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1997 DIGILAW 426 (KAR)

M. VEMALA NAYAKA v. RANIYAMMA

1997-07-25

CHANDRASHEKARAIAH

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CHANDRASHEKARAIAH, J. ( 1 ) IN all these writ petitions, the petitioners have challenged the election of Smt. Raniyamma to the post of adhyaksha of the shimoga district zilla panchayat, shimoga and for a writ of quo warranto restraining Smt. Raniyamma from functioning as adhyaksha inasmuch as she has no qualification to hold that post. ( 2 ) SHIMOGA zilla panchayat has been constituted under the provisions of the Karnataka panchayat raj act, 1993 (for short 'the act' ). The said panchayat consists of 41 members elected from different constituencies in shimoga district. Out of 41 elected members, 8 members belong to scheduled caste and out of them 3 members were elected from the constituency reserved for scheduled caste women. Smt. Raniyamma is elected from the constituency reserved for scheduled caste women. ( 3 ) THE government in its notification dated 7-3-1997, reserved the post of adhyaksha for scheduled castes and the post of upadhyaksha for unreserved women. Thereafter the divisional commissioner convened the meeting to hold the election for the posts of adhyaksha and upadhyaksha on 7-4-1997. Smt. Raniyamma and others were the candidates for the post of adhyaksha. Though there was an objection to accept the nomination of Smt. Raniyamma, her nomination was accepted and ultimately she was declared elected to the post of adhyaksha as she secured more votes than the other candidates who contested the election. This election has been challenged by the petitioners in these petitions and they have also sought for a writ of quo warranto to unseat Smt. Raniyamma from the post of president on the ground that she is not eligible to hold the post of adhyaksha. ( 4 ) THE petitioners are the residents of shimoga district and they are not the members of the zilla panchayat. Sri b. v. acharya, learned senior counsel appearing for the petitioners in some petitions submitted that the government in its notification dated 7-3-1997 has reserved the post of adhyaksha of shimoga zilla panchayat for scheduled caste. If that is so according to him the person who has been elected from the constituency reserved for scheduled caste woman, has no right or eligibility to contest for the post reserved for scheduled castes. In support of this submission he relied on the decision of the Supreme Court in the case of Saraswati Devi v Smt. Shanti Devi and others. In support of this submission he relied on the decision of the Supreme Court in the case of Saraswati Devi v Smt. Shanti Devi and others. ( 5 ) SRI m. r. janardhan, learned senior counsel appearing for Smt. Raniyamma, Sri b. Veerabhhdrappa, learned counsel appearing for the zilla panchayat and the learned government Advocate appearing for the state submitted that though raniyamma is elected from the constituency reserved for scheduled caste woman, she is entitled to contest for the post of adhyaksha reserved for scheduled caste since she belongs to scheduled caste. Further it is submitted that under Section 177 of the act, the posts of adhyaksha and upadhyaksha of zilla panchayat are required to be reserved only for scheduled castes, scheduled tribes and backward classes in relation to the total population of the state and it does not provide for reservation for women and therefore the person elected from the constituency reserved for scheduled caste woman is entitled to contest to the post of adhyaksha reserved for scheduled caste, since she belongs to the said caste. ( 6 ) IT is nextly, contended that any election to the posts of adhyaksha and upadhyaksha is required to be challenged by way of an election petition provided under the rules framed under the ACT and therefore the writ petition under article 226 of' the constitution of India, challenging the election is not maintainable in law. ( 7 ) THE short question that arises for consideration is:article 243 of the constitution, has been introduced by 73rd Amendment Act, 1992. Article 243-c provides for composition of panchayats. Article 243-d (4) reads as follows:keeping in view the mandate of the constitution, the state government has provided for reservation to the posts of adhyaksha and upadhyaksha under Section 177 of the act. Section 177 (2) of the ACT reads as follows:from a reading of the above said provision it is clear that under sub-section (2) (c) of Section 177 of the act, not less than l/3rd of the total number of adhyaksha and jandhyaksha in the state for each category shall be reserved for persons belonging to scheduled castes, scheduled tribes and backward classes and those which are not reserved, for women. In view of this specific provision providing for reservation the government framed the rules in its notification dated 17-2-1995. In view of this specific provision providing for reservation the government framed the rules in its notification dated 17-2-1995. Rule 3 of the said rules provides for reservation of offices of adhyaksha and upadhyaksha, which reads thus:the above said rules provides for reservation