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2001 DIGILAW 607 (KAR)

SOUBHAGYA v. RETURNING OFFICER,NANJANGUD

2001-08-02

V.GOPALA GOWDA

body2001
V. GOPALA GOWDA, J. ( 1 ) PETITIONER in this case has sought for issuance of a writ of certiorari quashing the Notification No. ELN. GP. 46/99-2000 dated 10-3-2000 along with annexure-B and also rejection of the nomination of the petitioner to the post of Adhyaksha under Annexure-E dated 25-3-2000; for issuance of a writ of mandamus directing respondents 1 and 2 to reserve the post of Adhyaksha of 3rd respondent Gram Panchayath in favour of SC Women by rotation by following the Order of the Election Commissioner dated 16-2-2000 as per annexure-H and as provided under Article 243 (D) (4) of the Constitution of India and to hold election for the said post by providing the said reservation and further to direct the respondents to accept the nomination of the petitioner for the post of Adhyaksha which is reserved in favour of persons belonging to ST as the petitioner being elected from the reserved constituency for ST-Women of Mullur-II Constituency of the 3rd respondent and to fill up the said post of Adhyaksha from the other reserved categories urging various facts and legal contentions. ( 2 ) THE claim of the petitioner has been seriously contested by the State Government by filing a detailed statement of counter contending that under S. 5 of the Karanataka Panchayath Raj Act,1993 (for short "act,1993") if no person belonging to Scheduled Caste is available the seats reserved for the said category shall also be filled up by the persons belonging to the Scheduled Tribes, but under S. 44 of the Act, 1993 which relates to the election of the Adhyaksha and Upadhyaksha, there is no such provision and as such it is stated that the petitioner has no statutory right under S. 44 of the Act and the relief sought for by the petitioner cannot be granted. The case sought to be made out by the petitioner placing reliance upon S. 5 of the Act is that the membership can be given to the other reserved category if the members are not available from the reserved category to get elected as members of the Gram Panchayath. Such analogy cannot be made applicable to fill up the Office of Adhyaksha and Upadhyaksha of the Gram Panchayath as the same would amounts to amending the provisions of S. 44 which role cannot be taken up by this Court. Such analogy cannot be made applicable to fill up the Office of Adhyaksha and Upadhyaksha of the Gram Panchayath as the same would amounts to amending the provisions of S. 44 which role cannot be taken up by this Court. Therefore, the submission made by the learned counsel on behalf of the petitioner in this regard is not tenable. ( 3 ) FURTHER, the Offices of the Adhyksha and Upadhyaksha have been reserved in the Nanjangud Taluk as hereunder :- "total Gram Panchayath seats-45; SC8 (3); ST2 (1), BCM15 (5), BCM-A 12 (4), BCM-B 3 (1) General 20 (7)" among the above said reserved categories, the ratio of 1/3 is reserved for the women of the respective reserved categories. Therefore, the learned Government Pleader sought to justify the impugned order passed by the first respondent at Annexure-A and submitted that the impugned notification of reservation made to the Office of the Adhyaksha and Upadhyaksha in the Taluk need not be quashed. ( 4 ) ON appreciation of the rival contentions of the party, it is necessary for this Court to extract S. 5 and S. 44 respectively which reads as hereunder :-"5. Constitution of Gram Panchayath 1 (1) The Gram panchayath shall consist of such number of elected members as may be notified from time to time by the [state Election Commission], at the rate of one member for every four hundred population or part thereof of the Panchayath area :provided that the determination of the number as aforesaid shall not affect the then composition of the Gram Panchayath until the expiry of the term of office of the elected members then in office. (2) Seats shall be reserved in a Gram Panchayath :- (a) for the Scheduled Castes; and (b) for the Scheduled Tribes;and the number of seats so reserved shall bear as nearly as may be, the same proportion to the total number of seats in the Gram Panchayath as the population of the Scheduled Caste in the Panchayath area or of the Scheduled Tribes in the Panchayath area bears to the total population of the panchayat area. Provided further that if no person falling under category "a" is available, the seats reserved for that category shall also be filled by the persons falling under category "b" and vice versa. "44 (2 ). Provided further that if no person falling under category "a" is available, the seats reserved for that category shall also be filled by the persons falling under category "b" and vice versa. "44 (2 ). Subject to the general or special order of the (State election Commission), the Deputy Commissioner shall reserve :- (b) Such number of offices of Adhyakshas and Upadhyakshas of the Gram Panchayaths, which shall as nearly as may be, one-third of the total number of offices of Adhyaksha and Upadhyaksha in the State for the persons belonging to the Backward Classes :by a close reading of the aforesaid provisions of S. 5 of the Act, sub-sec. (2) provides that subject to the General Order or Special Order of the State Government or the State Election Commissioner, the Deputy Commissioner shall reserve the seats to the Scheduled Castes and Scheduled Tribes and the first, provisio mentioned therein clearly states that atleast one seat each shall be reserved in the Gram Panchayath for the persons belonging to SC and ST which is mandatory. The second proviso to sub-sec. (2) of S. 5 of the Act provides that if no person