- 1 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF JANUARY, 2025 PRESENT THE HON'BLE MR JUSTICE KRISHNA S DIXIT AND THE HON'BLE MR JUSTICE G BASAVARAJA WRIT PETITION NO. 3150 OF 2020 (LB-RES) BETWEEN: 1. SMT. SAVITHRAMMA, W/O. RAJAKUMAR, MEMBER OF KALALLUGHATTA GRAMA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 123. 2. SMT. NARASAMMA W/O. DODDAGANGAIAH, AGED ABOUT 41 YEARS, MEMBER OF KALALLUGHATTA GRAMA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE – 562 123. 3. SRI. G K HANUMANTHARAYAPPA, S/O. KEMPAIAH, AGED ABOUT 50 YEARS, MEMBER OF KALALLUGHATTA GRAMA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 123. 4. SMT. SHANTHAMMA W/O. NARAYANAPPA, AGED ABOUT 50 YEARS, MEMBER OF KALALLUGHATTA GRAMA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 123. …PETITIONERS (BY SRI. LAKSHMIKANTH K.,ADVOCATE) R Digitally signed by SHARADA VANI B Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 AND: 1. THE PANCHAYATH DEVELOPMENT OFFICER KALALLUGHATTA GRAMA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 123. 2. THE EXECUTIVE OFFICER TALUK PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE – 562 123. 3. THE CHIEF EXECUTIVE OFFICER ZILLA PANCHAYAT, NELAMANAGALA TALUK, BANGALORE RURAL DISTRICT, BANGALORE - 562 123. 4. THE REGIONAL COMMISSIONER, BANGALORE DIVISION, SHANTHINAGARA, BANGALORE - 560 003. 5. THE STATE OF KARNTAKA, DEPARTMENT OF RURAL DEVELOPMENT AND PANCHAYATH RAJ, M S BUILDING, DR. AMBEDKAR VEEDHI, BANGALORE - 560 001. …RESPONDENTS (BY SRI.M S DEVARAJU.,ADVOCATE FOR R1 – R3; SRI.ADITYA VIKRAM BHAT., AGA FOR R4 & R5; SRI.CHANDRAIAH.,ADVOCATE FOR PROPOSED R6) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER PASSED BY THE R-5 UNDER ORDER No. GRAP/988/GRAPAMAA/2019 BANGALORE, DATED 18.01.2020 AS PER ANNX-H. THIS WRIT PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT and HON'BLE MR JUSTICE G BASAVARAJA - 3 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 ORAL ORDER (PER: HON'BLE MR JUSTICE KRISHNA S DIXIT) Petitioners are knocking at the doors of Writ Court for assailing the order dated 18.01.2020 passed by the 5th Respondent whereby their elected tenure in the 1st Respondent – Grama Panchayath has been cut short. As a legal consequence, they would be disqualified from contesting in the future elections for a specified period. 2. Learned counsel for the Petitioners submits that his clients had offered plausible explanations for their absence in the meetings of the Grama Panchayat; the 5th Respondent being the competent authority, ought to have considered the same and condoned the lapse; instead, the authority proceeded on a wrong interpretation of section 43A(1)(iii) of the Karnataka Grama Swaraj and Panchayath Raj Act, 1993 and thereby declined to consider the explanation; this is unjustifiable. He adds that, there is misdirection in law on the part of said authority and that - 4 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 would constitute an error apparent on the face of the impugned order warranting interference of this Court. 3. Learned Panel Counsel appearing for the Grama Panchayat opposes the Petition contending that the text of Section 43A(1)(iii) of the 1993 Act being as clear as Gangetic Waters, does not admit any interpretation other than literal; the competent authority this is none other than the State Government has rightly passed the impugned order after ascertaining absence of the Petitioners in four consecutive meetings of the Grama Panchayat; even the explanation offered by some of them is not shown to be true and plausible; therefore, this Court should loath to interfere. 4. Learned AGA Mr.Aditya Vikram Bhat appearing for the official respondents maintains equidistance from the parties and in appreciable fairness contends that in matters of removal from membership of elected representatives coupled with disqualification for future elections, literal interpretation may not be applied to the - 5 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 subject statutory provision; there may be circumstances that go beyond the control of elected members which may prevent them from participating in the meetings; in such circumstances removal from membership would be unfair & unreasonable; Section 43A of the Act itself, in so many words provides for an opportunity of hearing to be given to the faulting members and that would become an empty formality if plausible explanation for the absence is held to be legally inadmissible. 5. A learned Single Judge of this Court (Dharwad Bench) in W.P.No.100793/2018 (LB-RES) between SRI. MALLIKARJUNA S/o PARASAPPA BINGER vs. STATE OF KARNATAKA & OTHERS, disposed off on 22.02.2018 at Paragraph No.5 has observed as under: “…By close reading of Section 43 of the Act, it only enumerates that the member can be removed from membership by giving him an opportunity of being heard and after such enquiry, if it is proved that the member fails to attend four consecutive meetings of the Panchayat... Nowhere the said section gives any indication that the reason for absence has to be ascertained before passing an order of removal. When no such indication has been - 6 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 shown in the said section that whether for just reason he has remained absent or not. The only mandate which has been stated in the section is that if he fails to attend four consecutive meetings of the Panchayat, then the necessary order has to be passed as contemplated under the said section. The only mandate is that he should be given an opportunity. When the said section makes its object clear and the words used are clear, court is not having any power to read it by giving different interpretation.” 