for women in the categories of scheduled castes, backward class category 'a' and unreserved (general ). The government in view of Section 177 of the ACT and the rules referred to above issued the notification dated 7-3-1997 reserving the post of adhyaksha of the shimoga zilla panchayat for scheduled caste. ( 8 ) THE Supreme Court in the case of saraswati devi, supra, interpreting the provisions of Haryana municipal ACT and Haryana municipal election rules, with reference to article 243 of the constitution of India introduced by 73rd Amendment Act, has held that the constitutional mandate makes it very clear that such chairpersons of panchayats or municipalities would be made available by rotation as provided by the state legislature to scheduled castes, scheduled tribes and women. The Supreme Court while considering the provisions of the Haryana Municipal Act, with reference to article 243-t of the constitution of India has held as follows: ( 9 ) SMT. Raniyamma is elected from the constitutency reserved for scheduled castes women. Whereas the post of adhyaksha has been reserved for scheduled castes and it shall be filled up only from among the persons elected from the constituencies reserved for scheduled castes. Section 177 (2) (c) of the ACT and the rules specifically provide for reservation of the posts of adhyaksha and upadhyaksha for women in respect of each of the categories. Hence, I do not find any substance in the contention raised by the respondents that the ACT and rules do not provide for reservation for women in each of the categories. In view of the law laid down by the Supreme Court, Smt. Raniyamma being elected from the constituency reserved for scheduled caste woman, is not eligible to contest to the post reserved for scheduled castes. Therefore, the acceptance of the nomination of Smt. Raniyamma to the post of adhyaksha and declaring her elected as adhyaksha of shimoga zilla panchayat is illegal. Therefore, the acceptance of the nomination of Smt. Raniyamma to the post of adhyaksha and declaring her elected as adhyaksha of shimoga zilla panchayat is illegal. ( 10 ) THE learned counsel for the contesting respondents contended that the writ petitions filed by the petitioners challenging the election to the post of adhyaksha is not maintainable in view of the bar contemplated under article 243-o read with rule 7 of the rules framed thereunder. Rule 7 of the rules reads as follows: ( 11 ) ARTICLE 243-o (b) of the constitution reads as follows: ( 12 ) UNDER article 243-o (b) of the constitution of India no election to any panchayat shall be called in question except by an election petition as provided under any law made by the state legislature. As per rule 7 of the rules, only a member of the panchayat can challenge the election to the posts of adhyaksha and upadhyaksha. The petitioners being not the members of the panchayat, have no right to present an election petition challenging the election to the post of adhyaksha. Therefore, I am of the view that the petitioners having no other alternative remedy are not barred from maintaining the writ petitions challenging the election to the post of adhyaksha under article 226 of the constitution of India. Further, if a person holding a public office is not eligible to hold the said post, any citizen may maintain a writ petition for a writ of quo warranto under article 226 6f the constitution. Therefore, the writ petitions filed by the petitioners are maintainable in law. ( 13 ) THE learned counsel for the contesting respondents submitted that the writ of quo warranto cannot be issued to unseat the elected adhyaksha on the ground that she is not eligible to contest the election since the post of adhyaksha is reserved for scheduled castes and the person elected also belongs to the scheduled caste. No doubt, the court must be reluctant to interfere with the elections except in cases of extreme grounds. The election of Smt. Raniyamma to the post of adhyaksha is illegal in view of the decision of the Supreme Court in the case of saraswati devi, supra. Therefore, it is clear that she has no right to continue in the office as the adhyaksha of the zilla panchayat. The election of Smt. Raniyamma to the post of adhyaksha is illegal in view of the decision of the Supreme Court in the case of saraswati devi, supra. Therefore, it is clear that she has no right to continue in the office as the adhyaksha of the zilla panchayat. ( 14 ) IN the case of Rajendar Singh v N. K. Shejwalker and another, it is held as follows: ( 15 ) I am in full agreement with the decision referred to above. There fore, the petitioners are entitled to succeed. ( 16 ) FOR the reasons stated above, the writ petitions are allowed. It is held that Smt. Raniyamma is not eligible to hold the office of adhyaksha of the shimoga zilla panchayat accordingly the election of raniyamma held on 7-4-1997 is quashed. ( 17 ) SMT. Raniyamma is restrained from acting as adhyaksha on the basis of her election held on 7-4-1997. The 2nd respondent is directed to hold the election to the post of adhyaksha of shimoga zilla panchayat in accordance with law as expeditiously as possible. --- *** --- .