Karnataka High Court
Karnataka State Election Commission vs Vinod & Ors on 9 August, 2018
Bench: L.Narayana Swamy, K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 09th DAY OF AUGUST 2018
PRESENT
THE HON'BLE MR.JUSTICE L.NARAYANA SWAMY
AND
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
WRIT APPEAL NO.200586/2018 &
WRIT APPEAL Nos.200587-200601/2018
BETWEEN
Karnataka State Election Commission,
Represented by its Commissioner,
KSCMF Building, 1st Floor,
No.8, Cunningham Road,
Bangalore - 560 052.
...Appellant
(By Sriyuths P.S.Malipatil and K.H.Phanindra, Advocates)
AND
1. Sri Vinod S/o Motichand Rathod,
Aged about 32 years, Occ. TMC Member,
R/o Madbad Tanda, Tq. Afzalpur,
Kalaburagi District - 585 301.
2. Smt.Kanyakumari W/o Laxmiputra Rampur,
Age about 32 years, Occ. TMC Member,
R/o 1-3-27, Bus Stand Road,
Near Sidrameshwar Temple,
Indra Nagar, Banhatti,
Hinchgera, Kalaburagi - 585 301.
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3. Sri Premanath S/o Shivaji Ambure,
Aged about 43 years, Occ:. TMC Member,
R/o H.No.7/14, Main Road,
Post Office, Ambure Galli,
Afzalpur, Kalaburagi - 585 301.
4. Sri Sidramappa Ganachari S/o Shivashankar,
Aged about 55 years, Occ. TMC Member,
R/o Ward No.10, Afzalpur,
Kalaburagi District 585 301.
5. Sri Shivakumar S/o Sidram Padki,
Aged about 42 years, Occ. TMC Member,
R/o Ward No.17, Afzalpur,
Kalaburagi District - 585 301.
6. Sri Basavaraj S/o Annappa Wali,
Aged about 60 years, Occ. TMC Member,
R/o 1-23 Main Road,
Behind Siddeshwar Temple,
Afzalpur, Kalaburagi - 585 301.
7. Sri Laxmiputra S/o Shantappa Manami,
Aged about 48 years, Occ. TMC Member,
R/o H.No.5/66, Hanuman Temple Road,
Near Upendra Patil Hospital, Afzalpur,
Kalaburagi 585 301.
8. Sri Nagappa Arekar S/o Bhimasha,
Aged about 55 years,
Occ. TMC Member,
R/o Ward No.06 Jai Bheem Nagar,
Afzalpur, Kalaburagi - 585 301.
9. Smt.Mahadevi W/o Prakash Yankanchi,
Aged about 34 years, Occ. TMC Member,
R/o # 3-9-106, Afzalpur,
Kalaburagi District - 585 301.
10.Sri Hanamant S/o Balappa Waddar,
Aged about 37 years, Occ:. TMC Member,
R/o G.No.4-5-55, Ghattarga Road,
Near Basaveshwar Chouk,
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Waddar Galli, Afzalpur,
Kalaburagi District - 585 301.
11.Sri Rehamat Afzal S/o Srawar Afzal Jagirdar,
Aged about 37 years, Occ. TMC Member,
R/o 21 Mahal Road, Near Makka Majeed,
Afzal Khan Chowk, Afzalpur,
Kalaburagi District - 585 301.
12.Smt.Allamma Be W/o Meheboob Sab,
Aged about 54 years, Occ. TMC Member,
R/o Revorkar, 93, Ghttarga Road,
Near Jameya Majeed, Hiche Galli,
Afzalpur, Kalaburagi District - 585 301.
13.Smt.Parvati W/o Basavaraja Myalesi,
Aged about 38 years, Occ:. TMC Member
R/o 7/12/1, Mallikarjun Temple Road,
Near Mallikarjun Temple, Mallikarjun Chouk,
Afzalpur, Kalaburagi - 585 301.
