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2015 DIGILAW 872 (KAR)

Shoba P v. MOHINI

2015-08-06

B.V.NAGARATHNA, SUBHRO KAMAL MUKHERJEE

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JUDGMENT 1. On July 13, 2015, the prescribed officer under the Karnataka Panchayat Raj Act, 1993 [hereinafter, referred to as “the Act”], proposed to hold the meeting for election of Adhyaksha and Upadhyaksha of Gurupura Grama Panchayat. 2. The prescribed officer under the Act fixed on July 13, 2015, for election of Adhyaksha and Upadhyaksha of Gurupura Grama Panchayat. 3. The appellants before us only filed their nominations for the posts of Adhyaksha and Upadhyaksha respectively. There was no other nomination coming from any other members of the Panchayat. 4. On July 13, 2015, only six members of the Grama Panchayat were present in the meeting. The total members of the Grama Panchayat are twenty eight in number. The prescribed officer did not declare the result, but adjourned the meeting for want of quorum. He issued another notice on July 14, 2015 for election for the posts of Adhyaksha and Upadhyaksha, fixing July 23, 2015 for such meeting. There was a litigation before this Court, in which this Court directed holding of election to the posts of Adhyaksha and Upadhyaksha of the Grama Panchayat concerned afresh on July 23, 2015. 5. The appellants were aggrieved and, thus, they have filed these appeals, challenging the said direction of the Hon’ble Single Judge. 6. Sri K.Suman, learned advocate, strenuously argued that there was no occasion for the Hon’ble Single Judge to uphold the decision of the prescribed officer for holding fresh election on July 23, 2015. 7. He draws our attention to sub-rule (5) of Rule 8 of the Karnataka Panchayat Raj Act (Election of Adhyaksha and Upadhyaksha *of Gram Panchayats) Rules, 1995 [hereinafter, referred to as “the Rules”] and submits that when nomination was made by single candidate, it was only proper for the prescribed authority to declare him to be elected. He submits that there is no concept of quorum in the election of panchayat to Adhyaksha and Upadhyaksha in the Rules. He relies upon a decision of the Hon’ble Single Judge of this Court in K.V. Manjula vs. The Prescribed Officer and Assistant executive Engineer, Zilla Panchayat, Engineering Subdivision, Mulabagalu, Kolar District and another [2014 (6) KLJ 602]. 8. He submits that there is no concept of quorum in the election of panchayat to Adhyaksha and Upadhyaksha in the Rules. He relies upon a decision of the Hon’ble Single Judge of this Court in K.V. Manjula vs. The Prescribed Officer and Assistant executive Engineer, Zilla Panchayat, Engineering Subdivision, Mulabagalu, Kolar District and another [2014 (6) KLJ 602]. 8. In K.V.Manjula vs. Prescribed Officer (supra), the Hon’ble Single Judge of this Court held that a conjoint reading of the provisions of Sections 52 and 53 of the Act made it clear that the provisions therein had no application in the matter of election of Adhyaksha and Upadhyaksha, as the case may be, since the government by issuing the said notification dated July 30, 1998, had made separate rules in the matter of conducting election to the post of Adhyaksha and Upadhayksha of a Grama Panchayat. 9. In the aforesaid background, let us consider the legal position. 10. Sections 45 and 53 of the Act read as under: “45. Procedure for election of Adhyaksha and Upadhyaksha on the establishment of Grama Panchayat, etc. 1[(1) The prescribed officer shall after every general election of members of a Grama Panchayat or on its constitution, reconstitution or establishment under this Act and in any case within one month from the date of publication of names of the elected members under subsection (8) of Section 5, [and immediately before the expiry of term of office of Adhyaksha and Upadhyaksha] and so often as there arises any casual vacancy in the office of the Adhyaksha or Upadhyaksha, call for a meeting of the Grama Panchayat and preside over it, without right to vote, and in such meeting the Adhyaksha or the Upadhyaksha or both, as the case may be, shall be elected.] (2) Any dispute relating to the validity of the election of a Adhyaksha or Upadhyaksha of Grama Panchayat under this Act shall be decided by the prescribed judicial officer having jurisdiction over the Panchayat area or the major portion of the Panchayat area, whose decision thereon shall be final.” *** “53. Quorum and procedure.(1) The quorum for a meeting of the Grama Panchayat shall be [onehalf] of the total number of members. Quorum and procedure.(1) The quorum for a meeting of the Grama Panchayat shall be [onehalf] of the total number of members. If at the time appointed for the meeting a quorum is not present, the presiding authority shall wait for thirty minutes, and if within such period there is no quorum, the presiding authority shall adjourn the meeting to such time on the following day or such future day as he may fix. He shall similarly after waiting for thirty minutes adjourn the meeting if at any time after it has begun, attention is drawn to the want of a quorum. A notice of the meeting so fixed shall be pasted in the office of the Grama Panchayat. The business which could not be considered at the meeting so postponed for want of quorum, shall be brought before and disposed of at the meeting so fixed or at any subsequent adjourned meeting at which there is a quorum. Provided that if any meeting called for the purpose of election of Adhyaksha or Upadhyaksha is adjourned to the following day or to a future day for want of quorum, it shall not be necessary to have a quorum for such adjourned meeting. (2) Save as otherwise provided by or under this Act, at every meeting of Grama Panchayat, the Adhyaksha or in his absence the Upadhyaksha shall preside, and in the absence of both, the members