GEETHA PANDIT RAO AND ANR vs. THE STATE OF KARNATAKA AND ORS

IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 30TH DAY OF NOVEMBER 2020 BEFORE THE HON'BLE MR. JUSTICE E.S. INDIRESH WRIT PETITION NO.7717 OF 2020 (LB-RES) AND WRIT PETITION NO.226494 OF 2020

Between:

W/o Pandit Rao Chidri

Aged about 50 years

Adyaksha, Zilla Panchayath

Bidar, Bidar District-585403.

Aged about 55 years

Upadayaksha, Zilla Panchayath

Bidar, Bidar District-585403.

…Petitioners (common in both petitions)

(By Sri. Jaykumar S. Patil, Senior Advocate for Sri. A. Nagarajappa and Shri Shivaputra Udbalkar, Advocte)

And:

Represented by its Principal Secretary

Rural Development & Panchayat Raj

Department,

Karnataka Government Secretariat

Multi-storeyed Building

Dr. Ambedkar Veedhi

Bengaluru-560001.

Kalaburagi Division

Kalaburagi-585101.

Zilla Panchayat, Bidar

Bidar District-585403.

S/o Annappa, Aged about 57 years

Member elected from

Malegaon Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Shivakumar Swamy

Aged about 35 years

Member elected from

Sirsi Aurad Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Ushamanali

Aged about 43 years

Member elected from

Bagdal Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Jaisingh Rathod

Aged about 44 years

Member elected from

Nirna Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Rajendar Nitkukar

Aged about 62 years

Member elected from Nittur Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Vittal Singh Hegre

Aged about 65 years

Member elected from

Kamal Nagar Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Manohar Kore

Aged about 38years

Member elected from

Halburga Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o. Nilakanta

Aged about 40 years

Member elected from

Madakatte Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Prem Sagar

Aged about 40 years

Member elected from

Hulsur Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Basavannappa Methre

Aged about 60 years

Member elected from Mudabi Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Vittal Rao Patil

Aged about 42 years

Member elected from

Kohinoor Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Gunda Reddy

Aged about 40 years

Member elected from

K. Chincholi Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Santhosh

Aged about 38 years

Member elected from

Manna-E-Kheli Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Vaijanath

Aged about 45 years

Member elected from Manthal Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Bhimala Rathod

Aged about 44 years

Member elected from Prathupar Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Veeranna

Aged about 42 years

Member elected from

Narayanapura Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Thukaram

Aged about 60 years

Member elected from Hallikhed Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Ramanna

Aged about 42 years

Member elected from

Rajeshwar Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Ranjay Singh Rathod

Aged about 35 years

Member elected from Hudgi Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

6 23. Sri Dr. Prakash Rao

S/o Kashinath Rao

Aged about 62 years

Member elected from Ghatboral Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Malli Nath

Aged about 50 years

Member elected from

Kodambal Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Maruteppa

Aged about 45 years

Member elected from

Mannalli Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

S/o Abdul Mazeed Khan

Aged about 55 years

Member elected from Kamthana Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

27 Smt. Menna Manik Chavan

W/o Manik

Aged about 35 years

Member elected from Wadagaon Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Narote

Aged about 33 years

Member elected from Yekema Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Lakshman Rathod

Aged about 43 years

Member elected from Janwada Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Kashinath Beldal

Aged about 65 years

Member elected from Chitta Constituency

Zilla Panchayath, Bidar

Bidar District-585403.

W/o Suresh Bhosle

Aged about 35 years

Member elected from Thana Kushnur Constituency

Zilla Panchayath,

Bidar

Bidar District-585403.

S/o Bhamla

Aged about 65 years

Member elected from Dapaka Constituency

Zilla Panchayath,

Bidar

Bidar District-585403.

… Respondents (common in both petitions)

(By Sri Shivakumar Tengli, AGA for R1 & R2; Shri Prashant Kumar, Advocate for R3;

8 Sri. Ameet Kumar Deshpande, Advocate for C/R4 & R29; Sri S.M. Chandrashekar, Senior Advocate for Shri Shivaprasad Shantanagoudar & Shri Krupa Sagar Patil Adocates for C/R12; Shri R.J. Bhusare, Advocate for C/R6, R9 & R15; Shri Suresh Hunagund, Advocate for R14 and R17; Shri Veeranagouda Malipatil, Advocate for R7, R13, R16, R18, R20, R21, R30 and R31)

These Writ Petitions are filed under Articles 226 of the Constitution of India praying to Issue an order of writ or direction in the nature of writ of certiorari declaring that the Ordinance 2/2020 to the Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance 2020 dated 31.3.2020 in No.SAMVYASHAAE 17 SHASANA 2020, Bengaluru as unconstitutional, ultra vires and liable to be struck down; Issue an order or direction or writ in the nature of writ of certiorari quashing the Notices in Form No.2 issued to the petitioners the notices dated 12.10.2020 issued by the 2nd Respondent in CUM/PRA.AA/KA/CHUNAVANE/16/2020-21 vide Annexure-F and F1 fixing the date of meeting on 23.10.2020 at 3.00 pm convening meeting for no confidence motion; and etc.

In these writ petitions arguments being heard, judgment reserved, coming on for pronouncement of orders, tihis day, the Court made the following:

O R D E R

Petitioner in Writ Petition No.7717 of 2020 is the petitioner No.1 in Writ Petition No.226494 of 2020. Since the challenge made in both the petitions are inter-linked, both the petitions are clubbed, heard together and are being disposed of by this common order.

(i) Issue an order or writ or direction or writ in the nature of writ of certiorari declaring that the Ordinance 2/2020 to the Karnataka Grama Swaraj & Panchayat Raj (Amendment) Ordinance 2020 dated 31.03.2020 in No.SAMVYASHAAE 17 SHASANA 2020 Bengaluru, as unconstitutional, ultra vires and liable to be struck down and the same is marked at Annexure-F, issued by respondent No.1;

(ii) Issue and order or direction or writ in the nature of writ of mandamus directing respondent state, not to enforce/implement/give effect to the amended Ordinance 2/2020 to the Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance 2020 more particularly amended Section 177 and 179 of the Ordinance 2/2020 at item No.24 and item No.25 of Annexure-F issued by the 1st respondent.

(i) Issue an order or direction or writ in the nature of writ of certiorari quashing the Notices in Form No.2 issued to the petitioners the Notices dated

10 12.10.2020 issued by the 2nd Respondent in Cum/Pra.Aa.Ka/Chunavane/16/2020-21 vide Annexure-F and F1, fixing the date for meeting on 23.10.2020 at 3.00 pm convening meeting for no-confidence motion; (ii) Issue an order or direction or writ in the nature of certiorari quashing the Rules, called Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020 as unconstitutional, ultra vires and liable to struck sown marked at Annexure-D in No.GraAaaPamRaa 64 JiPaSa 2019 Bengaluru dated 15.09.2020 respectively, issued by the first respondent; (iii) Issue an order or direction or writ in the nature of writ of mandamus directing the Respondents, more particularly, the Respondent No.2 not to implement nor enforce the Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020 insofar as the petitioners are concerned till completion of their tenure.

