State of Karnataka vs Mahadevappa Mallappa Hatti

Mohan, C.J.—All these Writ Appeals can be dealt with under a common Judgment, as they raise a common question of law as to the scope of interpretation of Section 135(3) of the Karnataka Zilla Parishads, Taluk Panchayat Samithis, Mandal Panchayats and Nyaya Panchayats Act, 1983 (for short ''the Act''). The Writ Petitions out of which these Appeals arise question the validity of the Circular dated 19th December, 1989 bearing No. GRAHAPA: 26 THAPASA 89, issued by the Director, Department of Rural Development and Panchayat Raj.

The pith and substance of such Circular is, that by reason of the general elections held in the State, the Members of the Legislative Assembly who have been newly elected shall be entitled to be the Chairman of the Taluka Panchayat Samithis and those elected shall have to vacate the office except during the non--availability of all those Members of the Assembly. The Writ Petitioners stated that during the President''s regime the Assembly having been dissolved, there was no Member of the Legislative Assembly. Consequently, during the absence of such a Member, the Taluka Panchayat Samithis had elected them as Chairman and they were entitled to continue for their full term as Chairman. They cannot be deprived of the Chairmanship by reason of the impugned Circular. Further, the earlier Circular dated 26th July, 1988 cannot be nullified. According to them, once the election had taken place for whatever reason it may be, the democratic process of such an election cannot be set at naught purporting to give effect to the statutory provision of Section 135(3) of the Act in this manner, calling upon them to demit the office. Therefore, virtually what was argued was about the scope of Section 135(3) of the Act.

In opposition to this, it was argued on behalf of the State that, what Section 135(3) contemplates is this:

(I) The M.L.A. shall be the Chairman; if available; and

(II) Only in the absence of M.L.A. or the non-availability of M.L.A., the Taluka Panchayat Samithi could elect the Chairman from among its Members.

Where therefore, when the M.L.A. is available, it is no longer possible for the elected Chairman to contend that he could continue for all time to come disregardful of statutory intendment. Thus, what came up for interpretation was Section 135(3) of the Act.

The learned Single Judge was of the view, that if really it was the intention of the Legislature that the election of the Chairman of the Taluka Panchayat Samithi was to be operative till the availability of the M.L.A., then nothing would have been easier than to state so. As a matter of fact, Section 45 of the Act clearly postulates such a situation stating ''until Pradhan is elected''. Here, no such thing is provided. Therefore, he was of the view that by reason of the impugned Circular the right of the Chairman to continue in office for full length of Chairmanship could not be taken away. Consequently, he allowed the Writ Petitions. Henpe, these Writ Appeals by the State.

Learned Advocate General after drawing our attention to Sub-section (3) of Section 135 submits that by the use of the word "shall" in that sub-section, it is very clear that a Member of the Legislative Assembly has to be the Chairman. The right to elect a Chairman is only in the absence of such M.L.A. If the contention of the otherside were to be accepted, it would render Sub-section (3) of Section 135 nugatory or ineffective. If the elected Chairman were to continue in office, the M.L.A., although the statute gives him a right, could not claim the Chairmanship, because, it would defeat the very object of Sub-section (3) of Section 135. According to him, the plain language of the Section will have to be interpreted emphasising the right of M.L.A. to be the Chairman. Presently, the M.L.As. are available though, earlier at the time when the State was under President''s Rule, the Assembly having been dissolved, those M.L.As were not available- In such a situation when the election took place, they cannot continue for all time to come.

The learned Judge was not right in referring to Section 45 of the Act which talks of a temporary vacancy in the office of Pradhan. But the situation here is entirely different. Then again, there is no need to use that language, because, having regard to the practice of modern day legislation, where the intention has been clearly brought out, no Legislature indulges in verbosity or uses a language by way of redundancy. The plain and the only meaning possible u/s 135(3) is, that there is Indefensible right to be a Chairman and the election to the Taluka Panchayat Samithi could take place only during the absence of M.L.As. But once that M.L.A. is available, the elected Chairman cannot say that he would continue for all time to come. It is incorrect to contend that by the impugned Circular the elected Chairman is directed to go out of the Chairmanship. It is only giving effect to Section 135(3); beyond that nothing else.

The learned Counsel for the respondent would state that where during the absence of a M.L.A. if the Chairman is elected from among the Members, there is absolutely no justification to suggest or to contend that on return of that M.L.A. the elected Chairman will have to demit the office, if that was the intention of the Legislature, it ought to have been so provided, more so, when Section 135(3) says that the Chairman shall be elected. Here again, the language is imperative. Therefore, regard must be had to the implication of election and more so, by process of election there is what is known as will of democracy expressed by majority of the Members. Such a right cannot be taken away by the Impugned Circular. As a matter of fact, all the respondents'' Counsel are uniform in this contention and they want us to interpret the language to the effect that the elected Chairman to continue till his term of office is over.

