected to be completed by the end of October 1988 is not yet over and perhaps the Government required more time and if that be so, that reason could have been given for the appointment of the Administrator and that the absence of any reason in Annexure-A vitiates the power of the Government to appoint the Administrator under Section 100 (1) (c) of the Act. He also submitted that the democratic way of functioning of these local bodies should not be denied to the petitioners by the appointment of the Administrators, unless valid reasons are forthcoming for such appointment. He also submitted that the democratic way of functioning of these local bodies should not be denied to the petitioners by the appointment of the Administrators, unless valid reasons are forthcoming for such appointment. ( 5 ) NO doutt, the reasons for appointment of the Administrator are not given in Anrexure A. But the learned Advocate General maintained that if a power is confeired under Section 100 (1) (c) to appoint the Administrator atter the expiry of term of the office of the Councillors that power could be exercised without giving any reasons for a period of one year as is clear from the provisions of section 101 of the Act. Sec. 101 reads as under:"no order of supersession or appointment of Administrator under Section 99 or Section 100 shall remain in force for a period exceeding one year. Provided that for reasons to be recorded in writing Government (may continue either prospectively or retrospectively such order for a further period not exceeding six months provided further that such order (may be continued either prospectively) or retrospectively a period beyond one year and six months if for reasons beyond the control of Government, which shall be recorded in writing, it is necessary to do so. " ( 6 ) MR. Subba Rao contends that the provisions of Sections 100 and 101 are subject to Chapters-Ill and IV of the act and if so construed, the power of the government under Section 100 (1) (c) of the Act cannot be exercised without giving any reasons. He relies on the decision of the Supreme Court in Barium chemicals Ltd and another v Company law Board and others (AIR 1967 SC P. 295 ). What came up for consideration in that case was certain provisions of the companies Act which empowered the central Government to order an enquiry into the affairs of the company incorporated under that Act. The argument in that case centred round the words 'in the opinion of the Central Government' as they occur in Section 237 (b) of that Act. He relied on certain observations made by hidayatullah, J,, as he then was, in paras-60 and 64 of the judgment. In my view, the provisions which came up for consideration before the Supreme Court in Barium Chemicals are not in pari materia with the provisions of this Act. He relied on certain observations made by hidayatullah, J,, as he then was, in paras-60 and 64 of the judgment. In my view, the provisions which came up for consideration before the Supreme Court in Barium Chemicals are not in pari materia with the provisions of this Act. The scheme and object of this Act and the scheme and object of the Companies Act are different and therefore, no assistance can be drawn from the principle enunciated by the Supreme Court on the relevant provisions of the Companies Act for sustaining the contentions of Mr. Subba Rao. In my view, the construction of Section 101 of the Act does not admit of any doubt. There is no ambiguity on the wording of that Section and if the conditions prescribed for the appointment of the Administrator under Section 100 (1) (c) of the Act are satisfied, it is open to the government to appoint an Administrator and extend his term of appointment under section 101 without assigning any reason. Chapters-Ill and IV of the Act which deal with the constitution of the Corporation and election to the various divisions in the Corporation do not throw any light on the power of the Government to appoint or not to appoint an Administrator under section 99 or 100 of the Act. ( 7 ) IT is well settled that a right to become a Councillor of the Corporation is a statutory right and not a fundamental right or common law right conferred under the relevant provisions of the Act and that statutory right could be taken away by the other provisions of the Act. ( 8 ) AS observed by the Supreme court in Jyoti Basu and others v Debi ghosai and others ( AIR 1982 SC 983 ) in para-8 of its judgment:"a right to elect, fundamental though it is to democracy, is. anomalously enough, neither a fundamental right nor a common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. " ( 9 ) IT is not open to the aggrieved person to plead any equitable considerations in support of his case that he has been unlawfully prevented from becoming a Councillor and from discharging his duties as a duly elected representative. No doubt, under Section 8 of the Act, the Government has to give reason for extending the term of the office of the councillors but Section 100 or Section 101 does not give any indication that it should be tagged on to the provisions of section 8 of the Act for the purpose extending the term of the office of the administrator. In my view, Section 100 (1) (c) gives an absolute right to the Government to appoint the Administrator whenever the term of office of the Councillor expires and new Corporation has not been constituted in accordance with the provisions of the Act. Though under section 100 (1) (a), (b) and (d), the reasons for appointment of the Administrator are self evident the reason for extending the term of office under Section 100 (1) (c) is that the term or the extended term of office of the Councillors had expired and a new Corporation had not been constituted in accordance with the provision of this Act. The responsibility for holding the elections and for the election of the councillors is on the Commissioner of the corpoiation and not on the Government. That is clear from the rules framed by the government in exercise of the provisions under Section 421 of the Act. The Karnataka Municipal Corporations (Election) rules, 1979 were published in the Karnataka Gazette on the 13th November 1980 and those rules are mada in exercise of the powers under sub-section (1) of Section 55 of the Act R/w Section 421 (1) of the Act. Under Section 55 (1), the government has the power to make rules to provide for or regulate matters for holding the elections of Councillors under this act. Under Section 55 (1), the government has the power to make rules to provide for or regulate matters for holding the elections of Councillors under this act. Under Section 421 of the Act, the government has power to make rules to carry out the purposes of this Act. It cannot be said by a reading of Section 55 or 421 that a duty is cast on the government to hold the elections after the expiry of the term of the Municipal Councillors. It is only in that context under section 101 of the Act, the Government has been given the power by the Legislature to appoint an Administrator for a period of one year without assigning any reasons and to extend the term beyond the term of one year after giving reasons. Right now, the term of the Administrator has not expired and he has been appointed for a period of six months and therefore, he is empowered to continue upto the end of June 1989 and thereafter it is open to the Government to extend this term without assigning any reasons for another period of six months and that power as noticed earlier is not controlled by either Chapter-Ill or IV. ( 10 ) THEREFORE, the impugned order (Annexure-A) cannot be attacked on the ground it is vitiated by malafides or extraneous consideration. It is not also arbitrary if it is viewed in the light of the power conferred on the government under section 101 of the Act. ( 11 ) AT the initial stage of the arguments it has submitted by the Learned advocate General that there is a possibility of the elections being held to the corporation sometime on the expiry of the initial period of the appointment of the Administrator. On the basis of the said submission this Court was of the view that the petition would become infructuous. But Mr. Narasimha Murthy, contended that it would not be proper for this Court to tie down the government to such an undertaking when the power of the government to extend the period of Administrator is clear under the provisions of Section 101 of the Act. But Mr. Narasimha Murthy, contended that it would not be proper for this Court to tie down the government to such an undertaking when the power of the government to extend the period of Administrator is clear under the provisions of Section 101 of the Act. There is some force in the argument of the learned Advocate General because as the constitutional advisor to the State governmet he should not give any undertaking on his own which is violative of the power of the government to extend the period of Administrator. ( 12 ) FOR these reasons, this petition fails and is dismissed. ( 13 ) IN the circumstances of the case, parties to bear their own costs. Writ petition dismissed. --- *** --- .