11 FACTS OF THE CASE

12 prescribed for moving resolution expressing want of confidence in respect of Adhyaksha or Upadhyaksha, shall be "within 30 months instead of 6 months", i.e. the proviso was further amended deleting six months and incorporated three months as per Act 44 of 2015 and subsequently the said Amendment Act 44 of 2015 was amended from six months to 30 months also in the second proviso, the word "6 months" was substituted by "2 years". In view of the same, as per amended Act 17 of 1996 prescribing period of 20 months for Adhyaksha/Upadhyaksha and Act 17 of 2015 prescribed five years and thereafter Act 44 of 2015 was suitably amended with due deliberation before both the Houses and after obtaining majority of approval, the name of "Panchayat Raj" was renamed as "Grama Swaraj and Panchayat Raj Act" underlying principles of 73rd Amendment to the Constitution of India and the concept of "local self-government" and "Grama Swaraj" after the same was amended prescribing period of five years for Adhyaksha/Upadhyaksha of Zilla Panchayat and for removal, the period of 30 months was incorporated in the year 2015. It is further stated in the writ petitions that when things stood thus, the Government has

13 brought Ordinance to reduce the duration of sitting of Adhyaksha/Upadhyaksha of Zilla Panchayat and Taluk Panchayat and accordingly, reduced the period for moving "no confidence motion" against Adhyaksha/Upadhyaksha from 30 months to 15 months under the provisions of impugned Ordinance 2 of 2020 and the said Ordinance was promulgated without any basis and the same is contrary to the object of the Act as well as the provisions contained under the Constitution of India. The said Bill was placed before the Assembly on 18th March, 2020 and got approved on 24th March, 2020, however, the said Bill was not placed before the Legislative Council and as such promulgated the Ordinance during COVID-19 period by the respondent-Government. Being aggrieved by the issuance of Ordinance 2 of 2020, the petitioners have challenged the impugned ordinance in Writ Petition No.7717 of 2020. It is further averred that, taking advantage of the impugned Ordinance, the Government has issued Karnataka Grama Swaraj and Panchayat Raj (Motion of no confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020 (hereinafter referred to as 'Rules, 2020' for brevity) on 15th September,

14 2020 under Section 311 read with 179(3) of the Act. It is further averred in the writ petition that, the State Government, without considering the objections made by the petitioners with regard to the impugned Ordinance and without waiting for the result of the Act, have published the impugned Rules, 2020. In the meanwhile, certain Members of Zilla Panchayat, Bidar have submitted a letter dated 12th October, 2020 (Annexure-E) to the Regional Commissioner, Gulbarga Division, to convene a meeting of no confidence motion against the petitioners herein and based on the said letter, the Regional Commissioner has issued notice dated 12th October, 2020 in Form-II to convene meeting on 23rd October, 2020 and the said Notice was served to the first petitioner on 14th October, 2020 and to the second petitioner on 15th October, 2020 as per Annexure-F and F1 respectively. Being aggrieved by the Rules of No Confidence Motion 2020, so also, the impugned notices dated 12th October, 2020 (Annexure-F and F1), the petitioners have filed these petitions.

15 the writ petition and the remaining contesting private respondents, except the State Government, have adopted the objections made by the respondent No.29. Respondent-State has filed statement of objections to justify the impugned ordinance as well as Rules, 2020.

16 sealed cover in terms of the order dated 22nd October, 2020. The Division Bench has also held that results of No Confidence Motion would not be given effect to and would be subject to further orders to be passed in these writ petitions and accordingly, the proceedings of the meeting of no confidence motion was kept in a sealed cover.

17 petitions, he concedes that the Rules, 2020 is in accordance with the provisions of Constitution of India, however, submitted that he confines his arguments only with regard to the applicability of Rules, 2020 prospectively and not retrospectively. It is his further submission that the effect of Rules, 2020 is prospective in nature and cannot be construed as having retrospective effect to the serving Members of the Zilla Panchayat. 9. Referring to the impugned Amendment Ordinance, learned Senior Counsel submitted that, by first proviso of Section 179(3), the period of recourse to move no confidence motion against Adhyaksha and Upadhyaksha was reduced from thirty months to fifteen months. He further submitted that the words contained in first proviso to Section 179(3) of the Act should be read as prospective in nature and it cannot relate back to the date of issuance of the principal Act. Hence, he contended that the impugned ordinance and corresponding Rules, 2020 are applicable to the Members to be elected in furtherance of the issuance of amendment on 31st March, 2020

18 and not to the serving Members of the Zilla Panchayat, who were elected prior to the date of issuance of amendment on 31st March, 2020. Elaborating his submissions, he contended that, if the intention of the legislature is to give retrospective effect, the same would take away the rights of the existing Adhyaksha/Upadhyaksha of Zilla Panchayats and hence, the intention of the Legislature is to give effect prospectively and not retrospectively. In this regard, he relied upon the judgment of the Hon'ble Supreme Court in the case of COMMISSIONER OF INCOME TAX (CENTRAL)-I, NEW DELHI v. VATIKA TOWNSHIP PRIVATE LIMITED reported in (2015)1 SCC 1. Placing reliance on paragraphs 27 to 32 of the judgment, learned Senior Counsel Shri Jayakumar S. Patil, submitted that the petitioners herein, as well as, similarly placed Adhyaksha and Upadhyaksha of Zilla Panchayat of other districts in the State of Karnataka, have already completed 45 months and none of them have term of Office for more than 15 months and keeping the term of Office of the existing Members of the Zilla Panchayat, the intention of the Legislature is to give effect to the amendment, prospectively. He further contended that, the impugned Ordinance which

19 modified the accrued rights to the Members of the Zilla Panchayat has to be treated as prospective unless the Legislative intent is clearly to give effect to the enactment a retrospective application. Emphasising his arguments on these lines, learned Senior Counsel submitted that, unless the legislation is for the purpose of supplying an obvious omission in a former legislation, the legal position emerges that the benefit is conferred by the legislation with legislators' object, then presumption would be with such legislation, giving it a purposive construction, warrants to be providing prospective effect and therefore, he submitted that it is well-settled principle of law that, if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended and as such, since the impugned amendment Ordinance is not declaratory statute and no explanation has been given for giving effect to the Act retrospectively and in that view, keeping in mind the vested right of the serving Adhyaksha/Upadhyaksha of the Zilla Panchayat, the provisions contained in the impugned amendment Ordinance is prospective in nature and such amendment is not a procedural one and accordingly, he

20 submitted that issuance of the impugned notices under the guise of new amendment, is bad in law. 10. Learned Senior Counsel, by placing reliance on the judgment of Hon'ble Supreme Court in the case of CHAIRMAN, RAILWAY BOARD AND OTHERS v. C.R. RANGADHAMAIAH AND OTHERS reported in (1997)6 SCC 623 and by referring to paragraph 24 of the judgment, contended that if the intention of legislature is to give effect to the impugned amendment retrospectively, then the same would invade "vested rights" or "accrued rights" of the petitioners and therefore, he contended that the impugned amendment is not applicable to serving Adhyaksha/Upadhyaksha and accordingly, learned senior counsel submitted that the Regional Commissioner with misconception of fact and law, has issued the impugned notices produced at Annexure-F and F1 dated 12th October, 2020, and therefore, same are required to be set aside by this Court. He further contended that, the issuance of the notice in Form-II by the Regional Commissioner is contrary to Rule 3(2) and as such, he further emphasised that Rule 3(2) mandates that the Regional

21 Commissioner shall give notice to the members not less than ten clear days of meeting of No-confidence motion and further, he submitted that the impugned notices dated 12th October, 2010 produced at Annexure-F and F1 fixing the date of meeting on 23rd October, 2020 is contrary to the law declared by the Full Bench of this Court in the case of C. PUTTASWAMY ETC. v. SMT. PREMA, ETC. reported in AIR 1992 KANT 356. He further contended that the petitioners herein have received the impugned Notices (Annexure-F and F1) on 14th and 15th October, 2020 respectively and in that view of the matter, even if the amended Rules is giving effect to the facts on hand, holding no confidence motion on 23rd October, 2020 is in violation of Rule 3(2) of Rules, 2020, as the meeting for no- confidence motion was not fixed within ten clear days as mentioned in Rule 3(2) of Rules, 2020, and therefore, impugned notices are liable to be quashed. In the backdrop of the aforesaid submissions, learned Senior Counsel submitted that the impugned amendment be made prospective in nature.