present shall choose one from amongst themselves to preside for the occasion. (3) All questions shall, unless otherwise specifically provided, be decided by a majority of votes of the members present and voting. The Adhyaksha or Upadhyaksha or person presiding, as the case may be, unless he refrains from voting shall give his vote before declaring the number of votes for and against a question and in the case of equality of votes he may give his casting vote. (4) No member of a Grama Panchayat shall vote on, or take part in the discussion of, any question coming up for consideration at a meeting of a Grama Panchayat, if the question is one in which, apart from its general application to the public, he has any pecuniary interest, and if the person presiding has such an interest, he shall not preside over the meeting when such question comes up for consideration. [(4A) It shall be the duty of every member of a Grama Panchayat to disclose to the Grama Panchayat any pecuniary interest *that he has, direct or indirect, in any question coming up for consideration at a meeting of a Grama Panchayat.] (5) If the person presiding is believed by any member present at the meeting to have any such pecuniary interest in any matter under discussion, and if a motion to that effect be carried, he shall not preside at the meeting during such discussion or vote on or take part in it. Any member of the Grama Panchayat may be chosen to preside at the meeting during the continuance of such discussion. [(6) Every member of Grama Panchayat or any committee thereof shall be paid a sitting fee, per day of sitting at such rate, as may be prescribed.] “ 11. The Karnataka Panchayat Raj Act, 1993 was enacted for better management of the Panchayats in Karnataka. Section 45 of the said Act provides for procedure of election of Adhyaksha and Upadhyaksha on the establishment of Grama Panchayat. It is true, as suggested by Sri.K.Suman, learned advocate for the appellants, that there is no indication of quorum in the said provision. 12. Subrule (5) of Rule 8 of the rules reads as under: xxxxxxxxxxxxxxxxxxxxx English translation of subrule (5) of Rule 8 of the Rules as submitted by learned counsel for appellants, reads as under: “8. Withdrawal of Candidature(1) Under Sec. 7, immediately after scrutiny of the nominations, any candidate may withdraw his candidature by submitting the notice in writing duly signed to the Determined Officer. *** (5) After the expiry of the time fixed for withdrawal, if the nomination of single candidate is proper and if he didn’t withdraw his candidature within the stipulated period, the determined officer shall declare immediately that such candidate is selected as President or Vice President according to circumstances.” 13. We feel, that the provision of Section 45 and the said Rules have to be read along with Karnataka Panchayat Raj Act (Election of Adhyaksha and Upadhyaksha *of Gram Panchayats) Rules, 1995, in the background of Section 53 of the said Act. 14. Section 53 of the said Act prescribe for quorum and procedure. The relevant provisions are subsection (1) and subsection (2) of Section 53 of the said Act. 14. Section 53 of the said Act prescribe for quorum and procedure. The relevant provisions are subsection (1) and subsection (2) of Section 53 of the said Act. Subsection (1) of Section 53 provides that quorum for a meeting of a Grama Panchayat shall be one half of the total number of members. If in a meeting, the quorum is not present, the presiding authority shall wait for thirty minutes. Even if there is no quorum even in the extended period, presiding officer shall adjourn the meeting to such time on the following day or such future day as he may fix. 15. Proviso to subsection (1) provides that if any meeting called for the purpose of election of Adhyaksha or Upadhyaksha is adjourned to the following day or to a future day for want of quorum, it shall not be necessary to have a quorum for such adjourned meeting. 16. The proviso, as aforesaid, was inserted by Act No.17 of 1996 subsequent to the promulgation of 1995 Rules. 17. The Division Bench of this Court in case of Shekar Bandu Prabhath vs. Prescribed Officer reported in [ILR 1994 Kar. 1985], held that in the matter of election of Adhyaksha and Upadhyaksha of a Grama Panchayat, the requirement of quorum as provided under Section 53 of the said Act would apply as Section 53(2) of the said Act did not carve out an exception, in connection with first meeting of Panchayat. 18. On the contrary, subsection (2) of Section 53, opened with the saving clause meaning that if otherwise provisions are made about, presiding of meeting under any provisions of the Act, they would operate. It was emphatically held that provision for quorum covers any meeting of the Grama Panchayat and did not exclude the first meeting convened for Adhyaksha and Upadhyaksha. 19. Mr.Suman, prays to distinguish Shekar Bandu Prabhath (supra), on the ground that judgment was rendered at a point of time when 1995 Rules was not available. He submits that Rules were framed in 1995. The rule makers intentionally did not include any provision for quorum and, therefore, quorum is not an issue in the matter of election of Adhyaksha and Upadhyaksha. 20. We regret that, we cannot accept the contention of Mr.Suman. In democracy, majority must prevail. He submits that Rules were framed in 1995. The rule makers intentionally did not include any provision for quorum and, therefore, quorum is not an issue in the matter of election of Adhyaksha and Upadhyaksha. 20. We regret that, we cannot accept the contention of Mr.Suman. In democracy, majority must prevail. Therefore, without any support of majority members of the Panchayat, it is not desirable or expected that the Adhyaksha or Upadhyaksha will continue in their respective posts. 