6. Another learned Single Judge of this court in the petition at hand vide order dated 09.12.2020 disagreed with the view in MALLIKARJUNA supra and having framed the following question directed the Registry to place the papers at the hands of Hon’ble the Chief Justice seeking reference to the Division Bench: “Whether Section 43-A(1)(iii) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993, contemplates disqualification of a member from the membership of the Grama Panchayath, even if reasonable cause is shown by the member for remaining absent for four consecutive meetings…?” Accordingly, Hon’ble the Chief Justice vide order dated 08.11.2021 has referred the matter to this Bench. - 7 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 7. Having heard the learned counsel for the parties and having perused the petition papers, we are inclined to grant indulgence in the matter by answering the reference in the negative, for the following reasons: 7.1 Section 43-A of the 1993 Act came to be introduced by the State Legislature vide Act No.29 of 1997 w.e.f. 20.10.1997. Prior to amendment the said provision had the following text: “43-A. Removal of members for misconduct- The Government if it thinks fit, on the recommendation of the Grama Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary if such member has been guilty of misconduct in the discharge of his duties or of any disgraceful conduct or has become incapable of performing his duties as a member. After amendment its text has undergone significant change. What is relevant to the case at hand is clause (iii) of sub-section (1) of Sec.43-A; the same reads as under: “43-A. Removal of member – (1) The Government (or an Authority authorized by the Government) if it thinks fit, on the recommendation of the Gram Panchayat, or otherwise, may remove any member after giving him an opportunity of being heard and after such enquiry as it deems necessary – - 8 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 (i) …. (ii) …. (iii) has failed to attend four consecutive meetings of the panchayat, and in the case of an Adhyaksha or Upaadhyaksha, failed to convene two consecutive meetings which were either due or were necessary: Provided that where an application is made by a member to the Grama Panchayat for leave to absent himself and Grama Panchayat fails to inform the applicant of its decision on the application within a period of seven days from the date of the application, the leave applied for shall be deemed to have been granted by the Grama Panchayat. …”. 7.2 The enactment of this provision is in the light of accumulated experience of the Law Maker that after being elected, some unscrupulous members of Grama Panchayats choose to remain absent and that would affect the functionality of the local body, to the prejudice of public interest. When the elected members hold the public office, the popular mandate requires that they should participate in the meetings of the local body. That is the underlying principle on which this provision is structured. A perusal of the substantive provision in the light of the Explanation thereto shows the following ingredients: (i) It applies to the sitting members of Gram Panchayats; - 9 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 (ii) they should have remained absent in four consecutive meetings of Panchayat; (iii) such absence is not preceded by sanction or deemed sanction of leave by application to the Panchayat; (iv) the power to remove absenting member is vested in the State Government; and, (v) the absenting member has to be given an opportunity of hearing before he is removed. 8. The view (B.A.Patil. 8. The view (B.A.Patil. J.,) in MALLIKARJUNA supra is: whatever be the explanation that may be offered by the absentee member, invariably he has to be removed from the membership once he is proved to have remained absent in four consecutive meetings of the Panchayat and that there is no discretion to do any other thing. On the other hand, the view of learned Referring Judge (R.Devdas. J.,) is that if plausible explanation is offered for the absence, removal cannot be ordered. We are broadly in agreement with the Referring Judge and reasons for this are not far to seek: 8.1 The very provision namely Sec.43-A (1) of the Act as rightly contended by Mr.Aditya Vikram Bhat - 10 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 provides for ‘an opportunity of being heard’. By making use of that opportunity, the defaulting member can offer plausible explanation for the absence. The reasons for absence can be myriad: The member was confined to bed because of his illness or of his family members; he or his family was hospitalized because of vehicular accident or the like; there was demise in the family or in friend’s/relatives’ family; he was unjustifiably externed or detained by the authorities; he was abducted by the persons interested in his removal from membership; he was otherwise prevented from participating in the meetings. The legislative mandate to give opportunity of hearing is for the purpose of offering explanation for remaining absent. May be that he had applied for and obtained leave or that there was deemed sanctioning of leave in terms of Proviso to the section. 