22 SUBMISSIONS OF RESPONDENTS 11. Per contra, Shri S.M. Chandrashekar, learned Senior Counsel appearing for respondent No.16, at the outset, submitted that the word "substitution" contained in amendment of Section 179(3) of the Act relates back to the date of the Act. Emphasising his submissions, the learned Senior Counsel pointed out that perusal of the nature of impugned Ordinance and the amendment would clearly indicate the intention of the Legislature was that, the substitution of words "15 months" in lieu of "30 months" is in retrospective operation and cannot be construed as prospective in nature as contended by the learned Senior counsel for the petitioner. Shri S.M. Chandrashekar further submitted that the intention of the legislature to reduce the period from 30 months to 15 months is a right conferred on the Members of the Zilla Panchayat and not a right conferred on the Adhyaksha/Upadhyaksha of the Zilla Panchayat. In this regard, he referred to the decision of the Hon'ble Supreme Court in the case of VINEETA SHARMA v. RAKESH SHARMA reported in AIR ONLINE 2020 SC 676 with regard to interpretation made by

23 the Hon'ble Supreme Court to Section 6 of the Hindu Succession Act. 12. Countering the submissions made by the learned Senior Counsel appearing for the Petitioner with regard to placing reliance on the judgment of Hon'ble Supreme Court in the case of VATIKA TOWNSHIP (supra), Shri S.M.Chandrashekar, learned Senior counsel submitted that, the interpretation with regard to the words contained in the Income-tax Act cannot be imported for the right of a person elected under a particular statute. He further submitted that the Constitution Bench of the Hon'ble Supreme Court in the aforesaid case has interpreted the words so as to give benefit to the assessees against the Revenue and in that view of the matter, the intention of the Legislature in the Rules impugned therein was to give effect to the assessee and as such the corrective measures was said to be taken by the Revenue/Department of Income-tax. Placing reliance on the judgment of this Court in the case of ABDUL RAZAK v. ASSISTANT COMMISSIONER made in Writ Petition No.45491 of 2004 disposed of on 17th November, 2014 dealing with Section

24 49 of the erstwhile Karnataka Panchayat Raj Act, 1993, he contended that the impugned Ordinance is conferring rights in favour of the Members of the Panchayat and not giving any right in favour of a person holding the office of the Zilla Panchayat and accordingly, he submitted that the contentions raised by the learned Senior Counsel appearing for the petitioner cannot be accepted. Shri S.M. Chandrashekar, in order to fortify his contentions with regard to word "substitution" has relied upon the judgement of the Hon'ble Supreme Court in the case of VINEETA SHARMA (supra) wherein the Hon'ble Supreme Court while interpreting Section 6 of Hindu Succession Act has held that "substitution" of a particular provision would relate back to the date of enactment and cannot be construed as prospective in nature and therefore, he contended that writ petitions are liable to be dismissed. 13. Shri Ameet Kumar Deshpande, learned counsel appearing for respondents No.4 and 29, submitted that, holding the post of Adhyaksha and Upadhyaksha of Zilla Panchayat is not an absolute right conferred on the Members and as such, the

25 petitioners have no locus standi to challenge the impugned notices dated 12th October, 2020 produced at Annexure- F and F1. He further submitted that writ petitions are not maintainable in view of the law declared by the Hon’ble Supreme Court in the case of SAYED MOHD. AHMAD KAZMI v. STATE (GOVT. OF NCT OF DELHI reported in (2012)12 SCC 1; so also in the case of PADMINI SINGHA v. STATE OF ASSAM AND OTHERS reported in (2018)10 SCC 561. He further submitted that in view of Rule 3(2) of the Rules, 2020, Notices produced at Annexure-F and F1, fixing meeting on 23rd October, 2020 for No-confidence motion shall be construed to be within the purview of Section 179(3) of the Act and as such, the Regional Commissioner has rightly issued the impugned notices. That apart, he further submitted that, the issue involved in these writ petitions is squarely covered by the law declared by this Court in the case of AKBAR KHAN v. STATE OF KARNATAKA made in Writ Petition No.202288 of 2014 disposed of on 21st February, 2014; and in the case of GOURI SHANKAR V. ASSISTANT COMMISSIONER made in Writ Petition No.100123 of 2015 disposed of on 08th January, 2014 and accordingly, he submitted that writ petitions are premature

26 and are liable to be dismissed. He also submitted that the petitioners have not made out a case for interference in respect of impugned notices as the writ petition itself is bereft of facts and lack jurisdiction as well as devoid of merits and therefore, prayed for rejection of writ petitions. 14. Elaborating his submissions on the above contentions, placing reliance on the Judgment in the case of GOURI SHANKAR (supra), Shri Ameet Kumar Deshpande, learned counsel contended that the relevant date for consideration of ten clear days as is mentioned in Rule 3(2) of the Rules, 2020, shall be from the date of dispatch of meeting notice and not the receipt of notice by the Petitioners. He further placed reliance on paragraph 7 of the judgment passed by this Court in the case of Smt. C. PUSHPA v. THE STATE OF KARNATAKA AND OTHERS made in Writ Petition No.56397 of 2018 disposed of on 06th March, 2019 and submitted that the term of 30 months under Section 46 read with Section 51 of the erstwhile Act, 1993, would be from the date of the first election of Adhyaksha. Drawing the analogy of the aforesaid judgment to the facts of

27 these writ petitions, he submitted that the said judgment of the learned Single Judge was affirmed in Writ Appeal No.899 of 2019 decided on 06th November, 2019 by the Division Bench of this Court. In this regard, he submitted that the petitioners herein have been elected as Adhyaksha and Upadhyaksha, after 30 months for the second term and therefore, the petitioners are not entitled for any relief from this Court. He further submitted that the perusal of pleadings in the writ petitions as well as the submissions made by the learned Senior Counsel appearing for the petitioners would clearly indicate the fact that the petitioners have challenged the impugned Rules, 2020 and as well contending that Rule 3(2) of the impugned Rules, 2020 is not applicable to them as there was no ten clear days of notice and elaborating his arguments on these lines, Shri Ameet Kumar submitted that though the petitioners have challenged constitutional validity of the impugned Rules, cannot blow hot and cold simultaneously by stating that the impugned Act and Rules are prospective in nature; and therefore, the petitioners are estopped from making their submissions on the impugned notices. Placing reliance on the law declared by the Division

28 Bench of this Court in the case of MUNIRATNAMMA v. ASSISTANT COMMISSIONER, KOLAR SUB-DIVISON, KOLAR reported in (2007)2 AIR KAR R 357, he further submitted that the petitioners have failed to establish as to what is the prejudice caused to them by receipt of impugned Notices and further submitted that, despite the Interim Order granted by this Court on 22nd October, 2020 and the observation made by the Division Bench of this Court in Writ Appeal No.200087 of 2020, the petitioners have not participated in the meeting, which would clearly evidence the fact that no prejudice has been caused to them in view of the impugned amendment/Ordinance as well as the notice issued in furtherance of the same. Therefore, the learned Counsel contended that the relief sought for by the petitioners is without any merit and the writ petitions are to be dismissed in limine.

