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2006 DIGILAW 771 (KAR)

R. KRISHNAMURTHY v. STATE OF KARNATAKA

2006-09-22

B.S.PATIL

body2006
ORDER The prayer made by the petitioner is to quash the notice dated 15-92006 issued by the Tahsildar/the prescribed Election Officer for elections to the post of Adhyaksha. By the impugned notice, the Election Officer has issued calendar of events for conducting elections to the post of Adhyaksha of the Town Municipal Council, Kadur. A declaration is also sought by the petitioner that the provisions contained in Section 42 of the Karnataka Municipalities Act, 1964 enabling the Election Officer to fill up the post of President and Vice-President as and when it becomes vacant as unreasonable and opposed to the object and intendment of the Act. 2. Petitioners are the Councillors elected to the Kadur Municipality. Their grievance is that for the post of President, elections are held frequently and different Presidents are elected during the last thirty months at the whims and fancies of the Councillors which is not in the interest of the efficient administration of the affairs of the Municipality. The first President was elected on 1-7-2004. He submitted his resignation, whereupon, elections were held to elect another President on 16-4-2005. Likewise, the succeeding Presidents have after continuing in the post for few months, gone on resigning resulting in new elections being held on 20-8-2005, 25-8-2005 and 6-6-2006. The present election is scheduled on 25-9-2006, as a result of the resignation of the incumbent President on 30-8-2006. 3. Learned Counsel Sri T. Narayanaswamy taking me through the grounds urged in the writ petition submits that the provisions of Section 42 are capable of being misused as is done in the present case by resorting to frequent elections to the post of the President by way of an unhealthy understanding reached between the Councillors to share the post of President for a limited period. This has in fact resulted in serious setback for the developmental activities of the Town Municipality is his submission. He therefore contends that the provision requires to be read down as otherwise it will incur the wrath of being unconstitutional as it clothes the Councillors with unguided powers to install to the post of President different persons, one after another without any fixed tenure. 4. Section 42 provides for election of President and Vice-President for every Municipal Council. He therefore contends that the provision requires to be read down as otherwise it will incur the wrath of being unconstitutional as it clothes the Councillors with unguided powers to install to the post of President different persons, one after another without any fixed tenure. 4. Section 42 provides for election of President and Vice-President for every Municipal Council. Section 42(2) which is relevant for our purpose reads as under: "Section 42(2): Subject to the provisions of sub-section (2-A), the Councillors shall at the first meeting of the Municipal Council after the general election and at a subsequent meeting held immediately before the expiry of the term of office of the President and Vice-President choose two members from amongst the elected Councillors to be respectively President and Vice-President and so often as there is a casual vacancy in the office of the President, or Vice-President shall choose another member from amongst the elected Councillors to be the President or Vice-President as the case may be". 5. A perusal of the provision as extracted above would disclose that the Councillors are entitled to elect at the first meeting of the Municipal Council after the general elections and at subsequent meetings held immediately before the expiry of the term of office of the President and Vice-President, one member each from amongst the elected Councillors for the post of President and Vice-President. The provision also stipulates that so often as there is a casual vacancy for the post of President or Vice-President, the Councillors shall choose another member from amongst the elected Councillors to be the President or the Vice-President as the case may be. The legislative intent as expressed in sub-section (2) clearly suggests that as and when a casual vacancy arises for the post of President or Vice-President, the Councillors are enjoined with a duty to elect a member for the post of President or Vice-President. In the absence of any ambiguity in understanding the legislative intent, it is not open for this Court to read down this provision or attribute unreasonableness to the provision by taking into account the practice followed in a given Municipal Council where the Councillors have resorted to electing persons to the post of President too often by way of some understanding between them resulting in one person vacating the post paving way for the other at regular intervals. This action of the Councillors cannot be taken as a ground for attacking the virus of the provision. It is a well-established principle of statutory interpretation that as long as the provision enacted by the Legislature is clear and unambiguous, the same has to be given its full meaning regardless of whether the consequences sometimes are not totally desirable. 6. Useful reference can also be made to sub-section (12) of Section 42 which provides that in the event of contingencies as contemplated therein, such as non-acceptance of office, death, resignation or removal from office of a President or Vice-President or of his election being void, or of his becoming incapable of acting in such office or having ceased to be a Councillor, before the expiry of his term of office as President or Vice-President, the vacancies shall be filled up by election in accordance with the provisions of Section 42. Therefore, if the post of President becomes vacant upon resignation of the incumbent, elections shall be held to be fill up the same. 7. Drawing parallel to the provisions contained in Section 19 of the Act wherein it is provided that elections to fill up the casual vacancy of a Councillor occurring within six months before the expiry of office of the Councillors shall not be held, learned Counsel contends that same thing shall be made applicable for the post of Adhyaksha and Upadhyaksha also. 8. The election of Councillors by the voters in the area cannot be equated to the election to the post of Adhyaksha which is an exercise to be done by the elected Councillors. The Legislature in its wisdom has thought it fit while enacting Section 19 that the public shall not be burdened with elections even if there is a casual vacancy which occurs within a period of six months prior to the expiry of the term of office of the Councillors. The intention of the Legislature in this regard is clear and the contention urged by the learned Counsel for the petitioner to read the same into the provision providing for election to the post of Adhyaksha imposing the same limitation, cannot be accepted. 9. The intention of the Legislature in this regard is clear and the contention urged by the learned Counsel for the petitioner to read the same into the provision providing for election to the post of Adhyaksha imposing the same limitation, cannot be accepted. 9. In the instant case, only because the Municipal Council has resorted to the election to the post of President on five occasions in the second term, the provision cannot be attacked to say that it confers unguided, uncanalised and arbitrary powers with the Councillors. Therefore, the challenge made to the virus of the provision has to fail. 10. As regards the contentions urged by the Counsel stating that the frequent elections to the post of Adhyaksha would affect the developmental acts of the Municipality, it has to be stated that it is not for this Court to go into the said aspect as long as the law permits filling up of the vacancy on the occurrence of a casual vacancy either by resignation or due to any other reason. The democratic process is required to be adhered to and elections have to be held. That is what has been done in the instant case. Therefore, no exception can be found to the elections announced. In addition, the calendar of events have been already published and this Court normally will not interfere in the process of election once calendar of events are published. 11. For the foregoing reasons, there is no merit in this writ petition. The same is therefore dismissed with no order as to costs.