belonging to Scheduled Castes is available, the seats reserved for that category shall also be filled up by the persons belonging to the Scheduled Tribes and vice-versa. This provision of the Act is sought to be interpreted with the Office of Adhyaksha and Upadhyaksha which are required to be filled up, wherein the SC and ST category members are not available, such reserved chairpersons offices can be filled up from the other reserved category from the persons belonging either SC, ST and vice-versa. This contention of the learned counsel for the parties is examined with reference to the provisions of S. 44. Section 44 (2) deals with reservation to be made by the Deputy Commissioner in the District by allotment of Chair Persons to the reserved category namely SC and ST and the Backward Class Category. The first proviso to Clause (b) of S. 44 (2) provides that each of the Offices of the Chair Persons be reserved to the Category A and Category B and Backward Classes Community. The second proviso provides that if no person falling under Category-A is available, the Offices reserved for that category shall also be filled up by the persons falling under Category-B and Vice-versa. The second proviso provides that if no person falling under Category-A is available, the Offices reserved for that category shall also be filled up by the persons falling under Category-B and Vice-versa. This provision of the act clearly deals with regard to the Backward Class Community. In so far as SC and ST reserved posts of Chair Persons under sub-sec. (2) of S. 44 of the Act, the second proviso as provided to A and B category of Backward classes community is not made available. Therefore, the provisions of S. 44 of the Act shall be interpreted to achieve the object of the Act as there is no ambiguity in the above said provision of the Act. This Court in exercise of its power under Article 226 of the Constitution of India cannot take up the role of legislature and interprete the provisions by incorporating the provisions which are not incorporated in the Act by borrowing the principles of second proviso of sub-sec. (2) of S. 5 of the Act. Therefore, the contention that the second proviso of sub-sec. (2) of S. 5 of the Act shall be read with S. 44 (2) second proviso to Clause- (b) is totally impermissible in law. The question of such interpretation is not required by this Court as the legislature has expressly made it clear as to whom the chair persons are required to be reserved if that category of reserved members to fill up the Offices of the aforesaid chair persons are not available. Therefore, the contention urged by the learned counsel for the petitioner that in the absence of the candidate belonging to ST, SC Women can be permitted to contest to the Office of the Adhyaksha which is reserved to the ST category by the Deputy Commissioner in the impugned notification at Annexure-A cannot be accepted as the impugned notification is in accordance with law. ( 5 ) IN view of the foregoing reasons this Court cannot quash the impugned notification regarding the reservation of President to the ST Women category as the same is in conformity with the provisions of the Act. ( 5 ) IN view of the foregoing reasons this Court cannot quash the impugned notification regarding the reservation of President to the ST Women category as the same is in conformity with the provisions of the Act. The rejection of the nomination of the petitioner by the prescribed officer holding that the petitioner undisputedly belongs to Scheduled Caste whereas the post of Adhyaksha is reserved to the candidate belonging to Scheduled Tribe, therefore the same does not call for interference with by this Court in exercise of its extraordinary power under Article 226 of the Constitution of India. ( 6 ) IN so far as the other prayer to direct the first respondent to make reservation to Scheduled Caste (Woman) to fill up the post of Adhyaksha also cannot be granted. The reservation of the Chair Persons of the Gram Panchayaths in a District is based on the consideration of the relevant materials such as the population of the respective reserved categories under the provisions of the Act to achieve the constitutional object under Article 243 of the Constitution of India. Further the reservations of Chair Persons to the Gram Panchayaths is an administrative function of the 2nd respondent and as such either the petitioner has got the right to seek for a direction or this Court can direct the 2nd respondent to allot the office of Adhyaksha or Upadhyaksha for a particular reserved category by rotation as it would be contrary to the statutory provisions of the constitutional scheme as provided under Article 243 of the Constitution of India. ( 7 ) THE Office of Adhyaksha of the Gram Panchayath cannot be kept vacant on the ground that no candidate belonging to Scheduled Tribe is available in the third respondent gram panchayath. Having regard to the undisputed facts that the office of the Adhyaksha is lying vacant for more than a year in view of the fact that no Scheduled Tribe (women) member is available to the office of Adhyaksha and though the vice-president is functioning as the Adhyaksha of the third respondent Grama Panchayath, which is contrary to the object of the local self Government as provided under the provisions of the Act. Therefore, 2nd respondent is hereby directed to take necessary steps to re-allot the post of Adhyaksha of the said Gram-panchayath after following the guidelines framed in this regard and see that the election is held to that office within eight weeks from the date of receipt of this order. ( 8 ) WITH the abovesaid observations and directions, this writ petition is dismissed. --- *** --- .