ORDER
B.S. Patil, J.
Page 1008
1. An interesting question fells for consideration in this case. The background facts are as under:
2. The 3rd respondent-Chabbi Grama Panchayat has 20 members out of which 10 are to be elected from Chabbi village and the remaining 10 to be elected from Sherewadi village. General election for the Grama Panchayat were held on 27.02.2005. The two petitioners herein along with 8 others were duty elected from Sherewadi village. The Election Officer issued a declaration in this regard on 01.03.2005. However, as regards the 10 contestants from Chabbi village, as the entire village boycotted the election, the elections could not be held. As election for the remaining 10 seats was not held, the petitioners made a representation to the Taluk Panchayat, Hubli and to the Deputy Commissioner, Dharwad, requesting them to conduct elections for the remaining 10 seats of Chabbi village. The Deputy Commissioner forwarded the request of the petitioners to the State Election Commission.
3. In the meanwhile, as required number of members were not elected to constitute the quorum, the Deputy Commissioner appointed an Administrator under Section 8(3) of the Karnataka Panchayat Raj Act, 1993, (for short ‘the Act’) to the 3rd respondent-Grama Panchayat As no steps were taken for holding election for the remaining 10 seats of the Grama Panchayat and as the Administrator appointed came to be continued, the petitioners have approached this Court seeking a direction to hold election for the remaining 10 seats of Chabbi village.
4. In the meanwhile, the Election Commission notified elections for all the 20 posts of the Grama Panchayat. Petitioners moved an application on 28.09.2005 seeking an additional prayer to quash the publication dated 27.09.2005 vide Annexure-F issued by the 4th respondent in so far as it pertains to holding elections for the 10 seats of Sherewadi village. This Court by an interim order dated 28.09.2005 has stayed elections to the 10 seats of Sherewadi village. Subsequently, by order dated 26.10.2005, the request made by the respondent-State Election Commission for vacating the interim order has been rejected.
Page 1009
5. Learned Senior Counsel Sri. Jayakumar S. Patil appealing for the petitioners contends that the action of the respondents in notifying to hold election for the 10 seats of Chabbi Grama Panchayat comprising Sherewadi village is illegal and without authority of law. He draws the attention of the Court to Section 5(6) of the Act, to contend that if for any reason, the election to any Grama Panchayat does not result in the election of required number of members, the Deputy Commissioner is enjoined with a duty to arrange for another election for electing such number of members as will make up the required number, within one month from the date on which the names of the elected members are published by him. He therefore contends that the Deputy Commissioner ought to have arranged for another election for electing the 10 members to be elected from Chabbi village as the voters there had boycotted voting. In this connection itself, learned senior counsel drawing the attention of the Court to Section 8 of the Panchayat Raj Act, submits that the provisions contained in Sub-clause 3 of Section 8 which provides that the members of the Grama Panchayat, on the appointment of an Administrative Committee shall cease to be members of the Grama Panchayat is only for the purpose of exercise of their powers due to the failure to elect number of members to constitute the quorum. His submission is that the expression the members of the Grama Panchayat shall cease to be the members of the Grama Panchayat as used in Sub-clause (3) of Section 8 has to be understood to mean that they cannot exercise their powers and duties as members of the Grama Panchayat when the Administrative Committee or an Administrator is appointed under Sub-section (1) of Section 8 and not that they vacate their office entailing fresh election for the posts held by them. In this regard, he further highlights that the elected members who have been chosen by adopting democratic process cannot be unseated without any fault on their part nor can it be construed that the legislature intended such a consequence in a situation like this. He submits that if Sub-clause (3) of Section 8 is not understood in this manner, the provisions contained in Sub-clause (6) of Section 5 would be rendered nugatory.
6. Learned Counsel appearing for the Election Commissioner Sri. Phanindra and learned Counsel Sri. V. Patil, appearing for some of the impleading respondents would contend that the legislative intent is plain and clear, in that, if the Grama Panchayat fails to return in an election the required number of candidates to legally constitute the Grama Panchayat then the Deputy Commissioner shall by notification either appoint an Administrative Committee or appoint an Administrator and once the members of the Administrative Committee or the Administrator are appointed, the members of the Grama Panchayat who have been elected shall cease to be members of the Grama Panchayat and all the powers and duties of the Grama Panchayat shall be exercised and performed by such Administrative Committee or Administrator, Laying special emphasis on Sub-clause (4) of Section 8, learned Counsel for the respondents contend that the Administrative Committee is deemed to be a duty constituted Grama Panchayat for all purposes and therefore question of construing that the Page 1010 members did not cease to be elected members does not arise and if such an interpretation is given, it runs counter to the intention of the legislation.
