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1990 DIGILAW 62 (KAR)

STATE OF KARNATAKA v. MAHADEVAPPA MALLAPPA HATTI

1990-01-30

M.RAMAKRISHNA RAO, S.MOHAN

body1990
S. MOHAN, CJ. ( 1 ) ALL these writ appeals can be dealwith under a common judgment, as they raise a common question of law as to the scope of interpretation of section 135 (3) of the Karnataka Jilla parishads, Taluk Panchayat Samithis, manda! Panchayats and Nyaya Panchayats act, 1983 (for short 'the Act' ). The writ petitions out of which these appeals arise question the validity of the circular dated 1 9th December, 1 989 bearing No. GRAHAPA :. 6 THAPASA 89, issued by the Director, Department of Rural Development and Panchayat Raj. ( 2 ) THE risk and substance of suchcircular is. that by reason of the general elections held in the State, the members of the Legislative Assembly who have been newly elected shall be entitled to be the Chairman of the taluka Panchayath Samithies and those elected shall have to vacate the office except during the non-availability of all those members of the assembly. The writ petitioners stated that during the president's regime the assembly having been dissolved, there was no member of the Legislative Assembly. Conse quently, during the absence of such a member, the Taluka Panchayath Sami this had elected them as Chairman and this were entitled to continue for their full term as Chairman. They cannot be deprived of the Chairmanship by reason of the impugned circular. Further, the earlier circular dated 26th July, 1938 cannot be nullified. According to them, once the election had taken place for whatever reason it may be, the democrotic process of such an election cannot be set at naught purporting to give effect to the statutory provision of Section 135 (3) of the Act in this banner, calling upon them to demit the office. Therefore virtually what was argued was about the scope of Section 135 (3) of the Act. ( 3 ) IN opposition to this, it wasargued on behalf of the State that, what Section 135 (3) contemplates is this: (i) The M. L. A. shall be the Chair man, if available; and (ii) Only in the absence of M. L. A. or the non-availability of M. L. A. , the taluka Panchayath Samnithi could elect the Chairman from among its members. Where therefore, when the M. L. A. is available, it is no longer possible for the elected Chairman to contend that r. ecould continue for all time to come disregardful of statutory intenment. Where therefore, when the M. L. A. is available, it is no longer possible for the elected Chairman to contend that r. ecould continue for all time to come disregardful of statutory intenment. Thus, what came up for interpretation was Section 135 (3) of the Act. ( 4 ) THE learned Single Judge wasof the view, that if reaily it was the intention of the Legislature that the election of the Chairman of the Taluka panchayath Samithi was to be opera tive till the availability of the M. L. A. , then nothing would have been easier than to suite so. As a matter of fact, section 45 of the Act clearly postulates such a situation seating "until Pradhan is elected'. Here, no such thing is provided. Therefor, hu was or the view ihat by reason of the impugned circular the right ot the Chairman to continue in o. iice for full length of chaiimanship could not be taken away. Consequently, he allowed the writ petitions. Hence, these writ appeals by the State. ( 5 ) LEARNED Advocate General afterdrawing our attention to sub-section (3) of Section 135 submits that by the use of the word "shall" in that sub section, it is very clear that a member of the Legislative Assembly has to be the Chairman. The right to elect a chairman is only in the absenceof such m. L A. If the contention of the otherside were to be accepted, it would render sub section (3) of Section 135 nugatory or in-effective. If the elected chairman were to continue in office, the M. L. A. , although the statute gives him a right, could not claim the Chair manship, because, it would defeat the very object of sub-section (3) of Sec tion 135. According to him, the plain language of the Section will have to be interpreted emphasising the right of m. L. A to be the Chairman. Presently, the M. L. As. are available though, earlier at the time when the State was under President's rule, the assembly having been dissolved, those M. L. As. were not available. In such a situation when the election took place, they cannot continue for all time to come. Presently, the M. L. As. are available though, earlier at the time when the State was under President's rule, the assembly having been dissolved, those M. L. As. were not available. In such a situation when the election took place, they cannot continue for all time to come. ( 6 ) THE learned Judge was notright in referring to Section 45 of the act which talks of a temporary vacancy in the office of Pradhan, But the situa tion here is entirely different. Tnen again, there is no need to use that language, because, having regard to the practice of modern day legislation, where the intention has been clearly brought out no legislature indulges in verbosity or uses a language by way of redundancy. The plain and tha only meaning possible under Section 135 (3) is, that there i. s indefensible right to be a Chairman and the election to the taluka Panchayath Samithi could take place only during the absence of m. L. As. But once that M. L. A. is available, the elected Chairman cannot say that he would continue for all time to come. It is incorrect to contend that by the impugned circular the elected Chairman is directed to go out of the; Chairmanship. It is only giving effect to Section 135 (3), beyond that nothingelse. ( 7 ) THE learned Counsel for therespondent would state that where during the absence of a M. L. A. if the chair-run is elected from among the members, there is absolutely no justification to suggest or to contend that on return of that M LA. the elected chairman will have to demit the office. If that Was the intention of the legis lature, it ought to have been so provi ded, more so, when Section 135 (3) says that the Chairman shall be elected. Here again, the Ianguage is imperative. Therefore, regard must he had to the implicition of election end more so, by process of election there is what is known as w!i! of democracy expressed by majority of the members. Such a right cannot be taken away by the impugned circular. As a matter of fact, all the respondents counsel are uni form in this contention and they want us to internet the language to the effect that the elected Chairman to continue till his term of office is over. ( 8 ) THE further contention is. Such a right cannot be taken away by the impugned circular. As a matter of fact, all the respondents counsel are uni form in this contention and they want us to internet the language to the effect that the elected Chairman to continue till his term of office is over. ( 8 ) THE further contention is. it isonly at the time of the constitution of the Taluka Panchnyath