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2013 DIGILAW 1315 (KAR)

K. Ashokan v. State of Karnataka

2013-11-18

H.G.RAMESH

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Order H.G. Ramesh, J. (Oral): 1. Validity of sub-rule (2) of Rule 4 of the Karnataka Panchayat Raj (Declaration of Assets by Elected Members of Taluk Panchayats and Zilla Panchayats) Rules, 2010 arises for determination in these writ petitions. In my opinion, the above sub-rule is ultra vires of sub-Section (4) of Section 175-A of the Karnataka Panchayat Raj Act, 1993. 2. In these writ petitions, the petitioners, who are members of Zilla Panchayats of various Districts, are challenging the validity of sub-rule (2) of rule 4 of the Karnataka Panchayat Raj (Declaration of Assets by Elected Members of Taluk Panchayats and Zilla Panchayats) Rules, 2010 (‘the Rules’ for short) on the ground that it is contrary to sub-Section (4) of Section 175-A of the Karnataka Panchayat Raj Act, 1993 (‘the Act’ for short) and hence is ultra vires the Act. The petitioners have also challenged the communication dated 30.10.2013 of the Regional Commissioner, Bangalore Division, Bangalore, wherein he has referred the matter to the State Election Commission for adjudication as per sub-rule (2) of Rule 4 of the Rules by stating that the petitioners have ceased to be members of the respective Zilla Panchayats either for not declaring their Assets or for not filing their declaration of Assets within the prescribed period. 3. I have heard the learned Advocate General and the learned counsel appearing for the parties and perused the impugned communication dated 30.10.2013. 4. Sri D.N.Nanjunda Reddy, learned Senior Counsel appearing for some of the petitioners submitted that sub-rule (2) of Rule 4 of the Rules whereunder the Regional Commissioner has exercised the power to refer the matter for adjudication to the State Election Commission is ultra vires of sub-section (4) of Section 175-A of the Act and hence, the reference made under the impugned communication dated 30.10.2013 is unsustainable in law. 4.1 Sri Raviverma Kumar, learned Advocate General appearing for the State fairly and rightly conceded that sub-rule (2) of Rule 4 of the Rules is ultra vires of sub-section (4) of Section 175-A of the Act. 5. 4.1 Sri Raviverma Kumar, learned Advocate General appearing for the State fairly and rightly conceded that sub-rule (2) of Rule 4 of the Rules is ultra vires of sub-section (4) of Section 175-A of the Act. 5. It is relevant to refer to Section 175-A of the Act, which reads as follows: 175-A. Members to declare assets.- (1) Every member shall within three months from the date of commencement of his term of office and until the expiry of his term in every calendar year file a declaration of assets owned by him and any member of his family, in such manner and in such form as may be prescribed, before the State Election Commission or Competent Authority as may be notified by the Government. (2) Where a member, after filing a declaration under sub-section (1), acquires or disposes any asset, he shall file further declaration to this effect before the State Election Commission or the Competent Authority, within three months from the date of such acquisition or disposal, as the case may be. (3) Any member, who fails to file declaration under sub-section (1) or sub-section (2) or files the same knowing it to be false or incorrect shall cease to be a member. (4) Any question whether a member has ceased to be a member under sub-section (3), shall, on a reference made by the Zilla Panchayat, to the State Election Commissioner be decided by it and the decision of the State election Commission thereon shall be final. Explanation.- For the purposes of this section ‘family’ means the spouse and dependent children of the member.” (Underlining supplied) 6. It is also relevant to refer to the Rules, which read as follows: “KARNATAKA” (Underlining supplied) The above rules came into force from the date of their publication in the State Gazette i.e. February 7, 2012. 7. In my opinion, as could be seen from Section 175-A of the Act extracted above, sub-section (4) confers power only on the Zilla Panchayat to refer the matter relating to contravention of Section 175-A of the Act by members of the Zilla Panchayat for adjudication to the State Election Commission and not on the Competent Authority (under the Rules, the Competent Authority is the Jurisdictional Regional Commissioner). In other words, the power to refer is conferred only on the Zilla Panchayat and not on the Competent Authority. In other words, the power to refer is conferred only on the Zilla Panchayat and not on the Competent Authority. In view of this, sub-rule (2) of Rule 4 of the Rules conferring power on the Regional Commissioner to refer the matter to the State Election Commission for adjudication is clearly violative of sub-Section (4) of Section 175-A of the Act and hence is ultra vires the Act. Accordingly, sub-rule (2) of Rule 4 of the Rules is declared as ultra vires the Act. Consequently, the impugned communication dated 30.10.2013 bearing No.”KARNATAKA”/4/2013-14 of the Regional Commissioner, Bangalore Division, Bangalore, is unsustainable in law and is accordingly set aside. 8. However, the Regional Commissioner shall communicate to the concerned Zilla Panchayat, the contravention of Section 175-A of the Act by its members. On such communication, the Zilla Panchayat shall refer the matter to the State Election Commission as per sub-Section (4) of Section 175-A of the Act. The State Election Commission shall thereafter adjudicate the matter in accordance with law. Petitions allowed.