14.Sri Sallauddin Pasha,
Aged about 45 years,
Occ:. TMC Member,
R/o Afzalpur,
Kalaburagi District - 585 301,
Kalaburagi.
15.Smt Mangala W/o Ashoka Sangalgi,
Aged about 45 years, Occ:. TMC Member,
R/o Afzalpur, Kalaburagi District - 585 301.
Kalaburagi.
16.Sri Sharanappa S/o Siddappa Guddadagi,
Aged about 50 years, Occ:. TMC Member,
R/o Afzalpur, Kalaburagi District - 585 301.
17.The State of Karnataka,
Represented by its Principal Secretary,
Urban Department, Vikasa Soudha,
Bangalore - 560 001.
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18.The Deputy Commissioner,
Kalaburagi - 585101.
Kalaburagi.
...Respondents
(By Sri Gourish S.Kashampur, Advocate for R1 to R16;
Sri K.M.Ghate, learned AGA for R17 and R18)
These Writ Appeals are filed under Section 4 of the
Karnataka High Court Act, praying to allow the above writ
appeals and set aside the interim order dated 08.08.2018
passed by the learned Single Judge in W.P.Nos.202442-
202446/2018 and W.P.Nos.202448-202458/2018.
These appeals coming on for orders this day,
NARAYANA SWAMY J., delivered the following:
JUDGMENT
State Election Commissioner, Karnataka by notification dated 02.08.2018 issued calendar of events to hold the elections to the 105 Municipalities in the State. This notification is the subject matter in the writ petition with a prayer to issue a writ of certiorari quashing the impugned notification bearing No.gÁZÀÄD.30.EAiÀÄÄ©.2018, ¨ÉAUÀ¼ÀÆÄgÀÄ, ¢£ÁAPÀ 02.08.2018 vide Annexure-C pertaining to the election to Afzalpur Town Municipal Council, Kalaburagi District. The grounds taken by the petitioners -5- are that they are the sitting members of the Afzalpur Town Panchayat and their term would be over by March 2019. Since the term of the office is not yet over, the Notification issued by the State Election Commission for all the 105 Municipal Councils is in contravention at Article 243 of the Constitution of India and also Section 18(1) of the Karnataka Municipalities Act, 1964.
2. The petitioners sought interim prayer to stay the further proceedings pursuant to the impugned notification dated 02.08.2018 pertaining to the election to the Town Municipal Council, Afzalpur.
3. It is the case of the petitioners that as per the Article 243(U) of the Constitution, till the term of the office is completed, there could not be any notification issued. Accordingly, the Notification dated 02.08.2018 is contrary to the said provision.
4. The learned Single Judge has passed the interim order which reads thus :-
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"The learned Additional Government Advocate takes notice for respondent Nos.1 and 2.
Learned counsel Sri.P.S.Malipatil take notice for respondent No.3.
List these matters on 14.08.2018.
In the meanwhile, 3rd respondent shall not commence the process of receiving nominations to those of the Town Municipal Councils whose terms would expire in March, 2019 which includes the Town Municipal of Afzalpur to which the petitioner herein belong.
A copy of this order is furnished to learned Additional Government Advocate to be communicated to the 1st and 2nd respondents.
The learned counsel for the 3rd respondent shall communicate this order to the 3rd respondent to ensure that the process for election is not commenced, pursuant to the order passed as above."
5. This intra Court appeal has been preferred by the Karnataka State Election Commission with a prayer to set-aside the interim order dated 08.08.2018 passed by -7- the learned Single Judge. The learned counsel for the petitioner moved a memo in the morning hours to take up the matter at the end of the list. Accordingly, his memo is taken on record and matter is listed for hearing on interlocutory application.