7. Upon hearing the learned Counsel for the parties and on careful perusal of the provisions on which reliance is placed by the respective Council, the question that arises for consideration is:
What is the effect of the provisions contained under Sub-clause (6) of Section 5 read along with Sub-clause (3) of Section 8 on the elected members of a drama Panchayat whose number does not constitute the quorum required for constituting the Grama Panchayat Do they vacate their office or do they continue to remain as elected members denuded of their power to perform their duties and discharge their functions until the remaining members are elected to enable the valid constitution of the Panchayat?
8. Section 5 of the Act deals with constitution of Grama Panchayat. The Grama Panchayat consists of such number of elected members as are notified from tune to time by the State Election Commission at the rate of one member for every 400 population or part thereof. The seats are reserved for different categories as provided under Sub-clause (2) to (4) of Section 5. Sub-clause (6) of Section 5 which is relevant for our purpose reads thus:
(6) If for any reason the election to any Grama Panchayat does not result in the election of the required number of members as specified in Sub-section (1), the Deputy Commissioner, shall, within one month from the date on which the names of the elected members are published by him under Sub-section (8) arrange another election for the election of such number of members as will make up the required number.
9. A perusal of the provisions contained under sub Clause (6) clearly shows that if for any reason, the required number of members as specified in Sub-section (1) are not elected to the Grama Panchayat, then the Deputy Commissioner shall within one month from the date on which the names of the elected members are published arrange another election for the election of such number of members as will make up the required number. The expression ‘such number of persons as would make up the required number’ would mean that if 5 members out of 15 are not elected, election has to be held for the remaining 5. If in a given case 10 members are not elected out of 20, the election has to be held for the remaining 10. Sub-clause (7) states that notwithstanding anything contained in Sub-section (1) or Sub-section (6) of Section 5 where 2/3rd of the total number of members of any Grama Panchayat have been elected the Grama Panchayat shall be deemed to have been duly constituted under the Act Thus if Section (5) is independently examined, what emerges is that elections have to be held to the required number of posts as are notified by the Election Commission and if for any reason, the required number of members are not elected, in so far as such number of members as are not elected, the Deputy Commissioner shall have to hold election within one month from the date on which the names of elected members are published. If 2/3rd members are returned in the election, then the Grama Panchayat Page 1011 shall be deemed to have been duly constituted under the Act independent of the duty cast of the Deputy Commissioner to hold fresh election for the remaining seats.
10. Section 8 deals with appointment of Administrative Committee or Administrator on failure to elect members of the Grama Panchayat. It reads thus:
8. Appointment of an administrative committee or administrator on failure to elect members of Grama Panchayats-
(1) (a) If the Deputy Commissioner is satisfied that a Grama Panchayat for a village or group of villages immediately after the establishment of such Grama Panchayat cannot be constituted by reason of, –
(i) any difficulty in holding an election of the members of the Grama Panchayat; or
(ii) failure to elect such members at two successive elections held under Sub-section (6) of Section 5; or
(iii) any other sufficient reason whatsoever; or
(b) If at any general election to a Grama Panchayat no member is elected or less than two-third of the total number of members are elected;
the Deputy Commissioner shall by notification either, –
(i) appoint an Administrative Committee consisting of persons qualified to be elected, the number of such persons being equal to the number of members determined under Sub-section (1) of Section; or
(ii) appoint an Administrator,
(2) The members of the Administrative Committee or the Administrator shall hold office for such period not exceeding six months as the Deputy Commissioner may specify in the notification under Sub-section (1).
(3) On the appointment of an Administrative Committee or an Administrator under Sub-section (1), the persons, if any, chosen as members of the Grama Panchayat before such appoints shall cease to be members of the Grama Panchayat and all the powers and duties of the Grama Panchayat shall be exercised and performed by such Administrative Committee or Administrator.
(4) The Administrative Committee or Administrator shall be deemed to be a duly constituted Grama Panchayat for the purpose of this Act, notwithstanding anything contained in the foregoing provisions;
Provided that if at any time after the appointment of the Administrative Committee or the Administrator under Sub-section (1), the Deputy Commissioner is satisfied that there is no difficulty in duly constituting the Grama Panchayat by election of members, the Deputy Commissioner, may, notwithstanding that the term of office for which the members of Page 1012 the Administrative Committee or the Administrator had been appointed has not expired, direct by notification that the members of the Administrative Committee or the Administrator, as the case may be, shall cease to hold office with effect from such date as may be specified in such notification.