29 that the petitioners have not discharged their burden to demonstrate unconstitutionality in the instant case or as to how the impugned amendment operates prospectively. Continuing his submissions, learned Additional Advocate General submitted that the intention of Legislators was, giving effect retrospectively and not prospectively, and the said submission is the stand of the Government. In this regard, he further submitted that the petitioners have consciously not challenged the validity of the impugned Act, however, are contending that the impugned Amendment Act is in prospective operation, would clearly establish the fact that the petitioners have lost confidence of the Members of the Zilla Panchayat. He further submitted that the democracy is a basic feature of the Constitution of India as held by the Hon'ble Supreme Court in the case of KESHAVANANDA BHARATI v. STATE OF KERALA reported in (1973)4 SCC 225 and in this regard, the right to elect the representatives as Adhyaksha/Upadhyaksha of the Zilla Panchayat in the instant case, includes the right to recall, to uphold the democratic principles. In this regard, he placed reliance on the judgment of the Hon'ble Supreme Court in the case of BHANUMATI v. STATE

30 OF UP AND OTHERS reported in (2010)12 SCC 1 (supra) and drew the attention of the Court to paragraphs 57, 64 and 67 of the Judgment. He further emphasised that, Section 49 of the erstwhile Karnataka Panchayat Raj Act, 1993 had similar provisions of the motion of no confidence against Adhyaksha/Upadhyaksha of the Grama Panchayat and Section 49 of the old Act is in pari materia with Section 179 of the Act and in that view of the matter, if "no confidence motion" is passed against Adhyaksha/Upadhyaksha of the Panchayat, he/she ceases to be a Adhyaksha/Upadhyaksha in office and thereby, they will be continued to be Members of Panchayat; and the Panchayat continues with newly elected Adhyaksha/Upadhyaksha. He further submitted that this Court has to read down the provisions contained in the amended provisions of Section 179 of the Act and in this regard, he places reliance on the judgment of the Hon'ble Supreme Court in the case of CALCUTTA GUJARATI EDUCATION SOCIETY AND ANOTHER v. CALCUTTA MUNICIPAL CORPORATION AND OTHERS reported in (2003)10 SCC 533 and referred to paragraph 35 of the Judgment. He further pointed out that the learned single

31 Judge of this Court, in Writ Petitions No.146835-53 of 2020 disposed of on 27th August, 2020 made in SMT. RATNAMMA BARAMAPPA NAGARA AND OTHERS v. STATE OF KARNATAKA AND OTHERS has held that the Ordinance No.2 of 2020 to which it brought amendment to Section 179 of the Act is procedural one and not a substantive one and in that view of the matter, learned Additional Advocate General submitted that, the contentions raised by the petitioners is without any merit and untenable grounds have been urged to defeat the democratic values and therefore, writ petitions are liable to be rejected.

32 reported in AIR 1988 SC 740 and referred to paragraph 16 of the judgment. Elaborating his contentions that reliance placed by the counsel appearing for the respondent with regard to judgment of C. PUSHPA v. STATE OF KARNATAKA AND OTHERS (supra) is not applicable to the facts of this case and in this regard he invited my attention to paragraph 6 of the judgment and accordingly, he submitted that the impugned amendment is liable to be held prospective in operation.

33 learned counsel for the respondents, the matter was heard at length. POINTS FOR CONSIDERATION

34 (i) in the beginning the words "Subject to such rules as may be prescribed" shall be inserted; (ii) in the first proviso, for the words "thirty months" the words "fifteen months" shall be substituted; and (iii) in the second proviso, for the words "two years" the words "six months" shall be substituted."

(i) in sub-section (2), in clause (c), after the proviso the following shall be inserted, namely:-

"Provided further that the duration of the offices reserved under this sub-section shall be for thirty months"; and (ii) in sub-section (3), for the words "five years" the words "thirty months" shall be substituted."

35 look into the circumstances and social conditions which prevailed at the time when law was enacted and which necessitated such enactment. It is pertinent to mention here that Hon'ble Supreme Court in the case of SHASHIKANT LAXMAN KALE v. UNION OF INDIA reported in (1990)4 SCC 366 observed that "while testing the legislation/rule, this is important for the purpose of appreciating the background and the antecedent factual matrix that lead to the legislative process resulting into the enactment; even to sustain presumption of constitutionality, the consideration may be had to the matters of common knowledge, history of times and "every conceivable state of facts" existing at the time of making the law (see ILR 2020 KAR 963). 22. It is also well established principle of law that in cases involving question of legislative competence, the enquiry should always be, as to the true nature and character of the challenged Legislation and it is the result of such investigation, and not its form that will determine as to whether or not, the said legislation relates to a subject, which is within the power of the Legislature.

36 In such investigation, the courts do examine the effect of Legislation and take into consideration its object, purpose or design for the purpose of ascertaining its true character and substance and, the class of subjects of Legislation to which it really belongs and not for finding out motives which prompted the Legislature to make such Legislation. The Constitution Bench of the Hon'ble Supreme Court of India in the case of R K DALMIA v. JUSTICE TENDOLKAR reported in AIR 1958 SC 588 has held that there is always a presumption in favour of the constitutionality of enactment and the burden to rebut the same lies on the petitioner who challenges the vires of the legislation/rules. Insofar as 'Rules' are concerned, they should be within the provision of the Parent Act. 23. It is also settled principle of law that ordinarily, the operation of Statute is not automatic and like all legal rules, it has to take effect through the interpretation of the Courts, when challenge is laid; in their task of literal or grammatical interpretation, Courts are constantly reminded, to their unfeigned chagrin, of the imperfection of human language. The

37 provision of the Act/Rules should not confuse its main issue and the purpose of legislation should be maturely considered, and construed as having practical utility. 24. With the above preface, I shall proceed to examine the submission of the learned counsel appearing for the parties, in the light of the judgments of the Hon'ble Supreme Court and this Court. The Hon'ble Supreme Court in the case of NATIONAL AGRICULTURAL CO-OPERATIVE MARKETING FEDERATION OF INDIA v. UNION OF INDIA reported in (1981) 130 ITR 928, observed thus: "The retrospectivity is liable to be decided on the few touch stones as: (i) the words used must be expressly provided or clearly implied retrospective operation; (ii) the retrospectivity must be reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii) where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the decision without removing the statutory basis of the decision. There is no fixed formula for the expression of legislative intent to give retrospectivity to an enactment…."

