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2020 DIGILAW 1528 (KAR)

Shantkumar v. State Of Karnataka

2020-07-30

NATARAJ RANGASWAMY

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JUDGMENT Nataraj Rangaswamy, J. - The case as set out in the writ petition is that the term of the office of Adhyaksha and Upadhyaksha of the Gram Panchayats in the State of Karnataka which was five years by virtue of Section 46 of the Karnataka Grama Swaraj and Panchayath Raj Act, 1993 was reduced to thirty months in terms of the Karnataka Gram Swaraj and Panchayat Raj (Amendment) Ordinance, 2020 (for short 'Amendment Ordinance of 2020') with effect from 31.03.2020. 2. The learned counsel for the petitioners contended that the respondent No.6 and 7 were elected as the Adhyaksha and Upadhyaksha at the first meeting of the Respondent No.5 on 23.10.2017. Thus he claimed that in view of the Amendment Ordinance of 2020, the term of the respondent Nos.6 and 7 as Adhyaksha and Upadhyaksha of respondent No.5 expired during April 2020 and that thus they were not entitled to continue as the Adhyaksha and Upadhyaksha of the respondent No.5. The petitioners claim that though the term of the Adhyaksha and Upadhyaksha came to an end, yet, respondent Nos.3 and 4 had not taken any steps to hold elections to the post of Adhyaksha and Upadhyaksha of respondent No.5. The petitioners submitted a representation before the respondent No.4 in this regard and the respondent No.4 had issued an endorsement dated 16.06.2020 (Annexure- D) rejecting the representation of the petitioners on the ground that under Section 46 of the Act of 1993 the term of office of Adhyaksha and Upadhyaksha was five years. The respondent No.4 thereafter suo-motu reviewed his earlier order dated 16.06.2020 and issued a notice dated 26.06.2020 (Annexure-F) stating that he was under a misconception that the term of office of Adyaksha and Upadyaksha was five years as per Section 46 and that he had not noticed the Amendment Ordinance of 2020 which had reduced the term to 30 months. Thus the respondent No.4 withdrew his earlier Order dated 16.06.2020. The respondent No.4 informed the petitioners that based on the representation of the petitioners, the respondent No.4 had corresponded with the respondent No.3 for suitable action. Thus the respondent No.4 withdrew his earlier Order dated 16.06.2020. The respondent No.4 informed the petitioners that based on the representation of the petitioners, the respondent No.4 had corresponded with the respondent No.3 for suitable action. The petitioners contended that the respondent Nos.3 and 4 were hand in glove with the respondent Nos.6 and 7 in not holding the elections and that thus the petitioners were advised to present this petition challenging the Order dated 26.6.2020 and also for a Writ in the nature of quo-warranto to remove respondent Nos.6 and 7 from the post of Adhyaksha and Upadhyaksha of respondent No.5 and also for a writ in the nature of mandamus to direct respondent No.4 to hold elections to the post of Adhyaksha and Upadhyaksha. 3. The learned Government Advocate was directed to take notice for respondent Nos.1 to 4. Today, the learned counsel for the petitioners has placed on record an acknowledgement by which notice of the writ petitions was served on Gram Panchayat Ashtoor (Respondent No.5). Respondent Nos.6 and 7 are represented. The standing counsel for the respondent No.5 is permitted to file his memo of appearance. 4. The learned Additional Government Advocate though has not filed the statement of objections, has contended that under Article 243-E of the Constitution of India, the term of the gram panchayat is five years and therefore, these writ petitions seeking for a relief of quowarranto challenging the office held by respondent Nos.6 and 7 is not maintainable. 5. Learned counsel for respondent No.6 submitted that respondent Nos.6 and 7 were elected as Adhyaksha and Upadhyaksha of the respondent No.5 for a term of five years at the first meeting held on 23.10.2017. He therefore contends that Amendment Ordinance of 2020 which came into effect on 31.03.2020 could not invalidate or have the effect of reducing the term from five years to thirty months. He contends that Amendment Ordinance of 2020 would be applicable in respect of the panchayats where term of the Adhyaksha and Upadhyaksha have expired and not in respect of respondent Nos.6 and 7 whose term is not yet expired. He contended that the Deputy Commissioner had in terms of his Order dated 01.07.2020 (Annexure-R6) appointed an Administrator in respect of panchayats in Bidar District where term of the panchayat had expired. He contended that the Deputy Commissioner had in terms of his Order dated 01.07.2020 (Annexure-R6) appointed an Administrator in respect of panchayats in Bidar District where term of the panchayat had expired. However, in respect of respondent No.5, the Deputy Commissioner had indicated that the term of the office of Adhyaksha and Upadhyaksha is upto 22.10.2022. Respondent No.6 also relied upon a letter (Annexure-R7) dated 03.06.2020 addressed by the Department of Rural Development and Panchayat Raj which indicated that in respect of those panchayats whose term of five years had expired, no meetings shall be held and no financial transactions shall be conducted. Respondent No.6 also relied upon the judgment of this Court reported in [ Smt. Basamma vs. State of Karnataka and others, (2016) 3 AIRKarR 463 ] which defines the words "shall come into force at once" and the learned counsel contended that the Amendment Ordinance of 2020 would affect only those panchayats whose term have come to an end. The learned counsel also relied upon Article 243-E of the Constitution of India to contend that term of the Adhyaksha and Upadhyaksha which is co-terminus with the term of the Panchayath cannot be reduced to less than 5 years. Therefore, Amendment Ordinance 2020 cannot be given effect to in so far as respondent No.5 is concerned. 