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2010 DIGILAW 146 (KAR)

Laxmi Reddy v. State of Karnataka

2010-02-04

MOHAN M.SHANTANAGOUDAR

body2010
Judgment :- Mohan Shantanagoundar, J. Petitioner has sought for quashing the Notification dated 13-1-2010 issued by first respondent vide Annexure-E in so far as it relates to reservation to the post of Adyaksha of Zilla Panchayath, Yadgir to Scheduled Tribe category. 2. Petitioner contested and was elected as a member of Gulbarga Zilla Panchayath from Konkal constituency in the election held during the year 2005. So also the 3rd respondent contested and was elected as a member of Gulbarga Zilla Panchayath from Kanapur S.H. constitutency. The Government of Karnataka issued a Notification under the provisions of the Land Revenue Act splitting the Gulbarga District to form a new District i.e., Yadgir District. Consequently Gulbarga District is now bifurcated into two Districts, Viz., Gulbarga District and Yadgir District w.e.f 30-12-2009. The petitioner and the respondent No.3 though were elected as members of Zilla Panchayath, Gulbarga, are now the members of Zilla Panchayath, Yadgir in view of the fact that the respective constituencies from which they are elected fall within newly formed Yadgir District. Thus petitioner and respondent No.3 continue to be Zilla Panchayath Members in Yadgir District as per Section 302-A of the Karnataka Panchayath Raj Act. 3. First respondent issued Notification as per Annexure-D dated 29-12-2009 under Section 177(2) of the Panchayath Raj Act relating to reservation to the offices of Adyaksha and Upadyaksha. The Notification at Annexure ‘D’ dated 29-12-2009 reveals that both the posts i.e., Adyaksha and Upadyaksha were meant for general category. Subsequently another Notification is issued as per Annexure-E dated 13-01-2010 under the provisions of Section 177(2) of the Panchayath Raj Act modifying the earlier Notification dated 29-12-2009. The Notification Annexure-E dated 13-1-2010 declares that the post of Adyaksha is reserved for Scheduled Tribe and whereas post of Upadyaksha is reserved for General (Woman). 4. The Notification Annexure-E is questioned in this writ petition on the ground that modification of the earlier Notification Annexure D dated 29-12-2009 was totally unnecessary an that there is no candidate elected from the constituency reserved for Scheduled Tribe in Yadgir Zilla Panchayath. The judgment of the Apex Court in the case of SARASWATI DEVI vs. SMT. R. SHANTI DEVI AND OTHERS ( AIR 1997 SC 347 ) is relied upon by the petitioner. 5. The judgment of the Apex Court in the case of SARASWATI DEVI vs. SMT. R. SHANTI DEVI AND OTHERS ( AIR 1997 SC 347 ) is relied upon by the petitioner. 5. It is also contended by Learned Advocate for the petitioner that the calendar of events to conduct the election to the post of Adyaksha and Upadyaksha was issued prior to 13-1-2010 and that therefore the impugned Notification dated 13-1-2010 by which the resection is modified, is bad in the eye of law. 6. Per contra it is contended on behalf of the third respondent that though there is no Zilla Panchayath member who is elected from the reserved constituency for the Scheduled Tribe, the third respondent being the elected Zilla Panchyath member from Scheduled Tribe is entitled to contest the election to the post of Adyaksha as the post is reserved for the person belonging to Scheduled Tribe. Sri.Ashok Patil, Learned Advocate relies upon the judgment of the Apex Court in the case of AMLAN JYOTI BOROOAH vs STATE OF ASSAM AND OTHERS (2009 AIR SCW 2017); KASAMBHAI F GHANCHI vs CHANDUBHAI D RAJPUT AND OTHERS ( AIR 1998 SC 815 ) in support of his contention to contend that the Zilla Panchayath member belonging to Scheduled Caste, but elected to Zilla Panchayath from unreserved seat can contest for election to the post of President, if the post is reserved for Scheduled Tribe. 7. Sri. S.S. Kumman, the Learned Government Advocate argued opposing the writ petition. On verification of the records and on instructions, he submits that election Notification for conducting the election to the post of Adyaksha and Upadyaksha has not been issued or notified till this day. He has filed a memo dated 4-2-2010 to the said effect. He submits that only the Notifications relating to reservation are issued. 8. The petitioner as well as respondent No.3 are aspirants to contest the election for the post of Adyaksha to the Zilla Panchayath of Yadgir District for the remaining tenure. The petitioner comes under general category. Thus he cannot contest the election to the post of Adyaksha in case if the said post continues to be reserved for Scheduled Tribe candidate. 9. It is not in dispute that the petitioner contested for the election to the Zilla Panchayath under general category so also the third respondent. The petitioner comes under general category. Thus he cannot contest the election to the post of Adyaksha in case if the said post continues to be reserved for Scheduled Tribe candidate. 9. It is not in dispute that the petitioner contested for the election to the Zilla Panchayath under general category so also the third respondent. It is relevant to note that the third respondent though belongs to Scheduled Tribe, contested and elected to Zilla Panchayath from unreserved seat. Thus the main question which arises in this matter is as to whether the Zilla Pancyhayath member belonging to Scheduled Tribe, but elected to the Zilla Panchayath from unreserved constituency, can contest for election to the post of Adyaksha reserved for Scheduled Tribe persons. 