H. Chandrappa vs State of Karnataka

A.N. Venugopala Gowda, J.—Challenge in these writ petitions is to a communication dated 22.03.2014 of the Chief Executive Officer, Zilla Panchayat, Chitradurga, addressed to the Commissioner, State Election Commission in Karnataka.

Part IX of the Constitution of India was inserted by Constitution (Seventy-third Amendment) Act, 1992. Article 243-B mandates that there shall be constituted in every State, Panchayats at the Village, intermediate and district levels, in accordance with the provisions of the said part. Part IX speaks of composition of Panchayats (Article 243-C), reservation of seats (Article 243-D) and duration of panchayats (Article 243-E). It also provides for disqualification for membership in terms of Article 243-F stating that;

243F. Disqualifications for membership-(1) A person shall be disqualified for being chosen as, and for being, a member of a Panchayat-

(a) if he is so disqualified by or under any law for the time being in force for the purposes of elections to the Legislature of the State concerned;

Provided that no person shall be disqualified on the ground that he is less than twenty-five years of age, if he has attained the age of twenty-one years;

(b) if he is so disqualified by or under any law made by the Legislature of the State.

(2) If any question arises as to whether a member of a Panchayat has become subject to any of the disqualifications mentioned in clause (1), the question shall be referred for the decision of such authority and in such manner as the Legislature of a State may, by law, provide.

State of Karnataka, pursuant to the Constitutional mandate, as noticed hereinbefore, enacted the Karnataka Panchayat Raj Act, 1993 (for short ''the Act''). Chapter X of the Act lays down general provisions relating to incorporation, constitution, duration, reservation, qualifications of a candidate, term of office of the members, resignation of the members, removal of members for misconduct. S. 175-A was inserted by Karnataka Act No. 37 of 2003 providing for the members to declare assets. The said provision, reads as follows:

175-A. Members to declare assets.-(1) Every member shall within three months from the date of commencement of his term of office and until the expiry of his term in every calendar year file a declaration of assets owned by him and any member of his family, in such manner and in such form as may be prescribed, before the State Election Commission or Competent Authority as may be notified by the Government.

(2) Where a member, after filing a declaration under sub-section (1), acquires or disposes any asset he shall file further declaration to this effect before the State Election Commission or the Competent Authority, within three months from the date of such acquisition or disposal, as the case may be.

(3) Any member, who fails to file declaration under sub-section (1) or sub-section (2) or files the same knowing it to be false or incorrect shall cease to be a member.

(4) Any question whether a member has ceased to be a member under sub-section (3) shall on a reference made by the Zilla Panchayat, to the State Election Commission be decided by it and the decision of the State Election Commission thereon shall be final.

Explanation.-For the purposes of this section ''family'' means the spouse and dependent children of the member.

In exercise of the power conferred under S. 311 of the Act, Government of Karnataka, to carry out the purposes of the Act, has made the Karnataka Panchayat Raj (Declaration of Assets by Elected Members of Taluk Panchayats and Zilla Panchayats) Rules, 2010 (for short ''the Rules'').

The petitioners are the elected members of the Zilla Panchayat, Chitradurga. In view of the said Rules, petitioners declared the assets. A reference having been made by the Chief Executive Officer of the Zilla Panchayat to the State Election Commission, on 22.03.2014 vide Annexure-J, that on account of the failure to declare the assets within the stipulated period, the petitioners'' membership as having ceased, feeling aggrieved, these writ petitions were filed.

Sri. A. Nagarajappa, learned advocate, firstly, contended that the impugned communication is one without authority of law, since, the question, whether the petitioners have ceased to be the members under sub-S. (4) of S. 175-A of the Act was not referred by the Zilla Panchayat to the State Election Commission. Secondly, Chief Executive Officer has no power to make any statement with regard to the cessation of membership, on his own, without full-fledged adjudication by the Competent Authority. Thirdly, both Houses of Karnataka Legislature having passed the Bill called Karnataka Panchayat Raj (2nd Amendment) Bill, 2013 (Annexure-H), to amend Ss. 136-A and 175-A of the Act and the Bill being pending for assent before the Governor of Karnataka, 3rd respondent has acted with undue haste in making the impugned reference. Fourthly, Chief Executive Officer has no suo motu power to disqualify and thereafter, make reference for further action to the State Election Commission and in this case, it is ''tall is wagging the dog''. Fifthly, in view of the statement made in Annexure-J on the issue of cessation of membership of the petitioners, nothing remains with the State Election Commission, except to pass a formal order. Hence, the impugned communication being bad and illegal, interference is called for.

