Subsisting Contract With Panchayat Necessary For Disqualification Of Member U/S 12(h) Of Gram Swaraj & Panchayat Act: Karnataka High Court

The Karnataka High Court has held that it is only a subsisting contract with the Panchayat that could lead to a disqualification of a member under Section 12 (h) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 and not the previous work done by the member.

A single judge bench of Justice S Sunil Dutt Yadav while dismissing the petition filed by B T Kumar challenging the election of B N Kumar as member of the Beeruhalli Gram Panchayat upheld the order of the Election Tribunal which had rejected the election petition.

It said “The Tribunal has held that the tense used in Section 12(h) is 'present continuous' and accordingly, has held that there must be an existing contract to act as a disqualification and such interpretation does not call for interference.”

The petitioner contended that respondent No.1 was not qualified to be chosen as a member in terms of Section 12(h) of the Act which provides for disqualification in the event the member has directly or indirectly any share or interest in any work done by the Gram Panchayat.

The respondent opposed the plea submitting that the objective of the provision is to take care of the mischief of conflict of interest and if that were to be so, it is only a subsisting contract that could operate as a disqualification. Moreover, if the literal interpretation is adopted as contended by the petitioners, a member who has done any work at any point of time, would stand disqualified resulting in an absurd consequence, which ought to be avoided.

Section 12 (h) reads thus: Disqualification for members.- A person shall be disqualified for being chosen and for being a member of a Grama Panchayat or while holding any office of Panchayatxxx (h) if, save as hereinafter provided he has directly or indirectly any share or interest in any work done by order of the Grama Panchayat, or in any contract or employment with, or under, or by, or on behalf of, the Grama Panchayat or if he is either directly or indirectly by himself or by his agent, partner or employee involved in obtaining or execution of any such work or contract on behalf of the Grama Panchayat or of any contract for the supply of goods and services to the Grama Panchayat.

The court said, “The literal interpretation, if adopted, would lead to disqualification of any member who has share or interest in any work done by order of the Gram Panchayat. If that were to be so, if any member has done any work for the Gram Panchayat at any point of time, he would incur a disqualification.”

It added “The mischief sought to be avoided is to prevent the members having conflict of interest with the affairs of Gram Panchayat from being elected.”

Referring to Section 9A of the Representation of Peoples Act, it said that though the wordings of the said provision makes a subsisting contract, a pre-condition for invoking disqualification which is contradistinction to the plain words of Section 12(h) of the Act, however, the objective of disqualification both under Section 9A of the R.P. Act and Section 12(h) of the Act can be stated to be similar.

Noting that If 'conflict of interest' is the mischief sought to be avoided and the language of the statutory provision which seeks to prevent such mischief is ambiguous, the Court said it can take recourse to the 'Mischief Rule' and the 'purposive rule of interpretation'.

It said “It is the settled position that an enactment has to be interpreted so as to advance the purpose rather than defeat the purpose of the Act.”

Then it held "The interpretation placed by the petitioner is liable to be rejected, as the consequence of debarring all Members who at a previous point of time had rendered work to the Gram Panchayat is not the intention of provision for disqualification under Section 12(h) of the Act. If the plain language is sought to be applied, then the consequence would be of debarring any member who has performed any work under a contract to the Gram Panchayat, which would have the effect of debarring persons who have no present conflict of interest with the Gram Panchayat to which they have been elected as a member."

Thus it said that accordingly, the plain language cannot be given effect to and recourse to the 'Golden Rule' can be had so as to ensure that the unintended and absurd consequences of applying the plain language could be avoided.

Court added that all the above three principles of 'Heyden/Mischief Rule', 'Purposive Interpretation' and the 'Golden Rule' are required to be applied together where it is found that the plain language does not suppress the mischief sought to be avoided, leads to an unintended and absurd consequence and does not further the intention and suppress the mischief.

Following this it upheld the Election Tribunal order and dismissed the petition.

Appearance: Senior Advocate R.S Ravi for Advocate Akarsh Kumar Gowda for Petitioner.

Senior Advocate Dhyan Chinnappa for Advocate S B Mathapathi for R1.

Advocate M S Devaraju for R2 TO R4.

HCGP Saritha Kulkarni for R5.

Citation No: 2024 LiveLaw (Kar) 216

Case Title: B T Kumar AND B N Kumar & Others

Case No: WRIT PETITION NO. 21526 OF 2022

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