10. In SARASWATHI DEVI’S case (cited Supra) relied upon by Learned Counsel for the petitioner, it was no doubt held that the persons who are elected from the reserved constituency only can contest the election to the post of President or Adyaksha, in case if the said post is reserved for that particular reserved category. But, the judgment in Saraswathi Devi’s case is over ruled by the Apex Court (Three Judges Bench) in the case of KASAMBHAI F GHANCHI. (cited Supra) The Apex Court in Kasambhai’s matter, has specifically ruled that in case if the seat is reserved for backward class candidate, the candidate belonging to backward class, but elected to the Panchayath from the unreserved seat can contest to the post of President or Adyaksha. The candidate for that post need not be the person elected from the constituency reserved for backward class only. 11. The bare reading of Article 343 D of the Constitution of India would reveal that there is no indication or suggestion in the Article that in case the office of the Adyaksha is required to be filled by a member who is a Scheduled Caste/Scheduled Tribe/backward class or woman, then, only a member who has been elected from the reserved seat can contest for the election. Even under the provisions of the Karnataka Panchayath Raj Act and the Rules made thereunder there is no indication as above. Even under the provisions of the Karnataka Panchayath Raj Act and the Rules made thereunder there is no indication as above. In otherwords for the purpose of election to the post of Adyaksha the reservation which is contemplated by the Panchayath Raj Act is to the effect that the person elected should belong to the category of Scheduled Caste/Scheduled Tribe/ backward class or woman as per the roaster. An elected member may fall within two or more categories. The Panchayath Raj Act and the Rules framed therein do not contain any provision that only members elected to the reserved seats will be eligible or contesting the election to the post of Adyaksha when, as per the roaster, the office is required to be filled by a person belonging to a particular category. The idea of providing reservation for the benefit of weaker section of the society is not only to ensure their participation in the conduct of the affairs of the Zilla Panchayath, but it is also an effort to improve their lot. When the idea is to promote the weaker sections of the Society and to improve their lot, it would be a contradiction in terms if members belonging to that section are debarred from contesting the office of Adyaksha because such a candidate is popular enough to get elected from a general constituency. It is a fundamental principle of democratic system that a person who is more popular is elected, popularity being measured by the number of votes, which the person gets. The language of legal provisions do not in any way suggest, expressly or by necessary implication, that even though a person who belongs to a reserved category and is popular enough to get elected from a general constituency should be barred from contesting the election of the President when that office is to be filled only by a reserved category person. 12. 12. It is also relevant to note the observations of the Apex Court in the case of BIHARI LAL RADA vs. ANIL JAIN(TINU) AND OTHERS (2009 AIR SCW 2006), wherein it is observed thus: “In our view, wherever the office of the President of a Municipality is required to be filled in by a member belonging to Scheduled Caste, Scheduled Tribe or Backward Class as the case may be it would be enough if one belongs to one of those categories irrespective of the fact whether they have been elected from a general ward or a reserved ward.” 13. In view of the above, this Court concludes that wherever the office of the Adyaksha of Zilla Pachayuath is required to be filed by a member belonging to scheduled Caste/Scheduled Tribe/ backward class or woman as the case may be, it would be enough if one belongs to one of those categories irrespective of the fact whether she/he has been elected from general constituency or reserved constituency. Hence it cannot be said that the third respondent cannot contest the election to the post of Adyaksha and consequently it cannot be said that there is no elected member in Yadgir Zilla Panchayath from Scheduled Tribe category to contest the post of Adyaksha reserved for Scheduled Tribe persons. 14. As could seen from the memo filed by the Government Advocate it is clear that the calendar of events to conduct the election to the post of Adyaksha and Upadyaksha is not notified or published prior to 13-1-2010 i.e., the date on which the impugned Notification was issued. There is nothing on record to suggest that the said submission made on behalf of the State is incorrect and consequently the submission made by the Learned Government Advocate on behalf of the State is accepted. If it is so, it is clear that the process of election to the post of Adyaksha had not commenced prior to the impugned Notification relating to reservation as contended by the petitioner. Since the process of election had not commenced, there was no bar for the State to modify the Notification relating to reservation earlier made. 15. The petitioner has not alleged malafides in the writ petition. It is not his case that the subsequent Notification Annexure-E is issued with a malafide intention to deprive him from contesting the election. Since the process of election had not commenced, there was no bar for the State to modify the Notification relating to reservation earlier made. 15. The petitioner has not alleged malafides in the writ petition. It is not his case that the subsequent Notification Annexure-E is issued with a malafide intention to deprive him from contesting the election. Per contra, it is contended on behalf of the State that the impugned Notification is issued in compliance with the Karnataka Panchayath Raj (Reservation of Offices of Adyaksha and Upadyaksha of Zilla Panchayath) Rules, 2005. According to State Government Advocate, the roaster was not followed while issuing earlier notification Annexure-D dated 29-12-2009 and consequently the same is modified and a fresh Notification as per Annexure-E is issued on 13-1-2010 in accordance with the roaster. Since this Court does not find any malafide intention in issuing the impugned Notification and as the same is said to have been issued in accordance with the rules, there is no ground to quash the Notification. Accordingly, the following Order is made: ORDER Writ Petition fails and the same is dismissed.