Sri. H.T. Narendra Prasad, learned AGA, Sri. K. Phaneendra, learned advocate for respondent No. 2-State Election Commission and C. Shivakumar, learned advocate for respondent No. 3-Chief Executive Officer, Zilla Panchayat, on the other hand contended that the writ petitions being premature are liable to be rejected in limine. Alternatively, learned advocates contended that in view of the order passed in W.P. Nos. 50753-778/2013 on 18.11.2013, principles of res judicata are attracted and these writ petitions are liable to be dismissed.

Perused the writ record and considered the rival contentions urged by the learned advocates on both the sides. In my opinion, the following questions arise for determination:

i) Whether these writ petitions are premature, the same having been filed against a reference which does not finally determine any right of the petitioners re: their membership in the Zilla Panchayat?

ii) Whether the principles of res judicata are attracted in view of the order passed on 18.11.2013 in W.P. Nos. 50753-778/2013?

iii) Whether there is any violation of the principles of natural justice?

iv) Whether Annexure-J is without authority of law and therefore, should be quashed?

W.P. Nos. 50753-778/2013 were filed by the petitioners, seeking to declare sub-rule (2) of Rule 4, as illegal and contrary to S. 175-A of the Act. The said writ petitions and the connected cases were allowed by an order dated 18.11.2013 (Annexure-G). During July and August, 2013, the petitioners declared the assets by submitting Form-1 to respondent No. 3 and the same were forwarded to the Regional Commissioner, Bangalore Division, who, passed an order regarding the censure of the membership of the petitioners, on the ground of not submitting the assets declaration/s within prescribed period and the order was sent on 30.10.2013 to the State Election Commission. The said communication was set aside, when questioned in the said writ petitions.

Respondent No. 3 has made the reference vide Annexure-J to respondent No. 2 and the relevant portion is reproduced below:

While allowing W.P. Nos. 50753-778/2013 and connected cases, on 18.11.2013 vide order as at Annexure-G, it was held as follows:

In my opinion, as could be seen from Section 175-A of the Act extracted above, sub-section (4) confers power only on the Zilla Panchayat to refer the matter relating to contravention of Section 175-A of the Act by members of the Zilla Panchayat for adjudication to the State Election Commission and not on the Competent Authority (under the Rules, the Competent Authority is the jurisdictional Regional Commissioner). In other words, the power to refer is conferred only on the Zilla Panchayat and not on the Competent Authority. In view of this, sub-rule (2) of Rule 4 of the Rules conferring power on the Regional Commissioner to refer the matter to the State Election Commission for adjudication is clearly violative of sub-section (4) of Section 175-A of the Act and hence is ultra vires the Act. Accordingly, sub-rule (2) of Rule 4 of the Rules is declared as ultra vires the Act. Consequently, the impugned communication dated 30.10.2013 bearing No. chunavane/viva/4/2013-14 of the Regional Commissioner, Bangalore Division, Bangalore, is unsustainable in law and is accordingly set aside.

However, the Regional Commissioner shall communicate to the concerned Zilla Panchayat, the contravention of Section 175-A of the Act by its members. On such communication, the Zilla Panchayat shall refer the matter to the State Election Commission as per sub-Section (4) of Section 175-A of the Act. The State Election Commission shall thereafter adjudicate the matter in accordance with law.

(emphasis supplied)

Undisputedly, the order as at Annexure-G has remained unquestioned. Apex Court, in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, , while explaining the scope of principle of res-judicata has held as follows:

The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-whether on a question of fact or a question of law-has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. This principle of res judicata is embodied in relation to suits in S. 11 of the Code of Civil Procedure; but even where S. 11 does not apply, the principle of res judicata has been applied by courts for the purpose of achieving finality in litigation. The result of this is that the original court as well as any higher court must in any future litigation proceed on the basis that the previous decision was correct.