11. Sub-clause (1)(a) of Section 8 deals with a situation where a Grama Panchayat cannot be constituted immediately after the establishment of such Grama Panchayat as a result of any difficulty in holding election or due to failure to elect the number of elected members as are notified for the Grama Panchayat in two successive elections held under Sub-section 6 of Section 5 or for any other sufficient reason. We are not presented with a problem that falls under Sub-clause (a) of Section 8. Therefore, it is unnecessary to dilate on this aspect. So far as Sub-clause (1)(b) of Section 8 is concerned, it provides that wherever in any general election to a Grama Panchayat no member is elected or less than 2/3rd of the total number of members are elected then the Deputy Commissioner has the power to issue a notification either appointing an Administrative Committee or an Administrator. Sub-clause (2) of Section 8 provides that the Administrative Committee or the Administrator shall hold office for such period not exceeding six months as the Deputy Commissioner specifies in the notification. Sub-clause 3 declares that on the appointment of the Administrative Committee or the Administrator, the persons if any chosen as members of the Grama Panchayat before such appointment shall cease to be members of the Grama Panchayat and all the powers and duties of the Grama Panchayat shall be exercised and performed by such Administrative Committee or Administrator. Sub-clause 4 enacts a deeming clause to state that such Administrative Committee or Administrator as appointed shall be deemed to be a duty constituted Grama Panchayat. Proviso to Sub-clause 4 states that if the Deputy Commissioner is satisfied that there is no difficulty in constituting the Grama Panchayat by election of members, he may direct by notification that the term of office of the Administrative Committee or Administrator shall cease with effect from such date which he may specify.
12. The question that falls for consideration is the fate of the elected members of the Grama Panchayat for which Administrator is appointed or an Administrative Committee is appointed under Section 8(1)(b). The expression in Sub-clause (3) of Section 8 stating that upon the appointment of the Administrator or the Administrative Committee by the Deputy Commissioner, the persons who were chosen as members of the Grama Panchayat earlier to such appointment shall cease to be members of the Grama Panchayat and all powers and duties of the Panchayat shall be exercised and performed by the Administrative Committee or the Administrator has to be understood keeping in mind the provisions contained in Sub-clause (6) of Section 5. Both these provisions have to be harmoniously construed. If it is held that all the 10 elected members, in the instant case, cease to be the members of the Grama Panchayat and that they automatically vacate their membership then the intendment of Page 1013 the legislature spelt out in Sub-clause (6) of Section 5 in directing that within one month from the date on which the names of the elected members are published, the Deputy Commissioner shall have to arrange another election for election of such number of members as will make up the required number of members of the Panchayat would get negated. Moreover, if that were to be the intendment then the legislature would have made it explicit in Section 8, the consequence to follow and would have mandated in explicit terms that elections have to be held to the entire body of the Grama Panchayat consisting of the total number of members. Such a declaration is not made in the provisions contained under Section 8. On the other hand Sub-section (6) of Section 5 specifically provides without enacting any restriction that for the remaining number of members for which no candidate is elected fresh election has to be held within one month. If the legislature had intended that only if the minimum of 2/3rd members are returned and for some reason the remaining members are not elected then reelection as contemplated under Section 6 is permissible and not otherwise the same would have been enacted in the provision. This cannot be read into these provisions presuming that there is an omission in this regard.
13. Looked from another angle also, that is to say from the point of view of the voters who have voted in the election and the persons who have got elected in a democratically held election, it cannot be said that the legislature intended to frustrate the process by annulling their elections for no fault on their part. It may also be useful to state here that for various reasons voters in a particular place may resort to boycotting the election process. If the result of such undemocratic act on the part of any section of the society were to render the other elected members lose their membership then it would definitely appear to be illogical and irrational. Such an effect the legislature has not intended to achieve while enacting these provisions under Section 5 and 8 of the Act Therefore, in my considered view, the legislative intent, if properly understood would only mean that the effect of the expression the elected members of the Grama Panchayat cease to be the members’ as used in Section 8(3) is to state that for the purpose of exercising their duties and functions as such members they cease to have any right or status and not to state that their seats get vacated and the posts become vacant requiring fresh election.
In the result, the writ petition is allowed. There is no need to hold any election for the 10 seats of Grama Panchayat members of Sherawadi village. As regards the other 10 seats of Chabbi village, as stated by the parties elections are already held and the Grama Panchayat is duty constituted pursuant to the interim order passed, hence no further directions are necessary.
Parties to bear their respective costs.
Government Pleader is permitted to file memo of appearance within six weeks.