21. In any event, in the absence of any provision for quorum in the rules, we have to rely upon Section 53(1) of the said Act. In our reading of the proviso to Section 53(1) of the Act makes it clear that there must be a quorum on the first day fixed for holding of a meeting for election of Adhyaksha or Upadhyaksha. Had there been no requirement of having a quorum, it was not necessary to provide for that it would not be necessary to have a quorum for the adjourned meeting. The High Court at Calcutta in District Inspector Of Schools, Murshidabad And Others vs. Samsul Huda And Others [1987(2) Calcutta Law Journal 144], was dealing with the Rules for the recruitment of teachers for recognized nongovernment institutions. It was held that in the absence of any quorum for the selection committee being mentioned in the Rules, such selection committee might consist of any of the members of the selection committee if the other members were duly informed and they did not choose to represent on the date of interview. It was, further, held that the very purpose of the Rule would be frustrated, if such selection be not made by at least 50% per centum of the members of the selection committee. Although such Rules might not be mandatory in nature, the very purpose of the recommendation would be frustrated if such selection be not made by at least 50% per centum of the members of the selection committee thereby putting the collective wisdom of the members of the selection committee. 22. In K.V.Manjula vs. Prescribed Officer (supra), similar question arose; whether the prescribed officer was justified in adjourning the meeting on the ground of want of quorum in fixing a subsequent date for election and, also, issuing fresh notice. 22. In K.V.Manjula vs. Prescribed Officer (supra), similar question arose; whether the prescribed officer was justified in adjourning the meeting on the ground of want of quorum in fixing a subsequent date for election and, also, issuing fresh notice. After considering Rule 8, particularly, subrule (6), it was held that only when there is more than one nomination, the prescribed officer is required to conduct the poll and if there is only a single nomination, the nominee must be declared as the elected candidate, as the question of holding a poll would not arise. It was, also, held that Sections 52 and 53 of the Act do not have any application in the matter of election of Adhyaksha and Upadhyaksha, as the State has issued separate rules in the matter of conducting election to the said posts. But, we find that the judgment of the Division Bench in Shekar Bandu Prabhath (supra) and the subsequent amendment made to Section 53(1), by insertion of the proviso in the year 1996 subsequent to the promulgation of the rules in the year 1995, were not brought to the notice of the Hon’ble Single Judge. Had the aforesaid aspects being brought to the notice of the Hon’ble Single Judge, particularly, proviso to *Section 53(1), it would have become clear that quorum is an essential requirement even for conducting meeting to hold election to the post of Adhyaksha and Upadhyaksha. If on the notified meeting date the requisite quorum is absent, then the meeting has to be adjourned to the following date or a future date, for want of quorum. If on the second date, also, there is absence of quorum, then it is not necessary to insist on a quorum for such adjourned meeting. Therefore, law declared in K.V.Manjula (supra), with respect, is not correct and we hold that it is no longer good law. 23. In fact, Rule 8 deals with withdrawal of candidature, whereas proviso to Section 53(1) deals with requisite quorum for holding of a meeting to elect Adhyaksha and Upadhyaksha. The rule is silent about the requisite quorum, but section expressly provides for requirement of quorum and it is only after the requisite quorum being present in a meeting, that the submission of nominations and other steps for holding the election to the post of Adhyaksha and Upadhyaksha could take place. The rule is silent about the requisite quorum, but section expressly provides for requirement of quorum and it is only after the requisite quorum being present in a meeting, that the submission of nominations and other steps for holding the election to the post of Adhyaksha and Upadhyaksha could take place. Therefore, placing reliance on Rule 8, which deals with withdrawal of candidature without first taking into consideration as to whether the meeting itself could have commenced and proceeded, is not correct. Hon’ble Single Judge has not been appraised of the fact that the Act was amended, so as to insert proviso to Section 53(1), in order to expressly provide that the requisite quorum to hold a meeting for the purpose of election to Adhyaksha and Upadhyaksha; it is an essential requirement of law, as it is for holding of other meetings of the Grama Panchayat. 24. Thus, we are of the opinion that prescribed officer was justified in fixing future date for election and was right in not proposing to declare the result of the candidates, who filed nomination on July 13, 2015, that is, the appellants herein, as there was no quorum in the said meeting. 25. It is pertinent to mention that we permitted the prescribed officer to hold the meeting of the Adhyaksha and Upadhyaksha of Grama Panchayat concerned. The election has been held. It appears that the appellants could not succeed or even securing a single vote out of 23 members present in the meeting. 26. Therefore, we do not find any substance in the appeal. We grant liberty to the prescribed officer to declare the result of the Adhyaksha and Upadhyaksha, immediately. 27. The writ appeals are dismissed with the aforesaid directions. 28. In view of the dismissal of the appeals, I.A.II/2015 would not survive for consideration and accordingly, stands disposed of. 29. We make no order as to costs.