Point of law : intention of the Legislature that the effect of expression "the elected member of the Grama Panchayat cease to be member" as used in Section 8(3) is to state that for the purpose of exercising their duties and functions as such members they cease to have any right or status or not to state that their seats get vacated arid the posts become vacant requiring fresh election.

ORDER :

1. This writ petition is filed under Article 226 of the Constitution of India seeking quashing of the notification dated 08.03.2021 issued by the 2nd respondent/Election Commissioner vide Annexure-A to hold election to the 5th respondent Panchayath.

2. The case of the petitioners is that, the petitioners are elected as the members of Yamanoor Grama Panchayath in the general election held on 04.04.2016. Pursuant to that, the Deputy Commissioner, Dharwad, by Notification dated 17.06.2016 has declared that the petitioners are the duly elected members of the said Grama Panchayath. In fact, the total strength of the Grama Panchayath is 22. The said Grama Panchayath consists of 4 villages namely Yamanoor, Padesur, Kumaragoppa and Arekurahatti. 6 members are required to be elected from Yamanoor constituency, 6 members from Padesuru constituency, 2 members from Kumaragoppa constituency and 8 members from Arekurahatti constituency. The villagers of Aekurahatti village have boycotted the election. No election was held for 8 constituency in Arekurahatti village. The total strength of Yamanoor Grama Panchayath is 22. Out of 22, the elected members are 14. As per the provision of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 (hereinafter referred to as the ‘Act’ for short), to constitute a panchayat, 2/3rd members are required. Since 2/3 members are not elected, Panchayat is not constituted and no meeting is held. Therefore, the Deputy Commissioner has appointed an Administrator. Even though the Election Commissioner has made an effort to hold elections to Arekurahatti village for seven times, the villagers of Arekurahatti have boycotted the election and no election has been held. The term of the petitioners is not completed in spite of that, the impugned notification has been issued to conduct an election to Yamanoor Grama Panchayat. Being aggrieved by the same, the petitioners are before this Court.

3. Sri. J.S. Shetty, learned counsel appearing for the petitioners has contended that the petitioners are duly elected members of 5th respondent Gram Panchayat in the election held on 04.04.2016 and they have been declared as elected members by the Deputy Commissioner by notification dated 17.06.2017. He contended that as per Section 5(7) of the Act, only, if, 2/3rd members of the total number of members of any Grama Panchayat have been elected, the Grama Panchayat can be deemed to be constituted under this Act. Since out of 22 members, only 14 members are elected, it does not constitute 2/3rd members as required and hence, there is no constitution of Grama Panchayat. He further contended that, as per Section 41 of the Act, the term of the Grama Panchayat is for a period of 5 years and as per Section 42 of the Act, the term of the office of the members elected at a general election or at a second election, shall commence on the date appointed for the 1st meeting of the Grama Panchayat. Since Panchayat is not constituted, no meeting is held and their term is not commenced. Since they have not completed 5 years term, the impugned notification issued to conduct election to their constituency is illegal and without authority of law. He further contended that out of 22 members only 14 members have been elected. To constitute a Panchayat, 2/3 of the total members of the Gram Panchayat is required. As 14 members have been elected, 2/3rd requires 14.66. Hence it has to be rounded off to 14 and the respondent could have constituted a Panchayat. He further contended that, as per Section 8 of the Act that, if 2/3rd members is not elected to form a Panchayat, the Deputy Commissioner has the power to appoint an Administrator. In the case on hand, no Administrator has been appointed after the election. The Administrator, who had been appointed before the election, is continued. The same is without authority of law. Therefore, he sought or allowing the writ petition.

4. Per contra, Smt. Vidyavathi, learned Additional Advocate General appearing f