MALIGE MALLAPPA Vs. DEPUTY COMMISSIONER CHITRADURGA

JUDGEMENT

(1.) this petition is directed against the declaration of 4th respondent as adhyaksha of bannikodu grama panchayat (hereinafter referred to as the panchayat).

(2.) the petitioner contends that 4th respondent had not even been elected as a member of the panchayat and in support thereof relies upon annexure-b. It is stated therein that there was a tie between the 4th respondent and one h.n. manjappa. The petitioner contends that in the endorsement what is noted therein is under rule 73 lottery was taken out and in that one mise manjappa had been declared to have been elected and to him a declaration in form no. 37 also had been given. It is urged since mise manjappa has been declared to have been elected it cannot be taken that the 4th respondent is declared to have been elected. What is to be seen is not the endorsement, but the declaration of the result made in form no. 37. That alone governs the matter. If it is mise thimmappa the 4th respondent is declared to have been elected in form no. 37 this endorsement need not be looked at, what is to be seen is the declaration of the result, but that has to be issued in form no. 37. Pursuant thereto it appears manjappa who had contested against the fourth respondent has already filed an election petition no. 2 of 1994 under section 15 of the Karnataka panchayat raj Act, 1993 (for short 'the act 1993') and it is admitted therein that 4th respondent had been declared to have been elected. If he has been declared to have been elected, the question of relying upon the endorsement at annexure-b would not arise at all. It is only in the nature of a redherring and does not call for any close scrutiny. In the circumstances, I do not find much substance in the contention of the petitioner that 4th respondent has not been declared to have been elected as a member of the panchayat.

(3.) the next contention urged is that a writ petition was filed before this court in W.P. no. 7183 of 1994, in which an allegation had been made that one siddappa who was a member of the panchayat had been kidnapped and therefore election could not be held and obtained an interim order on 17-3-1994 to stay the election to the office of the adhyaksha and upadhyaksha of the panchayat until the said siddappa was traced. It is alleged that a telegram was sent on 17-3-1994 to the returning officer and on receipt of the said communication he adjourned the meeting convened for holding the election of the adhyaksha and upadhyaksha of the panchayat. However, subsequently a meeting was convened in the residence of the 4th respondent and in collusion with the returning officer the proceedings were drawn up as at annexure-c. The contention urged on behalf of the petitioner is very serious in nature and these allegations are denied by the 4th respondent in the statement of objections filed by him. When the record of proceedings made by the returning officer are challenged before this court, unless a proper enquiry is held into the matter no inference can be drawn one way or the other and in my view a proceeding under Article 226 is not at All appropriate to investigate such a question. At what time the stay order was received and whether the conduct of the proceedings as disclosed in annexure-c is in order or not could All be thrashed out in an appropriate election petition and not in a proceeding under Article 226. However, the learned counsel for the petitioner contended that under section 45(2) of the Act, 1993 any dispute as to the validity of the election of adhyaksha or upadhyaksha shall be decided by the prescribed judicial officer having jurisdiction over the panchayat area and in the present case there is no prescribed officer at All under the act and the Rules framed under the act no. 20 of 1985 will not come to the aid of the respondents inasmuch as what is saved under section 318 is only acts done under the act or the Rules and not framing of the Rules themselves. Even assuming for a moment, the said Rules are applicable, it is urged that there is no prescribed judicial officer as contemplated under section 45(2) of the Act, 1993. It is also urged that Rules framed under a repealed act cannot be stated to be still in force. Under section 318 in the second proviso(a) it is provided that anything done or any action taken (including... . Rule framed.....) Under the said act shall be deemed to have been done or taken under the corresponding provisions of the act and shall continue to be in force accordingly unless and until superseded by anything done or any action taken under the act. According to the learned counsel for the petitioner it is only the action taken or anything done under the relevant Rules that is saved under the said proviso, but this argument ignores the syntax, and the collocation of the expressions used in the proviso. What is contained therein is anything done or any action taken is saved until the same is altered under the act. In stating what is anything done or any action taken it is made clear that it attributes to several matters including framing of a rule. The language of second proviso to section 318 of the Act, 1993 is akin to section 24 of the mysore General Clauses act, 1899, which provides for continuation of All the Rules framed under the repealed enactment whenever the act is repealed and re-enacted. The normal consequence of the general principle is that a statute after it is repealed is completely wiped out from the statute book as if it had never been enacted, Rules framed thereunder would cease to have effect after the repeal of the statute. But, this result could be avoided by insertion of saving clauses providing to the contrary and that is what has been done in section 318 of the act. If for any reason the language of that provision is not clear or adequate, we can have recourse to section 24 of the mysore General Clauses act, which provides for continuance of the Rules made under the repealed statute insofar as it is not inconsistent with the provisions re-enacted, until superseded by making fresh rules. If second proviso to section 318 is properly read, it is clear that the Rules framed under the repealed act no. 20 of 1985 shall be in force until the same are superseded. When an enactment provides for repealing and a saving clause and in that clause the Rules framed under the earlier enactment are saved and are made applicable to mutatis and mutandis, I do not think that it is open to the petitioner to contend that the Rules made under the repealed act cannot be made applicable to the proceedings arising under the act. Therefore, the contention advanced on behalf of the petitioner has no force.