6. Learned counsel for the appellant submits that the interim order sought by the petitioners is to stay the operation of impugned order dated 08.08.2018 only in respect of Town Municipal Council, Afzalpur, whereas the learned Single Judge has granted blanket order in respect of the whole State. In view of the said interim order the Election Commissioner is not in a position to process and act upon the calendar of events issued by the State Election Commission. It is submitted that, in fact, the process of the election commences from tomorrow i.e., 10.08.2018 and process of party has already commenced as per the calendar of events issued by the Chief Election Commissioner. Under these circumstances, Article 243ZG of the Constitution of India, bars interference by the -8- Courts in electoral matters. When calendar of events has been issued by virtue of the said provision, it is not for the High Court to interfere with the same. In view of the said provision of the Constitution of India, an interim order if granted staying the operation of calendar event it would be contrary to Article 243ZG of the Constitution of India.
7. The learned counsel also referred the judgment of the Hon'ble Supreme Court in the case of N.P.PONNUSWAMI v. THE RETURNING OFFICER, NAMAKKAL CONSTITUENCY, NAMAKKAL, SALE DIST. AND OTHERS reported in AIR (39) 1952 Supreme Court 64; and also another judgment of Hon'ble Supreme Court in the case of STATE OF U.P. AND OTHERS v. PRADHAN SANGH KSHETTRA SAMITI AND OTHERS reported in 1995 SUPP (2) SCC 305 and submitted that the Hon'ble Court clarified the fact that when the calendar of events have been issued, the High Court shall not interfere in the process of election.
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8. The learned counsel for the respondents has relied on Article 243(U) of the Constitution of India and submitted that as regards the Afzalpur Town Municipality is concerned, the petitioners who are Members of the said Town Panchayat, got elected in the year 2011 and their term would be over by March 2019 and the issuance of interim order dated 08.08.2018 is in contravention of Article 243U of the Constitution and it is further submitted that the elected members got right to continue in the office till expiry of the term. Secondly, the learned counsel referred to Section 18(1-A) of the Karnataka Municipalities Act, 1964 and submitted that the councils elected by general elections, shall deem to continue in office till the completion of the term.
9. It is submitted that the learned counsel for the appellant has filed interlocutory application for vacating the interim order dated 08.08.2018 granted by the learned Single Judge. When that being the case, it would be appropriate for the parties to wait till consideration of -10- interlocutory application vacating the interim order made by the learned Single Judge.
10. We have heard the learned counsel for the parties.
11. The very prayer made by the appellant is in respect of election to Afzalpur Town Municipal Council and when that being the case granting of the interim order to the whole State is unwarranted and is contrary to the provisions of law.
12. Secondly, as submitted by the learned counsel for the respondent in respect of Article 243U of the Constitution of India, that cannot be pressed into service in view of the fact that the Town Panchayath is upgraded as Town Municipal Council, automatically Town Panchayat has been dissolved. Though the term is not academic for the present purpose, since we are dealing with the interim order granted by the learned Single Judge, it is pertinent to refer Article 243ZG of the Constitution, makes bar for interference by the Courts in electoral matters. It further -11- contended that it used the words "notwithstanding anything in this constitution, no election to any municipal shall be called in question except by an election petition presented to such authority". A plain understanding of the said provision would clarify that the petitioners, in case, if they are aggrieved by the notifications, viz. the issuance of calendar of events, the only remedy open for them would be to file election petition and not by filing the writ petition under Article 226 of the Constitution of India.
13. Under these circumstances for more than one reason, namely that prayer made is only in respect of Town Municipal Council, Afzalpur, but the interim order is granted to the State as whole; and secondly, there is expressed bar under the Constitution of India to grant or to interfere by passing any order when the calendar of events are issued, it is not appropriate for the High Court to interfere. Under these circumstances, we pass the following :
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ORDER Interim order dated 08.08.2018 granted by the learned Single Judge stands modified.
The appellant is permitted to proceed in accordance with law as per the calendar of events dated 02.08.2018 and it is made clear that it is for the petitioners to respond to the calendar of events.
With these observations the writ appeals stand disposed of.
Sd/-
JUDGE Sd/-
JUDGE sn