Samithi, the availability of M. L. A. will have to be looked up. Where therefore, if the m L. A. was not available at the time of the constitution of the Samithi, and merely because he came on a later date he is not deprive of the right to be elected as Chairman. ( 9 ) SECTION 135 talks of Constitutionof Taluka Panchayath Samithi under Section 135 (1), the Government shall by notification constitute forr each taluks a Taluka Panchayath Samithi. Section 135[2) talks of tho conposition of Samithi. Members of the state Legislature representing a part or whole of the taluk whose constituencies lie within the taluk. There after, while deling with the Chairman of tho Taiuka Panchayath Samithi, Sec tion 135 (3) states as under :"the Member of the Legislative assembly representing the major par of the taluk shall be the Chairman and if no member of the legislative Assembly is available, or if the member be comes a Miinister, the Taluk Panchayat samithi shall elect the Chairman from among its members. "a careful analysis of this sub-section reveals us (i) A member of thy Legislative assembly representing a major part of the taluk shall be the chan man ; (ii) If no member of the Legislative assembly is available; or (iii) If the member becomes the minister then alone the Taluka panchayath Samithi shall elect chairman among its members. In other words, an indefensible right of the M. L. A. to be the Chairrnan has been conferred by this cub-section on the M. L. A, There is great reason and justice to provide so. It further states, it is not merely being M. L. A. , but, one representing the major part of the taluka. Contingencies may arise when the member of the Legislative Assembly is not available or if he were to become a minister. Then the Taluk Panchayath samithi could elect the Chairman from among its members. It further states, it is not merely being M. L. A. , but, one representing the major part of the taluka. Contingencies may arise when the member of the Legislative Assembly is not available or if he were to become a minister. Then the Taluk Panchayath samithi could elect the Chairman from among its members. In other words, as we construe on the plain language of the sub-sect ion, the right of the Pancha- yath Samithi to elect its Chairman arises only on either of those two con tingencies. , viz; when no member of the legislative Assembly is available or if the member becomes a minister (here aagain it means qua M. L. A.), Therefore, during non-avaihbility the right toelect arises. It is one of the cardinal principles of construction of the Act. They should be construed according to the intention. To our mind, it appears these wards are preciseand unambiguousand therefore we have to construe them in the ordinary and natural sense. The words themselves alone clear the intention of the law maker. As was laid down by Lord Warrington"the Tribunal that has to construe an Act of a legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these vvortis it is natural to inquire what is the subject matter with res pect to which they are used and the object in view. "chief Justice Tindal in [1832] 2d. and cl. (H. L) 480 at 483-Warburton v love land said"where the language of an Act is clear anri explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the legislature. "the reason why we quote this case is, the elected Chairman who came before ussays, if this interpretation is to be followed, they will be obliged to demit their offices of Chairman. We are afraid we cannot help it, nor can we accept the argument that this circular interfers with the democratic process of election. The reason why we hold so is, as poin ted out earlier, the right of the Panchayath samithi itself arises during the absonce of the M. L. A. whether it be the non-availability or the M. L. A. becoming a minister. The reason why we hold so is, as poin ted out earlier, the right of the Panchayath samithi itself arises during the absonce of the M. L. A. whether it be the non-availability or the M. L. A. becoming a minister. Therefore the accent is, as rightly contended by the learned Advocate general, on the absence. If, on the contrary, the M. L. A is present, has right to be the Chairman cannot be taken away. Otherwise, the meaning of the word "shall" loses all its importance. Such being the imperative clause, we are cleatly of the view that it shall be given effect to. ( 10 ) IT is incorrect to contend inour view, as is urged by the learned counsel for the respondent, that only jf the M. L. A. is available during the constitution of the Samithi, he will have the right of Chairmanship and not at a later date when the Chairmanship and not at a later date when the Chairman. of the Taluk Panchayath Samithi is elected. We do not know how such an interpretation is possible having regard to the plain language of section 135 (3) of the Act, when the panchayath Samithi merely calls upon the Government to issue a notification with regard 10 its constitution or in other words formation. Section 135 (3) of the Act does not say at the time of constitution of the Samithi. ( 11 ) WE are equally clear in ourmind that Section 45 which deals with the appointment of Pradhan during the vacancy in the office cannot throw any light on the interpretation of the sub section with which we are concerned. Section 45 of the Act speaks of the situation where there is vacancy in the office of the Pradhan. The person so appointed shall exercise the power to perform the duties of the Pradhan until a Pradhan is elected. There again, the process of democracy is to have its full say. But here we are considering the right of a member of the Legislative assembly to be the Chairman. Therefore, we are unable to accept the contention that unless and until it has been clearly stated that the elected chairman shall hold the office till the m. L. A. is available, such an interpretation is not possible. But here we are considering the right of a member of the Legislative assembly to be the Chairman. Therefore, we are unable to accept the contention that unless and until it has been clearly stated that the elected chairman shall hold the office till the m. L. A. is available, such an interpretation is not possible. It should be remembered that modern legislation disregards tautology nor does it use the word 'in surplus age'. Therefore, even without that expression the im perative clause 'shall' and the accent on the absence when alone the right of taluk Panchayath Samilhi to elect the chairman would arise, brings out the intention of the Legislature very clearly and the language as we see it is precise enough to modern interpretation as we have done. ( 12 ) ACCORDINGLY, we allow thesewrit appeals. The judgment of the learned Single Judge is set aside up holding the circular dated 19th Decem ber 1989. However, there shall be no order as to costs. ( 13 ) SRI N K. Gupta learned Govt. Advocate is permitted to file his memo of appearance on behalf of petitioners within two weeks. Writ appeals allowed. --- *** --- .