6. Learned counsel for respondent No.7, on the other hand, submitted that petitioner No.2 is not a member of the respondent No.5 and therefore, he had no locus-standi to file the present writ petition. He also contended that Annexure-F is not justiciable as it is only a communication between respondent No.4 and respondent No.3. He contended that respondent No.4 had issued an endorsement dated 16.06.2020 (Annexure-R3) reiterating the fact that term of office of President and Vice President is five years and that term was not complete in so far as respondent No.5 is concerned. He relied upon an order dated 10.08.2015 passed by this Court in W.P.No.203744/2015 and contended that Amendment Ordinance of 2020 cannot have the effect of diluting the term of office of Adhyaksha and Upadhyaksha from five years to thirty months and Amendment Ordinance, 2020 cannot be given effect to retrospectively. 7. He relied upon an order dated 10.08.2015 passed by this Court in W.P.No.203744/2015 and contended that Amendment Ordinance of 2020 cannot have the effect of diluting the term of office of Adhyaksha and Upadhyaksha from five years to thirty months and Amendment Ordinance, 2020 cannot be given effect to retrospectively. 7. The threshold contention that petitioner No.2 is not a member of the panchayat and therefore, he is not entitled to file the present writ petition has to be rejected at the outset, since petitioners have sought for a Writ in the nature of quo-warranto challenging the continuation in office by respondent Nos.6 and 7. This Court in the case of B. Srinivasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees Association and others, (2006) 4 KarLJ 73 has held that any citizen can challenge the holding of public office by a person incompetent to do so. Therefore, the threshold contention of respondent No.7 that the writ petition at the behest of petitioner No.2 is not maintainable is rejected. 8. Insofar as contention that the Amendment Ordinance, 2020 is concerned, the relevant portion of the Amendment Ordinance relating to amendment of Section 46 of the Principal Act is extracted below: "8. Amendment of section 46.- In section 46 of the Principal Act, in sub-section (1), for the words "five years", the words "thirty months" shall be substituted." This Ordinance has come into force at once i.e., with effect from 31.03.2020. 9. Section 46 of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 reads as follows: "46. Term of office and conditions of service of Adhyaksha and Upadhyaksha.- [(1) The term of office of every Adhyaksha and every Upadhyaksha of the Grama Panchayat shall, save as otherwise provided in this Act, be [five years] from the date of his election or till he ceases to be a member Grama Panchayat, whichever is earlier]. (2) Salary and other conditions of service of Adhyaksha, [Upadhyaksha and Chairman Standing Committee] shall be as prescribed." 10. It is not in dispute that respondent Nos.6 and 7 were elected as Adhyaksha and Upadhyaksha at the first meeting held on 23.10.2017 by which point in time, they had clear mandate to continue for a period of five years. Long thereafter, the Deputy Commissioner, Bidar, has passed an order appointing an Administrator in respect of various gram panchayats whose term had expired. Long thereafter, the Deputy Commissioner, Bidar, has passed an order appointing an Administrator in respect of various gram panchayats whose term had expired. But in respect of respondent No.5, Administrator is not appointed, but it is noted that term of Adhyaksha and Upadhyaksha would come to an end on 22.10.2022. Thus, the irresistible conclusion would be that the Amendment Ordinance of 2020 is applicable only in respect of those panchayats whose terms have come to an end but elections are not yet held. Respondent Nos.6 and 7 have been democratically elected to the post of Adhyaksha and Upadhyaksha of respondent No.5 and by the Amendment Ordinance of 2020, the term of office insofar as respondent No.5 is concerned cannot be retrospectively reduced from five year to thirty months. As a matter of fact, the Order dated 10.08.2015 passed by this Court in W.P.No.203744/2015 and the Order passed by this Court in Smt. Basamma vs. State of Karnataka and others, (2016) 3 AIRKarR 463 applies on all four squares to the facts of this case. In that view of the matter, the writ petitions lack merit and the same are dismissed. Sri Prashanth S. Kumman, learned counsel is permitted to file memo of appearance.