38 25. The Constitution Bench of Hon'ble Supreme Court in the case of MANOJ NARULA v. UNION OF INDIA reported in (2004)9 SCC 1 has observed: "Good governance is only in the hands of good men. No doubt, what is good or bad is not for the court to decide: but the court can always indicate the constitutional ethos on goodness, good governance and purity in administration and remind the constitutional functionaries to preserve, protect and promote the same."

(i) lack of legislative competence; and

(2) violation of any of the fundamental rights guaranteed in Part-II of the Constitution of India or of any other constitutional provision.

40 representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them. The Court cannot sit in judgment over their wisdom and it is the domain of the legislature to make law as per the needs of the situation to subserve the people's interest and interference of Court is warranted only if such legislation contravenes or abridge or invade or ultra vires of the constitutional provisions. 29. The Hon'ble Supreme Court in the case of NAVTEJ SINGH JOHAR AND OTHERS v. Union OF INDIA MINISTRY OF LAW AND JUSTICE AND OTHERS reported in (2018)10 SCC 1 has observed that a statutory provision can be struck down on the ground of manifest arbitrariness, when the provision is capricious, irrational and/or without adequate determining principle, as also if it is excessive or disproportionate. 30. The Hon'ble Supreme Court in the case of COMMISSIONER OF SALES TAX, M.P. INDORE AND OTHERS v. RADHAKRISHNAN AND OTHERS reported in AIR 1979 SC 1588 held that, where a Statute is silent or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a

41 construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. The aforesaid view was reiterated by the Apex Court in the case of GREATER BOMBAY CO-OPERATIVE BANK LIMITED v. M/S. UNITED YARN TEX PRIVATE LIMTIED reported in AIR 2007 SC 1605. At paragraphs 74 and 75, of the judgment, the Apex Court has observed thus:

"74. As observed by this Court in CST v. Radhakrishnan in considering the validity of a Statute the presumption is always in favour of constitutionality and the burden is upon the person who attacks it to show that there has been transgression of constitutional principles. For sustaining the constitutionality of an Act, a Court may take into consideration matters of common knowledge, reports, preamble, history of the times, objection of the legislation and all other facts which are relevant. It must always be presumed that the legislature understands and correctly appreciates the need of its own people and that discrimination, if any, is based on adequate grounds and considerations. It is also well- settled that the courts will be justified in giving a liberal interpretation in order to avoid constitutional invalidity. A provision conferring very wide and expansive powers on authority can be construed in conformity with legislative intent of exercise of power within constitutional limitations. Where a Statute is silent

42 or is inarticulate, the Court would attempt to transmutate the inarticulate and adopt a construction which would lean towards constitutionality albeit without departing from the material of which the law is woven. These principles have given rise to rule of "reading down" the provisions if it becomes necessary to uphold the validity of the law.

In the same para, this Court further observed as follows: "The Court must recognize the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the legislature and the executive are expected to show due regard and deference to the judiciary. It cannot also be forgotten that our Constitution recognizes and gives effect to the concept of equality between the three wings of the State and the concept of "checks and balances" inherent in such scheme."

"The rule of "reading down" a provision of law is now well recognised. It is a rule of harmonious construction in a different name. It is resorted to smoothen the crudities or ironing the creases found in a statute to make it workable. In the garb of 'reading down', however, it is not open to read words and expressions not found in it and thus venture into a kind of

44 judicial legislation. The rule of reading down is to be used for the limited purpose of making a particular provision workable and to bring it in harmony with other provisions of the statute. It is to be used keeping in view the scheme of the statute and to fulfil its purposes. See the following observations of this Court in the case of BR Enterprises vs. State of UP [1999(9) SCC 700]:- "First attempt should be made by the courts to uphold the charged provisions and not to invalidate it merely because one of the possible interpretation leads to such a result, howsoever attractive it may be. Thus, where there are two possible interpretations, one invalidating the law and the other upholding, the latter should be adopted. For this, the courts have been endeavouring, sometimes to give restrictive or expansive meaning keeping in view the nature of legislation, may be beneficial, penal or fiscal etc. Cumulatively, it is to sub-serve the object of the legislation. Old golden rule is of respecting the wisdom of legislature, that they are aware of the law and would never have intended for an invalid legislation. This also keeps courts within their track and checks individual zeal of going wayward. Yet in spite of this, if the impugned legislation cannot be saved the courts shall not hesitate to strike it down. Similarly, for upholding any provision, if it could be saved by reading it down, it should be done, unless plain words are so clear to be in defiance of the Constitution. These interpretations spring out because of concern of the courts to salvage a legislation to achieve its objective and not to let it fall merely because of a possible ingenious interpretation. The words are not static but dynamic. This infuses fertility in the field of interpretation. This equally helps to save an Act but also the cause of attack on the Act. Here the

45 courts have to play a cautious role of weeding out the wild from the crop, of course, without infringing the Constitution. For doing this, the courts have taken help from the Preamble, Objects, the scheme of the act, its historical background, the purpose for enacting such a provision, the mischief, if any which existed, which is sought to be eliminated. The principle of reading down, however, will not be available where the plain and literal meaning from a bare reading of any impugned provisions clearly shows that it confers arbitrary, uncanalised or unbridled power."

46 34. In the instant case, the State has not filed statement of objections. The Hon'ble Supreme Court in the case of SANJEEV COKE MANUFACTURING COMPANY v. BHARAT COKING COAL LIMITED AND ANOTHER reported in (1983)1 SCC 147 has held that the validity of legislation is not be adjudicated by what is stated in the affidavit filed on behalf of the State and that it should fall or stand on the strength of its provisions. 35. Hon'ble Supreme Court in the case of SRI VIJAYALAKSHMI RICE MILLS (supra) following the judgment in the case of NANI GOPAL MITRA v. STATE OF BIHAR reported in AIR 1970 SC 1636, at paragraph 5 of the judgment, held that "it is a well recognized rule of interpretation that in the absence of express words or appropriate language from which retrospectivity may be inferred, a notification takes effect from the date it is issued and not from any prior date. The principle is also well settled that statutes should not be construed so as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time of Amending Act came into force.

47 36. The Hon'ble Supreme Court in the case of RAMKANALI COLLIERY OF BCCL v. WORKMEN BY SECRETARY, RASHTRIYA COLLIERY MAZDOOR SANGH AND ANOTHER reported in (2001)4 SCC 236 at paragraph 8 of the judgment observed thus: "The argument advanced now is that protection available under Section 14 is no longer available on the date when the award was made and, therefore, contended that the award is a nullity. The decision in Bhubaneshwar Singh & Anr. vs. Union of India & Ors., 1994 (6) SCC 77, is in the context of enactment of law reviewing the defect pointed out in a judgment and retrospectively enacting the law so as to render the judgment of the court ineffective thus enacting a validating provision was considered. What happened in that case was courts took the view that the sale price of the stock of extracted coal lying at the commencement of the appointed date had to be taken into account for determining the profit and loss during the period of management of the mine by Central Government. Thereafter, the Coal Mines Nationalisation Laws (Amendment) Ordinance and Act, 1986 was issued. Section 19(2) of the Principal Act as introduced by the Amending Act and Section 19 of the Amending Act providing that the amount payable as compensation shall be deemed to include and deemed always to have

48 included in the amount required to be paid to the owner in respect of all coal in stock on the date immediately before the appointed date. The said Amending Act was held to be valid as it altered the basis of the principal Act with retrospective effect as a result of which court' judgment was rendered ineffective and, therefore, this Court upheld the said provision. That decision can have no application to the present case nor are we concerned with the validity of the provisions of the enactment in question. What we are concerned in the present case is the effect of the expression substituted used in the context of deletion of sub-clauses of Section 14, as was original enacted. In Bhagat Ram Sharma vs. Union of India & Ors., 1988 Supp. SCC 30, this Court stated that it is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be deleted and a new provision substituted. If there is both repeal and introduction of another provision in place thereof by a single exercise, the expression substituted is used. Such deletion has the effect of the repeal of the existing provision and also provide for introduction of new provision. In our view there is thus no real distinction between repeal and amendment or substitution in such cases. If that aspect is borne in mind, we have to apply the usual principles of finding out the rights of the parties flowing from an amendment of a provision. If there is a vested right and that right is to be taken away, necessarily the law will have to be retrospective in effect and if such a law retrospectively takes away such a right,

49 it can no longer be contended that the right should be enforced. However, that legal position, in the present case, does not affect the rights of the parties as such."