In Hope Plantations Ltd. Vs. Taluk Land Board, Peermade and Another, , Apex Court has explained the effect of finality of the Judgment of a Court, by holding as follows:

One important consideration of public policy is that the decision pronounced by courts of competent jurisdiction should be final, unless they are modified or reversed by the appellate authority and other principle that no one should be made to face the same kind of litigation twice ever because such a procedure should be contrary to consideration of fair play and justice. Rule of res judicata prevents the parties to a judicial determination from litigating the same question over again even though the determination may even be demonstratedly wrong. When the proceedings have attained finality, parties are bound by the Judgment and are estopped from questioning it.

Since the mandamus issued on 18.11.2013 vide the order as at Annexure-G, extracted in para. 11 supra, has remained unquestioned, the respondent No. 3 has not committed any illegality in making a reference with regard to the ceasure of membership of the petitioners, for adjudication by respondent No. 2.

The contention of Sri Nagarajappa with reference to the Bill vide Annexure-H is not sound. Apex Court, in The State of Bihar Vs. Maharajadhiraja Sir Kameshwar Singh of Darbhanga and Others, , has held as follows:

It is true that the ''Legislature'' of a State includes the Governor and that a bill passed by such Legislature cannot become a law until it receives the Governor''s assent.

It has been further held therein as follows:

Similarly the word "law" is sometimes loosely used in referring to a bill. Article 31(4), for instance, speaks of a "bill" being reserved for the President''s assent "after it has been passed" by the "legislature of a State" and of "the law so assented to." If the expression "passed by the legislature" were taken to mean "passed by the Houses of the legislature and assented to by the Governor" as Mr. Somayya would have it understood, then, it would cease to be a "bill" and could no longer be reserved as such. Nor is the phrase "law so assented to" strictly accurate, as the previous portion of the clause makes it clear that what is reserved for the President''s assent and what he assents to is a "bill" and not a law.

Undisputedly, the Bill has not received the assent of the Governor and has not been published in the Gazette and hence, is not law.

The contention of Sri Nagarajappa, with regard to violation of principles of natural justice has no merit. The doctrines of principles of natural justice are not embodied rules and cannot be applied in a straitjacket formula. To sustain the complaint of violation of principles of natural justice, a complainant must establish that he is prejudiced by non observance of the principles of natural justice. In the instant case, the petitioners have the opportunity to put forth their defence when the reference vide Annexure-J with regard to the ceasure of membership is taken for adjudication by the State Election Commission, which is bound to grant reasonable opportunity to the petitioners to file the objections and substantiate the same.

In view of the mandamus issued vide order as at Annexure-G, the reference vide Annexure-J having been made towards compliance, the petitioners have not suffered any prejudice to hold that the impugned action of respondent No. 3 is in violation of principles of natural justice.

Impugned reference only sets out the facts and the reasons. Respondent No. 3 has not determined any rights of the petitioners much less regarding the ceasure of their membership in the Zilla Panchayat. In view of the mandamus issued vide Annexure-G, a reference only having been made, it is for the State Election Commission to decide the reference in accordance with law. These writ petitions are premature. In view of the order extracted in para. 11 supra, principles of res judicata are attracted. Consequently, Annexure-3 cannot be held to be one without the authority of law and as opposed to the principles of natural justice.

In the said view of the matter, it is unnecessary to quash Annexure-J. However, it is made clear that the status of the petitioners as Members of the Zilla Panchayat, Chitradurga is not affected on account of the impugned communication and the petitioners shall continue as the members of the Zilla Panchayat, till the State Election Commission decides the reference made to it vide Annexure-J. All other contentions of the petitioners are left open for being determined by the State Election Commission, which is directed to decide the reference expeditiously and within a period of three months from the date of first appearance of both the parties, before it.

Writ petitions are disposed of accordingly, with no order as to costs.