IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22nd DAY OF FEBRUARY, 2019 BEFORE THE HON’BLE Mr. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION NO.56209/2018 (LB-RES) Between:
Sri Inayath Pasha S/o. Peer Sab Aged about 38 years R/at Bheriya Village Gram Panchayath Hosaagrahara Hobli KR Nagar Tq Mysore District- 571 601 (By Sri. D R Ravishankar, Adv a/w Sri.Kethan Kumar, Adv.) And:
1. State Of Karnataka Represented by its Secretary Dept. of Panchayath Raj and Rural Development Vidhana Soudha Bengaluru- 560 001 2. The Deputy Commissioner Mysore District Mysore- 570 003 3. The Assistant Executive Officer No.2 Harangi Balanala, Sub-Division Hosuru, KR Nagar, Taluk … Petitioner Mysore District- 571 601 4. The Assistant Commissioner Hunsur Sub-Division Hunsuru- 571 105 5. The Chief Executive Officer Bheriya Village Panchayath Taluk Panchayath Office K R Nagar Mysuru- 571 601 6. Panchayath Development Officer Bheriya Village Panchayath KR Nagar- 571 601 7. The Secretary Bheriya Gram Panchayath K R Nagar- 571 601 8. Mr.B.Y.Shivashankar S/o Yedyurappa Aged about 44 years R/at Near Eshwara Temple K R Nagara Taluk Mysuru District- 571 601 (By Sri.M.A.Subramani, HCGP for R1 to R4 Sri.Pratheep K C, Adv. For C/R8 … Respondents Notice to R5-R7 is dispensed with v/o dtd: 23.01.2019) This writ petition is filed under Articles 226 and 227 of the Constitution of India praying to direct the R-2 consider representation dtd: 12.12.2018 (Annexure-G) and etc.
This petition coming on for Preliminary Hearing in ‘B’ group, this day, the court made the following:
O R D E R The petitioner was elected as a Member of the Bheriya Village, Grama Panchayat on 05.06.2015 along with fourteen members. Post of President of the said Grama Panchayat has been reserved to the backward class ‘B’ group category. It is an undisputed fact that respondent No.8 was the only person who belongs to backward class ‘B’ category (BCB) and was elected as its President.
2. A motion of no confidence came to be moved by the members against the Adhyaksha of the Grama Panchayat i.e. respondent No.8. The motion for no confidence moved at the first instance came to be set aside by virtue of the orders in W.P. No.12731/2018 and liberty was granted to the members to move afresh.
3. The members have moved a fresh motion of no confidence. Meeting was conducted and respondent No.8 was removed from the post of President. In the meanwhile, * Page Nos.3 to 9 are re-typed and replaced vide Court Order dated 20.03.2019 the petitioner had made representation to the Deputy Commissioner seeking for initiation of appropriate procedure to change the reservation as regards the category for the post of Adhyaksha in order to address the anomaly as respondent No.8 was the only person belonging to the backward class ‘B’ category and having been removed by virtue of a motion of no confidence was again seeking to be elected as Adhyaksha. Steps were taken to hold fresh election to the post of Adhyaksha and on the first occasion could not be held due to lack of quorum. However, in the subsequent meeting on 24.12.2018, respondent No.8 came to be re-elected in the presence of only five members of the Grama Panchayath.
4. During the pendency of the proceedings election was conducted and this Court by its order dated 20.12.2018 had permitted holding of election subject to further orders. The petitioner has sought for reliefs which in substance relate to setting aside of the election process of respondent No.8.
5. Counsel for the petitioner states that once a member has been removed pursuant to a motion of no confidence under Section 44(1) of the Karnataka Grama Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as ‘the Act’ for short) the vacancy that has arisen due to “reason of death, resignation, removal or otherwise” then the Grama Panchayat “shall choose another member to be the Adhyaksha”. It is hence, contended that the Grama Panchayat is to choose any other member apart from the member who has held office.
6. It is further argued that in the present case as the post of Adyaksha was reserved to backward class ‘B’ category and as there were other members of the Grama Panchayath who fall within Backward Class category – A, by virtue of proviso (2) of Section 44(b) of the Act, it was possible to construe that due to non-availability of person belonging to category ‘B’, a person from category ‘A’ could be permitted to fill up the post.
7. Counsel for respondent No.8 and the AGA, however have opposed the said submission, contending that matter is no longer open for consideration, as the same has been settled by the law laid down by the Division Bench of this Court in the case of Bapu Dada Patil V/s State of Karnataka reported in ILR 1996 KAR 3290, A.P. Chandrashekaraiah and Others V/s State of Karnataka reported in ILR 2010 KAR 2321, and in the case of H.R.Shiva Kumar V/s State of Karnataka reported in 2005 AIR Kant R 52.
8. It is contended that the Division Bench on an identical facts and situation had considered the matter and has held that there is no bar as such provided under Section 44 or 49 of the Act for a member who is subjected to removal by a motion of no confidence to once again stand for election and be elected to the post of Adhyaksha.
9. Heard learned counsel for both sides .
10. Question that arises for consideration is as to ‘whether a member who has been elected by virtue of reservation to the post of Adhyaksha of the Grama Panchayat was eligible consequent to his removal pursuant to motion of no confidence to be re-elected once again as a Adhyaksha of the Grama Panchayat?’ 11. It is to be noted that the Division Bench in the case of Babu Dada Patil referred to supra has considered identical fact situation and held that there is no bar as such for a Adhyaksha against whom motion of no confidence has been passed and consequently removed, to contest to the post of Adhyaksha at a later point of time. The Court at para No.7 has observed that the statute did not address the situation as would arise in case a person belonging to a reserved category and has been removed, would again stand for the election and be elected, which under certain circumstances would create a dead-lock in the Panchayat.
12. A similar position of law has been reiterated in the case of A.P. Chandrashekar referred to supra which has reiterated the law laid down in the case of Babu Dada Patil.
13. However, what is to be noticed is that the argument of the petitioner now canvassed as regards the interpretation to be placed on the word “shall choose an another member’’ had not been brought to the notice of Division Bench nor considered. The other fact that perhaps would make a difference is that in the present case, the post of Adhyaksha has been reserved to the category of Backward Class ‘B’ category and under proviso (2) of Section 44(b) of the Act, in the event, a person is not available as regards Backward Class ‘B’ category it is possible to fill up that post by another person belonging to Backward Class ‘A’ category. Hence, if it were to be so and contention of petitioner were to be accepted then in the present case, if the Court were to hold that 8th respondent was ineligible, the right of reservation as such, would not have been prejudiced in view of availability of members belonging to category ‘A’ as is submitted by the counsel for petitioner.
14. However, in view of the judgment of the Division Bench, this Court cannot take any other opinion or stand and would have to hold that election of the 8th respondent to the post of Adhyaksha was permissible in view of the law laid down in light of the judgments referred to above. Accordingly, petition is dismissed subject to above observations.
Sd/- JUDGE BS