50 remove the anomaly then existing. Regulation 8(3) being a remedial measure, must receive a beneficial construction and if it is capable of two interpretations, the Courts must prefer that construction which permits the beneficent purpose behind it. When language of a statute is free from ambiguity, no duty is cast upon the Court to do anything more than to give effect to the word or words used. We do not mean to say that there might not be something in the context of an Act of Parliament, or to be collected from its language, which might give to words prima facie prospective a larger operation, but that ought not to receive a larger operation unless you find some reason for giving it."

“13. … It is well settled in law that a mandatory provision of law requires strict compliance but there are situations where even if a provision is mandatory, non- compliance would not result in nullification of the act. There are certain exceptions. One such exception is, if a certain requirement or condition is provided in a statute for the benefit or interest of a particular person, the same can be waived by him if no public interest is involved. The

51 ultimate result would be valid even if the requirement or condition is not performed.”

(1) of Section 49 of the said Act of 1993, there is a deeming fiction by which when a resolution expressing want of confidence in the President or Vice-President is passed, they should be deemed to have vacated the

52 office. Therefore, prima facie, we do not agree with the submission that Sub-section (1) of Section 49 of the said Act of 1993. In the present case, in the motion moved by 20 members in which, they have stated that they have lost confidence in the appellant."

53 MARKETING LIMITED AND OTHERS reported in (2015)8 SCC 1 at paragraph 16, 18 and 20 observed thus: "16. The principle of representative democracy is the election of representatives by the people otherwise eligible to cast their vote and the people thus elected, constituting the body for the management of an institution. Thus, in the case of co-operative societies, after the amendment in the Constitution, there has to be a Board of elected representatives, which may be called Board of Directors or Governing Body or a Managing Committee, etc. to which the members entrust the direction and control of the management of the affairs of the society. That representative body selects one among the elected representatives as its Chairman or any other office-bearer, as the case may be. Selection is the act of carefully choosing someone as the most suitable to be the leader or office-bearer. Thus, there is a lot of difference between election of delegates/representatives to constitute a body and selection of a person by the body from amongst the elected members to be the leader. It is to be borne in mind that the management and control of the society is entrusted to the representative body, viz. the Board of Directors and that the Chairperson elected by the Board of Directors is the Chairperson of the society and not of the Board of Directors. 18. In Pratap Chandra Mehta V. State Bar Council of M.P. and in Usha Bharti V. State of U.P. the concept of

54 democratic principles governing the democratic institutions have been discussed. In a democratic institution, confidence is the foundation on which the superstructure of democracy is built. The bedrock of the democratic accountability rests on the confidence of the electorate. If the representative body does not have confidence in the office-bearer whom they selected, democracy demands such officer to be removed in a democratic manner. 20. If a person has been selected to an office through democratic process, and when that person loses the confidence of the representatives who selected him, those representatives should necessarily have a democratic right to remove such an office-bearer in whom they do not have confidence, in case those institutions are viewed under the Constitution/statutes as democratic institutions."

55 election or till he ceases to be a member of the Grama Panchayat whichever is earlier. It ought to be noticed that earlier the term of office under the un-amended Section 46 of the Act was 30 months. Similarly the prohibition under the second proviso to Section 49(1) of the Act earlier was one year. The time of one year and five years as found under Section 49(1) and Section 46 of the Act have been altered by way of an amendment insofar as the term of office of Adhyaksha or Upadhyaksha is now five years as per the amendment inserted on 30.04.2015 by amendment Act No.17/2015, and almost contemporaneously an amendment of second proviso to Section 49(1) of the Act which provides for the period of prohibition to move a motion of no confidence came to be altered to 30 months as per the amendment made on 23.02.2016 by amendment Act No.44/2015. Hence, it becomes clear that the legislature in its wisdom while making the amendment to Section 46 as well as Section 49 of the Act has by a conscious legislative intent altered the period of prohibition as well as the period of office of the Adhyaksha and Upadhyaksha as noticed by amendments. To accept the contention that period of 30 months as a prohibition to move the motion of no- confidence, would commence from the date of the Adhyaksha having been elected, though would appear at first blush to be a correct literal interpretation, adoption of such an interpretation in the present facts would lead to absurdity where the prohibition under Section 49(1) of the Act is sought to be made applicable where the

56 Adhyaksha is elected for the second time consequent to the resignation of the Adhyaksha elected at the earlier instance. If this interpretation is accepted then the bar envisaged under the second proviso to Section 49 would come into play whenever an Adhyaksha is elected. If Adhyaksha resigns or vacancy arises and an Adhyaksha is elected once again and if the bar under second proviso is to operate then no motion of no-confidence can be moved during the whole term of 60 months. Obviously such an interpretation would lead to absurdity. The correct interpretation keeping in mind, the objective and intent of the statute by adopting an appropriate rule of interpretation would be to assign the appropriate meaning for the word 'from the date of his election' by taking into account the period as prescribed under Section 46 read with Section 51 of the Act, which would be that the term of 30 months is to be calculated from the date of the first election of Adhyaksha. This also becomes clear from use of the words 'within first 30 months' as provided under second proviso to Section 49 of the Act."

57 of a Gram Panchayat shall be forthwith deemed to have vacated his office if a resolution expressing want of confidence in him is passed by a majority of not less than two-thirds of the Members of the Gram Panchayat at a meeting specially specially convened for the purpose in accordance with the procedure as may be prescribed. The right given under Section 49 of the Act is to the Members who have such a right to have the 'Adhyaksha' removed if not less than two-thirds of the Members have expressed their lack of confidence in the 'Adhyaksha'. The procedure contemplated under Rule-3 of the Rules is for effectuating that right of the Members. The examination of the provisions of Rule-3 of the Rules cannot be independent of the provisions of Section 49 of the Act. Section 49 of the Act is not one giving any right in favour of a person holding the office of the 'Adhyaksha', but for conferring rights in favour of the Members of the Panchayat to remove the 'Adhyaksha'.

