S M SADANANDAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) this writ appeal is moved by the original writ petitioner whose writ petition came to be dismissed by the learned single judge.

(2.) a few relevant facts leading to this writ appeal whichrequire to be noted at the outset to appreciate the grievance of the writ appellant, are: the appellant is a city municipal councillor of chitradurga city municipality. The state of Karnataka Acting under Section 2 of the Karnataka urban development authority Act, 1987, [hereinafter referred to as the act] appointed the appellant as a member of chitradurga urban development authority, by its order dated 28-2-1992. That order stated that the appointment of the appellant was till further orders. The contention of the appellant was that as per Section 3 of the Act, the urban development authority has to be constituted for development of the urban area as per Section 3(3) of the act and the authority shall consist amongst others of an elected member of the local authority concerned who also becomes a member of the authority. Local authority is defined by Section 2(n) to mean a municipal corporation or a municipal council constituted or continued under any law for the time being in force. Then there is a proviso to sub-section (4) of Section 3 of the Act, wherein it is laid down that the persons referred to in clauses (a) to (d) and clause (k) of sub-section (3) shall be appointed by the government and the persons referred to in clauses (e), (f) and (i) shall be nominated by the respective bodies: provided that all the first members of the authority shall be appointed by the government. It is the case of the appellant that he was not nominated by the local authority, namely, the chitradurga municipality but he was appointed to the chitradurga urban development authority by the state government in exercise of its powers under the proviso to sub-section (4) of Section 3 of the Act, referred to above. It is obvious that the appellant was appointed by the government being the first member of the authority to represent the local authority concerned namely chitradurga municipality, though an attempt was tried to be made by the learned counsel for respondent that appellant can be said to be appointed for the second time as the authority was constituted earlier in 1988. Ultimately, it emerged from the record that prior to the appellant no one else was occupying the post of representative, as an elected member of the chitradurga municipality, in the urban development authority. Therefore it can be seen that the state of Karnataka in exercise of its powers under sub-section (4) of Section 3 of the Act, appointed the appellant as a first member to represent the local authority concerned in the chitradurga urban development authority.

(3.) now it appears that the chitradurga city municipality byits resolution decided to send the name of respondent No. 2, t.h. hanumanthapa, as a member of the urban development authority in the place of the appellant. Thus, respondent No. 2 was put forward as an elected member of the chitradurga city municipality who was expected to displace the appellant, who was the first nominated incumbent, for occupying the membership under Section 3(3)(i) of the act. This prompted the state of Karnataka to pass the impugned Order, Annexure-F , by which it was stated that in place of appellant, 2nd respondent was being nominated under Section 3(3)(i) of the act. The appellant naturally felt aggrieved by that order and landed in this court by way of writ petition. His contention was that once he was nominated by the state government in exercise of its powers under Section 3(4) proviso, power of the government to appoint any one else got exhausted and after the appointment once he assumed the charge of the office, in the light of Section 5 proviso, he became entitled to continue for three years and therefore his term could not expire prior to 20th february, 1995. The Order, Annexure-F , seeking to displace him earlier, therefore, according to him, was incompetent and ultra vires. This contention of him was examined by the learned single judge after hearing all concerned. But learned single judge placing reliance on Section 5, sub-section (1) of the Act, took the view that when the appellant's very appointment was by way of nomination by the state government, his tenure and term of his office were subject to the pleasure of the government and once the government decided to withdraw the appellant from the board of chitradurga urban development authority, he had to make room for the duly elected member of the chitradurga city municipality, who could take his place as a representative of the municipality on the board of chitradurga urban development authority and therefore the appellant could not make any grievance about the Order, Annexure-F . Consequently, the writ petition was dismissed and that is how the appellant is before us, as noted earlier.