8.2 It is presumed that the law does not compel doing of impossibilities. Therefore a statutory provision fastening a duty is construed as not applying to a case where its performance is or becomes impossible, for reasons not attributable to the person. That is how civilized jurisdictions do. CRAIES ON ‘STATUTE LAW’1 has the following write up: “Under certain circumstances compliance with the provisions of statutes which prescribe how 1 7th Edition, Sweet & Maxwell-1971 page 268 - 11 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 something is to be done will be excused. Thus, in accordance with the maxim of law, Lex non cogit ad impossibilia, if it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God or the King’s enemies, these circumstances will be taken as a valid excuse…”. 8.3 In BROOM’S LEGAL MAXIMS2 it is printed as under: “The law itself and the administration of it, said Sir W.Scott, with reference to an alleged infraction of the revenue laws, must yield to that to which everything must bend, to necessity; the law, in its most positive and peremptory injunctions, is understood to disclaim, as it does in its general aphorisms, all intention of compelling to impossibilities, and the administration of laws must adopt that general exception in the consideration of all particular cases. “In the performance of that duty, it has three points to which its attention must be directed. In the first place, it must see that the nature of the necessity pleaded be such as the law itself would respect, for there may be a necessity which it would not. A necessity created by a man’s own act, with a fair previous knowledge of the consequences that would follow, and under circumstances which he had then a power of controlling, is of that nature. Secondly, that the party who was o placed used all practicable endeavours to surmount, the difficulties which already formed that necessity, and which, on fair trial, he found insurmountable. …”. 2 10th Edition, Sweet & Maxwell, Indian Economy Reprint 2006 at pages 162, 163 - 12 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 MAXWELL ON INTERPRETATION OF STATUTES3 says: “A section may be imperative as regards the voluntary action of parties, but not so where such events happen that its provision cannot be attended to. … Enactments which impose duties on conditions are, when these are not conditions precedent to the exercise of a jurisdiction, subject to the maxim that lex non cogit ad impossibilia aut inutilia. They are understood as dispensing with the performance of what is prescribed when performance of it is idle or impossible. …” 8.4 In R. vs. LEICESTERSHIRE JJ.4, a particular English Statute required the appellant to send notice to the respondent, of his having entered into a recognisance as a sine qua non for allowing the appeal. However, the respondent had died and therefore notice could not be sent. The English Court held that service of notice was dispensed with because of its impossibility on account of death. A great jurist & Chief Judge AHARON BARAK of Israel’s Supreme Court in his PURPOSIVE INTERPRETATION IN LAW5 writes: “…the legislature enacts statutes with the objective purpose of achieving the proper 3 Sweet & Maxwell, 11th Edition, 1966 at pages 372, 373. 4 (1850) 15 QB 88 5 Princeton, First Indian Sub-continent Printing 2023 at pg.361 - 13 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 modes of behavior. Hence the presumption that legislation seeks to achieve reasonable results, logically, avoiding anything that is needlessly contrary to common sense. The purpose of a statute is presumed not to be the performance of a useless activity, not to make unreaslistic demands, and not to mandate something that is impossible, lex non cogit ad impossibilia. …” 9. Learned counsel appearing for the petitioners is right in telling us that the 5th respondent proceeded on a wrong legal premise that whatever be the plausible explanation, once the absence of members in four consecutive meetings of the Panchayat is demonstrated, the invariable consequence should be their removal from membership in terms of Sec.43-A of the Act and therefore this is a classic case of misdirection in law. When the authority assumes that there is no scope in the teeth of statute for entertaining the explanation, howsoever plausible it be, it acts as a machine and not as a reasonable person. Countenancing a contra contention would offend the rules of reason & justice. Courts - 14 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 interpret the statutes as living law of the people and not as a black letter in print, since ours is a constitutionally ordained Welfare State. The very wrong approach of the authority that eventually resulted into the order of removal constitutes a grave error apparent on the face of record and therefore to set the same at naught, the interference of this court is eminently warranted. He is therefore justified in seeking quashment of the impugned order and remand of the matter for consideration afresh in a time bound manner. Merely because the tenure of the petitioners’ membership has come to an end by efflux of time, relief cannot be denied to the petitioners, since removal is stigmatic and may affect their candidature in the ensuing elections. In the above circumstances, this petition is allowed in part; a Writ of Certiorari issues quashing the impugned order of removal; matter is remitted to the portal of Respondent-Government for consideration afresh, keeping open all contentions of the parties. Remand to be decided within an outer limit of three months reckoned from this day. - 15 - NC: 2025:KHC:2760-DB WP No. 3150 of 2020 Before parting with the papers, we place on record our deep appreciation for the able assistance rendered by the learned AGA Mr.Aditya Vikram Bhat and our Research Assistant Mr.Raghunandan K.S. Sd/- (KRISHNA S DIXIT) JUDGE Sd/- (G BASAVARAJA) JUDGE RD/Bsv/Snb List No.: 1 Sl No.: 2