58 and not a violation of fundamental right. The conduct of the aggrieved party who make such grievance against any such illegality or irregularity is as much important as the alleged illegality or irregularity. It is to be remembered that in the case by a democratic process the members of the Panchayat have unanimously moved for the 'No Confidence Motion' and the 'No confidence Motion' did take place which is culminated in the fresh election. Moreover the appellant, except the hyper technical question, has not shown what is the prejudice caused to him by receipt of the notice by one day later. What he could not do in 14 days could not have been accomplished in 15th day. Hence, looking at the case from any angle, we find that the learned single Judge was justified in rejecting the writ petition. Agreeing with the same, we find no merit in the writ appeal and the same is rejected."

59 on some other person or on the public generally, and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. This exactly is the justification to treat procedural provisions as retrospective. In Government of India & Ors. v. Indian Tobacco Association[5], the doctrine of fairness was held to be relevant factor to construe a statute conferring a benefit, in the context of it to be given a retrospective operation. The same doctrine of fairness, to hold that a statute was retrospective in nature, was applied in the case of Vijay v. State of Maharashtra & Ors.[6] It was held that where a law is enacted for the benefit of community as a whole, even in the absence of a provision the statute may be held to be retrospective in nature. However, we are confronted with any such situation here."

"8.1. The Supreme Court in Zile Singh (supra) was dealing with Haryana Municipal (Amendment) Act, 1994

60 (Act No.3 of 1994) whereby, Section 13A in Chapter III of the Principal Act was inserted. Section 13A provided disqualification for being chosen as and for being a member of Municipality if he has more than two living children provided that a person having more than two children on or after expiry of one year of the commencement of the amendment Act, shall not be deemed to be disqualified. In this backdrop, the Supreme Court stated the principles of construction and interpretation of the provisions introduced/substituted by way of amendment. Paragraph 13 and 15 are relevant for our purpose, which read thus: "13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' - a new law ought to regulate what is to follow not the past. (See:Principles of Statutory Interpretation by Justice G.P.Singh, Ninth Edition, 2004 at p.438). It is not necessary that an express provision be made to make a statute retrospective and the presumption against retrospectivity may be rebutted by necessary implication especially in a case where the new law is made to cure an acknowledged evil for the benefit of the community as a whole (ibid, p.440).

8.2. In Indian Tobacco Association, (supra) the question that fell for the consideration of the Supreme Court was as to what would be the effect of subsequent notification, 'substituting' the list of places specified in the original notification. The Supreme Court in this judgment in paragraphs-15 and 16 considered the word substitute and observed thus :

"15. The word "substitute" ordinarily would mean "to put (one) in place of another", or "to replace". In Black's Law Dictionary, 5th Edn., at p.1281, the word "substitute" has been defined to mean "to put in the place of another person or thing", or "to exchange". In Collins English Dictionary, the word "substitute" has been defined to mean "to serve or cause to serve in place of another person or thing"; "to replace (an atom or group in a molecule) with (another atom or group)"; or "a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague". 16. By reason of the aforementioned amendment no substantive has been taken away nor any penal consequence has been imposed. Only a obvious mistake was sought to be removed thereof."

"56. The prospective statute operates from the date of its enactment conferring new rights. The retrospective statute operates backward and takes away or impairs vested rights acquired under existing laws. A retroactive statute is the one that does not operate retrospectively. It operates in futuro. However, its

63 operation is based upon the character or status that arose earlier. Characteristic or event which happened in the past or requisites which had been drawn from antecedent events. Under the amended section 6, since the right is given by birth, that is an antecedent event, and the provisions operate concerning claiming rights on and from the date of Amendment Act.

“35. Mr Sachar relies on Thakur Gokulchand v. Parvin Kumari, AIR 1952 SC 231, Garikapatti Veeraya v. N. Subbiah Choudhury, AIR 1957 SC 540, Jose Da Costa v. Bascora Sadasiva Sinai Narcornim, (1976) 2 SCC 917, Govind Das v. ITO, (1976) 1 SCC 906, Henshall v. Porter, (1923) 2 KBD 193, United Provinces v. Mst. Atiga Begum, AIR 1941 FC 16, in support of his submission that the Amendment Act was not made retrospective by the legislature either expressly or by necessary implication as the Act itself expressly provided that it shall be deemed to have come into force on January 23, 1973; and therefore there would be no justification to giving it retrospective operation. The vested right to contest which was created on the alienation having taken place and which had been litigated in the court, argues Mr Sachar, could not be taken away. In other words, the vested right to contest in appeal was not affected by the Amendment Act. However, to appreciate this argument we have to analyse and distinguish between the two rights involved, namely, the right to contest and the right to appeal against lower court’s decision. Of these two rights, while the right to contest is a customary right, the right to appeal

64 is always a creature of statute. The change of the forum for appeal by enactment may not affect the right of appeal itself. In the instant case we are concerned with the right to contest and not with the right to appeal as such. There is also no dispute as to the propositions of law regarding vested rights being not taken away by an enactment which is ex facie or by implication not retrospective. But merely because an Act envisages a past act or event in the sweep of its operation, it may not necessarily be said to be retrospective. Retrospective, according to Black’s Law Dictionary, means looking backward; contemplating what is past; having reference to a statute or things existing before the Act in question. Retrospective law, according to the same dictionary, means a law which looks backward or contemplates the past; one which is made to affect acts or facts occurring, or rights occurring, before it came into force. Every statute which takes away or impairs vested rights acquired under existing laws, or creates a new obligation, imposes a new duty, or attaches a new disability in respect to transactions or considerations already past. Retroactive statute means a statute which creates a new obligation on transactions or considerations already past or destroys or impairs vested rights. 36. In Halsbury’s Laws of England (4th edn., Vol. 44, at paragraph 921) we find: “921. Meaning of ‘retrospective’.— It has been said that ‘retrospective’ is somewhat ambiguous and that a good deal of confusion has been caused by the fact that it is used in more senses than one. In general, however, the courts regard as retrospective any statute which operates on cases or facts coming into existence before its commencement in the sense that it affects, even if for the future only, the character or consequences of transactions previously

65 entered into or of other past conduct. Thus a statute is not retrospective merely because it affects existing rights; or is it retrospective merely because a part of the requisites for its action is drawn from a time antecedent to its passing.”

66 in the instant case it appears that this was the intention of the legislature. Similarly courts will construe a provision as conferring power to act retroactively when clear words are used. We find both the intention and language of the Amendment Act clear in these respects.”

"40. The court cannot proceed with an assumption that the legislature enacting the statute has committed a mistake and where the language of the statute is plain and unambiguous, the court cannot go behind the

67 language of the statute so as to add or subtract a word playing the role of a political reformer or of a wise counsel to the legislature. The court has to proceed on the footing that the legislature intended what it has said and even if there is some defect in the phraseology etc., it is for others than the court to remedy that defect. The statute requires to be interpreted without doing any violence to the language used therein. The court cannot re-write, recast or reframe the legislation for the reason that it has no power to legislate.

"…Similarly, in Koteswar Vittal Kamath v. K. Rangappa Baliga, AIR 1969 SC 504, the three Judge Bench of the Supreme Court emphasized the distinction between supersession of rule and substitution of a rule and held that the process of substitution consists of two steps: first, the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. Thus, what emerges from the aforesaid judgments of the Supreme Court is that an amendment which has the effect of substitution of a provision has the effect of replacing the old provision by the substituted provision and in the absence of repugnancy, inconsistency and absurdity, must be construed as if it has been incorporated in the Act right from ab initio. In other words, an amendment by way of substitution has retrospective operation.