The further contention is, it is only at the time of the Constitution of the Taluka Panchayat Samithi, the availability of M.L.A. will have to be looked up. Where therefore, if the M.L.A. was not available at the time of the Constitution of the Samithi, and merely because he came on a later date he is not deprived of the right to be elected as Chairman.

Section 135 talks of Constitution of Taluka Panchayat Samithi. u/s 135(1), the Government shall by Notification constitute for each taluka a Taluka Panchayat Samithi. Section 135(2) talks of the composition of the Samithi; Members of the State Legislature representing a part or whole of the taluk whose constituencies lie within the taluk. Thereafter, while dealing with the Chairman of the Taluka Panchayat Samithi, Section 135(3) states as under:

"The Member of the Legislative Assembly representing the major part of the taluk shall be the Chairman and if no Member of the Legislative Assembly is available, or if the Member becomes a Minister, the Taluk Panchayat Samithi shall elect the Chairman from among its Members."

A careful analysis of this sub-section reveals us:

(i) A Member of the Legislative Assembly representing a major part of the taluk shall be the Chairman;

(ii) If no Member of the Legislative Assembly is available; or

(iii) If the Member becomes the Minister then alone the Taluka Panchayat Samithi shall elect Chairman from among its Members.

In other words, an indefensible right of the M.L.A. to be the Chairman has been conferred by this sub-section on the M.L.A. There is great reason and justice to provide so. It further states, it is not merely being M.L.A. but, one representing the major part of the Taluka. Contingencies may arise when the Member of the Legislative Assembly is not available or if he were to become a Minister. Then the Taluk Panchayat Samithi could elect the Chairman from among its Members. In other words, as we construe on the plain language of the sub-section, the right of the Panchayat Samithi to elect its Chairman arises only on either of those two contingencies., viz., when no Member of the Legislative Assembly is available or if the Member becomes a Minister (here again it means qua M.L.A.). Therefore, during non-availability the right to elect arises. It is one of the cardinal principles of construction of the Act. They should be construed according to the intention. To our mind, it appears these words are precise and unambiguous and therefore we have to construe them in the ordinary and natural sense. The words themselves alone clear the intention of the law maker. As was laid down by Lord Warrington -

"The Tribunal that has to construe an Act of a Legislature, or indeed any other document, has to determine the intention as expressed by the words used. And in order to understand these words it is natural to inquire what is the subject matter with respect to which they are used and the object in view."

Chief Justice Tindal in WARBURTQN v. LOVELAND, (1832) 2 DC 480 said -

"Where the language of an Act Is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature."

The reason why we quote this case is, the elected Chairman who came before us says, if this interpretation is to be followed, they will be obliged to demit their offices of Chairman. We are afraid we cannot help it, nor can we accept the argument that this Circular interfere with the democratic process of election. The reason why we hold so is, as pointed out earlier, the right of the Panchayat Samithi itself arises during the absence of the M.L.A. whether it be the non-availability or the M.L.A. becoming a Minister. Therefore the accent is, as rightly contended by the learned Advocate General, on the absence. If, on the contrary, the M.L.A. is present, his right to be the Chairman cannot be taken away. Otherwise, the meaning of the word "shall" loses all its importance. Such being the imperative clause, we are clearly of the view that it shall be given effect to.

It is incorrect to contend, our view, as is urged by the learned Counsel for the respondent, that only if the M.L.A. is available during the Constitution of the Samithi, he will have the right of Chairmanship and not at a later date when the Chairman of the Taluk Panchayat Samithi is elected. We do not know how such an interpretation is possible having regard to the plain language of Section 135(3) of the Act, when the Panchayat Samithi merely calls upon the Government to issue a Notification with regard to its Constitution or in other words formation. Section 135(3) of the Act does not say at the time of Constitution-of the Samithi.

We are equally clear in our mind that Section 45 which deals with the appointment of Pradhan during the vacancy in the office cannot throw any light on the interpretation of the sub-sect ion with which we are concerned. Section 45 of the Act speaks of the situation where there is vacancy in the office of the Pradhan. The person so appointed shall exercise the power to perform the duties of the Pradhan until a Pradhan is elected. There again, the process of democracy is to have its full say. But here we are considering the right of a Member of the Legislative Assembly to be the Chairman. Therefore, we are unable to accept the contention that unless and until ft has been clearly stated that the elected Chairman shall hold the office till the M.L.A. is available, such an interpretation Is not possible. It should be remembered that modern legislation disregards tautology nor does It use the word ''in surplusage''. Therefore, even without that expression the imperative clause ''shall'' and the accent on the absence when alone the right of Taluk Panchayat Samithi to elect the Chairman would arise, brings out the intention of the Legislature very clearly and the language as we see it is precise enough to modern interpretation as we have done.

Accordingly, we allow these Writ Appeals. The Judgment of the learned Single Judge is set aside upholding the Circular dated 19th December, 1989. However, there shall be no order as to costs.