IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF MARCH 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.56779/2018 (APMC) Between:
K. Laxmana Shetty, S/o Kumara Shetty, Aged about 55 years, Agriculturist, R/at K.M. Road, Mudigere Town and Post, Mudigere Taluk – 577 132, Chikamangalur District. … Petitioner (By Sri Vasanthappa, Advocate) And:
1. Sri B.R. Chandrashekar, S/o Rudrappa, Aged about 46 years, Bettadamane Post, Gonibeedu Hobli, Mudigere Taluk – 577 132, Chikamangaluru District.
2. K.A. Ravi, S/o K.S. Annappa Gowda, Aged about 42 years, Agriculturist, R/at Kunnahalli, Halase Post, Kasaba Hobli, Mudigere Taluk – 577 132.
3. Tahasildar, Mudigere Taluk, Mudigere – 577 132. … Respondents (By Sri Prakash M.H., Advocate for R-1;
Notice to R-2 is dispensed with v/o dated 04.01.2019;
Smt. B.P. Radha, AGA for R-3) This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to quash the order passed in Election Appeal No.1/2018 dated 10.12.2018 vide Annexure-B passed by the 2nd Additional District and Sessions Judge, Chikkamagaluru and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ Group this day, the Court made the following:
ORDER The petitioner had approached the Election Tribunal i.e. Court of Principal Civil Judge and J.M.F.C., Mudigere invoking Section 20 of the Karnataka Agricultural Produce Marketing (Regulation and Development) Act, 1966 [‘APMC Act’ for brevity] seeking to annul the election of Sri B.R.Chandrashekar, respondent No.1 herein, on the ground that the respondent No.1 was not eligible under the Backward Class (A) category, hereinafter called BC(A) category, as the election was with respect to a seat reserved for BC(A) category. The Election Petition No.1/2017 came to be allowed by order dated 29.08.2018. The said order was taken up in appeal in Election Appeal No.1/2018 by the respondent No.1 and the appeal came to be allowed. In the appeal proceedings, the Court has also gone into the merits of the contention as to whether the respondent No.1 belongs to ‘Billava’ Caste and whether the said Caste comes under ‘BC(A)’ category. While in the appeal, the order passed in Election Petition No.1/2017 was overturned, the same has been assailed by the petitioner in this petition.
2. The preliminary objection sought to be raised by the learned counsel appearing for the respondent No.1 and the learned Additional Government Advocate supports the said objection contending that as regards the disqualification or qualification of a member, the appropriate mechanism for redressal is by invoking the provisions of Section 17(2) of the APMC Act.
3. While it is contended by learned counsel for the petitioner that Section 17 of the APMC Act would apply only as regards the disqualifications made out under Section 16 of the APMC Act and the lack of qualification as provided under the proviso to Section 15 of the APMC Act cannot be considered under Section 17(2) of the APMC Act and for redressal of such grievances arising out of lack of qualification, as envisaged under provisions of Section 15 of the APMC Act could be raised under Section 21 of the APMC ACt.
4. Sri M.H.Prakash, the learned counsel appearing for respondent No.1 states that amendment to Section 21 omitting Section 21(a) by an amendment on 16.03.2013 ought to be taken due note of. Section 21(a) earlier read as follows:-
“21. Grounds for declaring election to be void.- If the Munsiff is of opinion,-
(a) that on the date of his election the returned candidate was not qualified or was disqualified to be chosen to fill the seat;”
5. It is also pointed out that Section 17(2) of the APMC Act has been amended by Act No.38 of 2013 with effect from 16.03.2013 and an insertion by way of said amendment, reads as follows:-
“or whether on the date of his election, the returned candidate was not qualified or was qualified to be chosen to fill the seats arises.”
6. By virtue of an amendment to Section 17(2) of the APMC Act where the question relates to qualification as on the date of his election or qualification to be chosen, the Director of Agricultural Marketing has the power to consider and adjudicate on the said issue. Accordingly, it is contended that in light of omission of Section 21(a) and the amendment made to Section 17(2) of the APMC Act, the question of qualification under Section 15 as well as the disqualification under Section 16, the appropriate remedy would be under Section 17(2) of the APMC Act.
7. Heard learned counsel on both the sides.
8. The present complaint that has been made is that the respondent No.1 does not belong to BC(A) category and as the seat was reserved for the aforesaid category, the member, who is elected without possessing the qualification of belonging to that particular category was not entitled to continue and was liable to be removed. It is clear as per proviso to Section 15 of the APMC Act that requisite qualification would also require the person, who is elected must belong to that particular category for which the seat had been reserved. As regards such qualification under Section 15 of the APMC Act, it is noted that amendment to Section 17(2) would take within its ambit the disqualification where the person’s qualification was not in accordance with law. Though first part of Section 17(2) of the APMC Act provides with respect to disqualification as regards matters arising out of Section 16, the amendment enlarges the scope and relates to disqualification insofar as the question as to whether ‘returned candidate’ was not qualified or was qualified to be chosen is to be decided by the Director of Agricultural Marketing. It is to be noted that the disqualification even at the time of filing of nomination is a matter that could be described to be kept in mind while ‘qualification’ to be chosen to fill the seat.
9. Accordingly, giving due regard to the omission of Section 21(a) of the APMC Act and also taking note of the amendment to Section 17(4) of the APMC Act, which provides that all matters pending for declaration of election to be void under Section 21(a) of the APMC Act would stand transferred at the commencement of Amendment Act to the Director of Agricultural Marketing, would make it clear that the present case, is a case that falls under Section 17(2) of the APMC Act.
10. Accordingly, petition is dismissed. Liberty, however, is kept open for the petitioner to initiate proceedings under Section 17(2) of the APMC Act and as per law.
Sd/- JUDGE VGR