69 the amending Act No.3 of 2013, had the effect of just deleting the old provisions and making the new provisions operative as if the same were in existence from inception. It is well settled that the process of substitution consists of two steps, first, the old Rule is made to cease to exist and, next, new rule is brought into existence in its place. Having regard to this principle, we find that all the substituted provisions introduced by way of Amending Act No.3 of 2013, have retrospective operation. Thus, the rule against retrospectivity is not applicable when an amendment is made to a provision by way of substitution…."

"…the rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity), as if the altered words had been written into the earlier Act with pen and ink and the old words scored out so that thereafter there is no need to refer to the Amending Act at all…"

71 words, the impugned amendment is retrospective in nature and not prospective.

72 representative, so long it is in accordance with law, cannot be assailed on abstract laws of democracy. 57. The Division Bench of this Court in the case of MASTER BALACHANDAR KRISHNAN REPRSENTED BY HIS MOTHER UMA KRISHNAN v. STATE OF KARNATAKA AND OTHERS made in Writ Petitions No.8788 of 2020 disposed of on 29th September, 2020 in the course of judgment at paragraph 160, has observed thus: "160. … …

(a) xxx xxx xxx (b) In A MANJULA BHASHINI v. MANAGING DIRECTOR, ANDHRA PRADESH WOMEN'S CO-OPERATIVE FINANCE CORPORATION LIMITED AND ANOTHER [(2009)8 SCC 431], cited by learned senior counsel for the petitioners, it has been stated that the statement of objects and reasons can be looked into as an external aid for appreciating the true intent of the legislature and/or the object sought to be achieved by enactment of the particular Act or for judging reasonableness of the classification made by such Act. (c) Similarly, in STATE OF GUJARAT v. MIRZAPUR MOTI KURESHI KASSAB JAMAT AND OTHERS [(2005)8

73 SCC 534], cited on behalf of the petitioners, it has been observed that the facts stated in the preamble and the Statement of Objects and Reasons appended to any legislation are evidence or the legislative judgment. They indicate that thought process of the elected representatives of the people and their cognizance of the prevalent state of affairs, impelling them to enact the law. These, therefore, constitute important factors which amongst others will be taken into consideration by the Court in judging the reasonableness of any restriction imposed on the fundamental rights of the individuals. The Court would begin with a presumption of reasonability of the restriction, more so when the facts stated in the Statement of Objects and Reasons and the preamble are taken to be correct and they justify the enactment of law for the purpose sought to be achieved." 58. It is relevant to mention here that Rule 3(1), 3(2) and 3(4) of the Karnataka Panchayat Raj (Motion of No-Confidence against Adhyaksha and Upadhyaksha of Grama Panchayat) Rules, 1994 was challenged before this Court in the case of B.R. SIDDARAMU v. STATE OF KARNATAKA AND OTHERS reported in ILR 2020 KAR. 1070 and this Court, has held that the aforementioned Rules are merely procedural and can be construed to provide for procedure to implement the legislative

74 intent and nothing more. In this regard, the contentions raised by the petitioners fail. 59. The other aspect to be considered is with regard to the issuance of Notices produced at Annexure-F and F1 dated 12th October, 2020. Taking into consideration the judgments referred to above, the impugned notices produced at Annexure-F and F1 are not in violation of the Act, as well as the Rules, 2020 made thereunder and same is within the purview of constitutional parameters and in that view of the matter, it is held that the impugned Amendment Act is constitutionally valid and within the umbrella of Constitutional morality to uphold the ethos of democratic values. Further, for the foregoing discussions, I am of the considered view that the impugned amendment is to be held as retrospective in operation, relates back to the date of origin of the Act and therefore, Point No.1 is to be answered favouring the contentions of the respondents herein. 60. In order to answer the Point No.2, stated above, in an identical circumstance, the similar contention raised with regard

75 to legality of the notice of no-confidence motion, was favoured by this Court in the case of AKBAR KHAN (supra) passed in Writ Petition No.202288 of 2014. In the said decision, this Court has held that the Adhyaksha of the Taluk Panchayat has no locus standi to challenge the notice of no-confidence motion on the ground of irregularity in notice and further held that it cannot be interfered with at the instance of Adhyaksha and as such, removal of Adhyaksha from office was not by issuance of notice but motion against him passed with requisite majority of the members and accordingly, this Court declined to entertain the writ petition. 61. In order to answer the averments made by the petitioners with regard to amendment to Rule 3(2) of the Rules, 2020, the interpretation of calculating the requisite number of days for issuing Form-II was considered by this Court in the case of GOURI SHANKAR (supra) wherein this Court, while dealing with Section 47 of the Panchayat Raj Act, held as follows: “Procedure prescribed under Rule 3 is to effectuate the purpose and intent of substantive law namely, Section 49 of Karnataka Panchayat Raj Act, and even considering

76 the fact that Full Bench of this Court has held compliance of Rule 3 is mandatory, when facts on hand are examined, it would clearly indicate that the notice of meeting-Annexure-A dated 23.12.2013 for considering no-confidence motion meeting is proposed to be held on 10.01.2014 and merely because petitioner has received said notice on 29.12.2013 and thereby there is shortfall of 15 days notice, would not be a ground to interfere by this Court in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. It is not the receipt of notice but the date of dispatch of meeting notice which would be a factor which requires to be considered for examining as to whether there is infraction of Rule 3(2).” (emphasis supplied by me)

77 date of Motion is made, is not mandatory but is only directory and held that, the proceedings are not vitiated. The said finding completes the issue involved in this writ petition. It is also apt to consider Rule 3(3) of the Rules, 2020 which provides for various modes of issuance of notice of no-confidence initiated by the requisite members as per Section 179(3) of the Act. Perusal of the mode of service of such notice would fortify my view of counting of the days from the issuance of such notice and not from the date of receipt of notice by the members. Accordingly, the Point No.2 is to be answered favouring the respondents. 63. It was also argued by Shri Ameet Kumar Deshpande, the learned counsel for the respondent No.29 that, petitioners herein have not participated in the meeting convened pursuant to issuance of the impugned notices produced at Annexure-F and F1 and in that view of the matter, the contentions raised by the petitioners in these petitions have to be tested along with their right in their participation the meeting. In view of the fact that the petitioners herein have not participated in the meeting pursuant to issuance of impugned notices, Annexure-F and F1,

78 the submission made by Shri Ameet Kumar Deshpande is accepted. CONCLUSION 64. In view of the above discussions, I would like to summarise the finding as follows: (a) The impugned amendment to the Act and Rules, is retrospective in nature; (b) The impugned notices issued by the respondent- State do not warrant quashing under Article 226 of the Constitution of India, in these writ petitions. 65. In the result, for the foregoing reasons and applying the law enunciated by the Hon'ble Supreme Court and this Court in the aforementioned cases, these petitions are liable to be dismissed. Hence, I pass the following: O R D E R 1. Writ petitions are dismissed;

79 2. Ordinance 2 of 2020 dated 31st March, 2020 to Karnataka Grama Swaraj and Panchayat Raj (Amendment) Ordinance, 2020; and Karnataka Grama Swaraj and Panchayat Raj (Motion of No Confidence against Adhyaksha and Upadhyaksha of Zilla Panchayat) Rules, 2020 are held to be retrospective in operation.

Sd/- JUDGE

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